Chief Defenders Discuss Issues of Capital Representation at Albany Convening

Also discussed was the recent passage of Sentencing Reform Act of 1995, which among other things, creates a determinate sentencing scheme for violent felony offenders and mandates drug treatment at the Willard Correctional Facility.

The next Chief Defender Convening will be held in September at the NYSDA Annual Meeting in Albany.

Defense Appropriations in FY 1995 State Budget

The funding for NYSDA's Public Defense Backup Center was cut by 4% from its 1994 appropriation of $856,200.

$4.5 million was appropriated for capital defense representation. $4,250,000 was allocated for services and expenses of the Capital Defender Office established pursuant to 35-b of the Judiciary Law, including expenses necessary to contract with the Legal Aid Society, Office of Public Defender or other not-for-profit organization providing public defense services. $250,000 was earmarked for payment of attorney compensation and expert investigative fees pursuant to 35-b of the Judiciary Law.

Prisoners Legal Services also suffered a 4% decrease from its 1994/95 funding level of $3,700,00.

Finally, the Indigent Parolee Program was funded at its 1994 level of $1,154,000.

The ABA Releases Two New Publications for Defenders

Ethical Problems Facing the Criminal Defense Lawyer: Practical Answers to Tough Questions is another recent offering from the Criminal Justice Section giving criminal defense attorneys practical help with thorny ethical dilemmas they face in their practice. The book features 23 articles by experienced public defenders and others committed to criminal defense addressing an array of tough ethical questions.

More information on both publications is available by calling Denise Eichhorn, at ABA Publications, Planning and Marketing at (312)988-6045.

Prior to his appointment, Christianson was Executive Assistant to the State Director of Criminal Justice, Deputy Director of the State Division of Probation and Correctional Alternatives, and Deputy Director of Parole Operations. He also worked for several years at the School of Criminal Justice, S.U.N.Y. at Albany, where he received his Ph.D., and was formerly an investigative reporter for various publications. He also serves as Editor-at-Large for Civic Research Institute.

Founded in 1972, the Coalition for Criminal Justice advocates for progressive change throughout New York's criminal justice system.

Lawyer Asleep at Trial Found Ineffective

NYSBA Accepting Nominations for Awards

Four awards will be presented in the Fall of 1995. Two staff attorneys employed by a non-profit agency that provides civil legal services for the poor, and two who provide indigent criminal defender services, either as a public defender or Legal Aid Society attorney, will be honored.

Nomination forms are available by contacting Sheilah Sable, Department of Pro Bono Affairs, One Elk Street, Albany, NY 12207; (518) 487-5641. Nominations must be submitted no later than July 31, 1995.

To determine whether there is "good cause" excusing nonappearance, as well as the appropriate amount of sanctions or costs, the court is required to consider "all of the attendant circumstances, including but not limited to":

1. the explanation, if any, offered by the attorney for his or her nonappearance;
2. the adequacy of the notice to the attorney of the time and date of the scheduled appearance;
3. whether the attorney notified the court and opposing counsel in advance that he or she would be unable to appear;
4. whether substitute counsel appeared in court at the time previously scheduled to proffer an explanation of the attorney's nonappearance and whether such substitute counsel was prepared to go forward with the case;
5. whether an affidavit or affirmation of actual engagement was filed in the manner prescribed in Part 125 of the Uniform Rules for the Trial Courts of the Unified Court System;
6. whether the attorney on prior occasions in the same action or proceeding failed to appear at a scheduled court action or proceeding;
7. whether financial sanctions or costs have been imposed upon the attorney pursuant to this section in some other action or proceeding; and
8. the extent and nature of the harm caused by the attorney's failure to appear. 22 NYCRR 130 (b) (1)-(8)

While there is little in the way of case law interpreting the sanction provisions of 22 NYCRR 130, the Second Department has vacated an order by an Orange County judge imposing a sanction of $150 on a defense attorney who appeared 23 minutes late for a scheduled court appearance. In Matter of Walsh v. People of the State of New York, 206 A.D.2d 434 (2d Dept. 1994), the Appellate Division found that the County court improvidently exercised its discretion in sanctioning the attorney for a single, brief dela y in appearing, where the attorney: was actually engaged in another matter in the same courthouse; asked a colleague to so inform the court, and; appeared approximately 20 minutes late for the scheduled hearing with an explanation for the delay. The Court further noted that there was no evidence that the attorney had failed to appear on previously scheduled court dates.

In vacating the sanction order, the Court concluded that the attorney had adequately explained his brief delay in appearing, and that his actions were neither deliberate nor without good cause.

A sanction order has been upheld, however, where defense counsel repeatedly failed to appear on scheduled court dates, offered no explanations for his absence, never notified the District Attorney or the Court that he would not be present, and ignored repeated communications from the court requiring his presence. See Matter of People v. Mitchell, 145 Misc. 2d 1065 (Crim. Ct. Queens County 1989).

Writing for the court, Judge Amalya L. Kearse said the approach calls for weighing the harshness of the forfeiture against the gravity of the offense and considering the relationship between the property and the offense.

The owner of the property, Marcia Milbrand, contested the forfeiture on two grounds: that she was a so-called "innocent owner" and that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. In ordering the forfeiture, Western District Judge Richard J. Arcara concluded that Ms. Milbrand "would have to have consciously and purposefully ignored signs" of drug activities by her son. Judge Kearse found that this conclusion was not clearly erroneous.

In rejecting Ms. Milbrand's second claim, that the forfeiture is an excessive penalty, Judge Kearse adopted a multi-factor test which combines principles of instrumentality and proportionality. The ruling comes nine days after Southern District Judge Milton Pollack used a similar hybrid analysis in approving a forfeiture.

Copies of the decision may be obtained from the Backup Center.

Judge Sweet found that the ADA requires prisons to conduct a needs assessment and to draft a plan for meeting those needs. The ruling ordered an additional hearing to specify relief, its implementation and timing.

The lead plaintiffs' lawyer from the Legal Aid Society, Janet E. Sable, said, "This is the first decision I'm aware of that seeks to remedy all aspects of prison life for a disabled population." While the ruling directly affects the estimated 50 hearing-impaired inmates in New York prisons, it is regarded as a precedent for inmates with any disabilities.

More significantly, the revelation raises the prospect that many of the cases he handled will have to be retried, possibly 100 of them or more. Welchons clients, 15 of whom are currently in prison, can now claim that they did not have proper representation.

President Arthur Chaskalson said that the death penalty has not been shown to be a better deterrent than life imprisonment.

South Africa now joins the expanding list of nations to abolish the death penalty while the United States remains associated with countries commonly regarded for their disregard of human rights such as Russia, China, Iran and Iraq.