NYSACDL Atticus June 2015

Spring 2015 | Volume 27 | Number 2

ATTICUS

Publication of the New York State Association of Criminal Defense Lawyers

INSIDE this

ISSUE 3

Message from the President

4

Editorial: Call for Articles

5

Dispatches from 90 State

6

From the Defense Table

7

Letters to the Editor

8

Raise the Age

by Lisa Schriebersdorf and Andrea Nieves

14

Ending the New York Death Penalty

by Russell Neufeld

20

Grand Juries

by Frank Quigley and Dick Barbuto

22

Annual Dinner

34

Book Reviews

37

Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

THE LEGISLATIVE ISSUE atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665

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Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers PRESIDENT Wayne C. Bodden, Brooklyn PRESIDENT-ELECT Andrew Kossover, New Paltz FIRST VICE PRESIDENT John S. Wallenstein, Garden City VICE PRESIDENTS Michael T. Baker, Binghamton Danielle Eaddy, Brooklyn Alice Fontier, Manhattan Donald G. Rehkopf, Jr., Rochester Robert G. Wells, Syracuse SECRETARY Arnold J. Levine, Manhattan TREASURER Lori Cohen, Manhattan DIRECTORS Bruce A. Barket, Garden City Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan Jonathan S. Fishbein, Delmar David I. Goldstein, Chestnut Ridge James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Timothy Hoover, Buffalo Greg D. Lubow, Tannersville Brian Melber, Buffalo Marshall A. Mintz, Manhattan Kenneth Moynihan, Syracuse Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Russell A. Schindler, Kingston Jay Schwitzman, Brooklyn Michael Shapiro, Manhattan Claudia Trupp, Manhattan Andre Vitale, Rochester Susan Walsh, Manhattan PAST PRESIDENTS Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti Ira D. London Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. O’Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Message from the President

By Wayne C. Bodden Thank you in advance for reading this legislative issue of Atticus. After our historic and exciting Annual Dinner, the NYSACDL Board has directed our attention to legislative matters. Led by our Legislative Committee co-chairs Andy Kossover and Lisa Schreibersdorf, we immediately got to work dissecting proposals on Criminal Justice Reform, Discovery, raising the age of juvenile responsibility, and Campus Sexual Assault. The legislative challenges we faced this year were enhanced by the Governor’s placement of key proposals within the budget. By placing proposals in the budget there was less time available for full discussion and evaluation by the Senate and Assembly. The Governor did eventually back down and the substantive bills he has proposed are being discussed on their merits, apart from the budget issues.

NYSACDL did write and submit thoughtful and insightful memoranda which were sent to members of the Senate and Assembly. NYSACDL has had an increased presence in Albany in recent years, and we are recognized by legislators and staffers as one of the premier “go to” organizations on criminal justice issues. This year we were invited to present testimony before a joint legislative committee on Criminal Justice Reform.

As you read through this issue, I hope it highlights to you our need as an organization to remain diligent and committed to having our voices heard when key changes are being considered that affect the practice and policies of criminal law. These proposals not only impact us as advocates, but also have the potential to impact all of us citizens of this State.

Thank you for your continued membership and support. Please share this information with your colleagues, and encourage them to join NYSACDL and help us as we seek to champion justice. A

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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EDITORS

Benjamin Ostrer John S. Wallenstein Jessica Horani Richard J. Barbuto, Acquisitions and Book Review Editor A publication of the New York State Association of Criminal Defense Lawyers ©2015 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

From the Editors’ Desk Putting this magazine together several times a year is difficult and time consuming. It requires a coordinated effort to acquire the content, keep after the authors, edit and vet the articles, and try to get it all together on a timeline. We are grateful to our Executive Director, Jennifer Van Ort, for her efforts; she is truly the glue that holds us all together.

But with all that, Atticus doesn’t write itself, and the Publications Committee can only do so much. We need you, our members and readers, to contribute. You can write a long feature, a short blurb, a letter to the editor, or send us a photograph of something or someone you think is relevant. Have an opinion about something?

Write it up! Got an acquittal, or a reversal, or a good ruling on a suppression motion? Send it on — we’ll be happy to publish it, and let everyone know!

We would like to take this opportunity to thank the authors of the articles in this issue, and to encourage everyone to emulate those efforts. Thanks to Rose Tannenbaum, graphic artist and designer at Miller Printing, without whom this issue would never get to press.

Finally, we encourage any member who has an interest in joining the Publications Committee to do so, and help us put this magazine together.

— Ben, John, Jessica & Dick

NYSACDL Diplomacy!

Recently, NYSACDL First Vice President John S. Wallenstein, Vice President Alice Fontier and Secretary Arnold J. Levine met with a group of lawyers from China, who were here in New York on the first leg of a cultural program under the auspices of the United States Department of State. The Chinese lawyers were interested in learning about our criminal justice system, and asked some pointed questions about NYSACDL and how the Association operates as well. We were hosted at the US Mission to the United Nations, and spent a very lively and productive two hours fielding questions about defendants’ rights, Brady, and primarily the operation of the public defense system. Our responses were well received, and we thank the Department of State for arranging our participation.

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Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Find NYSACDL on Facebook, LinkedIn & Twitter

Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org.

Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org The editors reserve the right to modify any submission for style, grammar, space and accuracy.

Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes.

2. When a Case is mentioned in the text, its citation should be in the text as well.

3. Articles longer than 4 pages may be edited or serialized.

Dispatches from 90 State Jennifer Van Ort Executive Director

Every organization, not-for-profit or for-profit, large or small, needs to take time to reflect on its past, present and future. Recently, NYSACDL Officers, Directors & Past-Presidents gathered in Albany for a daylong retreat and Board meeting. Many new ideas and initiatives were proposed, which are beginning to take shape. I’m pleased to provide you with a brief summary of some topics of interest.

Each issue discussed was done so in the light of NYSACDL’s mission & value statements (available at www.nysacdl.org/ about/mission/), as well as the concerns of you, our members, and those you represent. Of course, one of the most important topics centers on increasing the number of your colleagues who join you with a membership commitment. NYSACDL is well on its way to welcoming back the 820 members who joined in 2014, with a goal of cresting the 1,000 member mark by December 31, 2015. Several ideas were discussed to achieve this goal, including opportunities to learn more about, and remove barriers to, membership for various demographics of criminal defense lawyers in New York State. One major focus for 2015 will be outreach to under-represented counties throughout the State. We are also exploring referral programs for current members as well as NYSACDL Officers and Directors.

It is well understood by NYSACDL leadership that among the most beneficial membership benefits are the State & Federal Listservs and the collegial input each provides. As our membership numbers grow, it is wonderful to see an increase in the activity on the listservs. This provides an opportunity for us to explore premium options provided by our listserv vendor that will make it easier for members to search the archives and find useful posts. As new members join us, we will be asking members on a regular basis to be mindful of proper listserv etiquette.

On a related note, over the next few months, we will be taking steps to encourage members to use the features of the new membership community at www.nysacdl. site-ym.com. Some of you have begun to use the site for event registration, membership renewal and online CLE purchases. I am in the process of transitioning exclusive online member content to this site, including the NYSACDL Motion Bank.

You are encouraged to explore the documents available in the bank, and to submit motions, briefs and other documents to enhance the selection available.

Providing high-quality continuing legal education is a major component of NYSACDL’s program. At our recent meeting, several interesting and exciting CLE initiatives were discussed. The Board and I will be exploring new opportunities to bring CLE seminars to more areas of the state. We are also working on an initiative with the NYSACDL Foundation to present free or low-cost seminars on various topics on a regular basis.

Continued on next page

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From the Defense Table Member Daniel W. Scott achieved an acquittal in New York County on a Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree trial. Mr. Scott’s client was accused of shooting the deceased five times in the face, neck, and torso inside the apartment building where the defendant was residing. At trial a witness for the People testified that he saw both men enter the apartment building where the defendant was staying, that he heard shots, and that moments later he saw the defendant running up the stairs while the deceased’s body lay in the lobby.

None of the above were ‘good facts’ for the defense but the evidence became even more potentially damning when the People put on two civilian witnesses from the apartment where the defendant was staying who testified that the defendant ran into the apartment after shots were fired and proclaimed, “I did it,” while inexplicably wearing only his underwear. The People also introduced a statement written by a detective and signed by the defendant after he was said to have waived his Miranda rights.

The statement contained a confession to the shooting as well as details regarding how he supposedly discarded the weapon as well as the clothes he was wearing at the time. The defendant was videotaped being interviewed by the prosecutor where he essentially repeated what the written statement claimed.

Despite the odds being stacked very much against him, Mr. Scott proceeded to trial with his client with the defense that the alleged confession was a false confession which came about as a product of police coercion by the Detectives and that the civilian witnesses were either lying or mistaken as to what they had observed.

The jury, perhaps emboldened by certain recent negative incidences involving police officers, did not simply

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credit the officer’s version of what occurred and, given the lack of other evidence linking the young man to the shooting, they returned a verdict of not guilty to both counts, in a win which Mr. Scott described as “stunning.”

As far as cold cases go, the case of the disappearance of Etan Patz may as well have been frozen solid when police and prosecutors decided that suspect Pedro Hernandez’ alleged confessions were enough for them to charge him with the murder of six year old Etan Patz, who disappeared from his Soho neighborhood 35 years ago. With no body, no forensic evidence, and no witnesses to the crime, the case hinged on persuading 12 jurors that Mr. Hernandez confessed to a murder which he actually committed. The distinction between a confession and having actually committed the crime became the crux of the defense case. Led by NYSACDL members Harvey Fishbein and Vice-President Alice Fontier, the defense argued that Pedro Hernandez was mentally ill, unsophisticated, and most importantly, not a killer. His ‘confessions’, they

argued, were the product of an unstable mind, one not even capable of grasping the significance of what he told others about his supposed role in the disappearance of Etan Patz. In a case which riveted New Yorkers, Mr. Fishbein and Ms. Fontier had an uphill battle against the emotional impact of the crime and a client who gave a chilling videotaped confession. After nearly four months of trial and what was one of the longest jury deliberations in a criminal trial in New York, one holdout juror stood by his “Not Guilty” vote despite intense pressure, and a mistrial was declared.

The juror, Adam Sirois, has since been vocal about his reasons for seeing reasonable doubt throughout the case and his unwillingness to remove the presumption of innocence from Hernandez based on possibilities and probabilities. In reaching that one juror, Mr. Fishbein and Ms. Fontier breathed life into our constitutional protections for their client. We wish them congratulations and some brief respite from the rigors of trial as the District Attorney has recently announced his intention to seek a retrial against Mr. Hernandez. A

From 90 State Continued from page 5 Last, but certainly not least, much of our conversation focused on the legislative issues concerning you and your clients. Many of the details of our work on these issues are highlighted in the pages that follow. Additionally, we will be continuing to look for opportunities to help you engage in our legislative work through contact with your own legislators. We have also been focused on issuing responsive statements on current events, through a new committee created by President Wayne Bodden, which so far has responded to a number of critical items.

As always, we encourage your feedback on the work NYSACDL does. You are welcome to contact me at the office or through email at any time, or you can contact any Board member through the contact information listed at www.nysacdl. org. Thank you for your continued commitment to your work, your clients, and NYSACDL! A

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Letters to the Editor In the Winter issue of Atticus, in an article about Eastern District Judge Jack B. Weinstein, it was erroneously noted that Judge Weinstein had been “blackballed” by the Second Circuit. Second Circuit Chief Judge Robert Katzmann sent the following to the editors of Atticus, and followed up with a phone call: The Editors are grateful to Chief Judge Katzmann for bringing this issue to our attention. We appreciate that, as busy as he is, he has taken the time to read Atticus and express an interest in our efforts; we thank him for his kind words and support.

The author of the article, Mitch Dinnerstein, responds: In the above mentioned article (“Reflections On Judge Jack Weinstein,” Atticus, Winter 2015), I wrote that Judge Weinstein had not appeared in the Second Circuit to hear cases since 1990. That statement is correct. I indicated in that piece that Judge Weinstein had been “blackballed”. Chief Judge Katzmann, whose letter to the Editors of Atticus appears on this page, contacted me after the article was published and advised me that Judge Weinstein has been invited to sit in the Circuit but has declined

the invitation. I wrote to Judge Weinstein, who responded that he has been “consistently invited to sit on the Court of Appeals for the Second Circuit, but I prefer to direct all my energy to district matters.”

