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FALL 2019 | Volume 31 | Number 2


Criminal Justice



Message from the President


Dispatches from 90 State


Legislative Victories By Andrew Kossover


Mitigation in Child Pornography Cases By Mark S. Silver


Musings By William McSweeney


Re-Testing of DNA Complex Mixture Sample By Raymond Kobus, Esq.


NYSACDL Initiatives for Law Students


Book Review


Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers


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atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

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

NYSACDL Officers and Directors 2019 PRESIDENT Lori Cohen, Manhattan

Yung-Mi Lee, Brooklyn Lindsay Lewis, (NACDL Designee) Elizabeth E. Macedonio, Manhattan Allison M. McGahay, Lake Placid Brian Melber, Buffalo Cheryl Meyers-Buth, Buffalo Timothy P. Murphy, Buffalo Grainne E. O’Neill, Brooklyn Jill Paperno, Rochester Donald G. Rehkopf, Jr. Russell A. Schindler, Kingston Tucker C. Stanclift, Glens Falls Donald Thompson, Rochester Karen Thompson, New York Claudia Trupp, Manhattan Mark S. Williams, Olean

PRESIDENT-ELECT Timothy Hoover, Buffalo FIRST VICE PRESIDENT Arnold J. Levine, Manhattan VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Kenneth Moynihan, Syracuse Susan J. Walsh, Manhattan SECRETARY Alice Fontier, Manhattan TREASURER

Alan S. Lewis, Manhattan


DIRECTORS: Stephanie Batcheller (NYSDA Designee) Edgar De Leon, Manhattan Peter A. Dumas, Malone Steven B. Epstein, Garden City Renee Hill, Bronx John Ingrassia, Newburgh Scott Iseman, Albany

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 Wayne C. Bodden Andrew Kossover John S. Wallenstein Robert G. Wells EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

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*NYSACDL is a 501(c)6 organization. Donations $100 and over receive recognition online and in Atticus.


Ensure NYSACDL’s Continued with a Donation toAssociation The Defenders Circle! Atticus | Volume 31 Number 2 Success | Fall 2019 | New York State of Criminal Defense Lawyers

The Defenders Circle benefits NYSACDL members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar attendance, advocacy efforts and more. Defenders Circle members

Publication of the New York State Association of Criminal Defense Lawyers

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.

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Message from the President By Lori Cohen We are about two thirds of the way through the year, and it has been chockfull of exciting news and changes to the both the NYSACDL and the larger criminal justice community. We started this year with our Women For Justice dinner, honoring the women who have toiled in our profession for decades. We honored several amazing women, Chief Judge Colleen MacMahon (who did not disappoint and sang a few bars), lawyer extraordinaire Isabel Kirshner and the women producers of the Last Defense. The profession is changing, as is the world in general and NYSACDL will not be left behind. Our CLE presenters will be more diverse, and we are working to ensure our Board and committees are more diverse and reflective of society in general. We must evolve and recognize that society and our profession are not homogeneous and in order to fully represent and serve all of our members, NYSACDL should not be either. These past months saw tremendous advances in the New York State Legislature. Many in our organization and on our Legislative Committee have labored for years on discovery reform. Previously, New York State was ranked 49th out of 52 when it came to its discovery laws, which as most of you are aware, made few demands on prosecutors to serve discovery prior to trial. This year, however, the New York State Legislature, lead by the Bailey/Lentol Bill, passed extensive criminal justice reform including game changing rules on the timing of the production of discovery and the contents to be disclosed. These changes will make the criminal justice system fairer and provide greater due process. You can read more about these changes in the legislative column. Many of our members are public defenders, serve tirelessly on indigent defense panels and do large amounts of pro bono work. While we earn money, and certainly don’t do the work for free, we are not in the profession solely for the money. We do it because of our sense of fair play and belief that good lawyering is essential to the best administration of justice - whether you have money or not. I have always bristled at the claim by some clients that they would be better served by a paying attorney or that I would somehow work harder if they were paying me. Nothing could be farther from the truth. We work as hard as we do because we believe we can make a difference in people’s lives – no matter how small. Recently, a client I have represented for several years asked me to attend his wedding in jail. He asked me a number of times and, seeing how important it was to him, I agreed. As we sat waiting, we talked. He was nervous. He eventually turned to me and said that I was the first person in his life to really care about him. The impact we can have on our clients is the reason we do the work.

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Dispatches from 90 State

EDITORS John S. Wallenstein Ben Ostrer

Jennifer Van Ort Executive Director Greetings! I hope you had a relaxing and fun summer! Here at NYSACDL, we are enjoying some slower days by taking time to wrap up items from earlier in the year and plan for the fall and 2020. We’ve been digesting the new landmark changes in NYS criminal justice legislation, coordinating the upcoming fall CLE seminars, some focused on those landmark changes, and working on new initiatives that help law students interested in criminal defense, and much more!

A publication of the New York State Association of Criminal Defense Lawyers ©2019 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

As you will read in this issue of Atticus, NYSACDL’s Board of Directors, Legislative Committee, member volunteers, and partner organizations were actively involved in the historic changes in New York State’s Discovery, Bail, & Speedy Trial laws. Through attending lobby days, contacting legislators, sharing social media posts, and more, many of you were played a role in bringing about these important transformations. We know that there are many more reforms that need to happen, and we are not resting on our laurels. We will continue to work in Albany and with our partners to continually improve New York’s criminal justice system for you and your clients.

Read a good book lately? Write a review of it, and submit to our Editor, John S. Wallenstein. Contact John at jswallensteinesq@ outlook.com


As you know, the new laws will go into effect on January 1st. Now is the time to learn about the details of these reforms so you are prepared in January. NYSACDL is here to help you with that. In the spring, we held three programs in Syracuse, Binghamton, and Manhattan focused on these reforms. In the fall, we will continue ensuring you have ample opportunities to receive the information you need. NYSACDL CLE seminars continue to be among the best in the state and we are committed to providing every criminal defense practitioner, member or not, with the tools needed to properly serve his or her clients. In April, NYSACDL announced new initiatives for law students interested in pursuing a career in criminal defense. These initiatives include free membership for all law students in NYS. This membership will include access to the NYSACDL member resources and the listserv. If you see a new student on the listserv, wish them well and please be helpful! Additionally, thanks to the generosity of those who sponsored and attended the 2019 NYSACDL Foundation Annual Dinner, NYSACDL offered five $1,000 stipends to law students with criminal defense internships over the summer. We received many applications and it was difficult to narrow it down to five, but we are pleased with our selection of a diverse cohort of students for our first in what will hopefully be an annual program! Speaking of the dinner, planning is under way for next year’s event. Please save the date of January 30, 2020 at the Grand Hyatt New York for another fantastic occa-

