Representing juveniles charged with murder, handling mental health and immigration issues in a criminal case, advanced trial advocacy strategies, as well as updates on case law and criminal justice legislation, form the schedule for NYSDA's 30th Annual Meeting, July 17-20 at the Renaissance Westchester Hotel in White Plains. A statewide Chief Defender Convening will bring public defense lawyers together to discuss mutual problems and tactics. A Defender Reception hosted by Stephen Pittari and the Westchester Legal Aid Society will provide a more informal opportunity for mingling as NYSDA marks three decades of working for providers of public defense and their clients. Reunions of Defender Institute Basic Skills Program Graduates and the NYC Legal Aid Society 1973 Training Class, along with a dramatic reenactment of Clarence Darrow's 1909 speech to inmates at the Cook County jail by actor-director-trial consultant Joe Guastaferro and a performance by singer/songwriter Patricia Shih [see box p. 3] will add to the festivities. For more information, call NYSDA (518)465-3524.
The state of New York is still without a budget for the 97-98 Fiscal Year, and political observers are doubtful that any budget action is imminent. (See e.g. The Legislative Gazette, 4/7/97.) Despite the impasse, the NYSDA Backup Center has so far been able to continue providing services to those in public defense. NYSDA, along with other defense services such as the Indigent Parolee Representation Program, Prisoners' Legal Services of New York, and the Neighborhood Defender Services of Harlem, were eliminated from the Governor's 1997 budget, and Aid to Defense was severely cut. (Backup Center REPORT, January 1997)
A challenge by the Capital Defender Office (CDO) to the use of a limited pool of judges who can preside over death-penalty cases has been rejected by Supreme Court Justice Arthur J. Cooperman. The CDO, which is objecting in several counties to the system established by the Office of Court Administration (OCA), specifically targeted the Queens process of rotating the six designated justices alphabetically. Justice Cooperman found that the CDO had failed to show that the alphabetical process, being much more predictable than selection from a wheel, would allow "prosecutorial judge-picking or an excess of discretionary power." He noted the OCA's position that when the nature of litigation requires, the OCA has the authority to set aside in criminal cases the general requirement for random judicial assignment set out in 22 NYCRR 200.11.
Even in the boroughs where assignment is generally through the wheel, exceptions exist which the CDO is challenging. In Brooklyn, if a preindictment motion is made in a capital case, the case then remains with the judge who hears the motion. The designated capital judges are rotated monthly for hearing such motions.
A CDO discovery request focusing on the OCA's assertion that the designated capital judges were selected on the basis of experience in complex criminal cases was also denied in the Queens case. The defendant is George Davis Bell, accused of killing a police officer. (New York Law Journal, 5/14/97)
"Reading Sections 160.50 and 160.55 of the Criminal Procedure Law is enough to give one a headache." So begins a recent article intended to assist Town Justices with cases in which defendants are entitled to have their records sealed following acquittal or dismissal. The article walks readers through the process by which fingerprints (and sometimes mug shots) taken at arrest are forwarded to the Department of Criminal Justice Services, where the fingerprints are available via computer to federal and other state law enforcement officials. Then the process by which the Clerk of the Court is to notify DCJS of terminations in favor of defendants, so that the arrest records can be sealed and the photographs and fingerprints returned, is set out. Situations in which sealing may not occur despite termination in favor of defendants, such as in People v White, 169 Misc 2nd 89 (Supreme Ct, Bronx Co, 1996), are also discussed. The article is not error-free (at least one citation error has been noted). However, defense lawyers encountering resistance in a Justice Court to sealing of a client's record after a victory-or lawyers needing a refresher on the procedure themselves-may find it a helpful summary. ("Justice Court Topics: Sealing Court Records," Talk of the Towns [Association of Towns of the State of New York], March/April 1997.) A copy of the article is available from the Backup Center.
A survey regarding sex offender community notification has revealed that "Doing notification is a serious burden on the time of most agencies with the result that other work gets short shrift." The survey turned up no empirical evidence that the burdensome notification laws have increased public safety: "The one available empirical study found no impact on recidivism." The research was conducted by Peter Finn of Abt Associates Inc. for the National Institute of Justice. The 19-page report acknowledges sex offender registration/notification laws in 32 states, and focuses on eight (New York is not included). Thirteen criminal justice practitioners were interviewed by telephone on a range of issues, including who does the community notification, how it is done, whether and how specialists are used in notification programs, and perceived positive and negative aspects of notification programs. Other research is referenced. "Sex Offender Community Notification", NCJ 162364, is available from the National Criminal Justice Reference Service, Box 6000, Rockville MD 20849-6000. (800)851-3420. Online: www.ncjrs.org (under the "Corrections" section).
