October/November 1997 Defender News

NYSDA has just released the WindowsÔ version of its Case Digest System (CDS), replacing the old DOS-based version, to provide a better product for subscribers.

The CDS was originally released in November 1993. In the new WindowsÔ format, it is an even more powerful, easy-to-use research tool to quickly search and retrieve over 5,000 case summaries on significant New York criminal law decisions. The summaries are taken from monthly issues of the Public Defense Backup Center REPORT, and extend back to 1987. The CDS also contains the New York City Assigned Counsel Plan Directory of Experts and Investigators (1997), a statewide listing of defender offices, and NYSDA's Subject Matter Index.

The production and distribution of the Case Digest System has been made possible through the efforts of many. Generous software support was provided by askSam Systems of Clearwater, Florida (www.asksam.com), which furnished 3.0 PRO Network Version (15 licenses) and askSam Electronic Publisher, and from InstallShield Corporation of Chicago, Illinois (www.installshield.com). Thanks are also due to the New York City Assigned Counsel Plan for permission to include its Directory of Experts and Investigators in the CDS. Special thanks go to Dawn Allert, Dave Austin, Tara Hoffman, Lynne Johnson, Karen Musgrove and Charlie O'Brien for their work in the development and production of this new, effective research system. For more information, contact Tara Hoffman at the Backup Center.

New rules concerning lawyers' professionalism will take effect in New York's Unified Court System (UCS) on January 1, 1998. On September 17-five months after the Office of Court Administration solicited comment on four proposals to upgrade legal professionalism-Chief Judge Judith Kaye and Chief Administrative Judge Jonathan Lippman announced adoption, by the Administrative Board of the Courts, of a Statement of Client's Rights, Standards of Civility, and amendments of the court rules regarding sanctions for frivolous conduct. The announcement came just a week after the Administrative Board approved mandatory continuing legal education (CLE) for new lawyers that is to include ethics and professionalism as well as skills, practice management and professional practice.

A "Statement of Client's Rights" must now be posted so that it is visible to an attorney's clients. Ten points are included, including the client's right to: withdraw at any time from the attorney/client relationship; have telephone calls returned promptly; and decide whether to settle. The right to be charged a reasonable fee and receive explanations about fee and billing arrangement at the beginning of representation is also included, but may not apply to attorneys in offices that provide legal services without charge to the client. Plans are underway to distribute a printed version of the statement. Lawyers who do not have a copy by mid- December may want to check with the UCS. The statement constitutes a new part to the court rules, at 22 NYCRR 1210. A companion statement educating clients about their obligations, recommended by the New York State Bar Association, is under consideration.

To encourage all members of the justice system to conduct themselves in a professional and courteous manner, the new Standards of Civility are meant to provide a framework by which individuals can assess their own conduct. These aspirational standards are not enforceable by sanction or disciplinary action, and are not intended to supplement or modify the Code of Professional Responsibility or other conduct-governing rules. (The court system just last year turned down a call for a disciplinary rule against "gross and persistent incivility." [ABA/BNA Lawyers' Manual on Professional Conduct]) The primary focus of the new standards is a lawyer's duty to other lawyers, litigants, and witnesses. Among the conduct and attitudes urged are respect for opposing counsel's schedule and commitments, promptness in responding to calls or correspondence, refraining from serving papers in a way that intentionally disadvantages the receiving party; and keeping promises. Respectful interaction with court personnel, punctuality for court appearances, and refraining from intentionally harassing or humiliating witnesses are also mentioned. The statement is codified at 22 NYCRR Part 1210.

While the Standards of Civility do not carry sanctions for violation, other portions of the professionalism package announced by the court system do. Attorneys (or pro se litigants) must now sign all pleadings and motions; by signing, they certify that the filing is not, to the best of the signer's knowledge, frivolous. Part 130-1.2 was amended to change the potential monetary consequences of frivolous litigation conduct from $10,000 per action or proceeding to $10,000 per single occurrence of frivolous conduct. There is now no cap on the total sanctions that could be imposed in a given action. Frivolous conduct includes asserting false material factual statements, and courts may consider whether the objectionable conduct continued after the lawyer in question was made aware of its lack of legal or factual basis.

