November 1998 Defender News

from NYSDA's Public Defense Backup Center REPORT

State Found in Breach of 18-b Contract
The State had sought summary judgment because assigned counsel fees are paid by local jurisdictions, not the State. However, the State was held to have had a contractual obligation to Wells, because assignment of counsel is part of the administrative responsibilities of the courts, and the Appellate Division, 2nd Department had conferred that administrative authority on the administrator of the Assigned Counsel Plan for the 2nd and 11th Judicial Districts where Wells received assignments.

The plan administrator had refused to process Wells's vouchers because they were submitted more than 45 days after disposition. Without condoning Wells's clerical and administrative failings, the Court of Claims found that the time limit had not been uniformly enforced during the relevant time and that in many cases the underlying cause of late submission was court employees's failure to timely process paperwork.

The dispute arose in the mid-1980s. According to the New York Law Journal, this case may be the first suit for payment of fees under 18-b. A copy of the opinion is available from the Backup Center. (See digest p. 14.)

Pushing To Improve Public Defense
To fight the impoverishment of public defense services with a wealth of information, NYSDA has spent the last several weeks offering training, providing materials, holding fact-finding hearings, convening the state's public defense chiefs, and planning for the future.

Training and Materials Provided
Backup Center attorney Al O'Connor has continued to travel, reaching several more offices than listed in the last issue of the REPORT with a multi-media training program on the sentencing complexities of Jenna's Law. Manuel Vargas, author of the manual Representing Noncitizen Criminal Defendants in New York State, has provided training on immigration consequences of criminal cases to a number of public defense offices in past weeks. The immigration law manual, introduced at the 1998 Summer Meeting, has been a popular item, and is now in its second printing. Copies are available through the Backup Center for $25.

Consultation with Vargas on immigration issues in criminal cases is available by calling (212) 367-9104 most Tuesdays and Thursdays, 9:30 am-noon and 2:00-4:30 pm.

(Also on the immigration law front, an amicus brief written by Vargas was filed in July with the Board of Immigration Appeals on behalf of NYSDA in Matter of Ancellin-Taylor. The case concerns the immigration consequences of a New York youthful offender adjudication. The government is appealing a lower tribunal ruling that a youthful offender adjudication is not a criminal conviction within the meaning of the immigration laws.)

Case Digest System Update Mailed
An update of NYSDA's Case Digest System (CDS) has been mailed out to subscribers, providing up-to-date case summaries of significant New York criminal law decisions in a searchable Windows format. The summaries are taken from the Public Defense Backup Center REPORT, and extend back to 1987. There are now over 6,000 cases included in the CDS, which 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. For more information, contact Tara Hoffman at the Backup Center.

Fact-Finding Hearings Continue
The fact-finding hearings announced by NYSDA and the League of Women Voters in September have proceeded on schedule. Lawyers, alternative to incarceration program providers, and representatives from the client community, as well as county officials and a judge, have been going on the record to set out the current state of indigent defense across New York. After the final hearing on Dec. 1 in Albany, the information will be compiled for use in furthering the goal of improving defense services.

DCJS Commissioner at Convening
On October 30, the heads of public defense offices from across the state met in Albany at the second Chief Defender Convening of the year. A portion of the convening was devoted to presenting information about public defense needs, especially in upstate New York, to Katherine Lapp, Commissioner of the Division of Criminal Justice Services and Director of Criminal Justice. Plans were also made for a Dec. 4 convening and training focused on representation in prison crime cases, to which not only chief defenders but line attorneys who provide representation in such cases were to be invited.

New Year's Eve Brings New CLE Mandate
Effective December 31, 1998, all lawyers in the state will be subject to mandatory continuing legal education. Proposed rules for the MCLE Program, released for a 60-day public comment period on September 16, require lawyers practicing in New York to complete at least 24 hours of accredited CLE every two years. The proposed rules also contain a subpart concerning the existing requirement of 32 hours of transitional CLE for newly-admitted attorneys within the first two years of admission. Copies of the rules are available at the Unified Court System's web site: http://ucs.ljx.com or by contacting the New York State Continuing Legal Education Board at (212) 428-2105, or (for calls outside New York City) 1-877-NYS-4CLE; e-mail cle@courts.state.ny.us.