My source material for the article was Professor Jeffrey Morris’s book entitled “Leadership on the Federal Bench” (Oxford University Press, 2011). In that book, Professor Morris implied that Judge Weinstein had not been invited

to sit in the Circuit, and characterized Judge Weinstein’s reflections on his service in the Circuit a quarter century ago as being unsatisfactory to him. I am sorry that I mistakenly interpreted this comment by Judge Weinstein as indicating that he had been “blackballed” from sitting on cases from the Second Circuit. Apparently, after Judge Weinstein’s 1990 experience, he has still continued to be invited to the Second Circuit, but has declined. I apologize for my error.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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Raise the Age 8

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

By Lisa Schreibersdorf and Andrea Nieves

N

ew York is one of only two states to treat 16- and 17-year-olds as adults in the criminal justice system. There has been much talk of changing this — the “Raise the Age” movement has been successful in showing the need for New York to pass reform. Yet fundamentally changing how our state handles the cases of teenagers is extremely complex. It requires changing hundreds of statutes in the Penal Law, Criminal Procedure Law, Family Court Act and others.

The seemingly straightforward remedy of simply replacing the number “18” where it previously said “16” as a way to bring New York in line with other states is not the simple solution the slogan suggests. Overcrowding already experienced in family court is one major obstacle as is opposition by prosecutors and legislators who do not believe that adolescents should be treated with less accountability or more leniency. Many of NYSACDL’s members with experience in both family and adult criminal court also are not certain that family court is better equipped to assure fairness for our adolescent clients or likely to have a less-harsh approach. Recent proposals in the Governor’s Budget and a one-house Assembly bill attempted a solution that would send misdemeanor cases and some felonies to Family Court while keeping a number of felony charges in adult court for this population. Due to the inadequacy of this solution as well as concerns about other provisions of the bills that would have be harsher for many adolescents, NYSACDL spoke out against these proposals.

The current New York standard stands in stark contrast to modern brain science research. The literature confirms that adolescents are impulsive, susceptible to negative influences from peers, and lack the maturity of adults to make decisions that involve long-term consequences. Ten years ago the U.S. Supreme Court adopted these concepts and declared that juveniles should not be held to the same standards as adults.1 The Court acknowledged what parents and teachers have always known: that a juvenile’s inability to conform his or her behavior to adult standards is not necessarily a moral failing or character flaw, but rather a normal boundary-testing step along the way to developing individual character.

Lisa Schreibersdorf is the Executive Director of Brooklyn Defender Services.

Lisa is a past president of NYSACDL, and the Co-Chair of the Legislative Committee.

Andrea Nieves is a Staff Attorney at Brooklyn Defender Services

One glaring failure in the adult system is that New York currently detains and imprisons 16- and 17-year-olds in adult facilities where they are frequently the victims of rape, brutality by guards and other prisoners, and endure extensive stays in solitary confinement. Even short-term detention of adolescents in adult facilities is dangerous: juveniles are five times more likely to be sexually assaulted in adult rather than juvenile facilities – often within the first 48 hours of incarceration. These published figures are likely low because sexual assault of youths in adult facilities is underreported. The violence against youth in adult facilities makes them more likely to attempt suicide and often destroys potentially rehabilitative effects of incarceratory sentences. Indeed, young people who serve time in adult facilities are more likely to re-offend than their peers placed in juvenile facilities.

NYSACDL is committed to advocating for changes to our current criminal justice system as they affect 16- and 17-year-olds, first and foremost transferring adolescents out of adult facilities. We are equally as dedicated to seeing that any reforms 1

See Roper v. Simmons, 543 U.S. 551 (2005).

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Raise the Age Continued from previous page we undertake do not negatively affect any 16- and 17-year-olds. We also must ensure that reforms do not perpetuate racial disparities in a justice system already characterized by disproportionate representation by people of color.2 THE EXISTING JUVENILE JUSTICE SYSTEM Currently, young people under the age of 16 are prosecuted in Family Court.

Juvenile Offenders, or 13-, 14-, or 15-year-olds charged with certain serious crimes, have their cases heard in adult courts with the limited possibility of removal to Family Court. All 16- and 17-year-olds have their cases heard in adult courts.

2 See New York State Juvenile Justice Advisory Group, 2011 Annual Report, http://www.criminaljustice.ny.gov/crimnet/ojsa/jjag-report-2011.pdf (last visited April 13, 2015).

The Family Court system has aspects that are both positive and negative for court-involved youth. On the positive side, all cases in Family Court are sealed. In addition, the Family Court Act allows for true diversion from prosecution, the “off ramp” known as adjustment. There exists a broader array of services for young people and their families than defendants find in many adult criminal courts. On the other hand, when children do fall under the jurisdiction of the Family Court, they are often subject to more intrusive and harsher escalating consequences than they would receive in adult court.

New York’s family courts are grounded in the philosophy of parens patriae, a doctrine that allows the state to step in and serve as a guardian for young children and persons deemed incompetent.

This results in a great deal of judicial

discretion that can be quite harsh, such as pre-trial detention for the “good of the child”. The Family Court Act, the governing statute, fails to provide procedural safeguards mandated in adult courts such as jury trials. Young people and their families may be subject to long-term government interventions, including probation and placement, for matters as minimal as turnstile jumping or smoking marijuana. This is in part because pre-trial detention decisions and sentencing considerations are made on the basis of risk assessment instruments that may consider factors outside the young person’s control as putting them at “risk” for re-offense. Juvenile judges with broad discretion may apply harsher sentences for low-level cases than in in adult court, ordering placement for up to a year for misdemeanors or 18 months for felonies, with the possibility of extension until the young

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Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

person’s 18th birthday, based on the judge’s assessment of what is “in the best interest of the child.” The result of this is that a young person charged with a misdemeanor is over two times more likely to end up incarcerated if his or her case is brought in Family Court than if brought in adult court.3 THE EXISTING ADULT COURT SYSTEM As NYSACDL members know, adult courts do not necessarily treat adolescents in the same way they would treat an adult. In addition to a wide range of plea bargaining options that do not result in a criminal record, Youthful Offender (YO) treatment grants the court discretion to seal the conviction and sentence the young person to a reduced range of imprisonment.

One major benefit of the adult criminal court system is that all offenders, including adolescents, are subject to punishment that is tethered to the alleged crime or behavior rather than the life circumstances of the young person, as is the case in Family Court. Governor Cuomo’s Commission on Youth, Public Safety and Justice found that in adult court, 80% of cases involving 16- and 17-year-olds are resolved with a dismissal or a violation, and only 5% of cases end without the protection of YO status.4 Many counties resolve misdemeanor cases at first appearance or have a specialized adolescent court where a consequence tailored to the behavior such as a fine or community service is 3 Lisa Schreibersdorf & Amy Albert, Bringing The Best Of Both Worlds: Recommendations For Criminal Justice Reform For Older Adolescents, 35 Cardozo L. Rev. 1143, 1154 (2014).

4 Governor’s Commission on Youth, Public Safety and Justice, Recommendations for Juvenile Justice Reform in New York State, 57 (2014), available at https://www.governor.ny.gov/sites/governor.ny.gov/ files/atoms/files/ReportofCommissiononYouthPublicSafetyandJustice_0.pdf.

combined with targeted services. 16and 17-year-olds also have the right to a public jury trial, a constitutional protection that juveniles are denied in Family Court.

16 budget. The Assembly one-house budget bill followed up with a similarly complex proposal in March, which adopted many, but not all, of the Governor’s proposed reforms with some substantial differences. NYSACDL drafted a policy memo, available on the NYSACDL website, on the two proposals asking the legislature to hold off on

On the other hand, adult sentences are too long for young people and do not reflect modern brain research that demonstrates their strong potential for rehabilitation. There is no guarantee of a sealed record for 16- and 17-year-olds, unlike their younger peers. The wide range of sentencing options and the “off ramp” from prosecution, called “adjustment” in Family Court, does not exist in adult court. Current laws do not protect young PAUL BUCKOWSKI / TIMES UNION people from making statements to the police without parenpassing either during the budget negotal involvement either, an important tiation process given multiple concerns protection given their vulnerability to about the bills, including potentially make a false confession. Most imporracially disparate outcomes for youth of tantly, the fact that 16- and 17-yearcolor. olds currently arrested and adjudicated in adult court are imprisoned in adult On the positive side, both reform effacilities is reprehensible. It is urgent forts called for the transfer of 16- and that they be diverted to alternative-to17-year-olds from adult facilities and incarceration programs or transferred the creation of new “Close to Home” to age-appropriate placements as soon facilities to house them in their commuas possible. It is also imperative that the nities instead. They also created Family jails provide proper care to people who Support Centers for Persons In Need of are still minors under the law and have Supervision (PINS), including respite the right to be treated as such, including centers for families in crisis.5 If funded, respite center staff will be responsible the right to an education.

PROPOSED “RAISE THE AGE” LEGISLATION Governor Cuomo released a 200-page “Raise the Age” proposal in his 2015-

5 PINS youth are young people under the age of 18 who have not engaged in any criminal activity but who are “beyond the lawful control” of their parents, exhibiting behaviors like truancy, running away, and “incorrigibility.” They may be detained in non-secure placements. NY Family Court Act § 712(a).

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Raise the Age Continued from previous page

for finding long-term solutions for families in conflict with their teenagers while the teen has a safe place to stay, allowing the young person and the family time to cool off. This would be a vast improvement to the current default in the family courts, which is to place a child in a facility when it is deemed inappropriate to send the child home. It will also open doors by reversing the trend of virtually nonexistent opportunities for 16- and 17-year-olds whose family situation makes it impossible for them to remain at home.NYSACDL is concerned about many of the proposals incorporated in the now-defunct bills. The underlying premise that the wholesale transfer of misdemeanor and low-level felony cases to Family Court will result in better outcomes for adolescents or communities is the opposite of the experience of many NYSACDL practitioners. It is also inconsistent with the data in the Governor’s report, which showed that 80% of adolescents receive a dismissal or an adjournment in contemplation of dismissal and 95% of misdemeanor cases do not result in a criminal record.

In Family Court, young people can get caught up in an increasing web of sanctions associated with their failure to follow through with services that would never have been required in adult court.

Due to the nature of adolescence, the likelihood of missed appointments and other elements of follow-through, esca-

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lating sanctions including incarceration is common in Family Court yet almost unheard of in adult court. This phenomenon, often called net-widening, is an outgrowth of the parens patriae philosophy in Family Court.6 When we widen the net, people wind up in jail for failure to comply with programs when the initial crime would never have been worthy of a jail sentence. The combination of the philosophy of Family Court, the broad discretion granted the court, the wide range of programs and the unique inability of teens to follow through affectively create a breeding ground for net-widening that is unlikely to occur in the adult system, where plea bargaining brings certainty and proportionality.

Both proposals rejected modern brain science when addressing serious violent offenders, who are most in need of the services, supports and oversight that the Family Court is well-equipped to provide. Social science research shows that high-risk youth, including violent offenders, are responsive to rehabilitation and in fact are more responsive to intensive programming and support than low-level offenders at a low- or me6 Center on Juvenile and Criminal Justice, Widening the Net in Juvenile Justice and the Dangers of Prevention and Early Intervention, 4-6 (Aug. 2001), available at http://www.cjcj.org/uploads/cjcj/documents/widening.pdf.

dium-risk of re-offense.7 Furthermore, the list of Juvenile Offender charges for which a 16 or 17-year-old would be subject to adult court jurisdiction was greatly expanded, especially in the Governor’s proposal, to include the most common arrests for young people in this age range. This departs from the science underlying the “raise the age” movement and, because of the extremely high percentage of black and Hispanic youth forced to remain in the adult system, will affirmatively exacerbate racially disparate outcomes. We recommend the use of racial impact statements before the passage of adolescent justice reform to safeguard against such racial disparities.8 It would also be necessary to affirmatively show that prosecuting felony charges in adult court is better for the young person and more likely to improve public safety.

Some stakeholders, including District Attorneys, note the lack of public accountability in the family court system.

Matters in the family courts are not considered “public” in the same way as 7 Mark W. Lipsey, David B. Wilson, and Lynn Cothern, “Effective Intervention for Serious Juvenile Offenders,” OJJDP Juvenile Justice Bulletin (April 2000), available at https://www.ncjrs.gov/ pdffiles1/ojjdp/181201.pdf.

8 Marc Mauer, Racial Impact Statements: Changing Policies to Address Disparities, 23 Crim. Justice 4 (2009), available at http://www.sentencingproject. org/doc/rd_abaarticle.pdf.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

other courts. In this respect, NYSACDL agrees that procedural justice must be part of any reform and that 16 and 17 year-olds should not lose the constitutional rights they already have.

Important issues relating to fairness and process go unchecked and unreported because of the lack access to delinquency proceedings by the press and public.

