December 1997 Defender News

In an important ruling on the state constitutional right to counsel, the Court of Appeals, by a 6-1 margin, recently reaffirmed the holding of People v. Rogers, 48 NY2d 167 (1979). In People v. Francis Burdo, the Court held that the police violated the Rogers rule by questioning the defendant at the county jail in the absence of his attorney about a crime unrelated to the charges for which he was being held. The Court rejected the prosecution's argument (and the amicus position of the New York State District Attorney's Association) that the Rogers rule had somehow been undermined by Court's decision in People v. Bing, 76 NY2d 331 (1990). In its amicus brief in this case, NYSDA argued that the Rogers rule "recognize[s] that questioning on matters unrelated to the charge on which a defendant is represented and held in custody poses an inherent threat to an attorney-client relationship." The Court agreed and reaffirmed the importance of the rule in strong terms: "For nearly two decades Rogers has stood as a workable, comprehensible, bright line rule, providing effective guidance to law enforcement while ensuring that it is defendant's attorney, not the police, who determines which matters are related and unrelated to the subject of the representation." (See Case Digest, page 8.)

A copy of NYSDA's amicus brief is available from the Backup Center.

The New York State Bar Association (NYSBA) will seek to nullify a portion of the federal Balanced Budget Act of 1997 through litigation. According to NYSBA press releases, the law criminalizes advising the elderly about lawful transfers of assets in order to qualify for Medicaid; it applies to attorneys, accountants, financial planners, doctors, social workers and anyone else who dispenses, for a fee, advice concerning the lawful divestiture of assets in pursuit of Medicaid eligibility. Current State Bar President Joshua Pruzansky described the legislation as "a dangerous precedent for other potential restrictions on the freedoms of speech, the right to counsel and the attorney-client relationship." Former State Bar President G. Robert Witmer, Jr., of Rochester, a partner in the firm of Nixon, Hargrave, Devans and Doyle will serve as lead counsel. The firm is representing NYSBA pro bono.

On November 12, NYSBA President Pruzansky wrote a letter to Governor Pataki decrying New York's decline from providing leadership in indigent defense to creating an environment making the provision of competent counsel "an elusive goal." The letter sets out NYSBA's support for the New York County Lawyers Association plan calling for assigned counsel fees of $100 per hour for felony cases carrying potential life sentences, $75 for other felonies, $50 for misdemeanors, and $75 for appeals. To avoid imposition of an undue financial burden on localities, the state is called upon to bear the full responsibility for the added costs created by the plan.

New versions of two rules dealing with state death penalty trials and appeals were released on November 7 by the Court of Appeals. Changes were made to Part 218 of the Uniform Rules for the Trial Courts, which deals with: record transcription, reproduction and settlement; jury forms for Sentencing Determination and Findings; Notice to the Capital Defender Office of death sentence; stays of execution upon appeal and during CPL article 440 proceedings; filing of a case history in the Court of Appeals by the clerk of the court in which the judgment was rendered; remittitur; and data reports. Also revised was Part 510, which deals with capital appeals in the Court of Appeals.

The State Commission on Judicial Conduct took action to remove NYC Criminal Court Judge Lorin Duckman from office. The Commission found that over a five-year period, Duckman had disposed of 16 cases in a manner contrary to law, intentionally abrogating the prosecution's authority and subverting due process, and had pejoratively referred to assistant prosecutors. (Determination, Matter of Duckman, 10/24/97.) Judge Juanita Bing Newton wrote separately to emphasize the gravity of certain inappropriate comments made concerning gender and race.

The dissenters agreed that misconduct had occurred in the unlawful dismissal of the cases, but believed censure, rather than removal, was the appropriate sanction.

Lawrence S. Goldman's dissenting opinion noted that while the number of instances of misconduct seemed high, "it was not so great in light of the tens of thousands of cases Judge Duckman handled" during five years of intense scrutiny of his actions by the Kings County and Bronx County District Attorneys. Duckman's actions in improperly dismissing 16 cases over prosecutorial objection seemed less egregious, Goldman wrote, than another jurist's knowing and wrongful incarceration of individuals in over two dozen cases before any determination of guilt, for which only censure was imposed [citing Matter of LaBelle, 79 NY2d 350]. Finally, Goldman said, the impact of Duckman's removal on judicial independence should be considered. Highly publicized complaints by the governor and state senate majority leader as a result of a bail decision by Duckman in the Benito Oliver case triggered the disciplinary matter, and the commission found Duckman to have acted within his discretion in Oliver. "I am fearful that the removal of Judge Duckman may be perceived—wrongly I believe and hope—as a reprisal for what some contend was a lenient (and ultimately tragically unfortunate) bail decision."

