September 1997 Defender News

The 2nd Circuit has imposed on defense attorneys the burden of telling criminal defendants of their right to testify and of the fact that the final decision on whether to do so belongs to the defendants. Brown v Artuz, No. 96-2628 (2nd Cir. 8/6/97). Every federal circuit that has considered the question has found the decision to testify to be a personal right, the court found. Dicta in U.S. Supreme Court cases supports that position. Rock v Arkansas, 483 US 44, 52 (1987); Jones v Barnes, 463 US 745, 751 (1983). The American Bar Association Standards for Criminal Justice have long been in accord. Standard 4-5.2(a)(iii) (2nd ed. 1980; 3rd ed. 1991). The circuits have diverged, however, as to who bears the responsibility for ensuring that defendants are informed of the right, and that decisions to waive the right are knowingly and intelligently made. The 2nd Circuit held in Brown that informing defendants about the right is a component of effective assistance of counsel under Strickland v Washington, 466 US 668 (1984). Trial counsel's performance in Brown was found deficient, as there was no evidence that James Brown knew the decision to testify was his to make. But no prejudice was shown, because Brown's anticipated testimony in support of his justification defense to the charge of murder would not have explained his failure to retreat before firing additional shots at the deceased. (Criminal Practice Report, Vol. 11, No. 18, p. 350-351 [8/27/97])

The 3rd Department opinion in People v Young, et al [digest p. 15] made only slight mention of the racial aspect of the case, in which three African American men were stopped by an investigator who was not on traffic duty, and whose suspicions that the car occupied by the men was stolen were based on a "hunch." On appeal, the traffic stop was found to have been an improper pretext for further investigation, and evidence of drugs ultimately found on one of the men was held inadmissible. In press coverage about the case, the racial issue received more focus. Aaron Dare, head of the Urban League of Northeastern New York, was quoted as saying the decision merely confirms what is already well-known to many: ". . . if you're African-American and you have a nice car, it's dangerous." (Times Union 7/11/97)

Pretextual stops are not prohibited under current U.S. constitutional law, Whren v. United States, 116 S Ct 1769 (1996). Whren has created concerns about civil liberties, and particularly about the civil liberties of minorities. One commentator, Prof. David A. Harris of the University of Toledo College of Law in Ohio, noted earlier this year that pretextual traffic stops can already be shown to be used predominantly against minority groups, and predicted that this pattern is likely to increase under Whren. ("Whren v. United States: Pretextual Traffic Stops and `Driving While Black," The Champion, March 1997)

Public Defender Proposes Parity with Prosecutor

Columbia County Public Defender Dale Desnoyers is seeking to raise assistant defender salaries in his office to the same levels paid assistant prosecutors. All four part-time assistant defenders in the county are paid $25,236, while two of four part-time assistant prosecuting attorneys and two of six part-Time assistant attorneys in the County Attorneys office receive $25,361.Two other part-time assistant prosecuting attorneys and one part-time assistant county attorney receive $28,256, and three part-time county attorneys receive $31,703. The only full-time assistant defender receives $4,000 less than the full-time assistant prosecutor's salary of $39,000. This is Desnoyers' second attempt in two years to raise his assistant defenders' salaries; denial of a previous request was based on a lack of county funds. Persistence may pay off - it was only after two years of failed efforts that Desnoyers received approval for a part-time investigator. The District Attorney's Office maintains two investigators full-time.

The 1st Department has reinstated two causes of action in the lawsuit brought by the Legal Aid Society against the City of New York for alleged illegal conduct in ending Legal Aid's role as the exclusive legal services provider for indigents in the five boroughs. The Supreme Court had dismissed the combined action/special proceeding as barred by the four-month statute of limitation governing Article 78 proceedings. Among the causes of action was a claim that the City had acted to deprive the Society of its rights under the National Labor Relations Act. The 1st Department found that a three-year statute of limitations applied to that claim, raised under 42 USC 1983, and ordered it reinstated. A portion of a second cause of action, based on the mayor's alleged refusal to follow Procurement Policy Board restrictions against awarding multiple contracts, was found to have arisen only with the actual award of new contracts to providers other than Legal Aid in June, 1996, making the proceeding filed that same month timely. Legal Aid Society et al v City of New York et al, Nos. 60960-60960A (1st Dept. 9/11/97)

The Division of Parole has amended the guidelines for parole revocation dispositions, most notably to increase the number of violators who fall into Category 1, which carries a mandatory minimum time assessment of 15 months. (See Board Adopts Strict New Parole Violation Guidelines—Backup Center REPORT 12/96.) The amended regulation (New York Register 8/13/97) now additionally includes within Category 1:

The amended regulation also includes a new category for "persistent violators," defined as clients who have "incurred two prior sustained violations of their release upon the controlling conviction..." If a persistent violator would otherwise fall into Category 2 or 3 under the guidelines, a time assessment "not to exceed 12 months shall be imposed. " Persistent violators who fall into Category 1 will continue to be subject to a 15 month minimum time assessment.