The right to counsel early on in the proceedings, such as at adjustment or at the precinct prior to eliciting statements, and the right to a trial by jury are fundamental to fairness in our court system, yet they are not available under current family court procedures. Without an attorney, adolescents and their families are required to provide a great deal of information during the pre-trial adjustment process, including facts about the alleged crime. Unless they can afford an attorney, these respondents and parents are not sufficiently warned or knowledgeable about the potential impact of those statements. NYSACDL stands for the proposition that constitutional safeguards should not be taken away from 16- and 17-year-olds, especially given what we continue to learn about the abuse of power in family courts across the country.9 NYSACDL’s position paper on “Raise the Age” urged legislators to put aside the funding for reform but to hold off on passing any substantive policy changes, aside from the transfer of adolescents from adult jails and prisons, during the budget negotiation process.

Fortunately, elected officials heard these same concerns from other stakeholders and in fact, did allocate over $100 mil-

lion to the future creation of appropriate facilities for 16- and 17-year-olds, with another $25 million earmarked for services.

Over the next few weeks, it is expected that legislators and the Governor will look at other aspects of raising the age.

NYSACDL will be monitoring any new proposals and will continue to advocate for targeted and appropriate adolescent justice reform during the remainder of the legislative session.

518.443.2000

We believe that New York State can be a true leader in adolescent justice reform, drawing from the successful elements of the Family Court and adult court systems in New York, best practices in other states, and recent developments about adolescent brain development.

NYSACDL members are leaders in the criminal defense field, both adult and family, in all 62 counties of our state.

Our platform is based on our experience and knowledge of our systems, our clients and our commitment to the rights of people accused of a crime and the Constitutions of the United States and New York State. Our goal is to protect the rights of the accused no matter their age while helping to fashion a reasonable response to adolescents charged with crimes.

The point person at NYSACDL on “Raise the Age” is Lisa Schreibersdorf, Past-President and co-chair of our Legislative Committee. If you have any comments or questions, email her at lschreib@bds.org. A

9 See Statement of Interest of the United States, N.P. v. State, No. 2014-CV-241025 (Fulton Cnty.

Super. Ct. March 13, 2015), available at http:// www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/13/np_v_state_of_georgia_usa_statement_of_interest.pdf.

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Ending the

New York

Death Penalty:

Lessons for Human Rights Advocates

By Russell Neufeld

The nine-year-long campaign that successfully eliminated the New York State death penalty is an excellent example of strategic litigation that utilized the combination of in-court litigation with political organizing, mobilizing and lobbying to achieve the desired result.

BACKGROUND Abolition of capital punishment has long been a goal of human rights advocates in the U.S. and around the world. The death penalty, both judicial and extra-judicial, always reflects the delusional arrogance of those in power, that they have the wisdom to decide who should live and who should die. In the United States, there is a particularity to capital punishment that has long pushed it to the top of the human rights agenda. In the American South, where the pre-Civil War economy was based on slavery, the death penalty became a key method of maintaining the social and economic relations of white supremacy once slavery was made illegal and lynching opened the U.S. to world-wide condemnation. In the northern states of the U.S., capital punishment was used in the late 19th and early 20th centuries disproportionately against members of dis-favored immigrant groups: Italians, Jews and Irish.

As the great waves of African American migration came north during the first half

Russell Neufeld is an attorney in New York City. During the time covered in this article, he was a member of the Board of Directors of New Yorkers Against The Death Penalty and the Attorney-in-Charge of the Capital Defense Unit, the Criminal Defense Division and the Criminal Practice of The New York Legal Aid Society. This article was originally written for the Sutyajnik, Russian human rights litigation training manual.

PHOTO ILLUSTRATION: ROSE TANNENBAUM

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of the 20th century, the racist use of capital punishment came north as well.

The death penalty abolition movement gained momentum during the 1960’s frequently comprising part of the civil rights movement. The legal front was led by the National Association for the Advancement of Colored People Legal Defense and Education Fund (LDF) After LDF attorneys convinced the U.S. Supreme Court to strike down all of the existing death penalty statutes in the United States in its 1972 decision, Furman v. Georgia, 408 U.S. 238, the U.S. Supreme Court permitted the states to re-introduce capital punishment in its decision in Gregg v. Georgia, 428 U.S. 153, in 1976.

Many states quickly brought back the death penalty, but New York did not. Each year the state legislature passed a death penalty bill and every year the Democratic governor vetoed it. The legislature lacked the two thirds majority necessary to override the veto. In 1994 the Republican candidate for governor ran on a platform that emphasized bringing back capital punishment to New York. Popular support for bringing back executions was widely seen as aiding his victory. When he won the election, it was clear that New York would once again be in the business of legal homicide.

Both of these things would have to radically change. In order to develop a strategic litigation campaign we needed a cadre of strategic litigators. Even before a death penalty bill was enacted, abolitionists worked to effect the law’s content. Although we knew that capital punishment had majority support in both houses of the state legislature, there was a swing group of democrats in the assembly who wanted to ensure that any death penalty bill they voted for would protect basic due process rights.

This gave the abolitionists the ability to negotiate for a law that would create an

headed the Furman and Gregg litigation. This group included attorneys from the state Capital Defender Office and The Legal Aid Society Capital Defense Unit, the two offices that represented most of the capital defendants in the state. The group identified a number of vulnerable sections of the new statute where we would focus our legal attack.

THE ABOLITION CAMPAIGN One of the lessons of the Furman and Gregg litigation was that it is not enough to just convince the courts to invalidate a particular death statute. Unless there is a strong abolitionist movement supporting those judicial findings, a legislature will just act to fix the infirmities in the law and keep the death train on track. New Yorkers Against the Death Penalty (NYADP) became the primary organizational vehicle to build the abolition movement in New York. A strong board of directors was created with abolition leaders from around the state. Most of the major population centers were represented on the board. Much of the initial grass roots strength came from religious organizations. Roman Catholic Bishop Howard Hubbard was the board chair and several other board members were very involved in their denominations anti-death penalty efforts. The board included five lawyers which ensured a strong coordination of the legal and political work. NYADP started local chapters across New York. Coalitions with other pro abolition groups were started. Constituency groups, including New York Lawyers Against the Death Penalty and religious leaders against capital punishment were organized.

Each year the state legislature passed a death penalty bill and every year the Democratic governor vetoed it.

STARTING FROM SCRATCH At the time of the 1994 election, New York was home to only a handful of experienced capital defense trial lawyers.

We had a very small death penalty abolition group, based in the state capital, whose focus had been to ensure that the death penalty vetoes were not overridden by the necessary two thirds vote.

independent Capital Defender Office which would provide direct representation to capital defendants, contract with NGOs to offer representation and train and help private attorneys to take on capital cases. A number of capital trial lawyers, led by Kevin Doyle, who had extensive experience with capital trials in the American South (known as the “death belt”), joined with a very experienced group of New York criminal defense attorneys, to staff the Capital Defender Office. We also won restrictions on executing mentally retarded and juvenile defendants — restrictions that were later relied upon by the U.S. Supreme Court in barring those executions nation-wide.

In order to help create a legal strategy to take on the new law, we convened a group of very experienced death penalty litigators and academics led by Professor Anthony Amsterdam, who had spear-

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Death Penalty Continued from previous page

CARLO ALLEGRI / REUTERS

David Kaczynski was hired as executive director. His brother was the infamous “Unabomber” who had killed and injured many people. David Kaczynski had agreed with law enforcement to turn in his very mentally ill brother, in return for the government’s pledge not to seek the death penalty. When the government reneged on that promise, David Kaczynski became heavily involved in anti-death penalty work and, being a gifted speaker, became a very high profile leader for NYADP. He was much sought after for media interviews and speaking engagements.

Governor Andrew Cuomo

NYADP members wrote letters to the editor in local papers. They called in to radio programs. They educated local journalists about the issue and successfully encouraged media coverage.

Abolitionists responded to the pro-death penalty stances of many editorial boards and columnists. They introduced resolutions in local city, town and county legislatures, either for abolition or a death penalty moratorium. These resolutions passed in scores of city and town councils and county legislatures. The New York City Council voted 39-12 in favor of a moratorium. These victories were reported in the media and the results were forwarded to state legislators.

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NYADP sent speakers to colleges and law schools, and religious services.

Many other organizations joined in the campaign. The New York Civil Liberties Union held several large demonstrations. The New York State Association of Criminal Defense Lawyers held an extremely well covered press conference on the first day the new statute became effective, promising to vigorously litigate every capital case. The Roman Catholic Diocese of Brooklyn, which covers a much larger area than its name would imply, created an antideath penalty video that was shown to all its Catholic school students.

Demonstrations were held at courthouses where capital cases were pending. In Brooklyn, where the first capital trial was to be held, the Brooklyn Friends Meeting (Quaker) held a weekly vigil.

NYDADP worked with all these and many other groups to sponsor numerous educational and agitational events.

The cases of New Yorkers convicted of murder prior to the death penalty’s resumption who were later exonerated were publicized as proof of the danger of executing the innocent. Death row exonerees from other states spoke at New York abolition events as proof of the same danger of executing the innocent. They told horrific stories of racial discrimination in the imposition of death sentences and of decades spent incarcerated pending execution for crimes they had not committed. Meanwhile, a separate political action committee was created to give financial support to state

legislators who backed abolition. This went hand in hand with ongoing lobbying efforts both in the legislators home districts and in the capital.

Because the death penalty was a national, as well as a New York, issue, it was important to coordinate and draw on national, as well as international, resources. These resources included financial support from national abolition groups and the participation of prominent speakers. The national abolition organizations understood that, because New York is such a national media center, eliminating capital punishment in New York could have a positively disproportionate national impact.

Abolition events at the United Nations in New York, sponsored by international organizations including Hands Off Cain, were publicized. There was international media attention on the first capital trial under the statute. This public attention produced the sense that “The whole world is watching”.

The issue of innocent people being sentenced to death in many other states, became a focal point of our educational and media work. The more New Yorkers realized that the courts in states like Illinois had sentenced scores of innocent people to die, the more they came to understand that similar injustices could happen here. To that end, the Innocence Project, based in New York, was winning death row exonerations around the country and regularly publicizing the results in New York and national media. Additionally, several men who had been convicted of murder in New York prior to the resumption of capital punishment, were exonerated many years after their convictions.

This enabled us to argue that “If New York had had the death penalty, these innocent human beings would have

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been executed and their exonerations would have come too late.” This also sent a powerful message. Frequent out of state speakers included death row exonerees, members of Murder Victims’ Families For Reconciliation, and two very powerful leaders of the legal/political fight against the death penalty in the American South — Steven Bright of the Southern Center for Human Rights and Bryan Stevenson of the Equal Justice Initiative of Alabama.

THE LITIGATION While all this grass roots work was advancing, the legal work continued on dozens of capital cases around the state. While each case is unique and some of the legal challenges to a particular prosecution were specific to that case, the defects in the New York statute were raised in motions in nearly every case. This created numerous chances for the litigators to convince a trial court to invalidate all or part of the statute. Of the half dozen or so major problems with the statute, some attracted judicial support sooner than others. Some arrived at the appellate courts prior to trial and some only after a conviction or death sentence.

Tomei, 2NY3d 383 (1998), New York’s highest court sustained trial court findings that a provision of the statute permitting the death penalty only for those who went to trial and not for those who pled guilty, violated the U.S. Constitutional right to trial. This was because the provision discouraged a defendant from availing himself of his right to a trial by promising that he could be guaranteed of avoiding execution only by pleading guilty. However, the Court of Appeals held that it could eliminate that part of the death penalty statute, while retaining the rest. New

first three years of the death statute, the anti-death penalty movement continued to systematically gather momentum. By the time of the Hynes v. Tomei decision, a newly created majority of New Yorkers (57%) favored a maximum punishment of life in prison over the death penalty (37%). This meant that we had gained strong popular support in the effort to lobby state legislators to do away with capital punishment. It also meant that courts knew that anti-death penalty rulings would not subject them to majority criticism.

All the lobbying and grass roots organizing would finally be rewarded when the next major legal challenge to the statute reached the Court of Appeals. In People v. Lavalle, 3NY3d 88 (2004), the Court confronted the death statute’s jury deadlock provision. That provision stated that before determining whether to sentence a defendant to death or life in prison without the possibility of release, jurors must be instructed that if they could not agree on a sentence unanimously, the judge would sentence the defendant to a prison term with the possibility of release. The Court held that such an instruction could coerce a juror to vote for death to avoid the possibility of the defendant’s future release.

This coercive effect was held to violate the State Constitution’s due process protection. What’s more, the Court held that it could not just strike the clause, as it had done in the Tomei case, because a jury deadlock instruction is a necessary part of the jury charge. Therefore, the entire capital statute would fall, unless and until the legislature fixed it.

The national abolition organizations understood that, because New York is such a national media center, eliminating capital punishment in New York could have a positively disproportionate national impact.

The first major legal blow to the law came three years into the litigation.

