Several habeas corpus petitions have been dismissed by New York federal district courts citing Peterson v Demskie, 107 F3d 92 (2nd Cir. 1997). That decision (noted in the May REPORT) held that petitions filed by state prisoners after the date of the Antiterrorism and Effective Death Penalty Act (AEDPA), as to state convictions that had been final for more than a year (the time limit set in the AEDPA), are permitted if filed within “a reasonable time.” Peterson's state judgment had become final in 1978; his petition was filed within 72 days of the AEDPA. Defense lawyers have argued that filing any time within a year of the act's effective date would be reasonable. E.g. “Defense Practice Tips: A Look at the New Federal Habeas Deadlines,” excerpts of a memo by Prof. Larry Yackle, Public Defense Backup Center REPORT, Vol. XI, #10, Dec. 1996, p. 9. However, some New York federal judges have stretched Peterson to dismiss cases in which judgments had been final for much shorter periods of time, including the following cases: DeChirico v Walker, No. CV 97-1456 (RJD) (ED NY 6/12/97) [petition filed 11 months after the AEDPA passed, over four years after judgment became final, involving two murder counts, and other robbery and criminal possession counts]; Morales v Portoondo, No. 97 Civ. 2559 (DC) (SD NY 6/16/97) [petition filed 335 days after AEDPA, almost five years after judgment became final, involving second-degree murder]; and Fabelo v Greiner, No. 97 Civ. 2988 (DC) (SD NY 6/16/97) [petition filed 348 days after AEDPA, over two years after judgment became final, involving three robbery and sexual assault counts].
The 2d Circuit has not decided how Peterson should be applied in other cases that were final before the AEDPA but were filed in federal court thereafter. Lawyers who know of other cases involving this issue, or who would like copies of pleadings filed opposing dismissal of petitions filed within a year of the AEDPA, are asked to call Al O'Connor at the Backup Center.
There is one bit of better habeas news. In Lindh v. Murphy, No. 96-6298, 6/25/97 [digest to appear in the next REPORT], the U.S. Supreme Court held that the new, stricter standards of review set out in Chapter 153 (dealing with non-capital cases) of the AEDPA do not apply to habeas petitions pending at the time the act was signed.
Fifty-six lawyers from 24 counties across New York plunged into the client-centered representation curriculum of NYSDA's Defender Institute Basic Trial Skills Program in June. After an intense week of working with 20 coaches—lawyers and communications experts—from across the country, participants took home a videotape showing how they had “stretched” their representational skills during exercises in trial preparation and courtroom presentation.
New to the program was the inclusion of “real” potential jurors for jury selection exercises. A variety of organizations and individuals helped NYSDA obtain volunteers to be the jury pool. A double purpose was served—participants got a more realistic voir dire exercise, and community members got to see lawyers truly “practicing” a serious aspect of their craft. One “juror,” K. C. Halloran of Melrose, wrote of his experience for The Sunday Gazette. His op-ed article provided the public with insight not just about the training program but about public defense. It concluded: “I can't say that I'm always sympathetic to those less advantaged than I when they find themselves on the other side of the law, but I am glad that there are organizations like the Defenders who come to their aid. And who would come to mine should I one day fall from grace and be down on my luck.”
The Defender Institute Basic Trial Skills Program, planned as an annual event but interrupted since 1994 by budget constraints, was described by a staff member observing it for the first time as, “Amazing, insightful and uplifting.” Equally warm com- ments were made by participants themselves during the “open microphone” at the graduation luncheon on Saturday. Plans for “institutionalizing” this unequaled training program to assure its regular, continuing availability for new public defense lawyers is a topic for discussion at NYSDA's 30th Annual Meeting July 17-20.
A training monograph on the ever-changing 4th Amendment has been distributed by the Association to public defense offices across the state. Written by Barry Stendig, Supervising Attorney at Appellate Advocates in New York City, it sets out cases on search and seizure topics from A (including Abandonment, Aguilar, and Attenuation) to W (including Warrants and Wiretapping). It concludes with a one-page “Briefing and Hearing Checklist” that lets attorneys see at a glance if they have covered all the bases in this complicated area. Copies of “The Fourth Amendment,” ©1996 Barry Stendig of the Appellate Advocates, are available for the printing cost of $10 from the Backup Center.
The State Commission on Judicial Conduct voted on May 29, 1997 to remove Justice John F. Skinner of the Columbia Town Court, for summarily disposing of two criminal matters, including sentencing one 18-year-old defendant to 30 days jail time without taking a plea or advising him of his right to counsel. Skinner acknowledged to the commission that he knew he was required to advise defendants of the right to counsel, but said it was not his practice to do so. “I don't give my town, my county's money away,” he said and added, “If he asked me to appoint him an attorney, I'll do that.”
The commission also voted to remove former state trooper Donald Roberts as Malone Village Court Justice, Franklin County. He too was found to have failed to notify a criminal defendant of the right to counsel, and to have summarily sentenced that defendant to 89 days in jail when she made only a $5 payment on a $20 installment, without inquiring into her financial status or advising her of the right to be resentenced if she could not pay. Roberts was also found to have committed other misconduct.
Finally, for making racial remarks and then attempting to coerce two grievants into abandoning their complaints to the commission about the remarks, George B. Jensen, Justice of the Jerusalem Town Court, Yates County, was censured. This case is discussed in “Speaking Anew About an Age-Old Problem: Racism in the Criminal Justice System,” by Backup Center attorney Sybil A. McPherson, appearing in the newly-published Millennium issue of NYSDA's magazine, The Defender.