October 1996 was also the date of the ABCNY's publication, in The Record, of the June 1996 report by its Task Force on Judicial Selection and Court Merger, "Judicial Accountability and Judicial Independence: The Judge Lorin Duckman Case Should Not be Referred to the State Senate." The Task Force took issue with reported statements by the Governor that if the State Commission on Judicial Conduct failed to remove Judge Duckman from the Criminal Court of the City of New York, Kings County, based on Pataki's submitted complaint alleging Duckman's belief that domestic violence should not be a crime and "anti-prosecution" bias, Pataki "would consider" referring his complaint to the State Senate.

On the national scene, the American Bar Association has announced the formation of a Special Committee on Judicial Independence, to counter increasing verbal attacks on judicial autonomy and work for unconstrained state and administrative judiciaries. Among the members of the committee are George S. Frazza of the New York firm of Patterson, Belknap, Webb & Tyler, federal district judge Norma L. Shapiro of Philadelphia, and Detroit Mayor Dennis Archer. The committee chair is William S. Sessions, former FBI director and federal district judge. Sessions said there is a need for public education about what judges do, raising public awareness of the importance of judicial independence; the committee will follow a multifaceted approach that will include television and print media contacts, preparation of educational materials for students from elementary through law school, and programs to respond to criticism of courts and judges. Included in the plans for the committee's organizational year are studying issues associated with attacks on judges and working for non-political selection of judges.

At 10:00 a.m. on Tuesday, January 21, 1998, the last of a series of public hearings will be held by the NYS Senate and Assembly Standing Committees on the Judiciary, in the Hamilton Hearing Room "B" of the Legislative Office Building in Albany on proposed legislation affecting the court system in New York. Among the proposed changes is the establishment of constitutionally mandated commissions to screen nominees for the appellate divisions, the court of claims, and appointed judges in New York City. That change is part of the Assembly's Judicial Reform, Integrity and Access to Justice Act, which would also open proceedings of the Commission on Judicial Conduct, create a 5th Judicial Department, create a civil legal services dedicated funding stream, and make other changes. The committee will also consider proposals by Chief Judge Kaye, in Senate Bill 4226, to merge the nine major trial courts into two, create a 5th Department, and make other changes, as well as other Senate judicial legislation. Anyone wishing to present testimony should submit 30 copies, along with a short form (available at the Backup Center) to: Senate Judiciary Committee, Room 413, The Capitol, Attn. Susan Conte-Zimmer, Albany, NY 12247 (tel) (518)455-2071 or Assembly Judiciary Committee, Room 831, Legislative Office Building, Attn. Sarah Beaver, Albany NY 12247 (tel) (518)455-5462.

A decade of experience with the United States Sentencing Commission and the Federal Sentencing Guidelines demands assessment of the experiment and implementation of reforms as needed, according to the first issue of Coalition for Federal Sentencing Reform, the new group's newsletter. Other issues addressed in the newsletter were the U.S. Supreme Court decision allowing judges to take into account at sentencing charges on which a defendant was found not guilty (US v Watts, 17 S.Ct. 633 [1997]; REPORT, 1/97) and the recently released 1996 Federal Judicial Center survey showing the existence of strong judicial opposition to the Guidelines.

The new Coalition plans to examine a variety of issues, including whether the Guidelines: are excessively complex, leading to excessive litigation; should be mandatory or advisory; have successfully reduced disparity and balanced the goals of uniformity and proportionality; should grant judges added flexibility; and should "trump" mandatory minimum sentences in case of conflict. Larger issues to be considered will include how the dissatisfaction of judges with the Guidelines can be developed into recommendations for reform, whether the Sentencing Commission's proceedings should be opened to increased public participation, and whether the Commission is carrying out its statutory mandate. Individual and organizational participation in the Coalition is being encouraged.

For information, contact: The Coalition for Federal Sentencing Reform, NCIA, 63 Slaters Lane, Suite G-100, Alexandria VA 22314. (tel) (703) 684-0373; (fax) (703) 684-0373; e-mail ncia@igc.apc.org; web site: www.sentencing.org. NCIA is a nonprofit criminal justice and human service agency which provides training, technical assistance, research, policy analysis and direct services to criminal justice, juvenile justice, social service and mental health organizations and clients.