In two of the earlier capital cases, trial judges had agreed with one of the constitutional challenges raised by the defense. These rulings were appealed by the prosecutors and then had to wend their way through New York’s two level appeals process. When the intermediate appeals courts reversed the trial courts’ findings, the issue finally made its way to the Court of Appeals, New York’s highest court. In the Matter of Hynes v.

York’s governor said that the ruling was “narrow” and “will not impede the vigorous prosecution of death penalty cases.” The decision resulted in the overturning of all the death sentences rendered prior to the Court’s ruling.

For those of us concerned with saving the lives of our individual clients, as well as the ultimate goal of abolition, this was a very big win. It also showed that New York’s highest court, as well as some of its trial courts, were open to challenges to the statute.

Although the Hynes v. Tomei decision was seen as a step forward and an energy boost within the abolition community, it was mainly publicized within legal circles with only minor coverage in the mass media. Nonetheless, during those

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Death Penalty Continued from previous page THE ENDGAME Now the abolition focus moved back to the political forum. Discussions began among abolitionist lawyers on the wording of a new jury instruction if the statute was to be saved. At the same time we began organizing support to dissuade lawmakers from fixing the statute at all and just letting it die. The crucial break in this regard occurred when the Democratic Party majority conference in the state assembly voted against fixing the law. Then the chairs of the three Assembly committees responsible for various aspects of the law decided to hold multiple joint hearings, over five days, in New York City and Albany, to help the legislature determine what course to take. NYADP worked with the litigators and coalition partners to organize witnesses to testify at the hearings. We brought in academics, prosecutors and other law enforcement abolitionists, including New York County District Attorney Robert Morgenthau. We invited several death row exonerees from other states. A large number of family members of murder victims, including a police officer killed on 9/11, testified against the death penalty. We asked lawyers with deep capital defense experience to testify. Religious leaders testified about the immorality of capital punishment.

Over the five days of hearings from

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December of 2004 through February of 2005, 146 witnesses testified and 24 individuals and groups supplied written testimony. Of that total number of 170, 148 opposed capital punishment. Our witnesses covered every possible area of dispute, from racial discrimination, to deterrence, to cost, to morality, to the risk of executing the innocent. In the end we convinced all three committee chairs, two of whom had originally voted for the capital statute, that the death penalty should end. The members of each committee also voted not to fix the statute. In its report on the hearings, the legislature observed that “much has changed in the last ten years. Public attitudes about the death penalty have evolved.” Over the next two years, death penalty advocates failed to vote a bill out of committee; each year by larger and larger margins. In 2007 the Court of Appeals overturned the death sentences of New York’s remaining death row inmates. New York’s death penalty was finally dead.

If there is one overriding lesson from the New York experience, it is that successfully challenging major unjust laws and policies requires a coordinated strategy that encompasses both litigation and political organizing. In the effort to end the New York death penalty, neither one would have succeeded without the other. A

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL Foundation

Save the Date!

Thursday, January 28, 2016 Grand Hyatt New York 6 pm – Cocktail Reception 7:30 pm – Dinner Annual Award Ceremony and Installation of Andrew Kossover, Esq. as the 2016 NYSACDL President

Imprisonment has become the response of first resort to far too many of our social problems.

– Angela Davis

Forensic psychological evaluations and expert witness testimony in criminal law Stephen Reich, Ph.D., J.D., Director, Psychologist and Lawyer 141 EAST 55TH STREET SUITE 2A NEW YORK, NY 10022 212.935.6133 www.forensicpsychologyexperts.com

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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Grand Juries,

Independent Monitors, Special Prosecutors, And Legislation ‌Some Thoughts

By Frank Quigley and Dick Barbuto

Frank Quigley tried homicide, rape and robbery cases as an Assistant District Attorney in Nassau County and while Chief of the Special Investigations Bureau, he prosecuted public integrity cases, including bribery, official misconduct and excessive force allegations. A graduate of Fordham Law School, Quigley practices criminal defense law in Garden City.

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Dick Barbuto is a past president of the NYSACDL. He has also been an ADA in Queens and Nassau and a Special Assistant AG in the Office of the Special Prosecutor for the Investigation and Prosecution of Corruption in NYC. During his time as a prosecutor he has presented 12 cases to state grand juries where police officers were the subject of the investigations. Eight of the officers were indicted.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Part One – The Proposed Legislation Within the last year there have been several incidents of white police officers allegedly killing unarmed black men. The cases, set forth below, along with other cases, have resulted in a national conversation regarding grand juries and special prosecutors, among other things. This article will explore whether or not New York State should amend its grand jury laws and whether or not NY should have special prosecutors in these cases.

On July 17, 2014, Eric Garner died when Police Officer Daniel Panteleo and other Officers attempted to place him under arrest in Richmond County. The Staten Island District Attorney, Daniel Donovan, presented the case to the Grand Jury, which returned No True Bill on December 3, 2014. Subsequently, State Supreme Court Justice William Garnett ruled that testimony heard by the Garner Grand Jury would not be released, ruling that there was not a good enough reason to make the secret information public. In effect, Justice Garnett ruled that transparency and the public’s interest in knowing what the grand jury testimony was, in and of itself, insufficient to breach New York’s secrecy rules regarding grand juries. The ruling is being appealed.

On August 9, 2014, in Ferguson, Missouri, Police Officer Darren Wilson shot Michael Brown, causing his death. St. Louis County Prosecuting Attorney Robert McCulloch presented the case to the Grand Jury which returned No True Bill on November 24, 2014. On March 4, 2015, the Department of Justice issued an 86 page Report which declined to charge Officer Wilson as well.

While these cases were pending, another case occurred in Kings County. Akai Gurley died of a gunshot wound allegedly caused by a shot fired by Police Officer Peter Liang on November 20, 2014. Brooklyn District Attorney Kenneth Thompson presented the case to the Grand Jury, and Officer Liang was indicted on February 10, 2015. The Officer was arraigned the following day. The Indictment contains six counts: Manslaughter (recklessly causing the death of Akai Gurley); Criminally Negligent Homicide; Assault (recklessly causing serious physical injury with a weapon); Reckless Endangerment in the Second Degree and two counts of Official Misconduct. The case is pending in Supreme Court, Kings County.

On January 21, 2015, Governor Andrew Cuomo presented his Opportunity Agenda to the public. Included in the Agenda was this item: “District Attorneys may issue a Grand Jury Report or a letter of fact in police cases where an unarmed civilian dies and the case is not presented to the Grand Jury or the Grand Jury fails to indict.”

The Governor’s proposal is embodied in two bills before the Legislature: S2011-2015 and A3011-2015. The language and the content of the bills is different from the capsule description of the Opportunity Agenda, which makes it appear that District Attorneys are now receiving a new tool in the war on crime. The actual bills do nothing of the kind.

As described in the Statement of Support, S2011-2015 and A3011-2015 propose to amend the Criminal Procedure Law relative to Grand Jury practice in every case in which a Police Officer or Peace Officer allegedly causes the death of an unarmed civilian. First, the bills call for the appointment of an Independent Monitor to review every case involving a police officer who may or may not be charged by a Grand Jury with causing the death of an unarmed civilian — when and only when the Officer is not indicted.

The bills themselves read specifically: Section 1. Section 190.75 of the criminal procedure law is amended by adding a new subd. 5 to read as follows: When the subject of a Grand Jury proceeding is a Police Officer…or a Peace Officer…acting within his or her official capacity concerning criminal acts that include the use of deadly physical force against an unarmed person, and the District Attorney declines to initiate a Grand Jury proceeding against such Police Officer or Peace Officer, declines to request that a Grand Jury consider charges, does not present evidence to the Grand Jury, or the Grand Jury dismisses the charges or declines to return an indictment, the District Attorney shall within sixty days provide all evidentiary materials gathered during the course of the investigation and, where applicable, the District Attorney shall provide the Grand Jury minutes, all evidence presented to the Grand Jury, all Grand Jury exhibits, as well as any records and other evidence Continued on page 24

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2015 Annual Dinner

Tim Hoover, Wayne Bodden & Jim Grable present Marshall Award to Herb Greenman

Dan Arshack, Mike Shapiro, Larry Goldman

Jessica Horani, Alice Fontier, Lindsey Lewis

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Andy Kossover & Wayne Bodden present Brennan Award to Hon. Jenny Rivera

Wayne & Aaron present Justice Award to Vince Warren

Richard Jasper, Wayne Bodden, Anthony Ricco

(L to R): Henry Steinglass, VP Alice Fontier, NACDL Executive Director Norman Reimer, Richard Jasper, 1st VP John Wallenstein

Greg Lubow & Arnold Levine

Hon. Barry Kamins, Russell Neufeld

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

2015 Annual Dinner ANNUAL DINNER A HUGE SUCCESS On January 29, 300+ NYSACDL members and distinguished guests gathered for our Annual Dinner at a new and exciting venue, The Grand Hyatt Hotel, above Grand Central Station in Midtown Manhattan. As always, the event was a spectacular success, and the timing (during Bar week) helps those members from outside the metropolitan area plan their attendance to coincide with the State Bar meetings.

The evening began with a spectacular cocktail hour (really an hour and a half ) with ample space to mingle, and free flowing drinks and hors d’ouevres. We moved on to the banquet space overlooking Lexington Avenue & 42nd Street, a beautiful room with a great city view and ample space for all.

President-Elect Andrew Kossover presented an award for his outstanding service to outgoing President Aaron Mysliwiec. Past President Mysliwiec then installed 2015 President Wayne C. Bodden of Brooklyn. Unfortunately, Wayne was afflicted with laryngitis, so his remarks were delivered by Scott Davis, Esq., while Wayne stood silently smiling beside him. It was definitely unique!

Aaron Mysliwiec passes the gavel to Wayne Bodden

Each year at the Annual Dinner, NYSACDL presents awards to outstanding jurists and practitioners. The Hon. William Brennan Award for Outstanding Jurist was presented to New York State Court of Appeals Judge Jenny Rivera by PresidentElect Kossover. Judge Rivera spoke passionately about the need for reform in the criminal justice system.

The Honorable Thurgood Marshall Award for Outstanding Practitioner was presented to Herbert L. Greenman, Esq. of Lipsitz, Green, Scime & Cambria in Buffalo. The Award was presented by NYSACDL Directors Tim Hoover and Jim Grable, and we were honored by the presence of several tables of practitioners and Judges from Western New York, including Chief Judge William Skretny of the United States District Court, WDNY. Herb’s inspiring and passionate remarks were one of the highlights of the evening.

President Bodden, with an assist from President-Elect Kossover, presented the Justice Award to Vince Warren, Esq. of the Center for Constitutional Rights, in recognition of his (and the Center’s) unending commitment to upholding Constitutional rights and the fight for equal justice.

President-elect Andy Kossover & outgoing president Aaron Mysliwiec

NYSACDL thanks our honorees for their outstanding contributions to criminal justice. We thank those who attended the dinner and hope that all will return in January 2016.

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Grand Jury Legislation Continued from page 21

REUTERS/PATRICK T. FALLON

in the possession custody and control of the District Attorney, to the “Independent Monitor” who shall be appointed by the Governor for a Term of three years and who shall review the Grand Jury proceedings and all evidentiary materials gathered. The presented materials … shall remain confidential and shall not be subject to disclosure….If the Independent Monitor determines that there were (a) substantial errors of such magnitude

Eric Garner protest, LA

that an Indictment would have resulted but for these errors, and that the presumption of regularity afforded to such proceedings can no longer apply, or (b) there exists newly discovered evidence of such magnitude thatthere exists a reasonable probability that had such evidence been presented to the Grand Jury, an indictment would have resulted, then the Independent Monitor shall refer the matter to the Governor for purposes of the appointment of a Special Prosecutor…

The bills contain additional provisions, but, at the outset, we can say that these bills detract from defendants’ rights, threaten the independence of the judicial process not to mention the Grand Jury process, and fail to provide a solution for the problem they are intended to resolve, i.e., fairness for all subjects (in this case Police Officers) and fairness to those people who are the victims of the actions of Police Officers. We also recognize that public perceptions of the criminal justice system need to be considered any time there is a discussion of a well ordered and fair society.

We note an apparent difference between the description of the

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bills in the Opportunity agenda and the Statement of Support on the one hand, and the actual text of the bills on the other hand. The Statement of Support states that these bills govern situations in which a Police Officer or Peace Officer causes the death of an unarmed civilian. However, the proposed legislation, as worded, appears to apply to any criminal acts, allegedly committed by a Police Officer or Peace Officer, including the use of deadly physical force, but not necessarily limited to deadly physical force cases. If that reading is accurate, then the bills will have wider application than many have understood.