The premier issue of Indigent Defense, a new publication by the National Legal Aid and Defender Association, leads with a cite-rich article for overwhelmed public defense lawyers: "Underfunded and Unconstitutional: Litigating Pretrial and Pre-appeal Ineffective Assistance of Counsel Claims." An article on "Making Practical Use of NLADA's Performance Guidelines for Criminal Defense Representation" has tips for trial attorneys, defender trainers, and managers and supervisors on how the guidelines can help in their work. Supplements containing NLADA's new Defender Training and Development Standards and the Final Report of the Blue Ribbon Advisory Committee On Indigent Defense Services add to the value of the first issue, which was supported by a grant from the US Bureau of Justice Assistance. Indigent Defense will be published six times a year. For subscription information, contact: NLADA Indigent Defense, 1625 K Street NW, Suite 800, Washington DC 20006. (tel) (202) 452-0620; (fax) (202)872-1031.
The New York State Defenders Association has received a generous donation of award-winning Eudora Pro Mail for Windows version 3.0 software from QUALCOMM Incorporated of San Diego, California. This new product was designed to implement advanced e-mail on the Internet and has won numerous awards, including c-net's Best Internet Product of the Year and PCWeekLabs Analyst's Choice as well as numerous awards for the Macintosh platform version. The Association and those it serves will benefit greatly from the program, which provides the ability to automatically direct and sort incoming messages to the relevant recipient, send and receive mail from multiple accounts, customize Address Books and workspace for easy Mailbox management, drag and drop files, selectively fetch or delete messages or fetch headers alone from the server, check spelling, and obtain return receipt. These features are not available in the freeware version (downloadable from www.eudora.com).
The value of this gift in dollars is approximately $1,500 but the value to NYSDA, its members, and others seeking direct services may be incalculable as info@nysda.org will now be able to provide more efficient responses to requests originating from the Internet. As more and more people move to the 'Net's e-mail environment, NYSDA will continue to thank QUALCOMM Incorporated for their generosity and commitment to improving public defense services.
The 2nd Circuit held in February that a state prisoner was entitled to "a reasonable time" to file a habeas corpus petition after the effective date of the Antiterrorism and Effective Death Penalty Act, which instituted new filing deadlines (see, e.g., January Backup Center REPORT). Peterson v Demskie, 107 F3d 92 (1997). The Attorney General is now arguing in at least one case that Peterson should bar a petition filed eight months and ten days after the act became effective, although her conviction had become final less than two years prior to filing. Meanwhile, the 9th Circuit has applied "equitable tolling" principles to uphold a grant of additional time (to October 13, 1997) for a California prisoner to file (after lead appointed counsel withdrew to take a different job); as a threshold matter, that court found the one-year period did not begin to run in any case before the effective date of the act (April 24, 1996). Calderon v US Dist Ct for the Cent Dist of Calif (Beeler), No. 97-70277; 61 Crl 1106 (4/17/97).
On another habeas front, a California prisoner facing the death penalty may be able to obtain funds under 21 USC 848(q)(9) to investigate unexhausted state claims (April 1997 Backup Center REPORT). But a Pennsylvania inmate may not fare so well. Wilson v Horn, No. 96-7838, E Dist Penn; 61 CrL 1068 (3/24/97).
MaryAnne Bukolt, a Plattsburgh defense lawyer, successfully defended her client, Francis Burdo, on murder charges in both the trial court and the Appellate Division, Third Department on a motion to suppress Burdo's written confession. Burdo was being held as a pre-trial detainee at the Clinton County jail in December, 1994 on rape and assault charges, when he was questioned by three police officers in connection with an unrelated murder investigation. The police knew that Bukolt represented Burdo on the pending charges, but nevertheless interrogated him without his attorney present.
Bukolt moved to suppress the written confession as taken in violation of People v. Rogers, 48 N.Y.2d 167 (1979). The trial court held that because Burdo was known to be represented by counsel on the charges for which he was held in custody, the Rogers rule prohibited the police from interrogating him on any matter in counsel's absence. Joining forces with the prosecution on appeal, the New York State District Attorney's Association and the Attorney General's office filed a joint amicus brief, which argued that Rogers can no longer be understood as prohibiting the interrogation of pre-trial detainees on matters unrelated to their pending charges. However, the Third Department unanimously affirmed the suppression order. People v. Burdo, 649 N.Y.S.2d 949 (3d Dept. 1996).
