Under federal legislation passed in 1996, the immigration consequences of criminal proceedings involving non-U.S. citizens are more draconian and difficult to deal with than ever. Mandatory deportation for minor drug offenses and other, relatively minor offenses is only one example of the increase in penalties and decrease in options available to non-citizen defendants. A new Criminal Defense Immigration Project designed to help defense teams zealously and effectively represent their non-citizen clients is now being established by the NYSDA Public Defense Backup Center. Manuel D. Vargas, the catalyst for the Project, will serve as its director. Funded by a grant from the Open Society Institute, the Project will develop and publish an immigration law manual designed specifically for lawyers in criminal defense practice, and provide backup support to those who seek assistance with immigration-related issues.
Vargas, former supervising attorney of the Immigration Law Unit of the Legal Aid Society of New York City, will have office space at New York University School of Law. While working on the manual, Vargas will also provide backup assistance on immigration law questions. Once the manual is completed, NYSDA will distribute it to all criminal defense programs-public defender offices, legal aid societies, and assigned counsel programs-in the state, as well as coordinate its distribution through national criminal defense organizations.
A long-awaited proposal to grant good time off the minimum term of an indeterminate sentence was included in a budget bill that passed the Legislature on the last day of the 1997 session. Governor Pataki is expected to sign the bill. The bill (S.5874 / A.8667 §§43-46) provides that inmates serving indeterminate sentences for non-violent felonies may be eligible for a one-sixth reduction of their minimum terms if they satisfy certain requirements. To be eligible for the credit, an inmate must obtain a certificate of earned eligibility (see Correction Law Article 805), and must also get a GED, or an alcohol and substance abuse treatment certificate, or a vocational trade certificate following six months of training, or work 400 hours in a community service work crew. An inmate satisfying these requirements will be eligible for discretionary parole release before completion of the minimum sentence. The credit may be denied as a sanction for a serious prison disciplinary infraction or if an inmate files a civil lawsuit that is deemed frivolous by the court in which it is filed.
Inmates convicted of the following non-violent offenses are not eligible for good time off the minimum: A-I felony drug offenses; manslaughter in the second degree; vehicular manslaughter in the first and second degrees; criminally negligent homicide; any crime defined in Penal Law Articles 130 or 263 (sex offenses); or incest.
The law will go into effect when the Governor signs the bill. The Department of Correctional Services is expected to issue implementing regulations soon thereafter.
Public defense services have once more survived efforts to eviscerate their state funding. A few programs can celebrate modest increases in funding after a history of cuts, level funding and underfunding. Several others have been level-funded again, allowing them to hang on for another budget period, still deprived of the ability to deliver the quantity of services needed.
The final budget for the Aid to Defense program, which the governor sought to cut by 50%, maintains the program at its FY1996/97 level of $13,837,300. The Aid to Prosecution program is likewise funded at its FY 1996/97 level-$21,013,000. (Other state funding in the FY 1997/98 budget for prosecution services includes, but is not limited to, $2,000,200 for the payment of state aid to counties pursuant to County Law §700 for district attorneys' salaries [the FY 1996/97 level] and $1,425,000 to fund the special narcotics prosecutor.) The budget also includes $2,096,900 in federal anti-drug funds for Aid to Defense and $3,348,480 in Aid to Prosecution, representing significant increases for both from FY 1996/97.
The NYSDA Public Defense Backup Center will continue to provide services to public defense providers around the state in FY 1997/98, having been reinstated in the budget despite the governor's yearly effort to eliminate all funding. The final budget, including both state and federal funding, totals $1,220,000, an increase of 6 percent from FY 1996/97.
Other public defense services programs targeted for elimination by the governor also survived. Neighborhood Defender Service of Harlem received state funding equal to its FY 1996/97 level, $500,000. The Indigent Parolee Program (IPP) had its total appropriation (including state and federal funding) increased from $691,000 in FY 1996/97 to $1,869,018 in FY 1997/98. Certain federal IPP funds are specifically earmarked for programs currently providing parole-related representation pursuant to a contract w ith the State: New York City Legal Aid Society-$450,000; Nassau LAS-$48,006; Monroe PD-$48,006; and Wyoming LAS-$48,006. Prisoners Legal Services funding has been increased from $3,560,000 in FY 1996/97 to $4,000,000 in FY 1997/98. Related programs serving defense teams or clients also saw state funding restored, including the Center for Community Alternatives, the Fortune Society, the Osborne Association, Project Return, and the Women in Prison Project of the Correctional Association, and as-yet-undesignated recipients will have three million dollars for providing alternatives to incarceration.