The two bills create an Independent Monitor who will be responsible for reviewing certain Grand Jury investigations. The Monitor will review every case involving a Police Officer or Peace Officer who is the subject of a Grand Jury proceeding concerning the use of deadly physical force against an unarmed civilian, if the Officer is not indicted. (Here, for the sake of argument, we’ll assume that the proposed laws are intended to apply only to deadly physical force cases.) If the Independent Monitor concludes that the District Attorney inappropriately declined prosecution, or the Grand Jury presentation did not conform to the law, the Independent Monitor shall refer the case to the Governor who will appoint a Special Prosecutor.

Interestingly enough the Governor’s Opportunity Agenda describing this legislation used different, not so judicious language: If the Independent Monitor concludes that the District Attorney inappropriately declined prosecution, or that “the Grand Jury failed to indict,” the Opportunity Agenda read, then the Independent Monitor hands off to the Governor, who hands off to a Special Prosecutor.

To evaluate the proposal, we need to filter out the inflammatory rhetoric of the last year, both in and out of New York State, and ask whether one No True Bill in one county actually warrants the apparent premise underlying the legislation.

What is that premise? That when a Police Officer or Peace Officer causes the death of an unarmed man, that Officer must be indicted — and, if not, the Independent Monitor must reinvestigate the case.

As defense lawyers, what do we think about this? The State of New York will create a new bureaucracy, headed by an In-

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dependent Monitor appointed for a three year term. The bill makes it clear that the Monitor has no discretion: he or she must review every case in which — according to the text of the proposed legislation — an Officer causes the death of an unarmed person and the D.A. does not obtain an Indictment.

That’s step one, a mandatory re-examination of the case by the Independent Monitor. If you represent the prospective defendant Officer, you might be wondering about the explicit assumption that the Officer caused the death of an unarmed man. Isn’t the purpose of the investigation to make that determination: did an Officer cause the death of anyone? It may not always be so obvious that an Officer actually did something to cause someone’s death; it may be a question on which the Medical Examiner, and perhaps other experts, would have to opine.

the District Attorney’s possession, custody and control [read Police Department, Medical Examiner, Corrections, et al] within sixty days.

So, going into one of these cases, the pressure is on the District Attorney to avoid a No True Bill. The incentive to be fair may subconsciously or otherwise take a back seat to worrying about the Independent Monitor, in which case a defendant

This statute assumes that the Officer did cause the death of the deceased, something that may be unclear or disputed. In a hypothetical case involving a death of a civilian who is “unarmed” the District Attorney might conclude that prosecution should be declined for wholly legitimate reasons, and the Fergusen protest Grand Jury might decide not to indict for a host of reasons. After all Grand Jurors are not required to return inwho might not otherwise be indicted will have to fight for his dictments. They can and, in fact, do vote to dismiss, in effect rights at trial. engaging in jury nullification or simply extending the benefit of the doubt in the proverbial barroom brawl, or justification That’s a significant threat to the due process rights of every case. defendant and potential defendant. After all, Article I of the With this legislation, defendants and potential defendants New York State Constitution specifically includes the Grand may lose the historically protected value of a fair Grand Jury Jury in the State Bill of Rights: the Legislature viewed the presentation, for example, in those cases in which a defendant protections afforded by the Grand Jury so vital to the rights of might waive immunity and testify about facts that Grand defendants that it incorporated those protections in the Bill of Jurors might find sympathetic. That’s one problem with Rights of the State Constitution. the two Bills: the local District Attorney is supposed to be independent, but a No True Bill means an investigation of the S 6. No person shall be held to answer for a capital or investigation by an Independent Monitor who has no discreotherwise infamous crime….unless on indictment of a tion, who must investigate every No True Bill, and whose grand jury, except that a person held for the action of a independent investigation will be premised on the assumption grand jury upon a charge for such an offense, other than that the Officer caused the death of an unarmed person. one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by In fact, the text of the legislation explicitly requires — it’s a grand jury and consent to be prosecuted on an informamandatory — that the District Attorney automatically turn tion filed by the district attorney; such waiver shall be eviover to the Independent Monitor the complete files, evidendenced by a written instrument signed by the defendant tiary materials, Grand Jury minutes, all evidence presented to in open court in the presence of his or her counsel…… the Grand Jury, all exhibits, all records and other evidence in Continued on next page

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Grand Jury Legislation Continued from previous page

Clearly the Bill of Rights in the State Constitution envisioned the Grand Jury as a fundamental protection for the rights of defendants. For example, a defendant may choose to waive indictment, but that particular right belongs to a defendant. The proposed legislation turns the State Constitution on its head by attempting to transform the Grand Jury from the historic institution for protection of a defendant’s rights to a mechanical exercise for prompt indictment of the unpopular defendant (in

proceedings as shall be specified in such requirement; in which case the attorney-general…shall exercise all the powers and perform all the duties in respect of such actions, which the district attorney would otherwise be authorized or required to exercise or perform….

Given existing legislation, the proposed legislation is superfluous. Likewise superfluous would be the establishment of an Independent Monitor, the Governor’s designee, given the existence of the Offices of the State Attorney General, the State Inspector General and other watchdog agencies around the State.

WASHINGTON POST

Possibly reflecting some confusion as to the purpose of the legislation, the Statement in Support of S2011-2015 reads that the bill would amend Criminal Procedure Law 190.85 to “require” that the District Attorney “create” a Grand Jury Report where a Grand Jury dismisses charges or declines to return an Indictment wherein the subject of the investigation is a Police Officer or Peace Officer charged with causing the death of an unarmed civilian. This is the second theme of the proposed legislation.

Ferguson grand-jury protest

this case, Police Officers, but tomorrow, who knows?)

Ironically the Governor already possesses the authority to remove a local District Attorney in a given case. For example, New York State Constitution, Article XIII, Section 13 provides: …(b) Any District Attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision in this article which may come to his or her knowledge, shall be removed from office by the governor, after due notice and opportunity to be heard in his or her defense…..

Similarly, Executive Law Section 63 provides: The attorney-general shall: 2. Whenever required by the governor, attend…any term of the supreme court or appear before the grand jury thereof for the purpose of managing and conducting in such court or before such jury criminal actions or

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Grand Jury Reports are nothing new in New York State. However, if the Statement of Support were an accurate description of the proposed legislation, then the potential for undue pressure and selective application of New York State law to target one kind of potential defendant, as opposed to all others, would be evident. The text of the proposed legislation reads: S 2. Section 190.85 of the criminal procedure law is amended by adding a new subdivision 6 to read as follows: 6. When a Grand Jury….dismisses the charges or declines to return an indictment and the subject of a Grand Jury proceeding is a Police Officer….or a Peace Officer… …acting within his or her official capacity concerning criminal acts that include the use of deadly physical force against an unarmed person, the District Attorney may…. create a Grand Jury Report. The Report shall include, but not be limited to, the following information: (I) charges presented; (II) evidence presented; (III) the Grand Jury Minutes; and (IV) the Grand Jury Quorum….

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

The bill then goes on to state that “the Court must approve the contents of the report prior to the release of the report by the District Attorney to any civilian or disciplinary oversight board.” Question: is the Grand Jury Report a public report or not? If the bill waives Grand Jury secrecy to permit the D.A. to give the Report to another agency, is the Report freely available to the public?

Attorney’s official duties and therefore not unlawful disclosure under Section 215.70 of the Penal Law.” So much for Grand Jury secrecy. Time was when getting a Grand Jury Report public was a herculean task. Public policy seemed to disfavor Grand Jury reports; subjects had to be given the minutes and then could write their own response, which became part of the Final Report. This bill, designed

Further on, the text contains a very different thought: In lieu of a Grand Jury Report, the District Attorney may issue a letter explaining: (a) his or her decision not to present a case to the Grand Jury where the subject of a Grand Jury presentation is a Police Officer or Peace Officer acting within his or her official capacity concerning acts that include the use of deadly physical force against an unarmed person, or (b) the basis for the Grand Jury’s decision to dismiss the indictment.

This paragraph appears to present its own Ferguson reacts to grand jury decision paradox: it refers to a decision not to present a case to the Grand Jury, but then identifies the subject of the as it is to target one small constituency, may be innocuous Grand Jury presentation as a Police Officer or Peace Officer. If today; tomorrow a different, wider selection of targets could the case was not presented to the Grand Jury, then there was find the erosion of Grand Jury secrecy to have been a mistake no Grand Jury presentation. that started with S2011-2015 and A3011-2015.

The bill seems to provide for a Grand Jury Report in regard to actual Grand Jury presentations, but allows a simple letter of explanation in regard to cases that are not presented to the Grand Jury. Simple enough, but then appearances, as we know so well, can be deceiving. If the District Attorney issued Grand Jury subpoenas to obtain the host of records that invariably constitute a homicide investigation, does Grand Jury secrecy prevent reference to those records, their contents, and the leads therefrom? What about medical reports, or other privileged materials?

The proposed Criminal Procedure Law Section 190.75, subd.

5, cited above, explicitly requires that Grand Jury materials remain secret, but a few paragraphs later, historic Grand Jury secrecy is written off. “For purposes of this article, the release of such a letter by the District Attorney in lieu of a Grand Jury Report shall be considered acting within the District

How can the District Attorney justify his or her decision not to present a case to the Grand Jury without marshalling what he or she found in that host of records? If a simple letter will suffice, could the proposed bill wind up producing results opposite of that which the proponents intend to achieve?

The main problem with the D.A.’s Letter of Explanation is that it is permissive. Everything else in the statute is mandatory: the Independent Monitor must act. The District Attorney must comply. But District Attorney may — repeat, may — issue a letter. That means that he or she may also choose not to issue the letter of explanation.

Could it be that this provision creates a perverse incentive to eschew Grand Jury presentation in the first place? No presentation, no true bill, and no letter of explanation. Case closed.

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Grand Jury Legislation Continued from previous page

Literally.

Furthermore, the D.A.’s Letter of Explanation — when a District Attorney actually chooses to compose one — is supposed to contain two components. First, the D.A. is supposed to explain his or her decision not to present a case. Second, the D.A. is supposed to explain the basis for the Grand Jury’s decision not to indict.

Frankly, nothing in this bill is more unintentionally revelatory than that second requirement, to wit, that the D.A. explain why the Grand Jury decided not to indict.

How would the D.A. know that? Even this bill, as ambitious as it is, does not purport to change the historical rule — memorialized in the Criminal Procedure Law — that deliberations of the Grand Jury are secret.

The District Attorney is not supposed to know about the deliberations of the Grand Jury — unless the District Attorney has penetrated the secrecy of Grand Jury deliberations and infringed on the integrity of the Grand Jury deliberative process. Did the District Attorney engage in discussions with the Grand Jury, and fail to have those conversations recorded by the Grand Jury stenographer? Let’s put it this way: If the District Attorney steered a result, it’s not likely that you’ll find minutes that actually set out that language. Otherwise, any representation in the Letter of Explanation as to why the Grand Jury voted the way it did, or what the vote was, would be purely speculative (and probably self-serving.)

Our first reaction to this requirement is that the drafters have seen too many episodes of Law and Order; fortunately, Grand Juries just don’t work the way the drafters of this legislation imagine. However, the all-too-serious take is that the S20112015 and A-3011-2015 will put pressure on the elected District Attorneys to deny defendants their rights by promoting Indictments, when the goal — the requirement — -is to promote fairness.

When a Grand Jury returns a No True Bill that is not a “failure” to indict, to use the language of the Governor’s Opportunity Agenda. Pure and simple, a No True Bill represents

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the exercise of justice. There are times when a defense lawyer may recommend that the client waive immunity and testify before the Grand Jury. Those times are few and far between, to be sure, but for the defendant who receives a No True Bill, justice is served. That possibility — for that one lone defendant — is a lot to give up for S2011-2015 and A3011-2015.

And once that possibility is eroded, we will not get it back.

The trouble for many defense lawyers is that they see some prosecutors treat the Grand Jury like a rubber stamp and quickly secure indictments when they want to. It’s hard for a defense lawyer to take prosecutors seriously when they come back with No True Bills in Police shooting cases. We suggest that the emphasis on Grand Jury reform as reflected in S2011-2015 and A3011-2015 is mistaken; aside from unfairly targeting one segment of the population, it represents a diversion from the truly important issues in the criminal justice system; it sets up a straw man and knocks it down, without having the guts to confront the issues that cause unjust outcomes and real human costs at the hands of government employees.

Tipping the balance against No True Bills, setting up a separate but unequal Grand Jury system for cops, creating an Independent Monitor just for police cases, and eroding Grand Jury secrecy will all steadily take their toll of the rights of defendants and potential defendants over time.

Do you really want to promote integrity in the administration of the criminal justice system? Mandate open discovery within 30 days of arraignment. If it’s not turned over, it’s out of the case. You’ll speed up pleas in deserving cases and you’ll screen out the cases that are not provable — because the prosecutors will not be able to bluff defendants who want to get out of jail or avoid other unpleasant consequences. Sanction prosecutors for Brady violations; dismiss cases in which those violations occur.