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


True Crimimal Justice Reform By Andrew Kossover

ALL RISE! Atticus Finch, the fictional lawyer in Harper Lee’s To Kill A Mockingbird for whom this publication is named, dedicated his advocacy to creating a more just system. His psyche, perhaps like all of ours, would only be at peace if a more just and fair criminal justice system could be established; one that doesn’t discriminate against the poor or people of color. The recent New York State budget, containing historic criminal justice reforms, goes a long way towards granting us all some of that longsought-after peace. NYSACDL, on behalf of our members and the clients we all serve, has been dutifully advocating for criminal justice reforms for many years. To finally realize measures which will reduce mass incarceration, implicit bias, wrongful prosecutions and convictions ushers in a new era of accountability and fairness.

Andrew Kossover is the Ulster County Public Defender and a partner in Kossover Law Offices in New Paltz. He is a Past Chair of NYSACDL’s Legislative Committee, and a Past President of NYSACDL.

Before examining these reforms in detail, a brief synopsis of how we got here is in order. Ever since NYSACDL’s Legislative Committee played a significant role in Rockefeller Drug Law Reform, it has deservingly enjoyed the recognition and platform as the “voice” of the criminal defense community. Year after year, state government has invited our comment on proposed criminal justice legislation and, in many cases, we have submitted memos in support, or in opposition to legislative initiatives. Upon the New York State Senate switching from a Republican controlled house to a Democratic majority following the 2018 midterm election, an opportunity for true significant criminal justice reform was realized. This Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Reform Continued from previous page

Legislative Committee: Kevin Stadelmaier, Co-Chair Karen Thompson, Co-Chair Derek Andrews Jason Bassett Lori Cohen Jessica Horani

Governor Cuomo pushed to have these criminal justice reforms made a part of his budget proposal rather than risk delay, inertia, and possible inaction this legislative session. The Governor succeeded and most of our preferred language was incorporated into the budget. These dramatic reforms will make the criminal justice system fairer, and fundamentally alter our practice in many ways.

Scott Iseman Andy Kossover Yung-Mi Lee Alan Lewis Greg Lubow Amy Marion Kenneth Moynihan

If you have any specific issues you would like to bring to the legislative committee, contact the chairs. If you have any relationships with your local politicians, or believe your local district attorney would support sealing or discovery reform, it would be helpful for the legislative committee to be aware of that as well. Feel free to contact any of the members above if you are interested in participating in legislative work. It is particularly helpful if you have an expertise that we can draw on in those final moments of the session when bills are being proposed and passed very quickly.


Association partnered with several other lawyer groups, exonerees, and community grassroots/activist organizations to form the Repeal the Blindfold Coalition, a reference to attorneys and the accused being forced to make critical decisions without being sufficiently informed about the case against them. While primarily devoted to advocating for discovery reform, the Coalition also provided legislative input on bail and speedy trial reform.

The reforms are effective January 1, 2020. They will apply to all cases pending on that date – regardless of when the case commenced. Until then, with respect to some of the reforms (especially bail and discovery), we strongly encourage, and several courts have already voluntarily assumed compliance based on legislative intent and fairness. Judges and prosecutors

have enormous amounts of discretion to enact these changes today. Here is an overview of some of the principal changes:

Discovery Discovery is automatic – not by written “demands” or discovery motions. Statute requires true “open file” discovery from DA. The provision listing the DA’s discovery obligations states that DAs must disclose “all items and information that relate to the subject matter of the case” and that are in DA’s or law enforcement’s possession, “including but not limited to” all the listed items. It also states that when interpreting DA’s discovery obligations, there is a “presumption of openness” and “presumption in favor of disclosure.” There is also a right to full discovery before withdrawal of plea offers by the DA (in situations where the offer requires a plea to a crime). Discovery from the defense is also greatly expanded.

If there were no bad people, there would be no good lawyers. — Charles Dickens

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

Timing of DA’s Discovery: DA’s discovery occurs “as soon as practicable but not later than 15 calendar days after defendant’s arraignment” on any accusatory instrument – including a misdemeanor complaint, felony complaint, or any other instrument. This means that the DA’s discovery clock starts to run at the town, village, city, or criminal court arraignment in almost all cases.

These dramatic reforms will make the criminal justice system fairer, and fundamentally alter our practice in many ways.

discovery (aside from items under a protective order). Certificate must affirm due diligence and reasonable inquiries; turnover of all known information; and list disclosed items. As noted in the “speedy trial” summary below, DAs cannot validly state “ready” to stop the CPL 30.30 clock until a proper certificate of compliance is filed/served (unless court finds “exceptional circumstances” – a high standard under existing 30.30 case law).

The DA’s fifteen-day period can be extended without motion by up to 30 calendar days if discoverable materials are exceptionally voluminous, or if they are not in the DA’s actual possession “despite diligent, good faith efforts.” If DAs are allowed to invoke this extension, full discovery will be required 45 days after first appearance.

DA must disclose defendant’s prior bad acts that will be offered under either Molineux or Sandoval “not later than 15 calendar days before trial.”

There are certain automatic timing extensions for some types of evidence (grand jury minutes, expert witness information, exhibits, electronically stored information).

Defendant’s and co-defendant(s)’ statements to a public servant engaged in law enforcement activity. This is no longer limited to “jointly tried” co-defendants, and no longer excludes statements made in course of criminal transaction.

