The Committee on Alternative Criminal Sanctions of the Unified Court System has issued a report recommending several criminal justice policy changes. In addition to calling for a high-level group of criminal justice policy makers (including defense representatives) to develop a more effective system of alternative criminal sanctions, the report calls for: formal evaluations of current programs; an end to mandatory prison terms for class B and C second felony drug offenders whose prior was also a drug offense; and pre-trial "service interviews" of defendants (to include some type of safeguards to protect the right to counsel and to not make incriminating statements) and other early actions for the development of alternative sanctions.
Attached to the report is supporting material, including a judicial survey on alternative sanctions, lists of hearing participants and experts who were consulted, and questionnaires for alternative programs and defendants.
For more information, contact Unified Court System Communications Director David Bookstaver, or Communications Officer Mai Yee, (212) 417-5900.
Mardi Crawford has joined the Backup Center, where she will be involved in the production of the REPORT as well as other NYSDA Backup Center projects. After doing appeals for eight years at the State Appellate Defender Office in Michigan, Mardi moved to Washington, D.C. for a three-year tenure as Defender Division staff attorney at the National Legal Aid and Defender Association. She left NLADA (but maintained a consultant status) to spend some time working, with her artist husband Martin Hatcher, at an art center in western Massachusetts. While an NLADA consultant, she wrote the commentary to the Performance Guidelines for Criminal Defense Representation and periodically acted as editor of the death penalty defense newsletter, Capital Report.
The New York State Bar Association recently issued Ethics Opinion No. 681, which maintains that assigned counsel may not reveal an indigent client's confidences or secrets, (i.e. that he misrepresented his financial eligibility for assigned counsel) to support a motion for leave to withdraw as court appointed representation, unless ordered to do so by the court.
The opinion analyzes three possible grounds for permissive withdrawal under DR 2-110 (C). Once a basis for permissive withdrawal is identified the assigned counsel must obtain permission of the court to withdraw. See DR 2-110(A)(1). If the court requires the lawyer to state reasons for the withdrawal, the prohibition against disclosure of client confidences and secrets is implicated. See DR4-101. Thus, although a lawyer is not
prohibited by the Code of Professional Responsibility from applying for leave to withdraw, the facts supporting the motion must not fall within those protected from disclosure.
A copy of NYSBA's Ethical Opinion No. 681 is available from the State Bar and electronically available at NYSBA's web page,
Six New York inmates serving time for drug offenses, and one who killed an abusive spouse, received sentence commutations two days before Christmas. When making the announcement, Governor Pataki referred to the holiday season and the fact that these individuals had worked hard at improving their lives.
News coverage focused on Charline Brundidge, who has been incarcerated for over 10 years for shooting her abusive husband after he slammed her head into a wall. Brundidge is represented by NYSDA member Mary Lynch, the director of Albany Law School's Domestic Violence Clinic. Students assisted in pulling together all the information needed to successfully advocate for clemency - court records, witness accounts of Brundidge's frequent bruises, etc. - and produced a 15-minute documentary video to persuasively present it. The resulting commutation of Brundidge's sentence makes her immediately eligible for parole.
The other six who are likewise eligible for parole as a result of the clemency process were convicted of selling controlled substances, but none were "major traffickers," the governor's office made clear. Most had never before been arrested, and all but one have completed substantial a mounts of college since incarcerated. All have served a substantial portion of their 15-year or more minimum sentences.
The NYC Legal Aid Society sought an injunction to halt the second round of requests for proposals (RFP) issued by the Giuliani administration in an effort to parcel out part of the Society's annual criminal caseload and a portion of its appellate caseload in the First Department. Last year, a state judge refused to enjoin the City from contracting with three new defense providers which took over about 19 percent of Legal Aid's total criminal caseload.
The Society's motion, which maintains that the City is violating federal labor laws, alleges that the plan is in retaliation for a brief strike by its unionized attorneys, and is before Justice Sidney Stein of the federal District Court for the Southern District of New York. (New York Law Journal, 12/13/96.)
Justice Francis T. Murphy recently announced that Emily Olshansky has been appointed Administrator of the First Department's Assigned Counsel Plan. Ms. Olshansky was previously the director of the Department's Law Guardian office. The Appellate Division is currently seeking a new director. (New York Law Journal, 12/4/96.)
Addie Hailstorks has resigned as Director of the Defender Division of the National Legal Aid and Defender Association in Washington, DC, to take a position as Pro Se Attorney with the federal district court in the District of Columbia. Scott Wallace, Special Counsel at NLADA, has been named Acting Director.
As Special Counsel, Wallace kept a close eye on national legislation regarding both defender services and civil legal services. When asked about the September vote to increase the Legal Services Corporation budget by five million dollars over the previous fiscal year, he noted that the modest increase was a further sign that LSC funding had "bottomed out" in 1995. While even modest increases from that low point are welcome, he further noted that the $283 million budget for FY97 was about 40% below what it should have been.
Doe v Pataki, (919 FSupp 691 [SDNY 1996]) concerning the constitutionality of the Sex Offender Registration Act (SORA), was calendared for argument on January 6, 1996 in the Second Circuit Court of Appeals. Last March, the federal district court for the Southern District had found application of the Act to those whose offenses predated it to be a violation of the Ex Post Facto clause. (Similar statutes and challenges are being litigated around the country; an Arizona statute requiring registration of juvenile sex offenders was upheld against ex post facto and other challenges by an Arizona court in October, In re Appeal in Maricopa County Juvenile Action No. JV-132744, 60 CrL 1070; No. CA-JV-96-0041, Ariz CtApp, Div 1, 10/10/96.)
