May 1998 Defender News

The New York State Continuing Legal Education Board has granted NYSDA Accredited Provider status for its training programs through February 28, 2001.

The advent of mandatory CLE rules for newly-admitted New York attorneys (Backup Center REPORT, Vol. XXI, No. 9) has recently focused attention on legal training programs, but NYSDA's commitment to defense CLE long predates the new rules. The annual Metropolitan New York Trainer has received accolades from its (often repeat) attendees for 12 years. The most recent of these trainers was held on Mar. 14 in cooperation with the Assigned Counsel Panel for the 1st and 2nd Departments, the Legal Aid Societies of NYC [Criminal Defense Division] and Nassau, Suffolk, Orange and Westchester Counties, the Assigned Counsel Plans for Suffolk and Westchester Counties, and the Dutchess County Public Defender Office.

This June, the Defender Institute Basic Trial Skills Program will once again provide a week of intensive jury-trial training to defense lawyers. The program has been an annual event (except for budget-cut interruptions in the mid-90s) since 1987. Deadline for applying is May 4 (For an application call NYSDA at 518-465-3524.)

A wide range of topics are covered each year during training sessions at NYSDA's annual summer meeting. Other periodic, topical programs have been offered throughout NYSDA's history. The acquisition of Accredited Provider status will allow NYSDA to continue to fulfill the training needs of public defense lawyers and defense team members.

Coming to Corning: NYSDA's Summer Meeting

Accredited CLE training, collegial exchanges of information, and a cruise and museum reception for relaxation are just some of the reasons public defense folks from across the state should be in Corning from July 30 through August 2 for NYSDA's 31st Annual Meeting. Planned training sessions include: Identification Law, with Miriam Hibel of the Brooklyn Defender Service; Forensic Pathology: New Tools for the Defense, with Albany County Medical Examiner Barbara Wolf; Recent Developments in Criminal Law and Procedure, with NYSDA President and Monroe County Public Defender Edward Nowak; DNA Evidence and its Limits, with Dr. Alan Hudson, Professor, Department of Microbiology and Immunology, Wayne State University; Trial Practice, with Andrea Lyon, Assistant Clinical Professor at the University of Michigan Law School; and the 1997 Legislative Review, with NYSDA Staff Attorney Al O'Connor. For more information on the summer meeting, contact the Backup Center.

Recently, the United States Court of Appeals for the Second Circuit heard oral arguments on the appropriate filing deadline for first-time federal habeas petitions by inmates whose convictions became final prior April 24, 1996, the date of enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The issue under review in a series of appeals argued on May 18, 1998 is the Second Circuit's decision in Peterson v Demskie, 107 F3d 92 (2d Cir. 2/ 5/97), which has been widely interpreted by district court judges in New York as mandating dismissal of first-time habeas petitions filed prior to April 24, 1997 (the one year anniversary of the AEDPA), but not within an unspecified "reasonable time" of enactment of the AEDPA. All other Circuit Courts that have considered the issue have ruled that all petitioners whose convictions pre-dated enactment of the AEDPA had until April 23, 1997 to file a federal habeas corpus petition. NYSDA filed an amicus brief on the issue in Nicholas Rosa v Senkowski, No. 97-2974. (Backup Center REPORT, Vol. XIII, No. #3.)

Pro se inmates who have had an initial habeas corpus petition dismissed as time-barred under Peterson are urged to contact Al O'Connor at the Backup Center for further information.

Jonathan Grant's case has been remitted from the Court of Appeals to the trial court to determine the admissibility of Grant's statements to Schenectady police during questioning that covered both a Brooklyn gun charge on which he was represented by counsel (who was not present)and a Schenectady homicide on which he was then unrepresented. People v Grant, No. 32 (5/12/98). The 3rd Department had found that the two charges were not so interwoven that police were required to have counsel present before questioning Grant about the homicide, which was committed with the same gun underlying the Brooklyn charges. The lower court must, under the standard of a recent Court of Appeals decision, People v Cohen (90 NY2d 632) [digest appearing in the Backup Center REPORT, Vol. XII, #10], determine whether the questioning by the Schenectady police about the gun charges for which he had counsel was "purposefully exploitive," and designed to add pressure on Grant to confess to the uncounseled homicide charge. Judges Titone and Levine would have ordered a new trial. A digest of the Grant opinion will appear in a future issue of the REPORT. NYSDA filed an amicus brief by Al O'Connor in the Court of Appeals asserting that the counseless questioning of Grant by police who knew he had counsel on the gun <%2>charge and <%0>who were using information about that charge in their homicide investigation was a state constitutional violation.

After analyzing pending bills (A. 9991 and S. 6604) that would institute a system of harsh determinate sentencing for all first-time violent felony offenders, NYSDA has declared strong opposition to what proponents have named "Jenna's Law." The proposed law would impose a blanket rule about the length of a parole term based exclusively on the crime of conviction, without regard to the individual facts and circumstances. It would create enormous fiscal and social burdens on the state without enhancing public safety, exacerbate sentencing disparities based on race and socio-economic factors, abandon the time-honored practice of treating repeat offenders more harshly than first-time offenders, and lead to prison unrest. For a copy of NYSDA's position memorandum on this legislation, contact the Backup Center.