September 1998 Defender News

from NYSDA's Public Defense Backup Center REPORT


Hearings on Public Defense To Be Held

 Four hearings on public defense services and issues surrounding representation of indigent clients in New York State have been scheduled by the Leagues of Women Voters of New York City, Rochester, Syracuse, and Albany, and NYSDA. Witnesses are being asked to address the following general categories: Client Representation; Financing of Public Defense; Managing Public Defense Programs; Working as a Public Defense Attorney; Relationships with Outside Entities (judiciary, county government, district attorney, etc.); and Improving Public Defense Services in New York State. Specific issues might include but are not limited to: assigned counsel fees, independence of public defense services from political interference; training and supervision for professional development; neighborhood representation; caseload issues; access to alternative to incarceration programs; representing individuals in prison or under state supervision; timing of entry of counsel in all courts and justice courts in particular; and client community concerns. The testimony from these hearings will be used to document the current state of public defense services in New York and in efforts to affect public policy and improve the quality of public defense representation. .

The hearings schedule is as follows: NYSDA, under contract to New York State, is obligated to "review, assess and analyze the public defense system, identify problem areas and propose solutions in the form of specific recommendations to the Governor, the Legislature and the Judiciary and other appropriate instrumentalities."

The League of Women Voters, a nonpartisan political volunteer organization working to promote informed, active participation of citizens in their government, is especially concerned about issues that affect localities. As public defense services are funded and managed almost exclusively at the county level, the League has a particular interest in making this inquiry into the state of public defense services.

Anyone considering testifying at one of the hearings should contact Wendy Pogorzelski at the Backup Center. (e-mail: wp@nysda.org). The sign-up deadline for participation in the Syracuse and Albany hearings is October 30, 1998.

NDS: Trying to Outlast the Impasse

 Its budget caught up in a larger dispute between the City Council and the Mayor of New York City, the Neighborhood Defender Service (NDS) is searching for short-term financial assistance to maintain its office until the disagreement is resolved. NDS seeks grants and contributions from foundations, individuals, law firms, and others who realize that NDS's unique community-based public defense program is vital not only to its immediate clients but as a model to the public defense community at large. The program's importance is reflected in a 1997 report compiled by the National Institute of Justice, highlighting NDS's innovations, including its team approach to cases. Teams consist of attorneys, community workers, para- legals, investigators, and administrative assistants, who can address the array of problems that criminal cases create and, in many instances, reflect. Team representation also guarantees continuity. NDS's exceptional service to the Harlem community, and to the cause of justice everywhere, must be preserved.

The defense community can help. Already, alumni of NDS have contributed over $4,000. Contributions, whether large enough to support staff salaries in this period of crisis, or small but important in the aggregate, may be sent to: Neighborhood Defender Service, Inc., 55 West 125th Street, New York NY 10027.

PLS: Pro Bono Service or Contributions Will Help

 Prisoners' Legal Services (PLS), whose legal representation of prisoners not only benefited the prisoners themselves, but helped prevent both frivolous prisoner litigation and prison unrest, has been defunded. Cut from the state budget by gubernatorial veto and not restored by supplemental legislation, PLS has cut staff, closed offices, and sought assistance for its clients from the rest of the bar in the form of pro bono representation. In addition, PLS has asked for large, one-time donations and grants from major law firms and others in an effort to keep its doors open-if only a crack-until the next funding cycle. To date, contributions have fallen short of hopes and need.

The value of PLS to the State of New York has been recognized by James C. Moore, the new President of the New York State Bar Association. Moore, whose trial practice has given him expertise in civil litigation, products liability, malpractice, and alternative dispute resolution, recently wrote to the Albany Times Union decrying the short-sightedness of destroying PLS, which received a grant from the New York Bar Foundation.