What happened to all of those wrongful convictions in Brooklyn? That entire, continuous story is a far worse scandal than the Eric Garner No True Bill. Detectives in case after case allegedly engaged in deliberate, malicious perjury over a sustained period of years to obtain wrongful convictions, sending actually innocent persons to state correctional facilities for decades. Suffice it to say, nothing in S2011-2015 and A3011-2015 will have the slightest impact on that shameful example of corruption in the criminal justice system.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Grand Jury, Part Two – Judge Lippmann’s State of the Judiciary Part Two, Chief Judge Lippman’s Proposals On February 17, at the height of publicity regarding the Staten Island case and just a few days after the Liang indictment in Brooklyn, Chief Judge Lippmann announced his own proposals for what he styled Grand Jury Reform. Introduced during his annual State of the Judiciary message, indeed as the lead proposal among a number of proposals, the Chief Judge’s solution is two-fold:

At the close of the presentation of evidence, the district attorney shall furnish the court with the charges to be submitted to the grand jury and the court shall instruct the grand jury in accordance with subdivision six of this section as to any such charges supported by legally sufficient evidence for which an indictment is authorized under section 190.65 of this chapter; provided, however, where a charge is not supported by legally sufficient evidence, but the evidence is legally sufficient to sup-

First, Grand Jury proceedings, in cases involving allegations of homicide or felony assault arising out of police-civilian encounters, should be presided over by a Judge. As described in the State of the Judiciary message,

To put the Chief Judge’s first proposal into effect, Criminal Procedure Law 190.25, subd. 3, would be amended by adding a new paragraph to read as follows: …..except during the deliberations and voting of a grand jury, a superior court judge must be present during any proceedings that involve submission of a criminal charge against a police officer for a felony offense specified in article 120, 121 or 125 of the penal law committed while acting in the course of his or her official duties. While present, the judge shall exercise powers and duties that are appropriate to the judge’s supervisory role over proceedings before the grand jury and that otherwise will assist it in discharge of its functions, including but not limited to ruling on legal issues and determining the admissibility of evidence. The judge may advise the grand jurors, where appropriate, that additional witnesses may be called to testify before them.

NYLJ/RICK KOPSTEIN

[t]he Judge would be physically present in the Grand Jury room to preside over the matter. The Judge would be present to provide legal rulings, ask questions of witnesses, decide along with the Grand Jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the Grand Jury deliberations.

Chief Judge Jonathan Lippman addresses the House of Delegates at the annual meeting of the New York State Bar Association

port a lesser included offense, the court, at the request of the district attorney, shall instruct the grand jury on the most serious lesser included offense with respect to which the evidence before the grand jury is sufficient.

That’s the specific language of the first of two of the Chief Judge’s legislative proposals regarding the Grand Jury, made at the height of controversy about the Eric Garner case and the Akai Gurley case. Here again, we have to question whether two cases could warrant a drastic change in Grand Jury practice. However, if authorities believe that Officer Panteleo should have been indicted in the Garner case, or that the Richmond County District Attorney should be removed from office, those authorities can take direct and simple steps to accomplish those objectives, without radically reshaping the Criminal Procedure Law.

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Grand Jury Legislation Continued from page 29 We start with the premise that defense lawyers are obligated to fight for the rights of their clients. We do that one client at a time, but we also know that a threat to the rights of some other client will come back inevitably to threaten our own client’s rights. We respectfully submit that for many reasons the instant proposal is a bad idea. Most importantly because it’s a threat to the rights of defendants and potential defendants throughout New York State.

We don’t see a justification to warrant passage of the proposed legislation. It may be that the proposal was crafted before Officer Liang was indicted in Brooklyn. If that was the case, then there were two controversial civilian fatality cases outstanding at that time. Even two cases would not warrant passage of the proposed legislation, but of course, the Garner case turned out to be the single no true bill that can now be used to argue for the proposed legislation.

cal force. Police Officers are authorized to use physical force under the Penal law. Some defendant may not be so cooperative when the handcuffs come out; they may be charged with Resisting Arrest, a class A misdemeanor. By a key stroke, an arrestee can face a class C violent felony offense, Assault on a Police Officer, and be destined to mandatory upstate incarceration.

Where do all of these cases go? Let’s be clear: there are a lot of them, and they don’t necessarily fit into the clean cubby hole as contemplated in the proposed legislation. Which ones get the special Grand Jury treatment? Who decides? Will defense lawyers insist on having their clients’ cases presented to the special Grand Jury. If my application is turned down and my client is denied the benefit of a Grand Jury presentation ruled by a Judge, has my client been denied his day in court? If my client gets indicted by a panel with no Judge in charge — -or if he gets indicted by a panel that had a Judge in charge — -has he been denied his right to equal protection?

The proposed legislation would certainly appear to embroil Judges and prosecutors in ex parte conversations, at the expense of the rights of defendants.

This leads directly to the fundamental error that underlies the proposal. It selectively isolates cops as the targets. It creates a vastly different Grand Jury just for cops. That’s wrong. It’s unfair to one set of potential defendants. It’s not justified by objective statistical data, and indeed the State of the Judiciary message contains no attempt to cite any data in support. It sets up cops for special, unique treatment that no other population will receive. That alone violates the idea of due process; it’s arbitrary on its own explicit terms. But combined with the Governor’s carrot and stick plan to produce indictments of Police Officers, it represents an even more ominous threat to the rights of the accused.

Can we imagine a similar bill being proposed to target any other segment of the population? How about an amendment to include members of the State Legislature?

Would the available statistical data support passage of this proposed legislation if we substitute legislators for cops? If we are creating a special process for Police Officers, how can we not include legislators?

It gets worse. This bill envisions a neat and tidy category of case where a civilian complains that he was assaulted by an Officer. In fact, a routine arrest can involve the use of physi-

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The cops, of course, won’t have to worry about making a choice of Grand Jury, because they have no choice. They are what this proposal is all about. The language of the proposed statute makes it mandatory — the operative word is “must” — …a superior court judge must be present during any proceedings that involve submission against a Police Officer for a felony offense specified in article 120, 121, or 125 of the penal law committed while acting in the course of his or her official duties.

Who decides that threshold question? Who decides if the Grand Jury presentation will involve submission of, say, assault charges against the Officer? In the typical case the defendant is charged with assaulting a police officer, the defense may want the Grand Jury to consider assault charges against the Officer. Does the District Attorney still make the call?

Can we appeal to the Judge as he or she physically sits in the Grand Jury room?

Better still, now that there’s Judge inside the Grand Jury room, can we object to questions propounded by the District

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Attorney and the Grand Jurors if the client waives immunity and testifies? If not, why not? What’s the point of having a Judge inside the Grand Jury room if the lawyer for the defendant or potential defendant is not allowed to object? Under the old rules, an attorney would have to bring an objection to the Court that had a general supervisory role for that particular panel, but now the Judge will be right there in real time.

That’s the easy one: but what to do when the Judge takes over the examination in this new Euro-style process? Inspector Maigret would be comfortable, but you will have to object and make the record to protect your client’s rights.

The proposal envisions a collective, collegial process in which the superior court judge asks questions of witnesses and decides along with the grand jurors whether additional witnesses should be called. If this proposal were ever to be enacted, we would submit that those collective conversations must be recorded by the Grand Jury stenographer; nothing should be off the record. Moreover, we submit that the proposal will clash with ethical requirements governing judicial independence. Just for starters, once the Judge becomes an investigating magistrate, he or she must be forever disqualified from any role in any subsequent litigation regarding that case.

that the matter is the subject of grand jury proceedings; the identity of the subject of the investigation has already been disclosed or the subject consents to disclosure; and the disclosure advances a significant public interest.

If a court finds that of these criteria are present, then the court will be authorized to disclose the records of the proceedings, including the charges submitted to the Grand Jury, the legal instructions provided in support of those charges and the testimony of all public servants and experts. The prosecutor would have the opportunity to redact testimony that would identify a civilian witness and to move for a protective order upon a showing that disclosure would jeopardize an ongoing investigation or the safety of any witness.

Ironically it would not be surprising if this proposal turns out to suffer from the law of unintended consequences: seemingly intended to respond to notoriety about the Garner no true bill, these bills together may wind up discouraging prosecutors from investigating cases through the mechanism of Grand Jury subpoenas and process.

Exactly what the Assistant District Attorney will be doing while all this is going on remains to be seen, but the proposed legislation would certainly appear to embroil Judges and prosecutors in ex parte conversations, at the expense of the rights of defendants.

The State of the Judiciary message also proposed a second major change in Grand Jury practice, specifically with respect to Grand Jury secrecy. …..I propose….creation of a clear statutory presumption in favor of the court disclosing the records of a grand jury proceeding that has resulted in no charges, in cases where the court finds that the public is generally

As provided with the State of the Judiciary message, the language of the proposed legislation follows: S2. Section 190.25 of the criminal procedure law is amended by adding a new subdivision 4-a to read as follows:

4-a. (a) Notwithstanding the provisions of subdivision four of this section, when following submission to a grand jury of a criminal charge or charges, the grand jury dismisses all charges presented, an application may be made to the superior court for disclosure of the following material relating to the proceedings before such grand jury: i. the criminal charges or charges submitted; ii. the legal instructions provided to the grand jury; the testimony of all public servants who testified before the grand jury and of all persons who provided expert testimony; and

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Grand Jury Legislation Continued from previous page iii.

the testimony of all other persons who testified before the grand jury, redacted to prevent discovery of their names and other such personal data or information that may reveal or help reveal their names. (b) The application specified in paragraph (a) of this subdivision may be made by any person, must be in writing and, except where made by the people, must be on notice to the people.

Upon an application as provided in paragraph (a) of this subdivision or on its own motion, the court shall determine whether: (i.) the general public in the county in which the grand jury was drawn and impaneled likely is aware that a criminal investigation has been conducted in connection with the subject matter of the grand jury proceeding; and (ii.) the identity of the subject against whom the criminal charge specified in paragraph (a) of this subdivision was submitted to a grand jury has already been disclosed publicly or such subject has consented to such disclosure; and (iii.) there is significant public interest in disclosure.

Where the court is satisfied that all three of these factors have been established, and except as provided (d) of this subdivision, the court shall direct the district attorney to provide disclosure of the items specified in paragraph (a) of this subdivision. (d)Notwithstanding the other provisions of this subdivision, on application of the district attorney or any interested person, or on its motion , the court shall limit disclosure‌..where the court determines there is a reasonable likelihood that the disclosure may lead to the discovery of the identity of a witness who is not a public servant or expert witness, imperil the health and safety of any grand juror or witness appearing before the grand jury, jeopardize any future criminal investigation, threaten public safety or is otherwise against the interest of justice.

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While the first proposal contained in the State of the Judiciary message explicitly centered on Police Officers to the exclusion of all other public servants, the second proposal does not on its face single out one group for special treatment. At least the second proposal has that in its favor. Nevertheless the second proposal does a disservice to potential defendants who may be falsely accused say, in the media or on the internet, of some sensational allegation.

It’s not difficult to conceive of a follow-up investigation by the District Attorney, the issuance of a plethora of Grand Jury subpoenas, the receipt of mountains of e-mails, texts, embarrassing photos, and all of the inevitable detritus of modern electronic culture‌to be the subject of an order disclosing all of it to the media today, and page one tomorrow. Case dismissed by the Grand Jury, but the client is then convicted in the media after it gathers the Grand Jury evidence.

This second proposal will hurt the rights and the private lives of people who may never have been convicted of any crime; in fact, they may never have been arrested or accused. This second bill is more destructive of basic rights, and to a wider segment of society. There will be no remedy for the breaches of personal privacy that result; once the material is on the internet it will remain there permanently.

Grand Jury secrecy is a protection for the rights of the accused. We are not talking about James Bond, cloak and dagger fantasies. We are talking about the rights of innocent persons who have not been convicted of anything, but whose private life, for one reason or another, may have become the subject of a Grand Jury investigation and the use of Grand Jury subpoenas. Why would Grand Jury secrecy be less worthy of protection than sealing provisions found and routinely honored elsewhere?

Ironically it would not be surprising if this proposal turns out to suffer from the law of unintended consequences: seemingly intended to respond to notoriety about the Gar-

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

ner no true bill, these bills together may wind up discouraging prosecutors from initiating “Grand Jury Direct” investigations and investigating cases through the mechanism of Grand Jury subpoenas and process. Combined with the Governor’s proposal to prevent no true bills in police cases, these bills could ultimately deter the legitimate use of what in New York State has been a time honored investigative mechanism, the Grand Jury.

rights of every defendant and potential defendant. The Grand Jury is the historical institution for protection of the rights of defendants. We can’t stress strongly enough that a no true bill is not, contrary to the Governor’s characterization, “a failure to indict.” No true bill means that justice has been served.