The Administrative Board has approved a program for mandatory continuing legal education for attorneys admitted to the bar after October 1, 1997. Under a program codified as Joint Rules of the Appellate Divisions of the Supreme Court, 22 NYCRR Part 1510, new lawyers will be required to complete 32 hours of accredited CLE in the first two years after admission. Six of those hours must concern ethics and professionalism. Another 12 hours must be skills training, while the remaining 14 hours are for practice management and areas of professional practice. A 16-person Continuing Legal Education Board appointed by the Chief Judge and the Presiding Justices will administer the program. The board will be chaired by Hon. Thomas R. Sullivan, Associate Justice of the 2nd Department. Among the newly appointed members of the board is John D. Ferrick of Fordham University Law School, who chaired the majority report on cameras in the courtroom by The New York State Committee To Review Audiovisual Coverage of Court Proceedings.

Copies of the rule instituting the new mandatory CLE program, as well as the Statement of Client's Rights, Standards of Civility, and Part 130 amendments, can be obtained from the UCS Communications Office. Call (212)428-2500.

Public comment has been invited by the Office of Court Administration (OCA) on proposals that would allow courts to wait to designate alternate jurors until late in trial, permit jurors to take notes, and to give written instructions to juries in civil cases. Chief Judge Kaye views the changes as part of a continuing effort to improve the experience of being a juror. Earlier changes have included increasing juror's pay and decreasing the frequency with which an individual can be called to serve. (Times Union, 10/21/97)

The changes were previously submitted to the legislature as statutory amendments, which failed to pass. While Chief Administrative Judge Jonathan Lippman has been quoted as saying the proposed rules are "well within the courts' rule-making powers," others have disagreed. Dale Volker, R-Depew and chair of the Senate Codes Committee, views the proposal as near or over the line between judicial and legislative powers. He has said that criminal defense lawyers and others expressed concern about the measures when they were put forward as legislation. Assembly Codes Committee Chair Joseph Lentol, D-Brooklyn, has been quoted as saying, "If they didn't think legislative change was necessary, why would they have submitted this to us in the first place?" (New York Law Journal, 10/21/97)

If enacted, the rules would be codified as a new Part 220 of the Uniform Rules for the Trial Courts (22 NYCRR). The draft rule as to juror note-taking provides that the court should determine, after considering the probable length of the trial, and nature and complexity of the anticipated evidence, whether jurors would be allowed to take notes. Notes would not be allowed during attorney openings and closings or the court's jury charge. Jurors would be instructed on how notes may and not be used. For example, jurors would be instructed not to give notes precedence over independent recollection. Following the verdict, all notes would be collected and destroyed.

Using the new procedures as to designation of alternate jurors would require consent of the parties in each case, and when used would increase the number of peremptory challenges allowed under Criminal Procedure Law 270.25(2) by two for each additional juror selected beyond 12; for local criminal court trials, the peremptories allowed by CPL 360.30(2)j would be increased by one for each juror selected beyond six.

While alternate jurors may feel more involved and be more attentive during trial if they do not know ahead of time that they will not be deliberating, there are potential disadvantages to the new alternate juror selection procedure from a defense viewpoint. Defense lawyers will not know until the end of the case who among the 14 or 16 jurors will actually deliberate. Consequently, it may be risky to tailor a defense case to satisfy one or two key jurors who are likely to be influential in deliberations. These key jurors may not be selected to deliberate. Additionally, it is unclear how the new procedure will affect the replacement of jurors who are sick, late to court, or otherwise incapacitated. One possibility is that the rigorous standard for replacement of a sworn juror with an alternate [See CPL §270.35] will be somehow lessened. Consequently, by consenting to the new procedure a defense lawyer might greatly diminish the chance that the trial judge will commit reversible error by ordering the trial to proceed when one of the jurors is absent. Moreover, delaying the selection of deliberating jurors and alternates might also have an adverse effect on potential hold-out jurors. If potential hold-outs sense that they will be in the minority and that deliberations will be stressful, it may be easier for them to decide to intentionally remove themselves from the case if they have not yet been formally designated a deliberating juror. Defense attorneys will have to carefully consider how the proposed changes will might affect their trial strategy.