While funding for payment to capital counsel, experts and investigators assigned pursuant to § 35-b of the Judiciary Law increased from $2,100,000 in FY 1996/97 to $4,836,800 in FY 1997/98, funding for the Capital Defender Office was reduced from $5,190,800 in FY 1996/97 to $4,674,000 in FY 1997/98. (State funds for prosecution experts, and for the New York State District Attorneys Association and the New York State Prosecutors Training Institute to provide assistance and training related to capital prosecutions, was level-funded at $3,500,000.)
The budget was still pending when defense services providers from across the state gathered in Westchester County July 17-20 for NYSDA's summer meeting. The Association celebrated its thirtieth anniversary as it has observed many prior ones-determined to continue and to do good work, despite opposition.
A chief defender convening, information exchange, and NYSDA board meetings provided varied forums for sharing knowledge and devising strategies. Among the topics discussed at the convening of public defender, legal aid society, and assigned counsel program chiefs were: cameras in the courtroom (legislation allowing media cameras in court on an experimental basis has expired and no new legislation is in place, although the issue continues to be discussed); increasing courtroom closures during undercover police officers' testimony (see also Court of Appeals case digests, pp. 13-14); the opening of Family Court proceedings to the public; interaction of local public defense providers and the Capital Defender Office in potentially capital cases; and the desirability of having New York City public defense offices "speak with one voice" on public defense issues.
Memorable moments during the three-day celebration included Patricia Shih's timely, uplifting songs and Joe Gustaferro's appearance as Clarence Darrow. Receptions providing time for meeting new friends and reminiscing with established ones added to the celebratory tone.
Eight training sessions offered an array of practical information. Recent Court of Appeals decisions were succinctly summarized by NYSDA President Edward Nowak. Opening statement as a "Prime Time to Persuade" was presented by well-known Chicago practitioner Jed Stone. The special difficulties of defending adolescents who kill were addressed by West Coast attorney Paul Mones, author of "When a Child Kills: Abused Children Who Kill Their Parents." A look at 1997 legislation by Backup Center Staff Attorney Al O'Connor and tips on preparing Freedom of Information Law requests by Michele Maxian of the Legal Aid Society's Special Litigation Unit provided New-York-specific information, while a panel discussion on Representing the Non-Citizen Client, by Manuel Vargas (see p. 1), Linda Kenepaske and Dan Kesselbrenner, demonstrated the impact federal legislative changes can have on state criminal practice. Two presentations on areas involving expert witnesses concluded the training: psychologist and mitigation expert Kathy Wayland of the California Appellate Project discussed how changes in the mental health field can affect interpretation of a client's mental health history; New York attorney Jack T. Litman emphasized how lawyers who gain the applicable knowledge can successfully cross examine the state's medical examiner. The materials from these eight sessions are available from the Backup Center for production and mailing costs of $30.
At a luncheon on July 18, two New York State Bar Association Dennison Ray awards were presented. These awards recognize indigent defense attorneys for extraordinary commitment in providing zealous and skilled representation for disadvantaged and low-income clients. The recipients were Saratoga County Public Defender John H. Ciulla, Jr., a member of the NYSDA board, and Capital Defender Office first deputy Susan Salomon. George Kendall, of the NAACP Legal Defense Fund, Inc. was the keynote speaker.
NYSDA presented its own awards during the annual meeting. Special Recognition awards went to founding members Sanders Heller and Norman Shapiro (who is also NYSDA Vice President), and to board member Leonard E. Noisette, Director of the Neighborhood Legal Service of Harlem. (A profile of Noisette was just published in the second issue of Indigent Defense, a new publication of the National Legal Aid and Defender Association in Washington, D.C., see below, page 4.) Karen Kane received the Outstanding Service to NYSDA's Public Defense Backup Center Award for her 14 years in NYSDA's Research Unit; she now works at the Capital Defender Office.
The crowning award at the Saturday night banquet was the Service of Justice Award, presented this year to NYSDA board member Mark J. Mahoney, of the Buffalo firm Harrington and Mahoney. Like the other NYSDA awards presented in this anniversary year, the presentation was a celebration of commitment and craft, and of stellar public defense work, not the least of which have been to help make this Association a viable defense resource.
