Martin J. Cirincione, the Schenectady County Public Defender since January 1, 1987, recently stepped down to begin his new duties as Deputy Executive Director of the New York State Division of Probation and Correctional Alternatives. Mr. Cirincione will serve directly under Commissioner George Sanchez, and work closely with Paul Shechtman, Commissioner of the State Division of Criminal Justice Services.
Mr. Shechtman has stated that an important goal of the Division of Probation and Correctional Alternatives is to find ways to divert, from the criminal justice system, people who can be diverted productively and consistently with public safety. "The agency's mission is being redefined and that means Marty joins it at a critical time in its history," Shechtman said.
"I can bring 20 years of experience to analyze what level of offenders must be incarcerated and where society would be best served without incarceration," Cirincione said. "It's what I really want to do."
Under Mr. Cirincione's leadership, the Schenectady County Public Defender's Office became one of the first in the State to have an alternativestoincarceration program designed to get drug addicts and alcoholics charged with nonviolent crimes into treatment. The office is also serving as a test site for NYSDA's case management system. The County has yet to appoint a new public defender.
Marty Cirincione has also been a valued member of NYSDA's Board of Directors since 1988, chairing its Pension and Benefits Committee, serving on its Justice Courts Committee, and as its Treasurer. Edward J. Nowak, NYSDA's president, presented Marty with the Association's Special Award for his many years of service at the 29th Annual Meeting's Defender Banquet.
NYSDA's Board of Directors and staff wish Marty Cirincione all the best in his new position.
On August 15-18, 1996, the Defenders Association held its 29th Annual Meeting and North Country Trainer at the Lake Placid Hilton. Practitioners from across the state participated in the twoday training program which included an update on recent Court of Appeals decisions by Monroe County Public Defender Edward J. Nowak; how to weave storytelling into the trial by private practitioner, David L. Lewis; advanced cross examination techniques by Vince Aprile, General Counsel of the Kentucky Department of Public Advocacy; a legislative update by Backup Center attorney, Al O'Connor; challenging search warrants by private practitioner, John Parrinello; finding defense and investigative resources on the Internet by Randy L. Wheeler, Directing Attorney of the Capital PostConviction Unit of the Kentucky Department of Public Advocacy; representing the convicted sex offender by Michele Maxian and Susan Hendricks, CoDirectors of the NYC Legal Aid Society's Special Litigation Unit; and dealing with coerced, involuntary and false confessions by University of California Professor Richard J. Ofshe. Written materials from the program are available from the Backup Center at a cost of $25.00.
At the Chief Defender Convening held during the conference, Vince Aprile facilitated an indepth discussion on identifying and handling conflicts of interest. NYSDA's case management computer system was demonstrated for interested public defenders. In addition to meetings of NYSDA's Board of Directors and a Membership Meeting, the Criminal Defense Information Exchange was held to provide practitioners with sample motions and briefs on various topics.
The Association's 1996 Service of Justice Award was presented by Jonathan E. Gradess to Judy Clarke, President of the National Association of Criminal Defense Lawyers. Ms. Clarke, known for her generous contribution of her entire fee in the Susan Smith case to the South Carolina PostConviction Defender Organization, is the Executive Director of the Federal Defenders of Eastern Washington and Idaho and is a nationallyknown expert in federal sentencing issues. Her keynote address, as humorous as it was inspiring, demonstrated why Ms. Clarke is such an effective advocate and nationallyrecognized leader of the criminal defense bar.
A second, special award was presented at the Defender Banquet to Martin Cirincione for his years of generous service to the Association. Mr. Cirincione, previously Treasurer of NYSDA's Board of Directors, recently stepped down after leaving the Schenectady County Public Defender's Office for a position with the New York State Division of Probation and Correctional Alternatives.
On July 23rd, the House of Representatives voted to amend an appropriations bill, which would have cut the Legal Services Corporation (LSC) funding to one half of its 1996 budget, which was already one third less than its 1995 appropriation. Twohundredfortyseven members voted an amendment which will instead reduce the budget by ten percent, to $250 million. Analysts hail this amendment as a hard fought victory after months of educating lawmakers on the merits of continuing LSC's existence.
A recent report by the Institute for Law and Justice (ILJ), a research firm, included an analysis of 28 cases of individuals convicted of sexual assault who were ultimately exonerated by DNA evidence and released from prison. Most of the convictions occurred in the 1980s when DNA testing was not widely available. In nearly all cases, the defendants were able to win reversals after forensic testing found that the defendants' DNA did not match the DNA from semen found on the victims.