The full text of the proposed rules appears on page 4. Comments on the proposals can be sent to Michael Colodner, Office of Court Administration, 25 Beaver St., New York NY 10004. Please copy NYSDA if you comment; you may also send thoughts on this matter directly to the Backup Center (Attn.: Al O'Connor) if you don't wish to make an official comment.

Under legislation recently signed by Governor Pataki, alternative to incarceration programs that receive funding from the Division of Probation and Correctional Alternatives (DPCA) may soon gain their own access to client rap sheets. Effective November 17, 1997, the one-hundred and forty-six DPCA funded ATI programs in the state will be eligible for certification by DPCA to receive NYSIIS records directly from the Division of Criminal Justice Services (DCJS). The records will be made available to trained ATI personnel via a NYSPIN terminal or modem access to DCJS. Application forms for certification will soon be available from DPCA. (L.1997, chap. 609).

Like monsters in horror films, some threats to zealous public defense keep coming back-or never go away. Around the nation, issues regarding low fees and low-bid contracts have arisen or remain, threatening the ability of defense teams to provide the quality representation to which clients are entitled.

Caps on fees make Virginia court-appointed lawyers the lowest paid in the country. Press reports of a draft analysis done by the Spangenberg Group for the American Bar Association have indicated that even when the cap on serious felony cases rises from the current $575 to $735 next July, the state will remain at the bottom of the chart; Virginia is the only state whose maximum is below $1,000. The cap cannot be waived except in death penalty cases. For felonies carrying less than 20 years in prison, the cap is currently $265, while for misdemeanors it ranges from $100 to $132.

Several states set the felony cap at $1,000 but allow the limit to be waived when defense counsel can show that a greater number of hours or high expenses were involved. Seventeen states have no maximum. A copy of the final Spangenberg report, an update of "Assigned Counsel Compensation Rates in Noncapital Cases," is expected to be available soon at the Backup Center.

If it were not for the per-case cap, Virginia's fees would be an improvement for court-appointed attorneys here in New York. The hourly rate in Virginia is $60 for in-court work and $40 for out-of-court. New York fees have remained at $40 and $25 for nearly 12 years. Norman Reimer, a member of the board of the New York County Lawyer's Association (NYCLA), testified in favor of a fee increase before a joint legislative hearing on October 7. NYCLA supports a new formula that would provide $100 hourly fees for felonies carrying a potential life sentence, $75 for other felonies, and $50 for misdemeanors. (New York Law Journal, 10/9/97)

When the Court of Appeals approved the current fees for New York capital cases, it directed that each Department's experience with the fee schedule be reviewed in September, 1997. Stuart M. Cohen, Clerk of the court, has sent a letter to the four panels that set fees in capital cases asking for: an assessment of the current schedule's efficacy; whether trial and pretrial rates, and in-court and out-of-court rates, should be differentiated; whether a "cap" or other "prebudgeting mechanism" should be established (along with an independent audit procedure); and whether the fee schedule for legal and paralegal assistance was reducing the amount of compensation sought by lead and associate counsel, as intended. Replies were requested by October 20.

According to the September 24, 1997 New York Law Journal, a spokesperson for Governor Pataki praised the move to review fees, saying that current rates are "clearly excessive." Those rates are $175/hour for lead counsel, $150 for associate counsel, $40 for law firm associates, and $25 for paralegals, but the Pataki administration has refused to recognize the latter two categories (Jan. 1997 REPORT). The Governor's action has prompted litigation. NYSDA board member Mark Mahoney of Buffalo is handling the suit, Mahoney et al v Pataki, in Genesee County.