To maintain even the lowest level of client service, i.e. referring the most pressing cases to volunteers, PLS needs support from the defense community. Monetary donations can be sent to: Prisoners' Legal Services, attn: David Leven, Executive Director, 105 Chambers Street, New York NY 10007. Anyone interested in providing prisoners with pro bono services should contact PLS Associate Director Tom Terrizzi, 118 Prospect Street, Room 307, Ithaca NY 14850; (tel) (607)273-2283; (fax) (607)272-9122. If you have questions about PLS, contact David Leven at (212)513-7373.

Maxian Heads Criminal Defense Division

Michele Maxian has been appointed Attorney-in-Charge of the Criminal Defense Division (CDD) of The Legal Aid Society in New York City. In announcing her appointment, LAS Executive Director Daniel Greenberg noted that Maxian is a highly regarded attorney and well-respected leader, seen by her colleagues as a tireless worker on behalf of the Society's clients. She was selected by a committee of staff and managers working with Greenberg.

Maxian joined the CDD's Special Litigation Unit in 1982, and has been the Deputy Attorney-in Charge of the CDD since September of 1997. "Under her leadership, the Special Litigation Unit has successfully undertaken major law reforms which have established important rights and protections for our clients. With her passion for the quality of our practice, Michele is working closely with staff to develop a training plan and standards of practice, " Greenberg said. In 1990, Maxian briefed and argued People ex rel. Maxian o/b/o Roundtree v. Brown, 77 NY2d 422, successfully advocating for a reduction of the delay between arrest and arraignment. For that litigation, The Legal Aid Society was given a NYSDA Service of Justice Award in 1991. In the same year, Maxian received the Orison S. Marden Award for outstanding service and dedication to the clients of the Society.

Maxian has provided training at many NYSDA seminars and conferences, including the 1998 NY Metropolitan Trainer in March. Her NYSDA friends salute her appointment (so long as her new duties do not interfere with her availability for training).

Other newly-elevated public defense team members, or their friends, are encouraged to contact the Backup Center so that their new positions may be announced in the REPORT.

Judicial Conduct Condemned
  • Commission Criticizes Comments

The state Commission on Judicial Conduct has issued Determinations formally disciplining a number of judges in the past few months for comments or actions relating to criminal justice. The date of each Determination described below is noted in parentheses.

Advertisements that portrayed Amherst Town Court Justice Samuel Maislin as a judge biased against criminal defendants, a campaign slogan of "Do the Crime-Do the Time," misrepresentations of the extent of Maislin's involvement in notorious criminal cases, and comments he made to newspaper reporters about pending cases led to an admonishment. (8/7/98). Other remarks off the bench led to the censure of Ulster County Court Judge J. Michael Bruhn, who gave a police awards banquet speech that disparaged the Capital Defender Office and defense lawyers in general, alleged the use of "technicalities" to block prosecutions and obtain reversals, and congratulated the group of honorees, which included officers being honored for work on a death penalty case then pending before the judge. (6/24/98).

  • Judges Upbraided for Bias and Behavior

Ex parte conversations with two different criminal defendants urging guilty pleas, in-court interference with an attorney's representation of a client, comments said to create the appearance of bias against the prosecution, and other comments creating the appearance of ethnic bias were the basis for a censure of Westchester County Court Judge Mary H. Smith. (6/29/98) For reducing traffic charges without notice to or consent of the prosecution after conversations with the two defendants, one of whom was properly before a different judge, Justice Jo Hooper of the Hinsdale Town Court (Cattaraugas County) was admonished. (6/29/98)

A series of actions in criminal cases led to a second censure of James E. McKevitt, Malta Town Court Justice (Sara-toga County). The improprieties included denying the requests of defendants for supporting depositions in traffic cases if not made within 48 hours of arrest (which is not the statutory time limit under CPL 100.25[4]), asking defendants to explain why they were pleading not guilty, engaging in ex parte communications with prosecutors, and intemperate judicial demeanor. (7/27/98)