DA can seek court-ordered modification of discovery time periods “in an individual case” based on showing of “good cause.” There is a special rule for the client’s statements to law enforcement. Where the client has been arraigned on a felony complaint, the DA must disclose all such statements no later than 48 hours before the scheduled time for defendant to testify at the grand jury. DA must file and serve a “certificate of compliance” upon completion of

DA’s Discovery (Within 15/45 Days of First Appearance) Includes:

Grand jury transcripts of any person who testified in relation to the subject matter of the case, including defendants. Obviously, in many cases, grand jury proceedings will not have occurred (or minutes will not have been transcribed) when discovery is due 15 (or 45) days after first appearance. The DA gets an additional automatic 30day extension if grand jury transcripts are unavailable due to limited court reporter resources (so disclosure in that situation can occur 75 days after first Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Reform Continued from previous page appearance). Beyond 75 days, DA must seek court-ordered modification of discovery time period, and the minutes are subject to the general “continuing duty to disclose.” Names and “adequate contact information” for all persons (not just testifying witnesses) whom DA knows have information relevant to any charged offense or potential defense. DA also must designate witnesses who “may be called.” Physical address not required, but defense can move for disclosure of physical address for “good cause.” All written or recorded statements of all persons whom DA knows have information relevant to any charged offense or potential defense, including all police and law enforcement agency reports and notes of police and other investigators. Expert opinion evidence, including credentials (CV, list of publications, and proficiency tests/results from past 10 years) and all written reports or, if no report exists, a written summary of facts/opinions in testimony and grounds for all opinions. All electronic recordings, including all 911 calls and all other recordings up to 10 hours in total length. If more than 10 hours exist, DA must turn over those it intends to introduce at trial or hearing, plus known information describing additional recordings. Defense counsel then has right to obtain any of the other recordings it wants within 15 calendar days of request. All photos and drawings. All reports of scientific tests/examinations, including all records, underlying data, calculations and writings


All favorable evidence and information known to DAs and law enforcement personnel acting in the case. This provision uses the same categories as OCA’s “Brady Order,” but all disclosures are moved up to 15 days (or 45 days) after first appearance. It also specifies that DAs must disclose “expeditiously upon its receipt.” List of all potentially suppressible tangible objects recovered from defendant or co-defendant, with DA’s designation of actual or constructive possession, or abandonment, and whether DA will rely on statutory presumption of possession, and location from where each item recovered if practicable. Right to inspect or test property as well. Search warrants and related documents. “All tangible property” that relates to subject matter of case, including designation of which exhibits DA will introduce at trial or pretrial hearing. Complete record of judgments of conviction for all intended DA witnesses and all defendants. DWI cases – records of calibration/certification/inspection/repair/maintenance for all testing devices for the periods 6 months before and 6 months after the test, including gas chromatography reference standard records. Electronically stored information (“ESI” – from computers, cell phones, social media accounts, etc.) seized or obtained by or on behalf of law enforcement, either from the defendant or from another source that relates to the subject matter of the case. If device/ account belongs to the defendant, DA

must disclose complete copy of all of the ESI on device/account.

Pre-Plea Discovery: If the DA makes an offer that requires a plea to a crime (but not a violation), the DA must disclose all items and information that would be discoverable prior to trial not less than 3 days before the plea deadline for felony complaints or not less than 7 days before the plea deadline for other accusatory instruments. The shorter period for felony complaints is designed to accommodate CPL 180.80 deadlines. Note that the pre-plea discovery provisions do not seem to apply to a sentencing promise by the judge on a plea to the top charge. DAs cannot condition making a plea offer on waiver of discovery rights. Where the defendant has rejected the plea offer and a violation of this discovery requirement is discovered, then the judge must consider the impact of the violation on defendant’s decision to accept or reject the offer. If the violation “materially affected” the decision and DA refuses to reinstate the offer, the court “must” – “as a presumptive minimum sanction” – “preclude the admission at trial of any evidence not disclosed as required” by statute. Courts may also take “other appropriate action as necessary” on preplea discovery violations. For example, if the discovery violation involved a defendant who entered a plea (as opposed to one who did not accept the offer), the remedy could be vacating the conviction when the discovery violation involved a Brady violation that would have changed the defendant’s decision.

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

Discovery From Defense: Defense must provide its discovery to DA 30 calendar days after service of DA’s “certificate of compliance” affirming DA completed discovery. There are automatic timing extensions for certain types of evidence (expert witness information and exhibits). Defense discovery obligations have been expanded to include witness

3. Expert opinion evidence for experts whom defense intends to call at trial or hearing, including credentials and reports and underlying documents. If no written report was made, a written statement of facts/opinions to which the expert will testify must be disclosed. 4. Recordings that defense intends to introduce at trial or hearing. 5. Photos/drawings that defense intends to introduce at trial or hearing.

DA must expeditiously take all reasonable steps to ensure all known recordings “made or available in connection with the case” are preserved. names and statements within this 30-day period. But when the defense intends to call a witness for the “sole purpose of impeaching” a DA’s witness, it does not have to disclose the person’s name/address or statements until after DA’s witness has testified at trial. Discovery from defense applies only to 8 specific things that defense “intends to introduce” at trial or hearing, including: 1. Names, addresses and birth dates of witnesses whom defense intends to call at trial or hearing. 2. Written and recorded statements of witnesses whom defense intends to call at trial or hearing (other than the defendant).

6. Other exhibits (“tangible property”) that defense intends to introduce at trial or hearing. 7. Scientific testing/ examination reports and documents that the defense intends to introduce at trial or hearing. 8. Summary of promises/rewards/inducements to intended defense witnesses, and requests for consideration by intended defense witnesses.

Defense counsel must file/serve a “certificate of compliance” upon completion of discovery (aside from items under a protective order). Certificate must affirm due diligence and reasonable inquiries; turnover of all required information; and list disclosed items.

Other Notable Discovery Provisions: Every New York police or law enforcement agency must, upon DA’s request, make available to DA a “complete copy of its complete records and

files” relating to case to facilitate discovery compliance. Arresting officer or lead detective must expeditiously notify DA about all known 911 calls, police radio transmissions, and other police video and audio footage and body-cam recordings “made or received in connection with the investigation of an apparent criminal incident” – and DA must expeditiously take all reasonable steps to ensure all known recordings “made or available in connection with the case” are preserved. If DA fails to disclose a recording due to any failure to comply with this provision, court “shall” impose an appropriate sanction. Defense may move for a court order that grants defense access to a relevant location or premises to inspect, take photographs, or make measurements. Defense may move for a court order that grants discretionary discovery of any other items or information not covered by the statute. There are newly codified standards for imposing sanctions/remedies for discovery violations, based on existing case law. Either party can obtain expedited review by a single appellate justice of a ruling that grants or denies a protective order relating to the name, contact information or statements of a person.