NYSDA became an accredited CLE provider early this year, and all 1998 NYSDA trainings can be counted toward the new MCLE requirement. Watch for announcements of 1999 accredited training events, including the annual New York Metropolitan Trainer in March and the Summer Meeting and Conference at the end of July.

CDO-Designated Attorney's Call Can Stop Interrogation
Carlos Cajigas's right to counsel attached when a Westchester County Legal Aid lawyer phoned police requesting that Cajigas not be interrogated in the murder case for which he had been arrested, a County Court ruling says. The Legal Aid office had accepted designation by the Capital Defender Office (CDO) to represent Cajigas after the clerk of the village court where Cajigas was to be arraigned informed the CDO of his arrest in a potentially capital case. (The prosecutor later declined to seek the death penalty.)

Unlike other cases in which an attorney has sought to stop interrogation without having a prior attorney-client relationship or being contacted by the accused or a family member, Legal Aid attorney Rebecca Schenk's call on Cajigas's behalf should have ended questioning, the court ruled. The distinguishing factor was the existence of an administrative mandate concerning entry of counsel into potential death penalty cases.

The prosecution had argued that Judiciary Law 35-b(2) operated to negate the attorney's communications to police, because under the statute qualified counsel is to be appointed by the trial court. However, the court found that as Judiciary Law 35-b(7) provides for temporary representation by the CDO or its designee, and the legislature has provided that there should be no delay in arraignment due to the pendancy of temporary representation, the clerk's call to the CDO set in motion actions that led inexorably to the appointment of Legal Aid. Therefore, that office did not have to await the judge's ministerial appointment to begin performing legal services.

Statements made by Cajigas after Schenk's call were suppressed. The court specifically found that all subsequent statements had been voluntary, and could be used on cross-examination if Cajigas testifies. Cajigas is currently represented by Westchester County Legal Aid lawyers Allan Focarile and Jeanne Mettler. People v Cajigas, Indictment No. 97-0158-01 (10/19/98). The opinion is available from the Backup Center.

Cops Must Comply with FOIL
The New York City Police Department's demonstrated, continuing unwillingness to comply with a 1996 Court of Appeals decision mandating application of the Freedom of Information Law (FOIL) to materials requested by criminal defendants in pending cases has resulted in a successful class action suit for relief. Citing Gould v NYC Police Dept. (89 NY2d 267), The Legal Aid Society of New York brought a CPLR article 78 proceeding which was first heard in July 1997, seeking to overturn blanket denials of FOIL requests by the NYPD in four cases. Shortly thereafter, class certification and declaratory relief was requested. Eight months of unsuccessful negotiation followed.

Meanwhile, the NYCPD, which had been denying such requests based on assertions that access to the records would interfere with an on-going investigation or judicial proceeding (Public Officers Law 87[2][e][i]) and would endanger lives (POL 87[2][e][f]), instituted a new system encompassing two form responses. Applicants were told that their requests had been received, that the file(s) had to be located and reviewed (a process estimated to take 120 days), and that this decision was appealable. The request was then forwarded to the prosecutor's office with a form on which virtually all potential reasons for exemption were listed.

LAS asserted that the new procedures were but a mask for continuing the old policy of delay and denial of requests for FOIL information while a case was pending. LAS moved to add additional class representatives whose requests post-dated the new procedures. On October 19, 1998, the court issued an opinion concluding that class certification and declaratory and injunctive relief should be granted, saying: There must be compliance with the clear dictates of Gould. The decision says that FOIL applicants with criminal charges pending must receive, in a timely fashion, from the Department, specifically from an individual with personal knowledge of the facts, either the documents sought or alternatively a specific, factually based explanation (individual to their situation) as to why that document, in whole or in part is exempt from disclosure as well as the legally-claimed statutory exemption. In re Application of LAS o/b/o Holloway et al v NYC Police Dept., Index No. 402807/97 (10/19/98). The opinion is available from the Backup Center. Also available are training materials on defense counsel use of FOIL.

Magistrate Recognizes Value of Vertical Representation
A federal Magistrate Judge in New York's Northern District has recommended that a state defendant's petition for habeas relief be granted. A 25-page Report and Recommendation sharply criticizes representation offered by a defender office in a case in which four different attorneys appeared for the defendant, Durrel Dow, in the course of the proceedings.