The "exceptional mitigating circumstances" criteria for dispositions outside the guidelines have been modified to eliminate the Division's consent as a prerequisite to consideration of certain mitigating factors at a final hearing. However, the Board of Parole has retained substantial control over the process, as it must continue to approve all dispositions that fall outside the guidelines.

Finally, a client may now argue in support of the "stable employment" mitigating factor without supplying verification of an outstanding job offer. The Division of Parole recognized that many parolees lose their jobs soon after their arrest on a parole violation warrant, and that job verification is often difficult for an incarcerated client to obtain.

A copy of the amended regulation is available at the Backup Center.

Queens County Monitors Fault Defense Funding

Volunteer monitors observing the courtrooms of 26 judges in the Kew Gardens branch of the Queens County Supreme Court, Criminal Term for varying periods in 1996 have recommended increased public defense funding and elimination of needless courtroom delays and inactivity. The citizen monitors were organized by the Fund for Modern Courts, which has released a 45-page report of their findings, including both complementary remarks and recommendations for improvement. A primary complaint was that unexplained delays and inactivity in the courtrooms were common, at a time of increasing case backlog due to a prosecutorial policy against plea bargaining after indictment. Judges were criticized for taking the bench late and for tolerating attorney tardiness. Delay in bringing detained defendants to court was also criticized.

Observations that Legal Aid Society and 18-b defense lawyers were spread too thin resulted in a recommendation that the city administration restore funding cuts and raise assigned counsel fees. The report notes concerns about delays occurring when attorneys were unable to be present or were not prepared, and about the quality of representation provided as a result. Monitors also commended the many attorneys seen to fight hard for their clients.

Among other recommendations for improvements were: more efficient use of jurors, especially use of juror questionnaires to avoid repetitious questions; a reduction in the number of peremptory challenges, which were perceived as ensuring that educated and professional people did not serve; and investigation of why sitting juries were consistently more predominantly white than the properly diverse jury pool. (Queens County Court Monitors Report on the Criminal Term of Supreme Court—Kew Gardens Branch, Fund for Modern Courts) (tel) (212)575-1577; (fax) (212)869-1133)

The monitors' concerns about defense underfunding contributing to court delay echo recent assertions by David Meyer, former chair of the National Legal Aid and Defender Association's Defender Council, who advises organizations across the country on quality and productivity. Meyer noted that budget shortfalls often result in cutting "the very things which would enable us to stay ahead: training, technology, professional expertise, paraprofessional support, and sometimes attorney staff." Urging public defense programs to emulate the "quality" movement seen in many private sector companies, Meyer notes that unprepared lawyers have to "re-work" their legal service (continuing court appearances that should have been properly handled when first scheduled) much like defective consumer products have to be fixed under warranty. Measurable costs result, from extra work for supervisors and support staff, and from disciplinary and malpractice claims. When attorneys are able to do their job right the first time, the whole system benefits by "additional availability of jail space, a decrease in expenses of transporting in-custody clients to court, early disposition of cases, and better utilization of resources overall." By developing quantifiable, dollar-related outcome measurements, defense organizations should be better able to convince funders that money spent "upstream" on necessary resources will save "downstream" losses in the long run. ("Quality: We Can't Afford Less," The Cornerstone [NLADA], Summer 1997).

On September 12, an e-mail message describing implementation of the new merit time legislation ("Good Time Off the Minimum Passes Legislature," Backup Center REPORT 7-8/97, p. 1) was sent to all Department of Correctional Services superintendents, to be posted and distributed within facilities for the information of inmates. The posting describes eligibility criteria by crime, length of sentence and program accomplishment, as well as ineligibility by disciplinary record and frivolous lawsuit filing. Merit time is to be implemented beginning with October parole board appearances. Inmates in work release, day reporting or CASAT are not to be considered at this time due to logistical limitations. A copy of the e-mail is available from the Backup Center.