There’s no doubt, however, that these bills are a threat to the

Pass these bills, and watch out.

Is an acquittal a “failure to convict”? What’s next? Is that where we are going?

Grand Jury, Part Three – Some Final Thoughts By now our thoughts on the above proposals should be clear.

We do not like them. They are not well thought out and will not solve whatever problems they claim to solve.

The proposals represent what we refer to as “feel good” legislation. They make the public feel good by presenting the appearance , but not the substance, of useful Grand Jury reform.

Those who want to improve the Grand Jury process should demand that prosecutors observe their duties to do justice.

Prosecutors must not be allowed to rubber stamp cases and steer others to the desired result. Prosecutors should comply with the rules of evidence in the Grand Jury. Grand Jury minutes, including legal instructions and complete charges, along with unredacted transcripts of all exchanges between Grand Jurors and prosecutors, should be turned over to defense counsel with the indictment paperwork. Courts should inspect Grand Jury minutes with a critical eye. Legislators should demand discovery reform, including sanctions for Brady violations. Prosecutors must be properly trained before they set foot in a Grand Jury chamber.

The problem with the New York State Grand Jury process is not the Grand Jury. It is those who intentionally or unintentionally abuse or misuse the process. Until prosecutors are held accountable for their actions in a Grand Jury, all the legislation in the world will not save the Grand Jury system.

The New York State Bill of Rights was put in place to curb government abuse. It is not there to protect the public from overzealous defense lawyers. We know who wear the white hats. It is us.

Finally, in case it is not clear, the reader should note that our article deals with New York, and not federal grand juries, which have very different rules. Some reforms that have been suggested for federal and other state grand juries are already part of the law in New York, e.g., the right of the defendant to testify and to have counsel present with her when she testifies in the grand jury and the duty of the prosecutor to present exculpatory evidence to as grand jury. A

But mainly you used the grand jury to indict people, and in the famous phrase of Sol Wachtler, chief judge of the State Court of Appeals, a grand jury would 'indict a ham sandwich,' if that's what you wanted.

–Tom Wolfe, The Bonfire of the Vanities

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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Book Review Working Stiff: Two Years, 262 Bodies and the Making of a Medical Examiner

by Judy Melinek, M.D. and T.J. Mitchell (Scribner, 2014)

Reviewed by Dick Barbuto

A not altogether pleasant book to read, but if you are interested in forensic pathology, it is a must and if you are a criminal defense lawyer, you really need to look at this book. However, if you think that forensic pathology is what you see in the movies or on television, prepare to be educated.

Dr. Melinek, in a no nonsense and, at times grisly way, takes us through the first two years of her training at the Office of the Chief Medical Examiner (OCME) in New York City. Whether it be death by gunshot wound/s, knife wound/s, hanging, poisoning or other ways that humans expire, the authors write in a clear and understandable way which makes it easy for non-medical people to completely understand what they are saying. Dr. Melinek is a forensic pathologist and defines herself as a specialist in the medical field who investigates sudden, unexpected, or violent deaths by visiting the scene, reviewing medical records and performing autopsies - all the while collecting evidence that might be used in court.

The reviewer of this book, Dick Barbuto, is a past president of NYSACDL. He has practiced criminal law in multiple jurisdictions, both state and federal.

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We are informed that the ME has the duty to make two distinct determinations for the death certificate: the cause of death and the manner of death. The cause of death is etiologically specific disease or injury which starts the lethal sequence of events without sufficient intervening cause. It is the answer to the “what” question – what is the one thing that began the chain of events ending in death. The manner of death is a medicolegal classification of the circumstances – the answer to the “how” question. All deaths are grouped into one of six categories: homicide, suicide, accident, natural disease, therapeutic complications and undetermined.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Lawyers spend a great deal of their time shoveling smoke.

— Oliver Wendell Holmes, Jr.

And, of course, the manner of death affects a whole host of institutions e.g. police departments, district attorney’s offices, insurance companies, etc. When the ME checks the box for homicide on the death certificate she is referring to the manner of death.

With a good deal of humor and empathy, Working Stiff gives the reader a firsthand look behind the crime scene tape and into the investigations of death at a fascinating and horrible time in New York City. Chapters include the “recovery” and identification efforts by members of the OCME that were part of the 9/11 tragedy and the subsequent anthrax bio-terrorism events. The book is also a primer of everyday life in the OCME. It is a worthy read.

Judy Melinek is a forensic pathologist and an associate clinical professor at UCSF Medical Center. She earned her college degree from Harvard and received her medical training at UCLA. T.J. Mitchell graduated with an English degree from Harvard and worked in the film industry before becoming a full-time stay-at-home dad and screenplay consultant in 2000. A

Read a good book lately?

Write a review of it, and submit to our Book Review Editor, Dick Barbuto.

Contact Dick at rbarbuto1@hotmail. com

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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Brief Examinations Gray Mountain

by John Grisham (Doubleday, 2014)

Reviewed by Dick Barbuto

Readers love to read about law, both civil and criminal, and John Grisham is one of the best writers around when it comes to that genre. Despite the fact that his books can be formulaic, he is a bestselling author because he knows how to tell a story that is timely. Gray Mountain is one of those books.

Samantha Kofer is a lawyer in the real estate department of a large New York law firm. She graduated from Georgetown and Columbia Law School three years ago. She is making a lot of money and expects to be a million dollar partner within five years. She hates her job.

The time is 2008. The economy is tanking and taking the real estate markets and values right along with it. Associates in law firms are being furloughed and Samantha’s time has come, bit with a twist. Her firm is offering the possible return to the firm one year after doing an internship with one of a few non-profits on the firm’s approved list. And this is where the real story begins.

Samantha winds up moving from her Manhattan apartment and big law firm to doing pro bono work in a small, two lawyer legal clinic in Brady, VA., pop. 2,200, in the heart of Appalachia. The head of the clinic tells Samantha that she will learn how to “help real people with real problems.” For the first time in her career, Samantha prepares a lawsuit, sees the inside of an actual courtroom and receives threats from

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locals who aren’t happy to have a big-city lawyer in town. Much of the help she gives is to people that are at the mercy of “Big Coal.” Coal miners in the region are particularly susceptible to black lung disease, a hideous irreversible affliction that eventually robs a person of the ability to breathe.

The miners and their families can file claims against the coal companies but the companies fight back with high powered law firms, not to mention paid off politicians and judges. The miners have virtually no chance in this fight and the coal companies take all manner of actions to keep it that way.

How Samantha handles her year away from the practice of big city law and the decision she makes at the conclusion of the year is an entertaining story, well written and with compelling characters.

John Grisham is the author of twenty-seven novels, one work of nonfiction, a collection of stories, and four novels for young readers. A

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

Cutting Edge CLE NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year.

Seminar Registration Available at www.nysacdl.org Questions? Call the NYSACDL office at (518) 443-2000 or email jlvanort@nysacdl.org.

Upcoming CLE Presentations in 2015 NYSACDL encourages you to save the dates for our 2015 CLE seminars:

CLE

JUNE 12 – SEX CRIMES & CRIMES AGAINST CHILDREN CLE SEMINAR 5 Skills Credits • New York Law School, New York, NY Featuring: • Jessica M. Botticelli, Esq. & Sadie Zea Ishee, Esq. – Article 10 Information & Issues • Andre Vitale, Esq. – Jury Selection in Child Sex Cases: Demystifying the Process & Turning Away the Angry Mob • Karen Smolar, Esq. – Cross of a Child Witness • Arnold Levine, Esq. – Child Sex Abuse Accommodation Syndrome (CSAAS) SEPTEMBER – FEDERAL PRACTICE CLE SEMINAR, New York, NY OCTOBER 3 – SYRACUSE FALL SEMINAR, Syracuse, NY A Day Focused on the Ins & Outs of Jury Selection OCTOBER – HUDSON VALLEY CLE SEMINAR NOVEMBER – SUPERSTAR TRIAL CLE SEMINAR, Buffalo, NY DECEMBER – WEAPONS FOR THE FIREFIGHT 2015, New York, NY

Hon. Jed Rakoff (SDNY) addresses the joint NYSCADL/NACDL Conspiracy CLE A packed house listening intently at Cross to Kill 2015

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

PROMOTING EXCELLENCE IN CRIMINAL DEFENSE • OUR MEMBERSHIP IS OUR GREATEST STRENGTH PRESIDENT

LIFE MEMBERS

Wayne C. Bodden, Brooklyn

Daniel Arshack Myron Beldock Peter E. Brill Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle, Jr. Joshua L. Dratel Herald Price Fahringer Russell M. Gioiella Lawrence S. Goldman E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis Thomas F. Liotti

PRESIDENT-ELECT Andrew Kossover, New Paltz

FIRST VICE PRESIDENT John S. Wallenstein, Garden City

VICE PRESIDENTS Michael T. Baker, Binghamton Danielle Eaddy, Brooklyn Alice Fontier, Manhattan Donald G. Rehkopf, Jr., Rochester Robert G. Wells, Syracuse

SECRETARY Arnold J. Levine, Manhattan

TREASURER Lori Cohen, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O’Connell Benjamin Ostrer Joel B. Rudin Richard D. Willstatter

SUSTAINING MEMBERS James A. Baker Daniel E. Bertolino Joseph R. DeMatteo Brian DeSesa Karen L. Dippold Michael Dowd William Dreyer

Mario Gallucci Alan Gardner David I. Goldstein James P. Harrington Daniel J. Henry, Jr. Jessica Horani John Ingrassia Keith Lavallee Mark Mahoney Oscar Michelen Kenneth Moynihan Gary P. Naftalis Lauren Owens Marcos A. Pagan III Roland G. Riopelle Anastasios Sarikas Jay Schwitzman Scott B. Tulman John S. Wallenstein Susan Walsh Harvey Weinberg James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF APRIL 12, 2015) ALBANY COUNTY Mitch Kessler Stephen Thomas Lydon Mark A. Myers

BROOME COUNTY Regina Cahill Michele Coleman Joshua Moldt Julie M. Rosenberg Nathan Schwartzman Michael A. Vargha Anthony J. Westbrook

DUTCHESS COUNTY Lee David Klein

KINGS COUNTY Matt Caldwell Darren Fields Scott Hechinger Kristine Herman Amanda Jack

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Colleen A. King Elizabeth Latimer John Rodriguez Scott Ruplinger Lisa Salvatore Michael Schreiber Renee Seman Debora Silberman Ed Wintle Ken Womble Aminie Woolworth Benjamin Zeman

MONROE COUNTY Anthony R. Faraco

NASSAU COUNTY Jason Kleiger

NEW HAMPSHIRE Lin Li

NEW JERSEY

QUEENS COUNTY

Mitchell E. Ignatoff

Sharifa Milena Nasser Boris Nektalov Jonathan Saith

NEW YORK COUNTY Mehmet Baysan Daniel DeMaria Jason Goldman Jeff Henle Sherman Jackson Colin Linsenman Nolan Matz Gideon Oliver David Rankin Julie Rendelman

ONONDAGA COUNTY Christine M. Cook Kevin Edward McCormack Salvatore J. Piemonte Todd Smith

SUFFOLK COUNTY Carl Irace Matthew J. Martinez Phil Solages

ULSTER COUNTY Russell A. Schindler

WESTCHESTER COUNTY Andrea Catalina Frank A. Catalina Margaret Johnson

Atticus | Volume 26 Number 1 | Spring 2014 | New York State Association of Criminal Defense Lawyers

Join the Committee

NYSACDL standing committees are chaired by members in good standing who are appointed by the President.

Committee membership is a rewarding opportunity for members to network with colleagues throughout the state and to explore various issues in depth. Members are invited to join committees to further the important work of our association. If you are interested in joining a standing committee (listed below), please contact the committee chair or the Executive Director’s office: jlvanort@nysacdl.org, 518-443-2000, for more information.

