April 1998 Defender News

NYSDA has named Leonard Noisette as its representative to the New York State Association of Criminal Defense Lawyer's Board of Directors. Noisette is the Director of the Neighborhood Defender Service of Harlem and a member of NYSDA's own board. David Steinberg, Chief Assistant Public Defender in Dutchess County, previously held the NYSACDL seat, which he vacated when elected Vice President of that organization. He continues on the NYSDA board.

Leaving unchanged the base rate of $1.375 per page that court reporters may charge for regular, unexpedited court transcripts, the rules relating to transcripts have been amended by capping the cost of expedited transcripts (which must be prepared within 7 days) at $4.40 per page, and daily transcripts at $5.50 per page. The amended rules also require that a written agreement between reporters and the requesting party or person be prepared on a prescribed form and filed with the appropriate Administrative Judge, except where the Unified Court System is responsible for payment. The amendments modify the Rules of the Chief Administrator of the Courts, Part 108. 22 NYCRR 108.1 et seq. A copy is available from the Backup Center.

A press release announcing the amendment, which was effective on February 1, 1998, noted that the bar should be on notice that they are entitled to have unexpedited transcripts produced at the $1.375 rate with "all reasonable diligence." The statute governing court reporters (CPLR 8002) provides that stenographers are entitled to the rate set by court rule "unless otherwise agreed." An Albany court reporter told the press that the court rule amendments would cut into salaries and act as a disincentive to prompt production of transcripts. (Times Union 1/14/98.) The New York State Bar Association sought regulation of private transcript rates last year, while the New York State Court Reporters Association protested that the court rule rate was one of the lowest in the country. (New York Law Journal 9/16/97.)

It is a basic premise of NYSDA's work that public defense advocates need to understand the poverty and ramifications of poverty that are central to their clients' lives. The curriculum of the annual Defender Institute Basic Trial Skills Training Program [see pg. 7] stresses the development of such understanding. The following news reports provide some examples of poverty issues being intertwined with criminal cases.

Poverty agencies may impede collection of needed evidence in a criminal case, as Patrick Truick learned when his wife charged him with violating a protective order. He said that she did so to get back at him for having reported her illegal receipt of welfare assistance. The Department of Social Services (DSS) objected to Truick's efforts to prove his allegations through DSS records showing that his wife failed to report the child support he paid her in 1996. Federal as well as state statutory confidentiality constraints on disclosure were argued against Truick's position. Brooklyn Supreme Court Justice John M. Leventhal ruled that while DSS records were generally confidential, fundamental fairness required an in camera inspection of such records where they might help prove an accused person's innocence. Since a defendant may always show evidence of motive to fabricate, bias, or hostility, the records were potentially relevant in Truick's case. (New York Law Journal 1/26/98, 1/27/98.) Robert J. Boyle, who was Truick's attorney at the time of the ruling, said that it was not appealed.

Not only can family records kept by a poverty agency potentially affect a criminal defendant's case, but a defendant's conviction may be used by certain agencies to directly affect the defendant's family. While defense lawyers represent individual defendants, not families, potential family consequences may warrant consideration when counseling a client about possible effects of a conviction. An unusual, public reminder that family eviction may be a consequence of an indigent client's conviction was seen in a recent news item. Reports of Youji Zheng's arrest on misdemeanor animal cruelty charges for allegedly releasing his 43 pet guinea pigs in Central Park pointed out that Zheng and his family were scheduled to be evicted from public housing in Manhattan because a younger brother had been convicted of drug charges. (Times Union 3/27/98.)

Of all the governmental rules and bureaucracies that can impact on the poor clients of public defense teams, those most directly affecting defendants—and their lawyers—can be the rules governing provision of counsel. Client-centered representation may lead to challenges to those rules.