The attorney at the initial interview failed to review any family court contacts or school enrollment of his 17-year-old client, who had a history of truancy and defiance and had been sent to the LaSalle School for Boys. The attorney subsequently successfully sought to have Dow released on his own recognizance (ROR).

A different attorney appeared at arraignment without first contacting Dow, who failed to timely appear but arrived later in the day. This attorney had no personal contact with Dow, who was reconfined, before a pretrial conference at which an sentence offer of one and one-third to four years was made.

The matter was then rescheduled so that the original attorney could discuss the case with Dow. That lawyer did not contact Dow by letter or phone, or make any notation regarding a conference, before the next court date. The primary communication between the two attorneys about the case focused on Dow's untimely appearance at arraignment. No discovery was obtained by the next court date, and the original attorney did not know if Dow had any possible defense. The attorney believed that Dow wanted the deal, which counsel erroneously believed included Youthful Offender status.

Before the plea, Dow was never advised that he could be sentenced to eight and one-third to twenty years if he failed to appear at sentencing. When the court so advised him, he agreed and pled to the top count, third-degree drug possession. When the court asked if a motion was to be made for ROR, the attorney the one who had originally interviewed Dow said yes, and Dow was released. The attorney did not advise against the ROR. Had Dow remained incarcerated, he would have been give credit for continued incarceration, and his appearance for sentencing would have been assured, eliminating any exposure to the maximum sentence.

He failed to appear for sentencing. Still another attorney was present for Dow on that date. There is no evidence that the defender office had sought to contact Dow to remind him of the date. A maximum sentence was imposed in absentia, with no objection or request for adjournment. A year later, when Dow was produced pursuant to a bench warrant, a fourth attorney appeared. This attorney had not reviewed the file or contacted Dow. The maximum sentence was reaffirmed.

The magistrate's report criticizes, among other things, the representation by a tag team of attorneys who either neglected to properly communicate with each other, failed to become adequately familiar with the petitioner and the facts of his case, ignored the petitioner's need for informed legal opinions and professional advice, or were silenced by their lack of experience and feelings of intimidation. The magistrate's report is especially critical of the failure to proffer an informed legal opinion about whether ROR prior to sentencing was in Dow's best interest. A reduction of sentence to time served is recommended. Dow v Smith No. 97-CV-517, (No Dist NY [9/24/98]). Dow is represented on the habeas proceeding by William L. Koslosky, of Koslosky & Koslosky, Utica, NY. A copy of the report is available from the Backup Center.

2nd Circuit Finds Conflict but No IAC
A defendant who, unlike Durrel Dow, received a mandatory minimum sentence rather than the maximum possible sentence, was recently denied relief despite his attorney's actions in writing to a judge before sentencing that the defendant was non-responsive and dishonest. On the first day of trial, the attorney had told the judge in this federal drug case that he had an ethical problem, which was later said had been resolved, with his client, Frank Parise. During trial, the attorney elicited testimony from both prosecution and defense witnesses about Parise's prior bad acts. Following the conviction, the attorney sued Parise for unpaid fees, and unsuccessfully sought to withdraw from the case. In asking the court to reconsider, the attorney made the challenged comments about Parise. Parise did secure new counsel, and moved for a new trial. The court said that the first attorney's conduct through trial reflected strategic and tactical decisions that were reasonable, and that his scathing letter would not be considered in sentencing. The 2nd Circuit agreed with that no lapse of representation had been shown despite the demonstrated conflict of interest. Parise had new counsel at sentencing who rigorously protected his interests, and the minimum available sentence, along with a fine that was a downward departure from the sentencing guidelines, was imposed. US v Luciano, 97-1221. ( NY Law Journal Ä_Ä10/19/98.)

ABCNY Fetes Family Court Service
The first Kathryn A. McDonald Award for excellence in service to family court was presented by the Association of the Bar of the City of New York on Oct. 29, 1998. One of the recipients, Erwin Weisberg, is now on the 18-b Panel to receive court assignments in Brooklyn, after a long and dedicated career with The Legal Aid Society's Juvenile Rights Division from which he retired in 1997. He was honored as a role model for family advocates, being among the most diligent, creative, aggressive and energetic litigators in the court. Janet R. Fink, Deputy Counsel in Charge of the Family Law System of the state's Unified Court System, the other award recipient, previously worked in the Juvenile Rights Division of LAS and as counsel to the NYS Assembly Codes Committee, and has been a major force both statewide and nationally in shaping policy and practice in the areas of child welfare and juvenile justice.