Other public defense lawyers and law students have been recently selected for
awards and appointments. In May, the New York State Bar Association presented 13
lawyers and a law student with the 1997 President's Pro Bono Service Award for
services to the poor. Among the recipients were James L. Kronenberg and Peter
G. Koffler, for their role in the formation of Brooklyn Defender Services.
Kevin G. Brown, a student at Fordham University School of Law, founded the
Death Penalty Defense Project there, designed to "recruit, refer and train
students to gain experience in capital defense representation." Brooklyn Daily
Eagle & Daily Bulletin
Susan B. Lindenauer, counsel to the Executive Director of the Legal Aid Society in New York City, is the new chair of the New York State Bar Association's 1,400-member Criminal Justice Section. (State Bar News, July/August 1997)
Vince Aprile, General Counsel of the Kentucky Department of Public Advocacy, who has been a presenter at many NYSDA and other New York trainings, has been appointed by the National Legal Aid and Defender Association to be its representative on the Council of the American Bar Association's Criminal Justice Section. (The Advocate, Kentucky Department of Public Advocacy, May, 1997)
A federal defender office to cover the 32 counties of the Northern District was approved on August 13. Chief U.S. District Judge Thomas J. McAvoy said that specific details, such as how many attorneys are to be hired for the Albany-based office, are still being worked out. No Federal Defender for the district has been appointed yet. Private attorneys will continue to be appointed in conflict of interest cases. (Times Union 8/13/97)
Part-time city or county legislators have been able, under a twenty-year-old opinion by the New York State Bar Association's Committee on Profession Ethics, to represent criminal defendants where the opposing counsel is a prosecutor whose office budget is appropriated in a "lump sum" by the legislature of which defense counsel is a member. NY State 431 (1976). The Committee overruled that opinion on June 23. Disqualification of the legislator-defense attorney is now warranted where the attorney would be placed in a position adverse to law enforcement authorities over whom the legislature has control or influence. A legislator-attorney "should not take on a matter that will require the lawyer to cross-examine a police officer from a police department over which the legislature exercises budgetary or appointment authority, or to be adverse to a prosecutor whose office is similarly affected by the legislature." (Opinion 692)
In another opinion, the Committee said that a law school clinic supervising attorney can represent a clinic client where the opposing attorney is a member of the law school's board of trustees, so long as "the clinic attorney reasonably believes that his or her professional judgment will not be adversely affected and it is obvious that the clinic attorney can adequately represent the client" and the client consents after full disclosure. To avoid having consent granted out of fear that no representation will be available, "it is particularly advisable for the clinic attorney where possible to identify alternative representation should the client decide not to consent . . ." (Opinion 688)
The Committee also issued an opinion saying that attorneys may make donations to non-profit organizations that provide referral lists which include the attorney, so long as the donation "is clearly intended to be charitable and is not pursuant to a tacit arrangement of compensation in exchange for referrals." (Opinion 691)
In 1991, the state Commission on Judicial Conduct advised Courtlandville Town Justice Mardis F. Kelsen to cease the coercive practice of automatically requiring traffic offense defendants to post $100 bail if they pled not guilty by mail, then advising them that if they changed their plea the cost would be $85. By October 1994, Justice Kelsen had re-instituted the practice of setting bail in such cases. The letters being sent "requested" $100 bail, and while not mentioning a lesser fine, added that the charged persons could change their plea if they had "inadvertently signed the not guilty side of the ticket" and wished to plead as charged. The letters, sent only to defendants living outside the county and unknown to the Justice, also contained the prosecutor's name and address should recipients "wish to negotiate a possible amended disposition." Finding that the Justice's pre- and post-1991 practices gave the appearance of discouraging the constitutional right to trial and coercing guilty pleas, and that the Justice failed to recognize the impropriety of setting standard bail and the likelihood of coercion in her actions, the Commission found admonition to be appropriate. (Determination of July 17, 1997)
"Effective Use of Sentencing Advocates," an article excerpted from a new drug defense manual to be published later in the year, is the cover story of the second issue of Indigent Defense, a new periodical from the National Legal Aid and Defender Association. Also included are sidebar stories on sentencing advocacy programs being developed in Tennessee and nationwide and a reprint of the sentencing section of NLADA's Performance Guidelines for Criminal Defense Representation. (The Guidelines commentary was written by NYSDA Backup Center attorney Mardi Crawford. Indigent Defense subscriptions are included in NLADA membership, or can be ordered separately. Contact editor Scott Wallace, NLADA, 1625 K Street NW, Ste. 800, Washington DC 20006. (tel) (202) 452-0620.
The U.S. District Court for the Southern District of New York has adhered to its earlier ruling in a civil rights case disallowing required attendance at Alcoholics Anonymous (AA) meetings as a condition of probation. After the court's initial ruling, in Warner v Orange County Dept. of Probation, 870 FSupp 69 (1994), the matter was remanded from the 2nd Circuit for further factual findings. The district court found on remand that the AA program is "deeply religious." The plaintiff was found not to have waived his 1st Amendment objection to the AA condition. (Warner v Orange County Dept. of Probation, No. 93 Civ. 1544 [GLG], [So Dist. NY, 6/30/97]; 61 CrL 1432)