June/July 1998 Defender News

Disavowing language in Peterson v Demskie, 107 F3d 92 (2d Cir. 2/5/97) which suggested that inmates whose convictions became final before the Anti-Terrorism and Effective Death Penalty Act (AEDPA) was enacted (April 24, 1996) did not have a full year to file an initial habeas corpus petition but only an unspecified "reasonable time," the 2nd Circuit has now held that all such inmates had until April 24, 1997 to file a timely petition. In Ross v Artuz (No. 97-2789), and seven other cases decided on June 24, 1998 (including Rosa v. Senkowski [No. 97-2974], see Backup Center REPORT, Vol. XIII, Nos. 3 and 5), the 2nd Circuit rejected Peterson's "reasonable time" formulation in favor of a bright-line filing deadline of one year after enactment of the AEDPA. The court noted that all other circuits that have considered the issue have found one year to be a fair and workable deadline, whereas an unspecified "reasonable time" standard failed to give "guidance to prisoners and the district courts":

In sum, a grace period of less than one year for prisoners whose convictions had become final prior to the effective date of the AEDPA would not reasonably have been anticipated by prisoners; Peterson's suggestion of less than a one-year period was not announced in time to give prisoners an adequate opportunity to file their claims in a "reasonable time" less than one year; and the "reasonable time" formulation was neither sufficiently clear to prisoners in light of the prior exhaustion requirements nor sufficiently enlightening to the district courts to ensure uniform application. We conclude that, in light of the importance of the subject matter of habeas petitions and §2255 motions, the grace period should be clear; and in light of Congress's selection of one year as the limitations period, we conclude that prisoners should have been accorded a period of one year after the effective date of AEDPA in which to file a first §2254 petition or a first §2255 motion.

Our adoption of a grace period of one year means that petitions . . . are not barred by the statute of limitations if filed on or before April 24, 1997.

The decision is good news for all inmates who were appealing the erroneous dismissal of their initial habeas petitions under Peterson's now discredited "reasonable time" formulation; their cases will be returned to the district court for consideration on the merits. However, inmates whose initial habeas petitions were dismissed based on Peterson and who did not appeal must now act quickly to protect their rights. They should immediately write to the district court and ask to have their case re-opened based on Rule 60(b) of the Federal Rules of Civil Procedure. In addition, they should file their petitions again with the clerk of the district court, pointing out that the re-filing is not a "second or successive" petition because the petition was not denied on the merits the first time it was filed. Additionally, inmates should point out that the re-filed petition is timely because the one-year deadline has been "equitably tolled" since the petition was erroneously dismissed under Peterson.

Pro se inmates who have had an initial habeas corpus petition dismissed as time-barred under Peterson and who did not appeal are urged to contact Al O'Connor at the Backup Center for a copy of the decision in Ross v Artuz. Inmates should not delay making their requests to re-open their cases or re-filing their petitions pending receipt of a copy of the Ross decision.

They came from 60 public defense programs across the state, from large and small public defender and legal aid offices, and from assigned counsel plans. Many of them traveled far to Troy, from counties on the northern border, on the state's western edge, and in the state's southern tier. They spent a week learning their own strengths and strengthening their weaker skills. They learned from 20 coaches attorneys and communications experts and they learned from each other. These 55 lawyers left at the end of the '98 Defender Institute Basic Trial Skills Program vowing to use newly-learned techniques to listen to their clients, work for their clients, and win for their clients.

During the program, held at Rensselaer Polytechnic Institute June 14 through 21, the participants interviewed "clients" and questioned "witnesses" played by actors, and voir direr "jurors" who were volunteers from the area. These exercises, in small groups, were watched by at least two different coaches. Many of the exercises were videotaped, allowing participants to take home with them tangible proof of their improvement and reminders of what they wanted to keep improving. As one participant stated in an evaluation: "Here's a video I'm going to watch over and over again-before every trial, detail by detail, until I get it right.".