Appointed to represent Salahudin Webb on robbery, abduction, and murder charges, Steven D. Webb of Benjamin & DesPortes, P.C. in Richmond, Virginia, carefully evaluated his client's response to a routine question on a competency evaluation—how did Webb feel about his lawyer? The answer was that while Webb thought Benjamin was a fine lawyer and a good person, he had concerns about the fact that there was obviously "nothing in it for him [Benjamin]." Rather than ignore what might be perceived as a standard answer by a client unable to select and hire a private attorney, Benjamin examined Webb's response in the light of the state's unwaivable limit on fees for appointed counsel and found a constitutional issue.

Virginia caps fees for felonies with potential sentences of over 20 years at $575 per charge; less serious crimes are capped even lower. For Webb's charges, Benjamin could be paid for up to 56 hours for out of court work at $45 per hour (in-court fees are $60) for a total of $2,520. Before the bench trial was to begin, Benjamin had spent more than 86 hours in preparation, plus 4.8 hours in court. On January 5, he moved to dismiss the charges, saying that his client objected to representation by counsel who had an unavoidable conflict of interest due to the financial disincentive of the fee structure. Virginia's failure to provide adequate compensation, Benjamin's pleadings on Webb's behalf stated, violated the 6th and 14th Amendments as well as the Virginia constitution.

The court did hear evidence before denying the motion to dismiss. An appeal is pending. In the meantime, Benjamin has been removed from other cases after refusing to say he would not raise the conflict issue there. ("Felony murder: soup to nuts—$575," BNA Criminal Practice Report Vol. 12, No. 2, 1/28/98.) A recent report that the Virginia Supreme Court has included in its budget request a raise in the cap for serious felonies (to $809) did not say if Benjamin's defense work played any part in that development. (Criminal Justice [publication of the ABA Criminal Justice Section] Spring, 1998.)

A different sort of conflict between an attorney and potential indigent clients was recently addressed by a Rhode Island bar ethics committee. An attorney proposed to offer services at no cost to a pro se appellee for the sole purpose of gaining the experience necessary to be placed on an appointment list for handling criminal appeals. The ethics panel found that this would constitute improper solicitation for pecuniary gain in the form of future employment. (ABA/BNA Lawyer's Manual on Professional Conduct, Vol. 14, No. 5, 4/1/98)

Well-known New York DNA expert Barry Scheck of the Cardozo Law School and California (Mendocino County) Public Defender Jeffrey Thoma are among the members of a commission created by the National Institute of Justice (NIJ) to consider DNA developments affecting the criminal justice system. According to NIJ Director Jeremy Travis, the National Commission on the Future of DNA Evidence grew from a phone call by Attorney General Janet Reno following a news report of a defendant exonerated by DNA evidence after 11 years of incarceration. The 22-member commission, which met on March 18, includes judges, laboratory and law enforcement personnel, geneticists, law and science professors, victims' assistants, prosecutors, Baltimore Mayor Kurt Schmoke, and the defense attorneys named above. Five working groups made up of commissioners and other experts will examine the areas of Research and Technology Development, Crime Scene Investigation, Legal Issues, Lab Funding, and Post-Conviction Issues.

The commission expects to meet four times a year or more, with more frequent meetings for the working groups. Notice of the meetings, which are open to the public, will be published in the Federal Register. More information on the commission is currently available at NIJ's web site: http://www.ojp.usdoj.gov/nij (62 CrL 1536, 3/25/98)

FBI Program Manager Steve Niezgoda spoke to the commissioners about the FBI's creation of the National DNA Index System and efforts to collect DNA information into a national database pursuant to the 1994 Violent Crime Control and Law Enforcement Act. The system covers the following groups of people: convicted offenders where applicable law permits; missing persons and their close biological relatives; crime victims where the perpetrator may have carried victim DNA away from the scene; and DNA personnel in criminal justice agencies.