The U.S. Justice Department issued a press release in late August announcing that it will continue to pay for Lon Horiuchi's legal representation. Horiuchi fired the shots that wounded Randall Weaver and Kevin Harris and killed Vicki Weaver during the Federal Bureau of Investigation standoff at Ruby Ridge, Idaho, in 1992. The state of Idaho filed an involuntary manslaughter complaint against Horiuchi after a federal investigation led to no prosecution.

Citing numerous studies showing the failure of purely cost-driven indigent defense contract systems to provide quality representation to clients, the National Association of Criminal Defense Lawyers (NACDL) has issued a report condemning low-bid criminal defense contracts. The National Legal Aid and Defender Association (NLADA), which in 1984 adopted contract guidelines (without approving contract bidding itself), has signed on as cosponsor of "Low Bid Criminal Defense Contracting: Justice in Retreat." Designed for presentation to national, state and local bar associations, the October 1997 document calls for such groups to begin an affirmative campaign to reverse the trend to low-bid contracting.

A number of systemic flaws found in fixed-price contracting are listed in the report: Such systems put a premium on competitive bidding and fail to include standards, creating an incentive to put cost above quality of representation. Over time, costs typically rise while the quality of representation declines, "because the most qualified and experienced practitioners quickly drop out . . . and are replaced by inexperienced recent law graduates and marginally competent attorneys, with little or no supervision and training." Rising costs due to instability and administrative inefficiency result from annual bidding and contract renegotiations. If contracting attorneys must pay for any substitute counsel when a conflict of interest arises, there is a disincentive to acknowledge conflicts. Contracts requiring representation of all cases for a fixed price result in case overload and inadequate representation due to built-in incentives to process cases quickly and disincentives to take cases to trial. Where contractors must pay for auxiliary services, the use of investigators, forensic specialists, etc. is discouraged. If contractual duties are part-time, conflict inevitably arises between contract cases and the cases of fee-paying clients.

The realities of fixed-price contracting conflict with lawyers' professional responsibilities, the report concludes. Awarding of contracts should not be based primarily on cost, and should include terms requiring adherence to standards providing for quality vertical representation and compliance with professional responsibility. Bar associations are urged to work for enforcement of existing ethics rules, and consideration of new ones, to "protect the modest gains in quality representation obtained following the Supreme Court's unequivocal mandate in Gideon."

For more information about "Low-Bid Criminal Defense Contracting: Justice in Retreat," contact NACDL, 1025 Connecticut Avenue NW, Suite 901, Washington DC 20036; (tel) (202) 872-8600; (fax) (202)872-8690; e-mail: assist@nacdl.com. Web site: www.criminaljustice.org/www.nacdl.org. In December, NLADA will finalize a "Model Contract for Indigent Legal Defense Services." Contact H. Scott Wallace, NLADA, 1625 K Street NW, Washington, DC 20006. (tel)(202)452-0620; (fax) (202)872-1031; e-mail: hn0439@earthlink.net.

The current disparity between the punishment for crack cocaine and that for powder cocaine in the federal sentencing scheme "can not be justified and results in sentences that are unjust and do not serve society's interest," twenty-seven federal judges told the judiciary committees of both houses of Congress in a joint statement. All of the signing judges have served as prosecutors, including the four from New York: John S. Martin Jr., Southern District; John T. Curtin, Eastern District; Raymond Dearie, Eastern District; and Frederick J. Scullin Jr, Northern District. (New York Law Journal, 9/24/97)

The sentencing disparity should be corrected not by increasing the penalties for powder cocaine, the group added, for these penalties are already severe. The judges noted that sentences greater than required by justice not only injure sentenced defendants and their families, but place "an unwarranted cost on the American taxpayer." Cited as particularly wasteful in the eyes of the signatories were lengthy prison terms for "the many alien defendants who will be deported upon completion of their prison sentence." [For information on the increasing link between immigration law and criminal defense, see p. 10.]