  • Justice Removed for Bias and Repeated Misconduct

More severe punishment was voted by the Commission as to Ralph T. Romano, Haverstraw Town Court Justice (Rockland County). Repeated remarks on and off the bench indicating that he was reluctant if not negligent in applying the law in domestic violence matters was a primary factor in his removal from office. Other misconduct included vitriolic remarks to police detectives who criticized a bail decision, a letter to the town board about those detectives based on unsupported rumors, and failure to disqualify himself in a case involving a defendant he had previously represented and about whom he made vulgar, derogatory comments in the presence of a police officer. (8/7/98)

  • 1997 Annual Report Issued

The Commission has also issued its 1997 Annual Report, summarizing all dispositions from last year. Over 1,400 new complaints were received, 88% of which were dismissed upon initial review. Of the 172 investigations authorized, 139 concerned town and village justices. Thirteen such judges were publicly disciplined, and 38 were cautioned. Only seven of all other judges were publicly disciplined, and 11 were cautioned. The most notable 1997 case was that of Loren Duckman, whose removal from the Criminal Court of the City of New York was voted by the Commission on Oct. 24 [Public Defense Backup Center REPORT Vol. XII, No. 10].

  • Court of Appeals Confirms Duckman Removal

The Court of Appeals has accepted the Commission's determination regarding Duckman, with Judges Titone and Bellacosa filing lengthy and forceful dissents (see case digest p. 19). The majority acknowledged, in less than a page and a half of the 24-page lead opinion, the "several weighty concerns" raised by the dissenters, Duckman, and amici curiae New York Criminal Bar Association, New York State Association of Criminal Defense Lawyers and Brooklyn Bar Association. The majority upheld the Commission's determination despite the threat to judicial independence posed by the publicity- and politically-driven investigation of Duckman following an unpopular-and legal-bail release decision.

Judge Titone detailed the months-long attack on Duckman by politicians and journalists after a defendant on bail committed a murder/suicide. The opinion noted that transcripts involving cases Duckman had dismissed were shown to the governor's investigators with no regard for the confidentiality rule that applies to sealed records. It also noted that the Commission's charges against Duckman were brought under a threat of impeachment against the Commission itself if it did not move in the Duckman matter. The charges brought did not relate to the highly publicized case that triggered the investigation, but were "cobbled together from a handful of incidents selectively draw from tens of thousands of cases petitioner handled during his five-year tenure on the criminal bench," Titone wrote. It is likely, he concluded, that the majority's ruling will intimidate judges, who "will frequently be tempted to err on the side of the prosecution in debatable situations rather than risking Judge Duckman's fate."

Judge Bellacosa, while observing that the 16 rulings extrapolated from the tens of thousands of cases handled during Duckman's tenure were statutorily unauthorized, concluded that the 16 did not require removal from office, and "absolutely do not represent a pattern of conduct in any realistic context and appraisal of the full record of this Judge's career." In Bellacosa's view, besides being unwarranted, upholding Duckman's removal presented several disturbing precedential concerns about the independence and integrity of the judiciary. For one, the Commission "could infer that it has a new obligation and intrusive authorization to poke into the adjudicative work of judges . . ." For another, the "conduct of judges and the culture of the operation and decision-making in trial courts will be necessarily and materially altered and affected" by the decision. And it is likely that judicial critics will be emboldened by this precedent to make greater attacks on judges and their rulings.

AbirNet, Inc. Supplies SessionWall-3® Software

Thanks to a generous computer software donation from AbirNet, Inc. of Texas, NYSDA's connection to the Internet is much more secure. SessionWall-3 provides protection from Internet invaders, and also performs "audit" functions that improve Internet access. NYSDA thanks AbirNet, Inc. for its corporate support of the Association's efforts to improve the quality of public defense services throughout the state. For those interested in-and able to understand-details about the new product, the Backup Center's Information Systems Manager David L. Austin provides the following information.