Infrared waves coupled with computer technology will allow for standardized DWI reporting and more accurate sobriety tests, officials claimed at a public presentation concerning a new, digital alcohol breath tester in Glenville in May. Said to be five times more accurate than old Breathalyzers, such devices have been purchased by several localities including Niskayuna and Rotterdam, NY, and are expected to replace "wet" chemical testers by the year 2000. Law enforcement personnel hope that the new machines will end defense claims of officer/operator error as well as time- consuming and expensive annual calibration procedures. (Times Union 5/15/98)

Nor is technological change in drinking and driving enforcement limited to the initial stage of cases. According to Steve Powers at the NYS Division of Probation and Correctional Alternatives (DCJS) there is increasing use of Ignition Interlock devices as part of the sentence for non-incarcerated DWI offenders. These devices are self-administered breath test units attached to the ignitions of offenders' vehicles that must be activated to start the engines. As of April 1, 1998, there were 324 individuals using the device in Nassau, Suffolk, and Westchester counties. Erie, Tompkins and Onondaga counties are testing the devices with a small number of individuals.

A report of all attempted and completed start/stops of a vehicle equipped with the device is completed on a regular basis, usually monthly. This allows a probation officer to monitor how many times a supervised individual attempted to start the car but couldn't. Not all thwarted starts are due to unacceptable BAC levels, however. The mechanisms currently in use are susceptible to other kinds of contaminants like cigarette smoke and car fumes. New interlocks using a fuel cell technology are said to be reducing these types of false positives by distinguishing alcohol from other types of contaminants.

Individuals for whom interlock devices are made a part of their sentence have to pay for the device and service calls. These costs—over $800/year—should be a major concern to defense teams representing poor clients. Provisions can be made for reasonable indigence situations, Powers said, but firm guidelines on this issue are lacking.

DWI defense expert Peter Gerstenzang will present Hot Topics in DWI Defense on July 31 at NYSDA's 31st Annual Conference (see p. 6). Gerstenzang is the author of Handling the DWI Case in New York (West Publishing Co).

Roxanna Gutierrez of the Neighborhood Defender Service (NDS) of Harlem was selected by the Criminal Justice Section of the American Bar Association to receive the 13th Annual Livingston Hall Juvenile Justice Award. Gutierrez supervises a team that often seeks to address issues underlying court cases by advocating on behalf of a child in school proceedings or linking a child to social services. Before coming to NDS, Gutierrez represented children in Family Court, taught high school Civil Rights and Relations, and was a staff attorney at The Legal Aid Society Criminal Defense Division. The director of NDS, Leonard Noisette, told the REPORT, "she is a wonderful, committed, dedicated lawyer and we are very proud for her." The award will be presented at the ABA Convention on Aug. 2.

Gutierrez's office is caught in the middle of budget battles in New York City, after already having the state portion of its budget vetoed by Governor Pataki. If nothing changes soon, NDS will have to close its doors.

Another public defense entity, Prisoners' Legal Services, was also zero funded by the State. PLS will have to close unless private grants are secured to maintain core functions until the next budget year. (Times Union 6/29/98.)

The Court of Appeals has reversed a Schenectady defendant's convictions of unlawful practice of law and petit larceny because the case was prosecuted by the Attorney General without authority. The Appellate Division had affirmed Israel Romero's convictions despite his contention that only a local district attorney had statutory power to bring the charges. People v Romero, 664 NYS2d 179 (3d Dept 1997) [digest in Backup Center REPORT Vol. XIII, No. 2.] That opinion had relied on Executive Law 63(3), which was not cited in the trial court. The Court of Appeals noted that 63(3) was not at issue on appeal because its applicability had not been ruled upon by the trial court, and reversed. The high court rejected the AG's original argument that the "action" he is entitled to bring under Judiciary Law 476-a (1) against persons engaging in the unlawful practice of law may be a criminal, rather than civil, action. NYSDA filed an amicus brief, written by Staff Attorney Al O'Connor, in People v Romero, No. 93 (7/1/98). The state District Attorney's Association also filed an amicus brief seeking to limit the AG's power to act in a local case. A digest of the opinion will appear in a future issue.

Effective July 1, the 1st Department strengthened its rules to ensure indigent defendants are not left un-represented when the prosecution takes an appeal. As amended, Rule 600.8 requires prosecutors to serve notice of their appeals on trial counsel, who is required to "make diligent efforts" to let the client know of the right to seek appointment of assigned counsel for the appeal. Despite efforts of the New York County Lawyers' Association, the changes do not go as far as the 2nd Department's practice, in which trial counsel may handle the appeal, or appellate counsel may be appointed without the filing of a new affidavit of indigence. (New York Law Journal 6/29/98.)

NYSDA plans to join The Legal Aid Society in seeking permission to file an amicus brief in a Court of Appeals case in which the issue of a defendant remaining un-represented during a prosecution appeal is raised. Judge Bellacosa granted leave to appeal in People v Jovani Garcia on May 15.