The judges' statement did not address the racial impact of the crack/powder cocaine disparity, which has been raised by others in a variety of forums. The Committee on Federal Legislation of the Association of the Bar of the City of New York (ABCNY) has found that "it is beyond dispute that the heavy penalties for crack offenses have fallen disproportionately on African-Americans as a group." ("Reevaluating the 100-to-1 Quantity Ratio for the Sentencing of Crack Versus Powder Cocaine Offenses," The Record, [publication of ABCNY], vol. 51, No. 5, p. 490, 503.) Barry McCaffrey, Director of the Office of National Drug Control Policy, has also acknowledged the racial impact. A recommendation by Mc-Caffrey and Attorney General Janet Reno to reduce crack sentences-and increase sentences for powder cocaine-was accepted by President Bill Clinton back in July. (61 Criminal Law Reporter 1391)

Both McCaffrey and the ABCNY report were careful to add that there is no evidence Congress passed the discrepancy with racially discriminatory intent. Nkechi Taifa, Clinical Instructor at Howard School of Law, reviewed studies and statistics on the issue, and reached a less appeasing conclusion: crack sentences have a disproportionate impact, are not medically, scientifically or socially supportable, and "represent a racially discriminatory drug enforcement policy." ("Beyond Institutionalized Racism: The Genocidal Impact of Executive, Legislative & Judicial Decision-Making in the Crack Cocaine Fiasco," NBA Magazine [National Bar Association], Sept./Oct. 1996.) The racial implications of the crack/powder sentencing disparity was also included in Sybil A. McPherson's article, "Speaking Anew About an Age-Old Problem: Racism in the Criminal Justice System," in the July 1997 issue of NYSDA's magazine, The Defender.

A defendant recently lost his motion to dismiss charges brought against him under the 1996 law prohibiting dissemination of indecent material to minors by way of computer communications systems. Acting Supreme Court Judge Alan Marrus found that Penal Law 235.22 is constitutional despite similarities to a companion provision, Penal Law 235.21(3), that was struck down in American Libraries Association v Pataki, 969 F Supp 160 (So Dist NY 1997). Both provisions prohibit the computer network dissemination of indecent material to minors, but 235.22 adds the element of using the computer communications system to invite or induce a minor to engage in sexual acts. That additional element, Marrus wrote, keeps 235.22 from being vague or overbroad.

Barrows, a Connecticut resident, is alleged to have had a series of sexually explicit exchanges, including a "walk-through" of masturbation, with a Brooklyn investigator who used the persona of a 13-year-old girl while logged on to the commercial computer communication system America OnLine. Barrows was arrested in Kings County at the site of an alleged meeting arranged between "Tori 83," the investigator's screen name and "Captain Jake," the computer screen name used by the suspect. The cross-border nature of the alleged offense was not found to bar indictment, despite language in American Libraries, supra, that the companion provision "represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York." The challenge in American Libraries, Marrus said, was specifically noted not to involve the luring of minors into sexual contact. (New York Law Journal, 10/1/97; People v James Barrows, Supreme Ct, Criminal Term, Part 35, opinion in NYLJ 10/2/97)

Marrus's opinion also noted that the United States Supreme Court decision in Reno v ACLU, 117 SCt 2329 (1997), striking down federal statutes prohibiting Internet transmission of "indecent" material and "patently offensive display, had specifically distinguished laws prohibiting transmission of child pornography. A digest of the Reno v ACLU opinion appeared in the July/August REPORT and is included in the new WindowsÔ version of NYSDA's Case Management System (above, p. 1).