After attorney John James Dockry convinced the trial court that the prosecution's instructions to the Grand Jury on constructive possession had been inadequate, the First Department reinstated the indictment against his client Oswin Hewitt. The case was noted in the Backup Center REPORT, Vol. XI, No. 10, Dec. (1996); People v Hewitt, __AD2d__ (#58546, 11/14/96). NYSDA member Dockry now reports that the case went to trial, and his client was acquitted of all indictment charges. Only a conviction on one lesser offense, fifth-degree (Class B) misdemeanor possession of marijuana, was returned. A sentence of one year conditional discharge and 35 hours of community service was imposed.
Where a Legal Aid Society attorney handling a Brooklyn case told Queens police three times, once before the Brooklyn Criminal Court, that the attorney represented defendant Eric Wilson and that no interrogation or lineups should be conducted in the attorney's absence, a subsequent, counselless lineup in Queens was improper, the Court of Appeals has ruled. NYSDA had filed an amicus brief in the Appellate Division (People v Wilson, No. 58, 5/6/97; see digest p. 8). The history of Wilson and other Association amicus cases is discussed by Al O'Connor in the newly-published issue of The Defender magazine.
Death penalty defense lawyer Stephen B. Bright, with the Southern Center for Human Rights, has more than a handful of horror stories to tell about the representation—or lack thereof—too often provided in capital cases. The following transcript excerpt from a Georgia case, which was printed in the June issue of Harper's Magazine and sent to the REPORT by NYSDA board member David Steinberg, illustrates one. The defendant, Wallace Fugate, was represented at trial in 1992 by Leo Browne, who gave the following testimony at a 1996 habeas corpus hearing on whether Fugate received effective assistance of counsel. The trial judge denied relief. The Georgia Supreme Court, which is not required to hear an appeal in a death penalty case, recently denied leave to appeal, Bright has told the REPORT. He urged New York lawyers to volunteer now to work on other death penalty cases in the South.
STEPHEN B. BRIGHT: Do you know what the case of Gregg v. Georgia [the 1976 Supreme Court case allowing states to resume the death penalty] is?
LEO BROWNE: No, I don't—I don't know what you're getting at there, no.
BRIGHT: You—you're not familiar with that case?
BROWNE: No.
BRIGHT: All right. So you don't—you don't follow the Supreme Court cases?
BROWNE: Not too closely.
BRIGHT: All right. You know what—
BROWNE: The past few years I haven't.
BRIGHT: All right. I'm just asking you if when we say “post-Gregg case,” do you know what Gregg means?
BROWNE: You mean about the—the death penalty?
BRIGHT: Well, I'm just asking you if that time frame means anything to you?
BROWNE: Not exactly, no.
BRIGHT: Now, are you familiar with the case of Furman v. Georgia?
BROWNE: No.
BRIGHT: Have you ever read that case?
BROWNE: I don't think I have.
BRIGHT: You familiar at all with the case of Godfrey v. Georgia?
BROWNE: No.
BRIGHT: Ever read any of the opinions with regard to the death-penalty cases out of the Federal District Courts in Georgia?
BROWNE: I might have, but I don't—I don't recall specifically.
BRIGHT: And between the time of the Harrell case [a capital case Browne worked on in 1979] and Mr. Fugate's case, you had not been involved in any death-penalty case?
BROWNE: That's correct.
BRIGHT: No death-penalty case?
BROWNE: No.
BRIGHT: Been involved in any murder cases?
BROWNE: No. Not in that length of time.
BRIGHT: Have you ever had a case where you had an expert witness?
BROWNE: You mean for the defendant?
BRIGHT: Yes, sir.
BROWNE: I really don't recall. I had one case I may have had a doctor come in to testify. But I—I can't recall specifically.
BRIGHT: Do you remember what year that was?
BROWNE: No, good God.
BRIGHT: What case?
BROWNE: Lost back there somewhere.
BRIGHT: What subject?
BROWNE: In the Sixties or Seventies or somewhere in there.
BRIGHT: Ever had an investigator?
BROWNE: Do what?
BRIGHT: Investigator? Ever have an investigator?
BROWNE: Oh, investigator?
BRIGHT: Yeah.
BROWNE: No. No.
BRIGHT: Do you feel like an investigator would have been of benefit to you in the defense of this case?
BROWNE: I think we discussed that at one time and decided that we really wouldn't need an investigator.
BRIGHT: Do you have any idea what you would use an investigator for if you had one?
BROWNE: I'm sure I—I'm sure I have been exposed to some of that, but I don't remember specifically.
BRIGHT: Could you just tell me, Mr. Browne, can you tell me what criminal law decisions from any court you're familiar with? Georgia Supreme Court—
BROWNE: Well, off the top of my head I can't tell you any cases I'm familiar with. I've—from time to time I've had to refer to cases, go research cases. But I can't sit here and tell you what cases I'm actually familiar with. Can't do it.
BRIGHT: Not even one?
BROWNE: None. Not even one.
BRIGHT: All right. Thank you. Nothing further, Your Honor.
JUDGE JOHN R. HARVEY: All right. Thank you, Mr. Browne.
BROWNE: I can go find you some if you need `em.
JUDGE HARVEY: Okay. Mr. Browne, just one last question. Do you recall how much you were, in fact, paid by the county to represent Mr. Fugate?
BROWNE: I don't recall that either.