Drug Treatment Court Professionals Hold 1st Conference
A partnership theme, and anecdotes and statistics reflecting success, were the most conspicuous characteristics of the New York Association of Drug Treatment Court Professionals first annual conference November 16-18. Having originally planned for attendance by 150 treatment providers, prosecutors, defense attorneys, judges, police, and others, the new association and the Omni Hotel in Albany worked hard to accommodate the more than 275 people who appeared.

Among the many speakers were: NYSDA President and Monroe County Public Defender Edward J. Nowak; Legal Aid Society Criminal Defense Division Staff Attorney Justin Barry from the Brooklyn Treatment Court; and former Kings County Legal Aid Society Criminal Defense Division Attorney-in-Charge Valerie Raine, who is currently the Project Director for the Brooklyn Treatment Court. Addressing the group at a working lunch were two drug court graduates, Tanya Green and Elizabeth Coombs, who followed keynote speaker Chief Judge Judith Kaye.

New York State's first drug court, in the Rochester City Court, was well represented at the conference and frequently used as an example of success. In addition to defender Ed Nowak, the court's project director (and founder) Chief Judge John R. Schwartz, its current presiding judge, Joseph Valentino, and its administrator, Nadine Spinell, were on hand to describe the implementation and growth of this first New York experiment.

Nowak emphasized at a plenary session on forging partnerships that when a drug court is proposed, the defense should take part in the planning discussions. He described his own original hesitations, his belief that the drug court in his jurisdiction is helping clients, and concerns about future developments. Noting that addiction doesn't know misdemeanor or felony, but only addiction, he decried blanket rules concerning criminal records that prevent many otherwise eligible clients from participating in the intense treatment-focused program.

Nowak emphasized at a plenary session on forging partnerships that when a drug court is proposed, the defense should take part in the planning discussions. He described his own original hesitations, his belief that the drug court in his jurisdiction is helping clients, and concerns about future developments. Noting that addiction doesn't know misdemeanor or felony, but only addiction, he decried blanket rules concerning criminal records that prevent many otherwise eligible clients from participating in the intense treatment-focused program.

For more information about the new drug treatment court professionals' association, contact its president: Hon. John R. Schwartz, NYADTCP President, 108 Hall of Justice, Rochester NY 14614.

Defense Chiefs to Discuss Drug Courts
Plans are underway at NYSDA for a February, 1999 convening of Chief Defenders directors of defender offices, assigned counsel programs, and legal aid societies focusing on the issue of drug courts. There are a growing number of treatment courts across the state, making this an issue of importance to the entire defense community. Currently, drug treatment courts operate in Amherst, Brooklyn, Buffalo, Cheektowaga, Fulton County (test basis), Ithaca, Lackawanna, Manhattan, Niagara Falls, Queens, Rensselaer County, Rochester, Rockland County, Suffolk District Court Family Court, Tonawanda, and Troy. Seven of those drug courts opened in 1998. Drugs courts are also being planned or discussed in Albany County and the Bronx, and undoubtedly in other jurisdictions as well. All defense chiefs are encouraged to watch for an announcement and attend this convening whether or not their jurisdiction is currently operating or considering a drug court.

NY Wrongful Conviction Set Aside After 8 Years

An alleged eyewitness's lie kept Jeffrey Blake in prison for eight years. Due to the persistence of Blake's Legal Aid Society (LAS) appellate lawyer and investigator, Blake stood in a Brooklyn courtroom on October 29th and heard a judge say that the nightmare was finally over.

A new investigator at LAS tracked down a woman the false eyewitness claimed was with him when he saw two men gunned down by Blake. Following a lead, investigator Janice Mitchell called every "Allen" in the phone book of a small North Carolina town, eventually locating the woman's sister and then the woman herself. Acknowledging that she had been in New York with the eyewitness, the woman said she had seen no murders, and added that the supposed eyewitness was "always making stuff up." With that information-and aided by the fact that the statute of limitations as to perjury had run-LAS convinced the eyewitness to recant on, the record.