SessionWall-3 augments NYSDA's current firewall by constantly monitoring for various attacks over the Internet including content scanning, intrusion detection, suspicious activity, malicious applets, viruses, service denial attacks, blocking, alerting and logging. Additionally, SessionWall-3 provides reporting (both scheduled and on-demand) of Web access to allow performance monitoring and adjustments for load balancing to ensure constant (real-time) access to information on Internet access peaks and valleys. It is used by auditors, security consultants, law enforcement agencies, financial institutions, ISPs, educational institutions and government agencies to address a variety of network protection needs including litigation protection via e-mail content monitoring, logging, viewing and documentation.

It is described by AbirNet, Inc. as including a world-class intrusion and service denial attack detection engine, an extensive URL control list of more than 200,000 entries, a world-class Java/ActiveX malicious applet detection engine as well as a virus detection engine. It complements all popular "firewalls" to extend application-specific protection, provide intrusion detection and audit of current settings. It does this all without making any changes to current network topology, without introducing any network performance overhead and without extensive planning. Among its many great features is an "Automatic workspace recovery" which will rebuild the entire database and log files if (which happened here) the system it is running on "locks up." The software installed flawlessly at NYSDA and is now working around-the-clock to defend our network.

Anyone with questions about the above comments can call Dave Austin at the Backup Center.

High Court Case Was Commenced By Currency-Sniffing Canines

Dogs trained to sniff for currency alerted to the luggage of Hosep Bajakajian and his family when they sought to fly to Cyprus in 1994. The $357,144 in cash ultimately discovered among the Bajakajians' effects had not been declared as required by federal law, and the government sought forfeiture of it all. (See U.S. Supreme Court case digest, unrelated to the dogs' role, p. 16.) While using dogs trained to alert to drugs in airports and elsewhere is a long-standing practice, currency-sniffing canines had just been deployed for the first time at the Los Angeles airport when this case arose, according to Bajakajian's attorney, Michael Raab.

Bajakajian is just one example of the variety of cases in which defendants and their lawyers may encounter dogs and dog-handler testimony. (Cash-sniffing dogs themselves may remain rare; once a federal court held that all of Bajakajian's cash could not be forfeited for simple failure to report its movement out of the country, the currency-canine airport operations ceased, according to Raab.) Police departments use dogs to look for many different items. According to a Times Union story on May 24, 1998, for example, the Bethlehem Police Department may train its dogs to find drugs, cadavers, explosives, or flammables.

Dogs which are trained to locate more than one type of odor may present special problems. The 6th Circuit recently found that a dog's alert to drugs by scratching open a dresser drawer during a sweep of a home in which he had been commanded to search for a possible intruder did not constitute a "search" warranting constitutional protections. U.S. v Reed, No. 96-4174 (6th Cir, 4/15/98; 63 CrL 105). (The Oregon Supreme Court also held recently that dog sniffs are not searches, under that state's constitution. State v Smith, No. S44403 [SupCt Ore., 7/24/98]; 63 CrL 515. A canine sniff is a search under article I, §12 of the New York Constitution, but may be used without a warrant if the police have a reasonable suspicion that a residence contains illicit contraband. People v Dunn, 77 NY2d 19). Whatever the type of dog evidence being offered, defense teams must know both general and specific issues such evidence may present.

  • Is the Dog Reliable?

Basic issues include the requirement that the prosecution lay a foundation as to a dog's reliability based on past performance or effectiveness with regard to the odor in question. See People v Dix, 662 NYS2d, citing People v Price, 54 NY2d 557, 564. The defense can question the reliability of a dog's alert, even if the dog has less spectacular errors in its past than the false alarm raised in New York City's Penn Station last year when a bomb-sniffing dog alerted to a duffel bag containing a bar of soap. Times Union 8/5/97.