Judge Bellacosa granted the prosecution leave to appeal. NYSDA has now moved for permission to file an amicus brief in support of Burdo in the Court of Appeals. A copy of NYSDA's proposed brief in the case is available from the Backup Center.
The firm of Gerald Lefcourt, P.C. has been disqualified from representing former transit police union attorney James J. Lysaght in a federal bribery and racketeering case. The firm had represented two codefendants during preindictment investigation (and one previously), as well as having represented Lysaght's law firm and an entity under investigation that is owned by the spouses of Lysaght and a codefendant. Southern District Judge Deborah A. Batts found a nonwaivable conflict from the possibility, raised by the government in its motion to disqualify, that firm attorney Gerald Lefcourt and associate Sheryl Reich might become "unsworn witnesses" if they were to cross-examine a government witness they had previously interviewed. Batts found that not even as experienced an attorney as Lysaght could "knowingly and intelligently waive the labyrinth of conflicts present here." Lefcourt, the president-elect of the National Association of Criminal Defense Lawyers, said the successful prosecutor's motion was an example of "a frightening new tactic"-the government bolstering important but weak cases by getting experienced counsel familiar with the matters involved disqualified. (New York Law Journal, 5/6/97)
Using mathematical modeling, researchers have found that increasing government spending on a broader mix of enforcement measures rather that focusing on mandatory minimum sentences should be a more cost effective way of reducing drug consumption. Spending the money to treat heavy users appears to be even more effective. Only as to high-level dealers did mandatory sentences appear to be more cost-effective.
If only short-term results were computed, treatment projections appeared less effective, because treatment costs accrue immediately while their benefits accrue over more time; the costs of longer incarceration are not calculated in short-term studies. "Hence, longer sentences for typical drug dealers appear cost-effective only to the highly myopic," the research brief concludes. The research brief "Are Mandatory Minimum Drug Sentences Cost-Effective?" is available online at www.rand.org/publications. It describes Rand Drug Policy Research Center work that is more fully documented in Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? By Jonathan P. Caulkins, C. Peter Rydell, William L. Schwabe, and James Chiesa. That document, MR-827-DPRC, 1997, 217 pg., $15, ISBN #0-83302453-1, is available from RAND Distribution Services (tel)(310)451-7002; (fax) (310)451-6915; e-mail order@rand.org.
Executive Internet Consulting's videotape, The Internet Guide for Professionals, explains to beginners how to use the much-touted computer information superhighway. It introduces such basic terms as "e-mail," and "listservs," while walking the viewer through various tasks. It can be viewed independently or, with a proper setup, while using a modem-equipped computer to perform the tasks as they are described.
The tape does periodically acknowledge other Web browsers-the software used to view Internet sites-for both IBM and MacIntosh, but focuses on Netscape Navigator for Windows 95. Some basic Windows functions are unnecessarily stressed, taking time that could better be used clarifying basic Internet functions. But overall, the presentation is a useful, methodical way for viewers unfamiliar with the pro_cess of "surfing the 'Net" to learn the basics of Internet use.
The videotape is a good starting point to familiarize new users with the practice of browsing the Internet. The tape discusses, in some detail, the basic functionality of the Netscape browser and touches upon the various regions of the internet-the world wide web, gopher space, FTP (file transfer protocol), usenets and e-mail. What the tape doesn't do, and what new internet users will quickly need, is more information and training concerning the many practical issues present in the "darker" side of the Net: the dangers of downloading from the Internet potentially virus laden files; the risks associated with the lack of security and privacy concerns on the net; the frustration of wading through outdated, misleading, inaccurate or deceptive information that is online; the often interminable delays in waiting for webpages to load; and the potential of becoming inexorably drawn into time-wasting forays investigating websites with less than valuable information.
Aside from the substantive limitations inherent in discussing the potential and logistics of the Internet in 100 minutes, the tape suffers somewhat from a lack of up-to-date presentation techniques. The rather numbing, on-going voice of one person, who always talks directly to the camera (though in "boxes" that appear, change size, and disappear for some visual relief), makes straight-through viewing of the tape difficult. But the presentation provides good coverage of the basics of Internet use for beginners who see it through.
The Internet Guide for Professionals is available for $89.95 from Executive Internet Consulting, 2565 Broadway, Suite 206, New York NY 10025. (tel) (800)628-4770 (fax) (212)866-5533. Internet: http://www.ExecutiveC.com. It was reviewed by NYSDA staff attorney Mardi Crawford.