Materials on Doe v Pataki and SORA are available at the Backup Center.
In defending his client, California attorney Philip D. Israels served a subpoena duces tecum on a mental health treatment facility and received records of the prosecution witness his client was alleged to have sexually abused. A lawsuit for invasion of privacy was subsequently brought, under the California constitution, against the lawyer. The California Court of Appeal has ruled that the case, which had been dismissed in the trial court, may proceed. Shartzer v Israels, 1996 WL 710563 (Cal App 2 Dist 12/11/96).
Three guides on investigation of child abuse are now available from the Juvenile Justice Clearinghouse of the National Center for Justice, published by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). Physical abuse, sexual abuse, and forms of neglect are covered: Battered Child Syndrome: Investigating Physical Abuse and Homicide (NCJ 161406) sets out circumstances indicating the willful injury or death of a child; Interviewing Child Witnesses and Victims of Sexual Abuse (NCJ 161623) discusses proper collection of information and particular techniques for child interviews; and Child Neglect and Munchausen Syndrome by Proxy (NCJ 161841) covers investigation of child neglect as well as a form of abuse involving caretaker fabrication of a child's illness.
All three guides are available electronically at NCJ's web pages, http://www.ncjrs.org or
http://www.ncjrs.org/ojjhome.htm in print form: JJC, PO Box 6000, Rockville, MD 20849-6000 or call (800) 638-8736
or email: askncjrs@ncjrs.org
Entitled To An Expert - Unless You Know Too Much
That the defense is entitled to expert assistance in dealing with DNA evidence under Ake v Oklahoma, 470 US 68 (1985) should be a given. See Ex Parte State of Alabama (Dubose), 9 BNA CrimPracMan 192 (SupCt Ala No. 1930827, 3/24/95). Fitting within that logic, an expert who gave inculpatory scientific conclusions to the prosecution as well as the defense was recently held not to count as a defense expert. Taylor v State, 60 CrL 1107 (Tx CtCrimApp No. 0048-95, 10/9/96). But in Virginia, one of the factors used to deny a defense expert for failure to show "particularized need" of such services was the defense lawyer's extensive knowledge about DNA. (Another factor, going to lack of prejudice, was the defendant's confession to the crime.) Husske v Commonwealth, 60 CrL 1008 (Vir SupCt No. 951880, 9/13/96).
More to Know - New DNA Test Emerges
It's not enough to say "DNA" testing. Until recently, while there were different types of testing procedures, all DNA material being examined by forensic DNA experts was taken from the nucleus of cells. As reported in the November issue of the ABA Journal, a Tennessee court has now allowed use of "mitochondrial" DNA, material taken from the more abundant mitochondria of cells. (That genetic material is inherited only from the mother; nucleic DNA contains material inherited from each parent.) The article mentioned, but did not explain why, no Frye or Daubert hearings were held; the defense lawyer did argue to the jury that this was "not good science." An FBI expert told the ABA Journal that extensive hearings were expected in most states before mitochondrial DNA would be accepted.
To Frye, or to Daubert, DNA
In ruling on a DNA question, the Washington State Supreme Court has chosen to continue deciding the admissibility of novel scientific evidence using the "general acceptance" test of Frye v US, 293 F 1013 (CA DC 1923) rather than the newer federal test set out in Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). The court described Daubert as holding that (under the federal rule of evidence) courts are to ensure that expert testimony rests on a reliable foundation and is relevant, having a valid scientific connection to the factual inquiry at hand. Using Frye, the court allowed the contested DNA evidence that had been offered there. Washington v Copeland, 60 CrL 1006, Wash SupCt No. 62417-8, 9/19/96.
(The New York Court of Appeals, in a case not involving DNA, just acknowledged Daubert in a "but see" cite, while stating that "This court has long recognized the rule of Frye, See People v Wernick [digested this issue, p. 12].)
Statistical Evidence - the Other Fight
Not disputing the procedures used to produce DNA evidence, lawyers in a New Jersey case fought instead the statistical testimony stemming from it. The testing company, Lifecodes, proffered testimony that blood stains on the defendant's clothes and car came from the victim, and that the chances of it being from anyone else in the North American white population was one in 4.7 billion. The defense countered with experts who, by attacking various aspects of Lifecodes analysis, adduced probabilities of one in 3.4 million, one in 6,899, or even one in 678. An appellate court found that disputes regarding the statistical significance of DNA matches do not affect the scientific community's acceptance of DNA analysis and so such disputes "should not result in the exclusion of such evidence in criminal trials." Lawyers are left to decide how to challenge the certainty of DNA statistics without confirming by repetition the underlying assumption that by some odds or other, the blood is probably the victim's. New Jersey v Marcus, 60 CrL 1133, NJ SuperCt, AppDiv, No. A-4962-92T1, 10/17/96.
Responding to changes in the pattern of cases coming into New York courts, the Office of Court Administration this month announced a new package of court initiatives. A report on the new program contains not only a recap of existing and start-up programs, but proposed legislative actions the court administration will be seeking.
Criminal defense could be impacted by several aspects of the announced program, which includes facilitated case processing, "community-based adjudication," continuing emphasis on alternatives to incarceration for non-violent offenders, and several technological innovations such as a database of protection orders, increasing use of computers in the courtroom, and "electronic court appearances," by which defendants remain in jail or a holding facility, and are arraigned by video teleconference. Included in the proposed legislation is a revamping of discovery, providing for automatic discovery of many items, and an expansion of information that both sides are required to disclose.
Contact David Bookstaver, Communications Director, or Mai Yee, Communications Officer (NY Unified Court System) at (212) 417-5900.