National reports on the death penalty can no longer list New York as having a capital punishment law but no one on death row. A Brooklyn jury has returned the first death sentence under the statute passed in 1995. The state's appellate system, which has to date heard only appeals on certain constitutional challenges to the statute, will presumably now face the task of considering whether to allow an individual—a man named Darrell Harris, who was once hailed as a hero for saving a fellow corrections officer—to be killed by lethal injection.

In more general capital appellate news, the Court of Appeals has issued Standards for Appellate Counsel in Capital Cases. The standards prescribe experiential and training requirements for attorneys who wish to act as appointed appellate counsel in capital cases. They also set forth application procedures and procedures for retaining eligibility for appointment, and direct creation of a Court of Appeals Roster of attorneys deemed qualified for appointment. To act as sole appellate counsel in a death penalty case, an attorney must have at least five years of criminal practice experience (trial, appellate or post-conviction), or at least three years of concentrated criminal litigation experience, be familiar with the practice and procedure of New York trial and appellate courts, and have had primary responsibility for the appeal of at least five felony convictions in any state or federal court, at least three of which were as defense counsel and at least three of which were argued orally. Somewhat less experience is required to be eligible to be appointed as one of two appellate counsel in a capital case.

The court also promulgated Standards for State Post-Conviction Counsel in Capital Cases. Copies of both sets of standards are available from the Backup Center.

Meanwhile, efforts to cut back the fees for defense lawyers representing poor people charged with capital crimes have escalated. Three of the four Departmental screening panels that have statutory authority to promulgate fee schedules voted in June to reduce fees; the 1st Department panel deadlocked on the issue. The Court of Appeals has announced that it is considering approving the proposed revised fees (and rescinding the current fees, including in the 1st Department), and has asked for public comment by September 30, 1998. Rates for lead counsel would drop from $175/hour to $125, and second counsel fees would drop from $150/hour to $100. In addition, work in a potentially capital case prior to a prosecutorial announcement that death will be sought would be even lower ($100 and $75 per hour, respectively). Also being considered is a limitation on reimbursement of reasonably necessary legal and paralegal assistance to the post-notice period only. Copies of the notice of public comment period and Departmental screening committee letters are available from the Backup Center. Comments may be sent to: Honorable Stuart M. Cohen, Clerk of the Court, New York Court of Appeals, 20 Eagle Street, Albany NY 12207. Please copy in the Backup Center.

Recent press coverage concerning the legal fees being paid by the State to defend the governor, attorney general, and comptroller in a series of civil cases regarding the discharge of employees made no comparison to capital fees. One article noted that Manhattan firms such as those handling the employment cases generally charge between $250 and $500 per hour, although exact hourly fees for most of the employment cases was not disclosed. (Times Union 7/1/98.) Capital fees were placed in that type of context in NYSDA's testimony before the joint Standing Judiciary Committees of the legislature back in January (Backup Center REPORT Vol. XIII, No. 1.)

In addition to developments as to fees and standards, capital punishment itself remains a hot news topic in the wake of the jury's action in the Harris case. Brooklyn District Attorney Charles Hynes was quoted at the time of the verdict as saying "we must remember that this trial was a search for the truth and an effort to do justice to the memory" of those whom Harris had killed. (Times Union 6/7/98.) But in his role of gubernatorial candidate in the upcoming Democratic primary election, Hynes said soon thereafter that he would get New York's death penalty law repealed. Governor Pataki responded with vows to fight any repeal efforts, and introduced legislation on June 11 to expand capital punishment to include so-called thrill killings and killings committed as part of gang initiations. (Times Union 6/12/98)

The Several new heads of public defense offices have been hired in New York in 1998. Many are new only to their particular positions, having done public defense work previously in the same or neighboring counties. Whether new or newly elevated, the REPORT will profile these chiefs, introducing them in their current capacities to the statewide public defense community, in this and future issues. (Ed. note: The order of their appearance in these pages will be solely a function of who answered or returned the editor's calls first.)

Charles E. Inman has come full circle in Columbia County. He was public defender there in 1976, but then "crossed the aisle" and became an assistant district attorney and then district attorney, a position he held until 1983. In 1984 he returned to public defense, and became a member of NYSDA in 1988. He held the position of first assistant public defender when he was selected as the new public defender upon the departure of Dale Desnoyers earlier this year.