Note on Varying Start Dates for Different Statutory Clocks:

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Reform Continued from previous page It is imperative to remember that the new CPL Article 245 (discovery), CPL 710.30 (statement/identification notices), and CPL 30.30 (speedy trial) will each have different triggering dates! Specifically: 1. Under the discovery statute (Art. 245), the DA’s 15-day (or 45-day) period to provide discovery starts to run upon defendant’s arraignment on any accusatory instrument, including a misdemeanor complaint or felony complaint. 2. Under the statement/identification notice statute (710.30), the DA’s 15-day period to give notices starts to run upon defendant’s arraignment on an information or indictment. 3. Under the “speedy trial” statute (30.30), the clock starts to run upon filing of any accusatory instrument, including a misdemeanor complaint or felony complaint. 4. But for DATs (which will be more common given the new bail reforms), the 30.30 clock starts to run on the date when the defendant first appears in court in response to the DAT [see 30.30(5)(b)] (for discovery in DAT cases, the DA’s clock to provide discovery will still begin when defendant is arraigned on a complaint).

Bail In honoring the presumption of innocence, the bill that passed does not include a “dangerousness” (community safety) consideration. The new bill drastically reduces the use of cash bail through mandatory release and provides additional procedural and due process


safeguards. The bill has a mandatory DAT provision that provides court notifications for everything up to an E Felony. At the arrest phase, the bill mandates that an arresting officer must issue a Desk Appearance Ticket in all cases except those where the arrest is for a Class A, B, C, or D felony or a violation of some sex offenses, escape, and bail jumping. There are circumstances where the police are not required to issues DATs even on eligible cases, for example if the court can issue an order of protection or suspend/ revoke a driver’s license. The arrestee “may” provide contact information to receive court notifications, including a phone number or email address.

offense is a qualifying felony, the court may remand the person. The offenses that qualify for money bail or remand are: violent felony offenses (except Rob 2 [aided] and Burg 2 [of a dwelling]); felony witness intimidation; felony witness tampering; Class A felonies other than drugs (except a “director of a drug organization” under 220.77); some felony sex offenses under 70.80; incest

The new bill drastically reduces the use of cash bail through mandatory release and provides additional procedural and due process safeguards.

The bill has a mandatory release or release with nonmonetary conditions for almost all misdemeanors and non-violent felonies. All persons charged with misdemeanors (except sex offenses and DV contempt), non-violent felonies, robbery in the second, and burglary in the second, must be released on their own recognizance unless it is demonstrated and the court makes a determination that the principal poses a risk of flight to avoid prosecution. Otherwise, they must be released with nonmonetary conditions (pretrial services) that are the least restrictive condition(s) that will reasonably assure the principal’s return to court. For all other charges the system will largely remain the same. When charged with a “qualifying offense” the court may release the person on his or her own recognizance or under nonmonetary conditions, fix bail, or if the

involving children; terrorism charges except 490.20; conspiracy to commit Class A felony under P.L. 125; and misdemeanor sex offenses and DV misdemeanor contempt (still not remand eligible, continue to be eligible for bail as under current law). Money bail now has additional protections from abuse. If monetary bail is set on a person charged with a qualifying offense, the court must set it in three forms including either unsecured or partially secured security bond. When setting money bail, the court must consider the principal’s financial circumstances, ability to post bail without posing an undue hardship, and the principal’s ability to obtain a secured, unsecured or partially secured bond. Courts will now have to issue on the record findings to justify their decisionmaking.

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

New options will be available to courts to aid people in returning to court instead of using money bail. In all instances, the court or a designated pretrial service agency will notify all people ROR’d or released with conditions of all court appearances in advance by text messages, telephone call, email or first-class mail. Prior to issuing a bench warrant for a failure to appear for a scheduled court date, the court will provide 48 hours’ notice to the principal or principal’s counsel that the principal is required to appear in order to give him or her the opportunity to voluntarily appear.

“Partial readiness” / “partial conversion” is no longer a valid doctrine for misdemeanors – DA cannot state “ready” on some counts without certifying that all other counts are converted or dismissed.

Additionally, electronic monitoring will be available for a limited subset of cases but will be placed behind rigorous due process protections. Electronic monitoring is considered incarceration for 180.80 and 170.70 purposes and may only be imposed for 60 days with the option of continuing only upon a de novo review before a court. Electronic monitoring must also be the least restrictive means to ensure return to court and be “unobtrusive to the greatest extent possible.”

30.30 release motions no longer must follow the procedural rules for motions to dismiss – so they can be made orally and do not need to be on advance notice to DA. Where periods are in dispute, the judge must conduct a prompt hearing and DA has burden of proving excludability.

There are many more provisions in the bill. NYSACDL, Office of Court Administration, and other bar associations will undoubtedly be providing future trainings.

Speedy Trial / CPL 30.30 DA’s “ready” statement is not valid unless DA has filed a proper “certificate of compliance” affirming that discovery obligations under new CPL 245.20 discovery statute are complete (unless court finds “exceptional circumstances”).

VTL infractions are considered “offenses” for 30.30 purposes – this eliminates the problem of a lingering VTL 1192(1) or 509 count after a 30.30 dismissal of higher charges. Where DA states “ready” for trial, the judge must make an inquiry on the record as to their actual readiness.

Denial of a 30.30 dismissal motion can be appealed following a guilty plea (and mandatory language indicates that the parties may not be able to waive such appellate review).

Subpoenas The new statute discards the 24hour notice requirement for defense subpoenas on government agencies, as well as any requirement of service on the DA. The defense now only needs a court-indorsed subpoena for governmental agencies, with minimum of 3 days for the agency to comply. The DA is not notified unless the agency voluntarily informs DA. When a subpoena is challenged by a motion to quash or questioned by the

judge prior to indorsement, the defense must only show a factual predicate that the item or witness is “reasonably likely to be relevant and material to the proceedings.” The prior standard set by case law was an advance showing that the item or witness was likely be “relevant and exculpatory.”