Help for lawyers learning to challenge dog-sniff evidence is available. Articles in defense publications are one place to begin. See e.g., " `Drug Detecting' Dogs," Harry R. Reinhart, reprinted in The Advocate [publication of the Kentucky Department of Public Advocacy] Vol. 18, No. 1 (January 1996) and "Problems with Drug Detecting Dogs and Records Kept," (in column, "Controlled Substances") by Peter Schoenburg and Steve McCue, The Champion, [magazine of the National Association of Criminal Defense Lawyers], July 1997. Tips include the fact that many law enforcement agencies do not maintain supervision and records as required to ensure continued reliability, and some agencies do not even have their dogs trained at a reputable academy to begin with, but train them "in-house," with little or no understanding of dog training principles. Because dogs can detect even miniscule amounts of the scent they are trained to respond to, they may reasonably alert when an odor, but no identifiable quantity of the substance sought, is present-or they may be reacting to something other than the scent they are supposed to seek. Trainers must make special efforts to identify and explain "false alerts," to ensure that dogs are still reliable, and defense counsel should find out if this has been done.

Some officers who train and care for police dogs at home have sought payment for overtime. A Times Union article on March 25 about a Guilderland officer's lawsuit on this issue noted that other Capital District officers had been successful in obtaining back pay. Whether inquiring about the existence of training records, or developing an argument that dogs have not been properly trained, defense counsel might find information from an officer's effort to collect overtime relevant. In the case of one officer who asserted he spent 45 hours per week off duty caring for a police dog, the police chief testified that when he was a dog handler, he spent only two to three hours per week in off-duty care. "Town Topics: Caring for Police Dog Triggers Overtime Compensation," Talk of the Town [magazine of the Association of Towns of the State of New York], Vol. 10, No. 6 Nov./Dec. 1996. Not a lot of time for training in that latter figure.

  • Is a Positive Dog-Sniff Probable Cause?

Challenges to the reliability of a dog's actions because its training has not been maintained may be helpful when challenging the admissibility of evidence obtained after the dog alerted. See "May a canine sniff and `positive alert' provide probable cause for the issuance of a search warrant?" NY Defender Digest, Vol. 17, No. 4, 2/20/98.

A memorandum in support of a motion to suppress the evidence revealed by a search in a federal Texas case has been provided to the Backup Center by nationally-known attorney Nancy Hollander of Albuquerque, New Mexico. While the citations in the memorandum are federal, it sets out two broadly useful arguments for why a dog's alert could be insufficient to establish probable cause to search:
"The alleged `alert' does not provide probable cause to believe controlled substances are present for two reasons. First, the dog may not be properly trained so that no basis exists to believe that the dog actually has `alerted' on the odor of a controlled substance or the dog has not alerted but the handler claims the dog has alerted. Second, assuming the dog is properly trained and the handler is not influencing the dog or encouraging it to alert, the problem remains that the odor of controlled substances, specifically marijuana and cocaine, may exist where the actual drugs do not . . ."

The memorandum includes references to facts about dog training to be established at a suppression hearing. Depending on the issue(s) being raised, counsel may need to produce expert testimony about proper training techniques compared to the ones at issue, about the need for continuous training and the lack thereof in counsel's case, and/or a variety of other matters.

  • Canines Can Find Cocaine On Anybody's Cash

The sensitivity of dogs' sense of smell may make a dog's alert useless as to certain issues. For example, a high percentage of U.S. currency is contaminated with cocaine, so that a drug dog's alert to cash is not persuasive evidence that the money is illegally obtained profit from the sale of narcotics. US v $506,231 in US Currency, 125 F3rd 442, 453 (7th Cir 1997). The anecdote that a drug dog alerted to bills in Attorney General Janet Reno's wallet is a shorthand way to point out that cocaine traces on currency prove nothing. See " `Strong-arm' forfeiture tactic condemned, dog sniffs questioned," BNA Criminal Practice Report, Vol. 11, No. 20 (10/8/97).

  • Virtual Research: Dogs on the `Net

The Internet may offer some helpful information to defense teams seeking help with challenging dog sniffs. One site that has been recommended is the "Drug Dog Home Page" at http://lonestar.texas.net/~steven. Many other sites can be found using an Internet search engine. As with all web research, caution must be exercised in deciding what information is reliable and what is not. For example, the editor of the REPORT is still seeking verification of the accuracy of the following item: "US Customs' effective but short-lived use of drug-sniffing fruit bats."