AMICUS CURIAE COMMITTEE

Members: Bruce Barket, Wayne Bodden, Jonathan Fishbein, Greg Lubow, Aaron Mysliwiec, Kevin O’Connell, Alan Rosenthal, Joshua Saunders, Andre Vitale, Nikki Zeichner

Chairs: Marc Fernich (maf@fernichlaw.com), Brendan White (brendan@whiwhi.com) Members: Timothy Murphy, Richard Willstatter

MEMBERSHIP

ANNUAL DINNER COMMITTEE Chair: Andrew Kossover (ak@kossoverlaw.com) Members: Wayne Bodden, Lori Cohen, Danielle Eaddy, John Wallenstein

CONTINUING LEGAL EDUCATION COMMITTEE Chairs: Bruce Barket (bbarket@barketmarion.com), James Grable (jwg@connors-vilardo.com), Timothy Hoover (THoover@ phillipslytle.com), Arnold Levine (NYCcrimlaw@aol.com), Andre Vitale (AVitale@monroecounty.gov) Members: Michael Baker, Wayne Bodden, Danielle Eaddy, Andrew Kossover, Brian Melber, Benjamin Ostrer, Lisa Peebles, Michael Shapiro, John Wallenstein, Robert Wells

Chairs: Greg Lubow (gdlubow@gmail.com), Aaron Mysliwiec (am@fmamlaw.com), Robert Wells (dfndr@hotmail.com) Members: Bruce Barket, Mitch Dinnerstein, Peter Dumas, David Goldstein, James Grable, Timothy Hoover, Andre Vitale

PROSECUTORIAL AND JUDICIAL COMPLAINT COMMITTEE Chair: Michael Shapiro (MShapiro@clm.com) Members: Daniel Arshack, Danielle Eaddy, Alice Fontier, Lawrence Goldman, Florian Miedel, Thomas O’Hearn, Benjamin Ostrer, Donald Rehkopf

PUBLICATIONS COMMITTEE

INDIGENT DEFENSE COMMITTEE

Chairs: Benjamin Ostrer (ostrerben@aol.com), John Wallenstein (jswallensteinesq@aol.com) Members: Richard Barbuto, Jessica Horani, Lisa Peebles, Claudia Trupp

Chair: Andre Vitale (AVitale@monroecounty.gov) Members: Joshua Saunders, Susan Walsh

FINANCE AND PLANNING COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Wayne Bodden, Andrew Kossover, David Goldstein Aaron Mysliwiec, Michael Shapiro

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE

PUBLIC STATEMENTS COMMITTEE Chair: Wayne Bodden (wcb40@aol.com) Members: Alice Fontier, Lawrence Goldman, Timothy Hoover, Jessica Horani, Susan Walsh, Richard Willstatter

WHITE COLLAR CRIME COMMITTEE

Chair: Wayne Bodden (wcb40@aol.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

LEGISLATIVE COMMITTEE Chairs: Andrew Kossover (ak@kossoverlaw.com), Lisa Schreibersdorf (lschreib@bds.org)

Chairs: Joshua Dratel (jdratel@joshuadratel.com), Aaron Mysliwiec (am@fmamlaw.com) Members: Robert Caliendo, James Grable, Timothy Hoover, Arnold Levine, Brian Melber, Kenneth Moynihan, Michael Shapiro, Robert Wells, Richard Willstatter

Injustice anywhere is a threat to justice everywhere.

— Martin Luther King, Jr.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

39

NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application

Our Mission

Please print or type

NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark against error and injustice in the criminal justice system. In an era when the United States has the highest incarceration rate in the world, we expand on the question most often posed to our members and ask “how can we defend those people most effectively?”

Name: ______________________________________________________ Firm Name:__________________________________________________ Address:____________________________________________________ City/State/Zip: ____________________ County: _____________________ Phone:__________________________ Fax:________________________ Email:_______________________________________________________

NYSACDL’s goals are to:

Website:_____________________________________________________

n Serve as a leader and partner in advancing humane criminal justice policy and legislation.

Bar Admission State:_______________ Year Admitted:________________

Please circle membership type *All memberships except Law Student/Recent Alumni include $15 donation to the NYSACDL Foundation, Inc. o Please check here to remove.

Lifetime Member President’s Club Sustaining Member Regular Member

Income over $50,000 or In practice over 5 years

$2500 $515 $315 $215

n Promote the rights of criminal defendants through the adoption of policy positions, targeted concerted action, and the submission of amicus briefs on issues of significance to the fair administration of criminal justice and the protection of civil liberties. n Advocate for individual and systemic accountability in the criminal justice system, with a particular emphasis on instances of judicial and prosecutorial misconduct. n Develop a broad, inclusive and vibrant membership of private criminal defense practitioners and public defenders throughout New York State.

Regular Member

$140

Full-time Public Defender Allied Professional Member

$140 $190

n Provide a forum for our members to exchange ideas and information, with a particular emphasis on mentoring those who are new to the profession.

Retired Attorney $90 Law Student/Recent Law School Alumni (less than one year since completion) $50 School: __________________________

n Provide quality continuing legal education to our members through live programs, a comprehensive and easily-accessible briefs and motions bank, e-alerts and website updates with new developments, and articles in our quarterly publication, Atticus.

Income under $50,000 or In practice less than 5 years

Non-lawyers who assist in the defense of criminal cases (consultants, investigators, etc.)

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa.

Please charge to my credit card.

n Defend our members in professional emergencies and honor their achievements through articles on our website and in Atticus, and awards at our annual dinner

Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________

Please make your check payable to NYSACDL and send it to:

Date:______________________________ CVV code_____________

NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207

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Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL Member Benefits MEMBER BIOGRAPHICAL INFORMATION IN OUR MEMBER PROFILE – Members can now include brief biographical information (positions held, bar admissions, schools attended, honors or publications) in our online searchable Membership Directory. This directory is available to the general public and is referenced by those seeking counsel and assistance throughout the state.

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with a retained lobbyist, develops and pursues positions on legislative issues relating to the criminal justice system thereby providing a respected voice of the defense bar in Albany. Members have an avenue to become involved and stay informed.

Our members were involved in the recent reforms of the Rockefeller Drug Laws.

NYSACDL LISTSERV – NYSACDL offers both a Federal and State Practice Listserv which provide members with invaluable forums in which to pose questions, seek information, exchange ideas and share resources with members statewide.

AMICUS BRIEFS – NYSACDL provides amicus assistance on issues of particular import.

CLE SEMINARS – NYSACDL is an Approved Provider accredited by the New York State CLE board. We sponsor numerous CLE seminars during the year throughout the state at reduced rates for members. Practical nuts and bolts topics alongside cutting edge issues make our CLE programs invaluable to new members as well as those with years of trial experience. Our speakers are among the most respected and experienced criminal defense attorneys and leading experts in the country.

NCDC SCHOLARSHIP PROGRAM – NYSACDL members in good standing are eligible to apply for the Twelve Angry Men scholarship to the annual National Criminal Defense College in Macon, Georgia.

COMMITTEE MEMBERSHIP – NYSACDL committees are active in areas throughout the state and work on issues vital to strengthening the criminal defense community. Membership on a committee provides an excellent opportunity to pursue specific interests, serve the criminal defense bar and to network with lawyers throughout the state.

MENTORING AND STRIKE FORCE ASSISTANCE – NYSACDL members provide mentoring and assistance for other members. If a question or need arises, a member will be there to give assistance. NYSACDL members are ready to step in to help other members who are subpoenaed, threatened with contempt, or otherwise under attack for the vigorous representation of the accused.

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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CLEMENCY PROJECT

NEEDS

YOU!

An Open Letter to the Criminal Defense Bar Perhaps one of the single most gut-wrenching moments defense lawyers experience is when, standing alongside a client, we hear a judge pronounce an inordinately lengthy sentence and apologetically proclaim that “my hands are tied.” This is the tyranny of mandatory minimums and, for decades, it was the reality of the mandatory federal sentencing guidelines. Now we have a chance to undo some of that cruelty. I ask you to join in this noble and necessary cause.

In January 2014, Deputy Attorney General James Cole announced a new clemency initiative that provides an opportunity for many nonviolent federal offenders to have their sentences commuted, and asked the profession to assist qualified inmates. Clemency Project 2014 (CP 2014) was created to answer that call. It is a working group composed of lawyers and advocates, including the Federal and Community Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and NACDL, as well as individuals active within those organizations.

CP 2014 members collaborate to recruit and train attorneys on how to screen for prisoners who meet the stated criteria and provide pro bono representation for prisoners who meet the criteria.

CP 2014 is now fully operational, and this is an opportunity for all lawyers to help. The Project has developed a comprehensive training program that can be viewed at your convenience. The program provides everything a lawyer needs to know to evaluate an inmate’s eligibility, and offers comprehensive guidance on what must be included in a clemency petition. Lawyers who currently serve on federal Criminal Justice Act panels are not required to complete the training, but they will find the section on how to determine if an inmate’s sentence would be lower if imposed today — the core requirement of the clemency initiative — quite valuable. Additionally, CP 2014 provides input and resource support for all volunteers.

As of early March, more than 30,000 federal prisoners have submitted applications for clemency consideration. More than 5,000 applications are currently under review, and more than 1,500 attorneys have volunteered to take on pro bono cases via CP 2014. But, with so many applicants, more volunteers are needed. Time is also a factor because we cannot be assured that the initiative will continue under the next administration.

This is an historic opportunity for the criminal defense bar to rise up. We simply must make sure that we find every single prisoner who may qualify and present the strongest possible petition on every prisoner’s behalf. I ask for your help. Please volunteer now.

Cynthia W. Roseberry

Project Manager, Clemency Project 2014

CYNTHIA ROSEBERRY has been a criminal defense lawyer for 17 years and a proud member of NACDL for most of that time.

She served as executive director of the Federal Defenders of the Middle District of Georgia, Inc., a position she held for five years. In June 2014, when she was asked by the organizations participating in Clemency Project 2014 to serve as project manager, Cynthia left that position for an opportunity to help obtain freedom for countless nonviolent offenders who have languished in jail serving horrifically severe sentences.

It is in the capacity of project manager that she writes this letter seeking your assistance.

For more information and to

VOLUNTEER for

CLEMENCY PROJECT 2014 please visit www.clemencyproject2014.org 42

Atticus | Volume 26 Number 1 | Spring 2014 | New York State Association of Criminal Defense Lawyers

NYSACDL Online Video CLE Seminars Earn CLE credit quickly and conveniently from the comfort of your office or home with NYSACDL’s online video CLE seminars.

These video reproductions of some of our most popular recent CLE seminars are sure to fulfill your educational needs for a great price!

Available for purchase at www.NYSACDL.org • Individual Presentations • Series Packages

$25/Credit Hour $50-$150

Topic Areas Available Include: Alcohol & Drug Related Cases Featured Faculty Include Marc Fernich, Esq John Ingrassia, Esq. Arnold Levine, Esq. Aaron Mysliwiec, Esq. Hon. Patricia Nunez Karen Smolar, Esq. Lisa Schreibersdorf, Esq.

Susan Necheles, Esq. Peter Quijano, Esq. Roland Riopelle, Esq John Rosen, Esq. Russell Schindler, Esq. Gerald Shargel, Esq. Wesley Serra, Esq Bobbi Sternheim, Esq. Donald M. Thompson, Esq.

Sentencing & Appeals

Ethics

Featured Faculty Include Donna Aldea, Esq. Hon. Mark R. Dwyer Eunice Lee, Esq. Claudia Trupp, Esq. Patricia Wrath, Esq.

Direct & Cross Examination Including Expert Witnesses Featured Faculty Include Samuel Adam, Jr., Esq. James Benjamin, Esq. Benjamin Brafman, Esq. Terrence Connors, Esq. Richard Convertino, Esq. Peter Gerstenzang, Esq. Jay Goldberg, Esq. George R. Goltzer, Esq. Susan Kellman, Esq. Ray Kelly, Esq.

Featured Faculty Include Donald G. Rehkopf, Jr., Esq. Michael Ross, Esq. Yvonne Shivers, Esq.

Federal Practice

Featured Faculty Include Marc Agnifilo, Esq. Helen Cantwell, Esq. Amy Millard, Esq. Richard Willstatter, Esq.

Forensic & Scientific Evidence Featured Faculty Include John Cunha, Esq. Alan Gardner, Esq. Jessica Goldthwaite, Esq. Shilpy Goswami, Esq. Jerry Grant Professor Maria Hartwig Allison Lewis, Esq. Mark Loudon-Brown, Esq. Amy B. Marion, Esq. Professor Erin Murphy, Esq. Benjamin Ostrer, Esq. Marvin Schechter, Esq. Mark L. Taff, MD Richard Torres, Esq.

Media Related Cases Featured Faculty Include Daniel Arshack, Esq. Bruce Barket, Esq.

Registration date coming soon? NYSACDL Video Seminars provide a quick, easy & inexpensive way to complete your credits for BOTH New York & New Jersey.

NYSACDL Members Receive One Free Hour of Video CLE Per Calendar Year – Take Advantage of Yours Today!

Atticus | Volume 27 Number 2 | Spring 2015 | New York State Association of Criminal Defense Lawyers

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Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665

atticus@nysacdl.org www.nysacdl.org

“Miss Jean Louise, stand up. Your father’s passin’.”

Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird.

Original painting, © 2004 by the artist Trevor Goring • limited edition prints available, www.imagesofjustice.com

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