364-Day Maximum Sentence for Misdemeanors The bill reduces the maximum sentence of Class A and certain unclassified misdemeanors from 1 year to 364 days. This law will benefit immigrant New Yorkers in several important ways. It will eliminate the possibility of New York misdemeanors becoming aggravated felonies because of a one-year sentence. The Immigration and Nationality Act defines many aggravated felony offenses – including Theft offenses, Crimes of Violence, and counterfeiting offenses – by an actual sentence of one year or longer. By reducing the possible maximum sentence, the bill eliminates the potential plea bargain of “an A and a year” and the possibility of a non-citizen defendant receiving an aggravated felony as a result of being convicted of an A misdemeanor after trial. In addition to subjecting a non-citizen to mandatary detention while in removal proceedings and to barring a lawful permanent resident from applying for United States citizenship, an aggravated felony conviction after 1996 leads to certain deportation. The new law will also mean that one New York misdemeanor conviction that is a crime involving moral turpitude will

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Reform Continued from previous page no longer render a lawful permanent resident deportable from the United States. As a result of this bill it will take at least two misdemeanor crimes involving moral turpitude – whether they be A or B misdemeanors – to trigger the deportation statute. Finally, under current immigration law, one crime involving moral turpitude that is an A misdemeanor or more serious bars non-citizens from applying for Non-LPR Cancellation of Removal – the only form of relief available in removal proceedings to many undocumented individuals who have children, spouses, or parents who are U.S. citizens or lawful permanent residents. The new law should make it possible for many more of non-citizens to successfully defend themselves against deportation and to remain with their families as contributing members of our communities.

Mugshots The budget legislation curbs the release of booking photos by police agencies. The legislation amends the State’s Freedom of Information Law, saying it would be an “unwarranted invasion of personal privacy” to allow disclosure of “law enforcement booking information about an individual, including booking photographs, unless public release of such information will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal law.” How those changes to the State’s Freedom of Information Law will play out remains to be seen. It currently appears that the prohibition would certainly apply to State Police, which is a state agency governed by the Personal Privacy Protection Law. It might permit, but not require, local police to withhold


booking photos. This measure drew criticism from news industry groups who assert that reporting on crimes in communities is an important function of the news media and the law, as well intentioned as it may be, constitutes a threat to the media’s ability to report arrests, information they argue the public should be entitled to receive.

Asset Forfeiture Included as part of the state budget is an amendment to civil asset forfeiture, which is currently used by prosecutors in some cases to either freeze or collect the assets of a defendant throughout a criminal proceeding. These reforms become effective six months after passage (October 12, 2019) and won’t apply to alleged crimes committed before that date. There are three major provisions of the legislation, all of which are opposed by the District Attorneys Association of the State of New York. 1. Prosecutors are prevented from freezing a defendant’s assets unless they can show they’re “tainted” or the direct proceeds of the crime the accused is charged with. This aligns New York’s statute with federal case law. Previously, assets could be frozen that were not traceable to the criminal activity in situations where prosecutors would calculate what a defendant earned from their alleged crimes and then get a restraining order against all of the defendant’s assets up to that amount. This technique would often interfere with the defendant’s ability to pay for their legal defense. 2. Under current law, prosecutors can secure assets from a defendant

to award to a victim regardless of whether those funds are the direct proceeds of the crime. The new law will only allow prosecutors to seize untainted funds if they can’t find the direct proceeds of the crime. At that point, it will be up to the judge overseeing the case to decide whether a prosecutor is able to require those funds be seized. In other words, if you obtain a money judgment and the DA can’t find the traceable assets, the DA must apply to the court for permission to attach untainted assets. Only tainted funds can be frozen pretrial by the claiming authority. 3. Judges are prohibited from considering whether funds were obtained illegally when deciding on a motion to release them to pay for attorney’s fees and reasonable living expenses. This allows those funds to be released to pay for defense counsel and the client’s day-to-day expenses, even if they’re alleged to be the direct proceeds of a crime.

Other Significant Reforms An end to license suspension for nondriving drug convictions. A prohibition on employment and housing discrimination against people with open ACDs. Application of Article 23A protections against baseless discrimination for people with criminal records to certain state-operated professional licenses.

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

An expedited closure of 3 state prisons. A requirement for local police chiefs to report to DCJS on police use of force with demographic data and for the latter agency to release it publicly annually, and a version of the Domestic Violence Survivors Justice Act. Despite Governor Cuomo’s proposal to increase attorney biennial registration fee from $375 to $450 to help fund constitutionally mandated legal services, the state budget does not provide for the increase. Even without the fee increase, the budget still allocated almost $50 million more to the Office of Indigent Legal Services this year, an increase of more than 30% over last year’s budget. The additional funding is mostly directed at the state’s obligations under the 2014 landmark settlement in the Hurrell-Harring case. Unfortunately, the budget also does not increase the rate of pay for 18-B (assigned counsel) attorneys. Increasing assigned counsel rates is expected to be a legislative priority of NYSACDL next session.

Update On Prosecutorial Conduct Commission The formal establishment of the new Commission on Prosecutorial Conduct which is to be tasked with reviewing complaints against the state’s prosecutors may be delayed (again) following the District Attorneys Association of the State of New York (DAASNY) having filed for a preliminary injunction against the Commission’s creation. The new filing comes after Governor Cuomo signed an amended version

of legislation into law in late March, despite an expected constitutional challenge to the legislation by state prosecutors, who continue to advocate that despite the “chapter amendments” to remedy earlier constitutional issues raised by DAASNY, the amended version still contains constitutional infirmities. It is somewhat ironic that despite multiple organizations supporting this legislation, similar to other criminal justice reforms, there is only one Association which opposes it, just as they did all other recent measures to establish a more just system of justice – DAASNY. The New York State Association of Criminal Defense Lawyers is closely monitoring the litigation and will, if appropriate, submit an Amicus memorandum. We are also seeking to identify suitable candidates to nominate to be members of the panel when appointments begin.

Remaining Criminal Justice Issues Despite what may be described as “criminal justice legislative exhaustion,” there are several issues which state government hopes to address before the close of this legislative session in June.

Repeal/Amendment of Civil Rights Law Section 50-a The statute has been used by members of law enforcement to withhold personnel records, including reports of alleged misconduct, from public view. The defense community believes that state court decisions have misinterpreted the statute in favor of law enforcement. The statute wasn’t intended to shield police

from making available their disciplinary records and history under the right circumstances. The legislature is discussing means to achieve more law enforcement accountability.

Tracking data on arrest and criminal patterns statewide Consideration is being given to collecting and publicly reporting the total number of arrests and tickets for violations and misdemeanors, as well as the demographics of those individuals, including race, ethnicity, and sex. State Senator Brad Holyman (D-Manhattan) has advocated for the bill, known as the Police STAT Act. According to the New York Law Journal, Holyman was quoted as saying “New York cannot truly claim to be a progressive state so long as we have a criminal justice system that disproportionately impacts marginalized communities, including LGBTQ New Yorkers and people of color. We need to fundamentally rethink the way police departments engage with the communities they serve.”