Among the challenges Inman faces is the modernization of the office's computer system. Currently, secretarial staff use a county system, while a few of the legal staff have stand-alone computers. With a combination of grants and county funding, the office hopes to install an up-to-date, integrated computer system.

Inman also faces the same challenges as all public defense providers. There has been an increasing amount of work for a steady or even declining staff level. Not only are there more cases, but the case mix is getting heavier—and more interesting, Inman says. A higher number of cases are tried in Columbia County than by some defender offices, according to Inman. This may be a drawing factor for legal staff eager to get into court. That, combined with an increase in the number of newer attorneys who want to settle outside the metropolitan area, has provided a bigger pool of lawyers for the office to pick from for its largely part-time legal staff. However, Inman says, getting experienced staff is a more difficult matter. As part of addressing that issue he hopes that the office will be able to continue sending attorneys to NYSDA's Basic Trial Skills Program.

Researching, training, consulting, informing, and advocating are just a few of the verbs that describe what the Public Defense Backup Center's staff do every day. Whether through direct assistance and contact or through behind-the-scenes work, this group of dedicated people are there to help public defense teams help their clients.

Incoming requests for assistance, whether by phone or mail, are pointed in the proper direction by Ronda Haynes, who also handles many of the office's copying and filing tasks, as well as special projects. Dawn Allert keeps membership records up-to-date and handles many other daily tasks. Tara Hoffman's most recent project was taking care of the complicated logistics involved in putting on the Basic Trial Skills Program. Without these three secretaries, the Backup Center would be hard-pressed to function. And without accountant Mary Durgee to track and report on funding and expenditures, including payroll, staff functioning would definitely be impaired.

Barbara Baggott, in addition to performing administrative duties for the Executive Director, has recently been occupied with organizing the many facets of the upcoming Annual Meeting, from hotel logistics to Board materials to social events. Conference attendees will meet Barbara and many other NYSDA staff members in Corning on July 31– August 2.

Many requests for technical assistance, such as providing data on indigent defense funding, go to the Criminal Justice Research Unit. Research associate Wendy Pogorzelski keeps up on state and national criminal justice sources of information, supervises criminal justice interns, writes grants, and works on special projects and issues such as cameras in the courtroom. Current criminal justice interns, who research information for the Backup Center and its users, as well as index newly-acquired information for easy retrieval, are Thomas Brewer, Barbara Ryn and Bivette Stodghill.

Requests for assistance on legal issues are most often directed to staff attorney Sybil McPherson, who was also the NYSDA coordinator for the Gideon Day Coalition's observance of the 35th anniversary in March of the U.S. Supreme Court holding that states must provide counsel to defendants who cannot afford to retain counsel. She also supervises interns. Current legal interns, who research legal issues and write digests of appellate opinions for the monthly Backup Center REPORT and Case Digest System, are Christina Buoniconto, David Gonzalez, Kathleen Kelly, Adrienne Kerwin, and Mary Jane Murphy. Also assisting the legal staff in what is a new position for the office is paralegal intern Kevin Harrington.

Al O'Connor, another staff attorney, also responds to requests for help on legal issues, authors amicus briefs, and tracks and analyzes pending legislation. Filling a new position, law librarian Theresa Bobear began work at the Backup Center in December. She has tackled the huge job of tabulating and organizing the Backup Center's library and publication holdings, developing an acquisitions policy, and ensuring that time and money are efficiently spent in acquiring materials. Terry also assists with legal research, and supervises yet another staff addition, the library intern position, currently filled by Ellen Sullivan. Backup Center REPORT editor and staff attorney Mardi Crawford, who holds a Michigan bar card and is awaiting final processing of her application for a NY license, also does legal research and assists with planning trainings and other projects.

Managing attorney Charlie O'Brien continues to work on getting case management system software for public defense offices into production, and oversees Backup Center office information systems, bringing public defense into the technological era. He also develops trainings and oversees NYSDA publications and office administration. Executive Director Jonathan Gradess immerses himself and the Association in good works, from running the Defender Institute to responding to the needs of public defense providers, and from seeking volunteers for exceptional pro se cases to testifying before governmental entities about the need for public defense resources.

Information specialist Darlene Dollard works with Charlie on the case management system, a project to which she—and he—have given many extra hours. David Austin is the Backup Center's information systems manager, who maintains the office network (keeping new equipment and old cables working, installing updated programs, and answering the staff's frequent calls for help) and serves as webmaster. He has recently been assisted by information technician intern James Pogorzelski.