The study highlights the lack of reliability of eyewitness identification since this was the primary evidence used to convict in most of the studied cases. Eight of the 28 cases included allegations of prosecutorial misconduct. The most notable incidence involved serologist, Fred Zain, who altered laboratory records, reported inconclusive results as conclusive, and overstated the strength of results. The West Virginia Supreme Court of Appeals, which reviewed Zain's testimony in 130 cases, ruled that none of his testimony was credible.
"These [28 cases] represent just the tip of a very deep and disturbing iceberg of cases," commented Barry C. Scheck, professor of law at Benjamin N. Cardozo School of Law. Scheck based his comments on the fact that DNA testing by the FBI and by private labs has consistently excluded the primary suspect in 20 to 25 percent of more recent cases. Without DNA testing, the conviction rates in sexual assault cases, currently about 62 percent in New York, would include a significant number in error.
The report, entitled Convicted by Juries; Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, was released on June 14, 1996, by the National Institute of Justice (NIJ), which commissioned the study. As a result, the NIJ will be awarding a new round of grants to state and local governments to improve their forensic DNA testing capabilities. The report is available from the National Criminal Justice Reference Service, Box 6000, Rockville, MD 208496000; or call (800) 8513420; or through the Internet at http://www.ncjrs.org/txtfiles/dnaerid.txt.
A recent ethics opinion again confirms that criminal defense lawyers may contact a complainant without the permission of the prosecutor to discuss dropping the charges. The lawyer must be careful to observe the rules regarding contact with witnesses, particularly ones with adverse interests, and engaging in conduct prejudicial to the administration of justice as required by the Code of Professional Responsibility. The lawyer may not of course encourage the complainant to fail to appear at the scheduled hearing or trial. Opinion No. 711, was issued by the Committee on Professional Ethics of the New York County Lawyers' Association.
Robert Baum, AttorneyInCharge of the Legal Aid Society's Criminal Defense Division, will officially step down from his duties on September 20, 1996 after eight years of service. He will be joining the Society's Federal Defender Unit for the Southern District of New York. Dennis R. Murphy, a senior trial attorney with the Pima County Public Defender's Office in Tucson, Arizona, will succeed Mr. Baum. Mr. Murphy was formerly a federal prosecutor in Washington, DC.
In a recent decision, State Supreme Court Justice Affronti upheld the constitutionality of the Sex Offender Registration Act. In rejecting Judge Chin's ruling in Doe v Pataki as not binding, Justice Affronti asserted that the law was not punishment, but a remedial response to a person's prior criminal conduct. He reasoned, in People v. Afrika (NYLJ [8/21/96]), that the Ex Post Facto Clause was not violated since the Legislature reasonably concluded that sex offenders' past behavior is a strong predictor of their future conduct and accordingly, implemented the notification measures to protect society and enhance law enforcement.
Yolanda Villa of the Monroe County Public Defender's Office represented the defendants. Copies of the decision and briefs are available at the Backup Center.
Despite the 24hour rule mandated as "reasonable" by Roundtree v Brown (77 NY2d 422), the arrest-to-arraignment times in New York City have increased to an average of 30.1 hours. This indicates that most suspects are being held for more than 24 hours and some for as long as two days, said Michele Maxian, the Legal Aid Society lawyer who litigated Roundtree.
The increases have been attributed to a rise in streetlevel drug arrests initiated by Mayor Giuliani, particularly in Brooklyn, and his policy of arresting people for "quality of life" violations, rather than giving them citations. According to the NYLJ (8/20/96), the State Division of Criminal Justice Services in Albany, responsible for matching the individual's fingerprints with computerized criminal histories, has been unable to keep up with the increased demand. Fingerprints are still taken manually by police officers using paper and ink. About 35 percent of the prints arrive in Albany with defects requiring a reprint. Whenever this occurs, a person can wait an additional nine to 12 hours before arraignment, according to Elliot Cook, law clerk to Criminal Court Judge John P. Walsh, who oversees arraignments citywide.
Since the volume of arrests is highest in Manhattan, the Legal Aid Society has been most aggressive there in filing enforcement writs seeking compliance with the 24 hour rule. Recently, one acting Supreme Court justice ordered the release of 90 individuals. Fewer writs have been brought in Brooklyn, which was better able to accommodate the increase in arrests by adding a night arraignment part in March. Thus, Brooklyn suffered a significant but lesser increase in arresttoarraignment time (17.7%). The Bronx, which had the highest arresttoarraignment increase (33.7%) uses administrative remedies rather than strict enforcement writs to respond to the violations.