Charitable Bail Fund Under the new bail provisions, felonies will still be eligible for cash bail, so State Senator Gustavo Rivera (D – Bronx) aims to amend the current charitable bail bill by: 1. increasing the cap from $2,000.00 to $10,000.00 2. allowing felonies to be eligible for the charitable bail funds, and 3. allowing such funds to bail people out across different counties. Those who wish to totally eliminate cash bail fear that passage of this statute may further entrench the use of money bail. Those supporting the bill believe that as long as cash bail is in play, enlarging options to post bail for those Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Reform Continued from previous page who would otherwise be remanded with no possibility of bail, is the right thing.

Solitary Confinement Negotiations continue regarding reducing the use of solitary confinement for people who engage in misconduct within state prisons. The suggested reforms would direct DOCCS to limit the length of time spent in separation, provide for more humane conditions during separation, build dedicated housing units for rehabilitation and integration following a disciplinary sanction, and expand therapeutic programming to reinforce positive and social behavior.

Adult Marijuana LegalizationIn January 2018, Governor Cuomo directed the Department of Health to launch a multi-agency study to review the potential impact of regulated cannabis in New York. The study, issued last July, concluded that the positive impact of a regulated cannabis program in New York State outweighs the potential negative aspects. Although legalization did not make it into the budget, state government appears determined to pass recreational use by the end of this legislative session. The legislation is

expected to include the establishment of a regulated cannabis program for adults 21 and over that protects public health, provides consumer protection, ensures public safety, addresses social justice concerns, and invests tax revenue. Initiatives should include reducing impacts of criminalization affecting communities of color, the sealing of cannabisrelated criminal records, and invite new case law regarding probable cause issues in connection with search and seizure.

Qualified Public Agencies This initiative would authorize qualified public defense institutional providers to access New York State’s criminal history database. Thanks to the Legal Aid Society of New York City and attorney Steven L. Kessler (former NYSACDL Treasurer and noted authority on forfeiture)) for contributing content to this

Unfortunately, the budget … does not increase the rate of pay for 18-B (assigned counsel) attorneys. Increasing assigned counsel rates is expected to be a legislative priority of NYSACDL next session. Criminal Mishchief Bill numbers A6951- S2560, and A745 – S4321 seek to raise the monetary threshold for felony criminal mischief from $250 (established 104 years ago) to $1000 to comport with the felony threshold for larceny (established in 1985).

article. As you can see, while much has been accomplished, there remains more to be done. Your Association is on the front lines in advocating for a better criminal justice system and improved attorney client advocacy. With your support, we will continue to try to do the right thing. As Atticus Finch pondered, “Sometimes just trying to do the right thing IS the right thing.” A

In the rather informal survey I have taken over the years on intensity of interest in food by profession, lawyers rank only a few trades below concert pianists.... — Calvin Trillin, The Tummy Trilogy


Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

Interested in attorney wellness? Join us on December 6 at ‘Weapons for the Firefight’ for a special presentation from Susan Broderick, Esq.: Responding to Stress in the Work Hard, Play Hard Environment of Criminal Justice.

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Mitigation as Counter Strategy:

The PSR in Child Porn Cases By Mark S. Silver

Introduction BACKGROUND

This paper will examine and critique the Presentence Investigation Report (PSR) with a special focus on child pornography cases as a way to highlight the major concerns in the advocacy process. At the outset, I must state that as a mitigation expert I have never seen a PSR that fully and accurately reflects the client’s psychosocial background, clinical needs, or legal issues. This paper will, therefore, examine why the PSR is crucial in the advocacy process, the content of the PSR, what tools can be used as counter-measures to critique the PSR, and the mitigation challenges in the process. I argue that the mitigation evaluation and report serve as a crucial corrective and counterbalance to the PSR. THE LOSS OF EVIDENCE REVIEW AND APPEALS There has been a fundamental shift in power from the tripartite system of judge, prosecutor, and defense lawyer to a unilateral system in which the prose-


cutor acts as prosecutor, judge, and jury while the judge twiddles his thumbs bored in an empty courtroom, especially in the Federal judiciary. This has had a major impact on evidence. Law school requires an entire course on evidence for

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

good reason. However, today, evidence cannot be fairly examined in a court of law because the financial cost and personal risk of going to court are just too high for the defendant. Paradoxically, hearsay evidence found in the PSR and mitigation reports has become a crucial source of information for determining sentencing. Understanding this shift in power is crucial in the advocacy process and also a central strategic consideration.

Mark S. Silver

Mark S. Silver, MA, MSW, LCSW, PsyD, JD, is a consultant for law firms throughout the United States conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases. He is the author of, among numerous other articles and papers, the Handbook of Mitigation in Criminal and Immigration Forensics: Humanizing the Client Towards a Better Legal Outcome. Third Edition. (2011).

The criminal justice system has been turned into a guilty plea factory. So powerful is this penalty that even innocent persons will succumb to the threat of a worse outcome if they dare to risk the fundamental Sixth Amendment right to a trial. The National Registry of Exonerations has now identified numerous cases in which individuals later determined to be innocent had entered a guilty plea rather than face trial. (See -http://www.law.umich.edu/special/ exoneration/Pages/about.aspx). Because evidence is no longer important, the discovery of evidence is all but lost. This, in turn, means that most appeals from trial are not possible. (See, Norman L. Reimer. The Trial Penalty: The Sixth Amendment on the Verge of Extinction and How to Save It. The Champion May 2018 vol. XLII No. 4, p. 9-10).

Pornography Case Studies It is important to integrate theory and practice, and so, I will use two pornography cases as examples throughout this paper and discuss how they apply in different ways to the PSR process. First Case: A 25-year-old first generation Mexican immigrant served 18 months in jail on a state child pornography charge and 18 months after his release, he returned to online child pornogra-

phy, including sharing and downloading material. Second Case: A 36-year-old middle manager who completed an executive MBA at a major corporation was arrested for encouraging underage females to engage in sexual acts in chat rooms while he impersonated a teenage male.