Meanwhile, the state defendants have chosen not to appeal the American Library decision, and the injunction against enforcement of Penal Law 235.21(3) has been made permanent. (American Library Association et al v Pataki, No. 97 Civ. 0222 LAP, 9/2/97)

Sex offender registration and notification laws continue to be news. In July, George Pataki announced the creation of a task force to consider improvements in New York's Sex Offender Registry Act (SORA), which was enacted two years ago. The task force announcement followed a death penalty verdict in the New Jersey case which has been used to popularize registration/notification statutes as "Megan's Laws." (Governor's Website, 6/26/97) In August, a panel of the U.S. Court of Appeals for the 2d Circuit held that application of SORA to sex offenders convicted before the statute's enactment was not unconstitutional. Unnamed offenders had filed a class action suit on ex post facto grounds. (Doe v Pataki, Nos. 96-6249(L) etc. [8/22/97]; 61 CrL 1492.) The 2d Circuit's decision remanded the case to the District Court for consideration of plaintiff's unresolved claim that those offenders who were on probation or parole when the law went into effect were denied due process because they were assessed risk levels in ex parte administrative reviews.

A similar claim as to the New Jersey law was rejected by a panel of the 3d Circuit Court of Appeals, but the court did require New Jersey to increase due process protections for offenders facing community notification of their status. (28 Criminal Justice Newsletter, No. 16 [8/15/97])

In September, the plaintiffs in Doe v Pataki sought re- argument en banc, and a federal injunction blocking enforcement of New York's SORA as to persons convicted before its enactment remains in force. Plaintiffs' lawyers, the Legal Aid Society and the New York Civil Liberties Union, plan to pursue the case to the U.S. Supreme Court if necessary. (Times Union, 9/10/97; 9/12/97)

The Bar Association of the City of New York has issued a statement of principles concerning the enactment and implementation of sex offender registration/notification laws. The association's Committee on Criminal Law considered many different perspectives before drafting the guidelines, consulting with law enforcement personnel, victims' rights advocates, defense attorneys, children's rights advocates, and medical experts. The principles are intended to strike a balance on an emotionally charged issue, according to committee member and co-author Joshua Rosenkranz. The principles stress that the desire to protect a community must be tempered by consideration of possible harms from legislation. Dissemination of the identity of a known sex offender can cause community panic and considerable harm to the employment and reputation of registered offenders and their family and friends, so that "the breadth of dissemination should be carefully considered to avoid widespread alarm and other harms." Copies of the principles are available through the Office of the Executive Secretary of the Association, at (212) 382-6658.

Among the cases now pending in the United States Supreme Court are several that may be of interest to criminal defense teams and their clients. The issues are set forth below descriptively, not in the language of the pleadings:

• Almendarez-Torres v US, No. 96-6839; 61 CrL 3001 (3/31/97). Is the statute providing for stiffer sentences for aliens' illegal re-entry after deportation following an aggravated felony a sentence enhancer or separate offense?

• Bates v. US, No. 96-7185, 60 CrL 3175 (2/18/97). Must the government prove fraudulent intent in a prosecution under the statute prohibiting knowing and willful misapplication of federally guaranteed student aid funds?

• Bousley v Brooks, No. 96-8516, 62 CrL 3001 (9/29/97). Does a guilty plea waive the right to attack a conviction based on a subsequent change in the law making the facts non-criminal, and is Bailey v US retroactive?

• Brogan v US, No. 96-1579; 61 CrL 3065 (6/9/97). Should the "exculpatory no" doctrine, recognized by seven circuits as a defense to false statement charges under 18 USC 1001, be recognized, or rejected, as it was by the 2nd Circuit?

• Buchanan v Angelone, No. 96-8400, 61 CrL 3033 (4/28/97). Is the 8th Amendment violated by not telling jury of statutory mitigating factors of youth, lack of criminal record, and extreme mental disturbance when such instruction was requested by counsel?

• Calderon v Thompson, No. 97-215 (8/4/97). 61 CrL 3115. Did the 9th Circuit err in recalling the mandate in this death penalty case?

• Campbell v Louisiana, No. 96-1584, 62 CrL 3001 (9/29/97). Can white defendants object to race-based exclusion of a black grand jury forepersons?