Questions have been raised over the last year about the FBI's ability or willingness to properly analyze DNA samples submitted to it. The National Association of Criminal Defense Lawyers (NACDL) has asserted that incompetence and bias taint the DNA unit of the FBI's forensic laboratory. (62 CrL 1215, 12/3/97). These allegations followed a much-publicized report of inadequacies in many areas of the FBI lab (see Backup Center REPORT, Vol. XII, Nos. 2 and 4). Controversy about the lab continues; NACDL has received under the federal Freedom of Information Act over 75% of an expected 50,000 pages of documents relating to a Department of Justice inquiry into the lab, but expects to litigate the extensive redactions contained in the released material. (The Champion, April 1998). Meanwhile, the FBI is asserting that its lab personnel can now give direct opinions identifying a particular person as the source of evidentiary DNA where a certain statistical probability is reached by lab testing. Previously, lab results were reported only statistically, by giving "the actual probabilities associated with selecting an unrelated individual at random from the specific populations." The new FBI policy touts DNA evidence as "molecular fingerprints." ("The FBI's new DNA policy: what does it all mean?" BNA Criminal Practice Report Vol. 11, No. 26, 12/17/97.)

According to the Criminal Law Reporter, Niezgoda told the new DNA commission that the number of samples actually collected by the 48 states that have enacted DNA collection statutes has fallen short of what was authorized. He expressed hope that the commission would seek to improve state collection statutes.

New York enacted a statute in 1994 establishing a commission on forensic science, including a DNA subcommittee, whose duties include promulgation of a policy for establishing and operating a DNA identification index and exchanging records with the FBI. (Exec Law 995-a [9] [ix]). The commissioner of criminal justice services was authorized to promulgate a plan for a computerized state DNA identification index within DCJS. (Exec Law 995-c).

The Criminal Law Reporter also noted that Niezgoda urged the DNA commission to help find better, cheaper ways of processing DNA evidence, and to standardize tests by limiting acceptable methods to RFLP (Restriction Fragment Length Polymorphism) and PCR (Polymerase Chain Reaction). These may be conflicting wishes. In a pamphlet published only three and a half years ago, George Barber of the Albany County District Attorney's Office and Mira Gur-Arie of the Cardozo School of Law Criminal Law Clinic noted that RFLP is less reliable than newer technologies still under development, such as Mitochondrial DNA Sequencing. (New York's DNA Data Bank and Commission on Forensic Science, Matthew Bender 1994; see also Backup Center REPORT, Vol. XI, No. 10).

Furthermore, there are multiple "typing systems" within RFLP, which was the earliest form of forensic DNA testing, and several PCR-based procedures at least under development. Such a variety of methods makes the likelihood and wisdom of standardization in the near future questionable.

Attorneys trying to learn what RFLP, PCR and other scientific or statistical phrases mean to their clients, or to keep pace with DNA developments affecting criminal defense work, are being inundated with information. Courts across the country are grappling with technical scientific and statistical DNA issues. In the last 8 months, for example, there have been cases: from New Jersey on the "dot-intensity" analysis of mixed blood samples (61 CrL 1478, 8/27/97), from Massachusetts on PCR testing and on the so-called "interim ceiling principle" in the calculation of probabilities (61 CrL1563, 9/24/97), from Nebraska on the "product rule" for determining probability (62 CrL 1254, 112/17/97), from Alabama on the admissibility of DNA evidence under Daubert, supra (62 CrL 1403, 2/11/98), and from Arizona approving PCR-based techniques for analysis (63 CrL 5, 4/1/98). Legislatures are also acting on DNA issues. It was 1994 Alabama legislation that led to the court ruling that Daubert rather than a Frye-plus test would be used for DNA, and a Tennessee statute that was the basis for a ruling that the PCR method of DNA analysis is admissible in that state. (62 CrL 1212, 12/3/97.)

Chapters on DNA are included in many multi-volume works such as West Group's Modern Scientific Evidence (author/editors David L. Faigman, D.H. Kaye, Michael J Saks and Joseph Sanders) and Psychological and Scientific Evidence in Criminal Trials, (Jane Campbell Moriarty) and Matthew Bender's Forensic Sciences (Cyril H. Wecht, gen ed).