[Correction: The Senate Bill number for the merit time legislation as reported in the last issue of the REPORT contained a typographical error. The correct number is S. 5784.]

The publication by two journalists of a book called The Death of Innocents should not go unnoticed by defense teams. Richard Firstman and Jamie Talan have presented the story of a well-known Onandaga County case as an expose of alleged errors by pediatric researcher Dr. Alfred Steinschneider. Steinschneider's work on a possible genetic component of Sudden Infant Death Syndrome (SIDS) was a key part of the defense of Waneta Hoyt, who was ultimately convicted of killing her five children. Reviewed in the New York Times Review of Books (9/14/97), the 632-page account is said to balance "sympathy for devastated parents" with "concern for the common weal." The very nature of the material, however, lends itself to sensation. The book's release prompted publicity on the not-yet-published work of two other medical researchers who have reportedly charged that dozens of Massachusetts infant deaths attributed to SIDS were caused by parental abuse. A New York article on the Boston research by Dr. Thomas Truman and Dr. Catherine C. Ayoub also mentioned the conviction of a former Schenectady woman for the death of one child after other of the woman's children died of what was believed to be SIDS. ("Researcher links SIDS deaths to parental abuse," Times Union 9/9/97.) If such SIDS allegations follow the path of other high-visibility scientific/medical theories like "repressed memory" of abuse, defense counsel may well see an increase in the number of clients charged with killing their babies.

Michael Tully, a state senator from Long Island, died in August at the age of 64. A senator since 1982, Tully had previously been a town supervisor, assistant district attorney, and defense lawyer. The following tribute, which includes a reference to Tully's support of NYSDA, was unsolicited:

I remember Mike Tully. I ran against him for supervisor of North Hempstead in 1977... At times we were very critical of Mike Tully and his administration. To his eternal credit, Mike stayed above the fray and never struck a low blow. He... recently described his fellow Senator Norm Levy, who had just returned to the legislature after brain surgery, as "a gallant gentleman." When I read those words, I thought to myself that Mike would know. That's what he was. When one of his sons was seriously injured in a car accident, the personal tragedy hurt him deeply, but he never let it destroy him.

After the election, I invited Mike out to lunch. We shook hands and parted as friends. Years later I noted that Mike was a member of the New York State Defenders Association throughout his entire professional career even after he ceased being a defense lawyer. I asked him about that and he said that he needed to stay informed. He said: "You know, I have a conservative constituency and I favor a strong Bill of Rights. I never stopped being a defense lawyer. Defense lawyers are the real patriots."

Mike was bright, a very good listener and had a terrific, quick yet at times acerbic, Irish wit. He respected people, worked tirelessly for us in a public service career of over 30 years and he will be sorely missed. I never had a more honorable opponent.

Trust a defense lawyer to turn anti-defense legislation such as the 1996 federal habeas "reform" bill to the advantage of clients. Andrea D. Lyon, Assistant Clinical Professor of Law at the University of Michigan Law School's clinical program, recently noted that the Antiterrorism and Effective Death Penalty Act (AEDPA) increases the burden on trial defense lawyers but provides them a weapon as well:

"To fail to object, to file a motion or to elicit a fact from a witness may indeed proved fatal later to your client's ability to even talk about the issue to a federal court. Yet I maintain that the AEDPA is actually an opportunity. Because it places such a heavy burden on the State courts, and trial court in particular, and because every fault save the most egregious will be laid at defense counsel's door, the much vaunted defense lawyer's paranoia actually serves her interest . . . if you can think of a legitimate good faith reason to file a motion, you should do so, and you should do so citing the bipartisan sponsored AEDPA."

Lyon suggests that given the AEDPA's bar to later development of defense factual issues, trial lawyers should be seeking evidentiary hearings on a plethora of claims: "Defense counsel must ask for an evidentiary hearing on each claim, and you should tell the trial judge that he or she must give it to you in order that you can fully develop the facts as you are now required to do so by AEDPA." Lawyers should also be requesting written or oral reasoning for judicial rulings.

Meeting AEDPA's requirements may increase the work of defense lawyers, but it will increase the burden on prosecutors and courts as well, Lyons notes. It will give the defense lawyer "the opportunity to truly investigate her case at a level she has been unable to do before, thus creating a more complex trial, an even more complex record and expanding rather than contracting the scope of litigation." ("Record Preservation Requirements after 1996 Habeas Bill Require Extensive Trial Preparation," [Capital Cases column], The Champion, August 1997)