• Crawford-El v Britton, No. 96-827; 61 CrL 3069 (6/16/97). Must the plaintiff prove a prison official's unconstitutional (retaliatory) intent by clear and convincing evidence; is prison official entitled to qualified immunity in this 1st Amendment retaliation case? <MI>Gray v Maryland, No. 96-8653, 61 CrL 3069 (6/16/97). Did introduction of a redacted statement by a non-testifying co-defendant violate the 6th Amendment?

• Hopkins v Reeves, No. 96-1693; 62 CrL 3001 (9/29/97). May federal courts require state courts to ignore state substantive law and instruct on lesser included homicide offenses to satisfy Beck v Alabama, and is the rule announced below a "new rule" under Teague?

• Hudson v US, No 96-976, 61 CrL 3013 (4/14/97). Was it double jeopardy to prosecute a defendant for banking violations after monetary sanctions had been imposed?

• Kalina v. Fletcher, No. 96-792, 60 CrL 3187 (2/24/97). Is a prosecutor who brought formal criminal charges against the defendant entitled to absolute immunity from §1983 liability for allegedly making false statements to obtain an arrest warrant for purpose of bringing the defendant before the court to respond to the charges?

• Lewis v US, No. 96-7151 (5/12/97) 61 CrL 3041 & 3049. Can appeals court enter a conviction under an "analogous" federal statute instead of an improperly assimilated state statute? Can the court refuse to apply mandatory sentencing guidelines, imposing a higher sentence, in such a case?

• Phillips et al v Washington Legal Foundation, No. 96-1578 (6/27/97). Challenge to Interest on Lawyers' Trust Accounts (IOLTA) Funding of Legal Sources.

• Ohio Adult Parole Authority v Woodard, No. 96-1769; 61 CrL 3081 (6/27/97). What due process limitations apply to state clemency procedures? Do inmate interviews in clemency proceedings violate 5th & 14th Amendments?

• Rogers v US, No. 96-1279, 61 CrL 3053 (5/27/97). Is failure to instruct on an element of the offense harmless where the defendant admitted that element?

• Sacramento County v Lewis, No. 96-1337, 61 CrL 3061 (6/2/97). What standard of conduct is necessary in due process police pursuit case? Was the legal standard needed for qualified immunity met? Is this officer entitled to qualified immunity because conflicting standards were in existence?

• Spencer v Kemna, No. 96-7171, 61 CrL 3013 (4/14/97). May state authorities delay habeas action and then rely on resulting mootness? Was petition filed while petitioner was in custody mooted by subsequent parole and discharge?

• Salinas v. US, No. 96-738, 60 CrL 3187 (2/24/97). Do the bribery provisions of 18 USC §666 apply to actions by a county sheriff and deputy in accepting money to arrange conjugal jail visits, and must the government prove that the defendants personally committed or agreed to commit two RICO predicate acts before RICO can apply?

• Stewart v Martinez-Villareal, No. 97-300; 62 CrL 3033 (10/14/97). Do AEDPA limitations on successive petitions apply to habeas claims of incompetency to be executed, would limiting consideration of incompetency claims violate the Suspension Clause, and by what means can this Court review these issues?

• Trest v Cain, No. 96-7901, 61 CrL 3053 (5/27/97). Must appellate court sua sponte raise the affirmative defense of procedural default in federal habeas case? Is court foreclosed from reviewing the claim if found to have been defaulted?

• US v Bajakajian, No. 96-1487, 61 CrL 3053 (5/27/97). Is the 8th Amendment violated by a federal statute that subjects to forfeiture currency about to be transported out of the country without the required report?

• US v Ramirez, No. 96-1469, 61 CrL 3073 (6/23/97). Does justification of no-knock entries resulting in property damage require more specific evidence of danger?

• US v Scheffer, No. 96-1133; 61 CrL 3049 (5/19/97). Does a military evidence rule banning polygraph evidence violate a defendant's right to present a defense?