What Is A PSR INTRODUCTION The criminal defendant will meet with the probation officer after he enters a plea of guilty to a federal offense or is convicted at trial. The probation officer from the Federal Bureau of Prisons will conduct an interview with the defendant together with a wide range of information pertaining to the defendant’s background, family history, community ties, education background, employment history, physical health, mental and emotional health, history of substance abuse, financial condition, and willingness to accept responsibility for his offense(s). The major concern is that, although the probation officer is theoretically eliciting subjective information from the defendant in an objective format and manner, the reality is that the probation officer may have any particular level of experience, proclivities, interpersonal skills, and preconceived notions of the defendant or the case that will influence the probation officer’s PSR. Broadly speaking, the probation officer undertakes a biopsychosocial evaluation quite similar to what a social worker does in an effort to uncover anything and everything relevant to the defendant’s history to better understand how the defendant came to be in this terrible situation. This is, of course, also the job of the mitigation expert. However, the probation officer has no clinical training and therefore Continued on page 32

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


MUSINGS... Something Rotten In Denmark;

Something Amiss In Suffolk By William E. Mcsweeney


y passport once had a “Suffolk” visa stamped on it, but that expired some years ago. I stood up on enough criminal cases in District Court there, however, to note a disparity as between Suffolk and New York Counties with regard to their “handling” of CPL section 100.20 (supporting deposition). In New York County, my preferred county of practice, there is no “disconnect”—no gap—between the complaint and its supporting deposition. Any affiant/informant named on the complaint—police officer or civilian—must sign a one-paragraph supporting deposition whose preprinted language reads “…I have read the attached criminal complaint (italics added)…The facts in this complaint attributable to me are true, and I know these facts from my personal knowledge.” Following this terse language—“uniform” language allowing of no equivocation—is an admonition that a false statement is “…punishable as a Class A misdemeanor pursuant to section 210.45 of the Penal Law.”

William E. McSweeney is a criminal-defense attorney and a member of NYSACDL. His written work has appeared in our pages and in those of the Quinnipiac Law Review, the ABA Journal, The New York Law Journal, and The New York Times.


I should hasten to add that the complaint itself, like the supporting deposition, also has this admonitory language—thereby mandating that the truth be sworn to, under penalty of perjury, by the deponent; in signing a document that compels candor, the deponent, be that person civilian or police officer, is treated democratically, treated in the eyes of the law as an equal to anyone—but no more than an equal. The foregoing items, then, when proffered to the presiding judge of the New York County Criminal Court, form—by dint of their cross-reference as to each other—a “team” of documents that, entire, justifies the presumption of regularity: the twopart facial complaint displays the factual component as comporting with the accusatory component; the supporting deposition is one executed by an affiant/informant only after he or she has read both components—accusatory and factual—of

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

the complaint. Thus is forged a “unity” between, an intertwining of, complaint and supporting deposition; and, I repeat, both documents—by dint of their reference to P.L. 210.45—jointly “brace” the signatory who might otherwise consider perjury. There is, then, a fair chance that THE TRUTH is being alleged.

When cops are on the job they love lawyers like lions love hyenas, only minus the mutual respect. — Reed Farrel Coleman, The James Deans

The Suffolk cases that I’m now perusing display—vis-à-vis New York County cases—a crucial distinction as to threshold paperwork. In Suffolk the bare complaint is styled—prematurely mis-styled—a Misdemeanor Information, notwithstanding that it contains hearsay (“This charge is based solely upon information and belief, the source being ...”.) People v. Redding, 440 NYS 2nd 512 (1981), parses the distinction between a complaint and an information: a supporting deposition, that case states, “is an indispensable part of the accusatory instrument, changing it from a misdemeanor complaint upon which a defendant may not ordinarily be prosecuted into an information upon which a defendant may be prosecuted.” The Suffolk complaint in front of me—again, a complaint, not an information— does make reference to “accompanying statements” as support for the document, but what is needed, significantly—if The Truth is to be established at the threshold—is a cross-reference as between complaint and supporting deposition, that attachment of documents which exists in the New York County model. Further harming the accused in Suffolk County, while this “Information” does have the two-component aspect of the New York County complaint—the accusatory component followed by its comporting factual component—the document does not contain the cautionary language of P.L. 210.45. In other words, Suffolk’s complainant-police officer, in executing the document, enjoys an apparent immunity; he can’t, after all, adhere to something non-existent. The officer is thus exempt from any penalty for perjury—no risk, no loss. But this lack of cautionary language implicates more than the individual police officer; it speaks of an institutional arrogance. Simply put, this absence of P.L. 210.45 implies a police department above the law. There is a phrase that reads, “Sworn To Before Me,” and blank spaces are provided for the date and for the “Signature of Official Administering Oath”—the “Official” typically being a police sergeant. Right, the complainant-police officer is swearing to the truth of the complaint before a brother-police officer. Hhmmm… Please note the foregoing contrast: the officer in New York County, the sole signatory to the complaint, is “braced” by the Penal Law; the officer in Suffolk can’t be “braced” by the facially—thus actually—non-existent P.L. 210.45; he is instead, and to the contrary, “supported” by a brother officer—and each enjoys an undeserved, unjust immunity. I’ve employed the understated, sardonic “Hhmmm,” but, in truth, the police officer-complainant’s immunity as to his statement can well contaminate, at the threshold, the criminal case, a contamination which can persist—and intensify—as that case moves forward; whether through malice or inadvertence—no comfort in either case to the accused—the police officer-complainant can oh-so-easily and unfairly Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Musings Continued from previous page damage the defendant when the former’s immunized statement essentially becomes law. In this regard, I trust that all of us—especially defense attorneys— have long ignored any inner voice that says, “He’s a police officer—he wouldn’t lie.” That statement is a kissing cousin to those statements typically made by the police to a person in custody: “We just want to talk to you,” and “If you’ve done nothing wrong, there’s nothing to fear.” Indeed, when a person in custody hears the foregoing, he has everything to fear. Here, I’m reminded of the inverted pyramid that symbolizes the relationship as between the police and the prosecution in Suffolk County. In his “A Whistleblower’s Lament,” Judge Stuart Namm exposed the continuous deception he witnessed on the part of both agencies in Suffolk, and he unearthed its root. He quoted John Buonara, former Executive Assistant (read Second-inCommand) of the Suffolk County District Attorney’s Office, who acknowledged the police department’s sanctified status: “As prosecutors, we were not the ones calling the shots. You couldn’t express dissatisfaction with a cop’s work. The climate was such that you couldn’t do that.” This climate, then—as manifested by the police officer’s immunized, essentially hold-harmless statement—is pervaded at the onset by a contamination. In further contamination, and as it relates to the supporting deposition in Suffolk: the informant/affiant swears to the truth of the deposition—duly warned per P.L. 210.45 against false statements—but doesn’t (can’t!) swear to the truth of the allied but, significantly, unreferenced unaffixed misdemeanor complaint (again, erroneously styled a “Misdemeanor Information.”) Not