Attorney Michelle Fox, who labored on the case long after Blake's appeals had been exhausted, expressed mixed emotions. While it was gratifying that things finally worked out, with District Attorney Charles Hynes' office joining in the LAS motion to set aside the verdict, she noted that her client, had to give up eight years of his life before that happened.

New York Times columnist Bob Herbert had written twice about Blake's situation, adding momentum to the efforts to free him.

(Staten Island Advance, 10/31/98; New York Times [Bob Herbert], 10/29/98)

Wrongful Convictions and the Death Penalty:

Conference Complete, Work Continues

Among the thousand people who gathered in Illinois November 13-15 to discuss Wrongful Convictions and the Death Penalty were journalists, lawyers (including NYSDA's Executive Director, Jonathan Gradess), investigators, students, forensic scientists, scholars, and activists and 30 of the 74 people known to have been wrongly convicted in this country and later freed from death row.

Among the thousand people who gathered in Illinois November 13-15 to discuss Wrongful Convictions and the Death Penalty were journalists, lawyers (including NYSDA's Executive Director, Jonathan Gradess), investigators, students, forensic scientists, scholars, and activists and 30 of the 74 people known to have been wrongly convicted in this country and later freed from death row.

On Saturday afternoon, the wrongfully convicted men and women in attendance were formally introduced, an event that eclipsed even the presentations of such notable speakers as the Rev. Jesse Jackson and Bryan Stevenson of the Alabama Equal Justice Initiative.

The conference generated media attention. USA Today, U.S. News and World Report, and Newsweek carried articles, National Public Radio carried an interview with conference organizer and Northwestern law professor Lawrence Marshall, and various television news teams picked up the story in some form.

Nor is the end of the conference the end of its effect. Rather, participants and observers were energized, educated, and empowered to renew their efforts to end the embarrassment to justice that is the death penalty.

Defense Chiefs to Discuss Drug Courts
The following excerpt from an op-ed piece which appeared in The Boston Globe on November 18 is one example of the Wrongful Conviction and the Death Penalty Conference providing a basis for ongoing discussion and change.

by William J. Leahy and Nona Walker

The National Conference on Wrongful Convictions and the Death Penalty in Chicago last weekend resulted in inspiration, revelation, and embarrassment.

The inspiration was provided by the 30 men and women (out of 75 proven to date) who spoke about their personal torture of having been falsely arrested, imprisoned, convicted, and sentenced to die for capital crimes which they did not commit.

These people among them a farmer in Alabama, a high school principal in Pennsylvania, a laborer in Maryland, and a janitor in Texas demonstrated a grace under relentless persecution and a faith that their examples will move this nation to abolish state-sanctioned killing. They are the fortunate survivors of official injustice.

The revelation shocking even for experienced public defenders such as ourselves, who have had the good fortune to practice law in a state whose criminal justice system has not been perverted by the death penalty is how the toxic combination of notorious murders, ambitious prosecutors, a sensational press, and overzealous (or simply overburdened) police have combined in state after state to produce a rush to justice that can and does swallow the innocent as well as the guilty. * * *

There is a harsh reality to the American enchantment with executions, and we are ashamed of it. Not as lawyers or public defenders, but simply as citizens who still care about right and wrong and about what our nation is doing in our name. We can offer no answer to the representatives from other democratic societies who ask, why? Why does America, almost alone among freely elected representative governments, intentionally kill its own citizens? Why does America not realize that state killing perverts justice, cheapens life, and degrades the society that embraces it?

We have no answer as citizens of this nation. But we can speak loudly and clearly as citizens of Massachusetts. Our democratically elected members of the legislature can preserve the fundamental decency and fairness of our body politic by rejecting again the reinstatement of state-sanctioned executions in the Commonwealth.

Should they bow to the governor's pressure and reinstate the death penalty, the eventual execution of an innocent person in Massachusetts would be not a virtual impossibility but a virtual certainty.

*Reprinted with permission of the authors. William J. Leahy is chief counsel of the Committee for Public Counsel Services in Massachusetts. Nona Walker is cochair of Massachusetts Citizens Against the Death Penalty.