incidentally, the informant/affiant, on all of the supporting depositions before me, casts an identical punch-line: “I want (the accused) arrested.” Thus the question is raised, who, exactly, wants the accused arrested—the informant or the police officer? Granted, I could be over-inferring on this, but the parroting of this punch-line—with its scent of the editorial—on all of the depositions I study certainly smacks of a police department’s institutional attitude of both “guilty upon arrest” and “c-y-a” (cover-your-ass). Moreover, the ubiquitous “I want (the accused) arrested” can only give the appearance of having been “coached.” How, then, can an additional question not be raised?: how much of the informant/deponent’s statement, entire, has been “coached”—coached toward conformity with a statute’s accusatory language? Grounded or groundless inferences aside, consider the Suffolk deponent, relative to the criminal complaint: the deponent can be essentially “highjacked” into the case. A complaint unread by the deponent is, for all intents and purposes, non-existent as to that person. He might never see until time of trial—if even then—the charging instrument that compelled the defendant to attend court; at trial, the affiant could well be impeached successfully—deservedly—on that instrument, the result of that person’s prior unfamiliarity with it during the procedural history of the case. Doesn’t this scenario raise insistent questions? Had the affiant perused the complaint before signing its supporting deposition—one never incorporated by reference into the complaint—would such signing have taken place? From the affiant’s standpoint, was there a factual error in the complaint? Was there an

over-charging of the defendant? (“Why, that never happened!”) Was there something alleged in the complaint that the affiant finds untrue? Were words attributed to the affiant that were never spoken? (“I never said that!”) Most crucially, ominously, for the defendant, had what the affiant reported at the time of the alleged offense been subsequently “tailored” by an overreaching police officer—himself having an interest both in making an arrest and in securing its “integrity”—to comport with the statute’s accusatory language? The nonsense we’re force-fed to the effect that the police are simply doing their jobs as disinterested witnesses—“Just the facts, Ma’am”—is just that, nonsense. They have a stake in the proceedings, they have an interest in the outcome of the case, their interest is that the “integrity” of their arrest should survive unchallenged. Even if some of the foregoing scenarios could be glibly disregarded as speculation, doesn’t the disconnect between the charging instrument and its supporting deposition give birth to such (un) healthy, bouncing speculative scenarios? In truth, I see all of the scenarios—or some variant of them—set forth in the preceding paragraph as necessarily occurring when, as to the deponent, the complaint and his supporting deposition persist in being independent of each other during the case’s procedural history. While the deponent might be benignly clueless during that history, one wonders how many defendants are unjustly charged, how many lives are long-beclouded, while the bifurcated documents wend their long, casual journey through the system… Speculation aside, and to deal with the actual, clock-watchers among us will

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

note that all of the foregoing scenarios perforce implicate, invidiously in comparison with New York County, the defendant’s right to a speedy trial. In Suffolk, the prosecutor can wave the unaffixed, “disjoined” documents in front of the judge’s nose, and blithely announce, “People are ready.” Is that prosecutor in fact ready? I would argue that he is not. That prosecutor, as does the complainant-police officer, enjoys a slide, a free unchallenged ride—Karl Marx’s “unearned dividend” extrapolated from economics to the law—to the detriment of the defendant. Perversely, time here is on the side of the prosecution. CPL 30.30 is thereby turned on its head in Suffolk County. Whereas, in New York County, until the gap is closed between the court’s receipt of a complaint and its true supporting deposition—a deposition, it bears repeating, whose affiant/ informant acknowledges and swears to the truth of the perused and affixed complaint—the speedy-trial clock ticks. Of critical importance to the defendant, that person justly benefits from any lag in time between the filing of the complaint and the filing of its curative supporting deposition. Actually, when properly viewed, CPL 30.30. inures to everyone’s benefit. The court sees a diminishment of its calendar by dint of the dismissal of frivolous cases; if wrongly accused, the defendant, the sole intended beneficiary of 30.30 (People v. Hamilton, 46 NY2d 932; 1979), sees his case expeditiously and fairly disposed of. As to the prosecutor, unless he’s unethical and merely statdriven—”To hell with the defendant! Victory is all! Drag the case out! The defendant will cop a plea through sheer physical and monetary exhaustion!”— the prosecutor would likewise benefit

from the “twinned” documents; that person could properly presume that he likely had an interested, truthful witness. Conversely, and unfavorably as to the defendant, if the “twinned” documents didn’t exist at the threshold, how long would it take—if ever—for the Assistant to ascertain his witness’s interest and veracity? Until time of trial—a tad late—would there be any incentive to try?

Suffolk’s complainantpolice officer, in executing the document, enjoys an apparent immunity; he can’t, after all, adhere to something non-existent. In Bronx County, in antediluvian times, we Assistants had as our top-down mantra, “Shit doesn’t get better.” (Forgive the vulgarity, but I did mention it was “Da Bronx.”) Notwithstanding the bad press it’s lately been given, the Bronx Office felt, correctly and fairly, that if a case had an initial and fatal weakness, then the assigned Assistant was to approach that case guided by the words—absent their malignant context—found in Macbeth: “If it were done…then ‘twere well it were done quickly.” A weak case was to be expeditiously disposed of; clinging to such a case—“milking it”—on the part of the Assistant was frowned upon. In Suffolk the Assistant would serve both himself and justice were he to assess at the threshold the strength of his

case, and to thereafter act accordingly; his possession of those cross-referential documents that his colleagues in New York County possess would go some distance toward impelling that optimal behavior. CPL 100.20 reads, in pertinent part, “A supporting deposition is a written instrument accompanying or filed in connection with …a misdemeanor complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” The foregoing, with its casting of language in the alternative— “accompanying or filed in connection with”—provides the prosecution with an escape hatch. I concede that nothing in that language mandates that New York County’s choice of alternatives be followed, that which sees the interlocking, through cross-reference, of the complaint and its supporting deposition. Unfortunately for the defendant, “in connection with” implies abstract association, not physical attachment. And People v. Modica, 724 NYS 2nd 825 (2001), in its construing of CPL 100.20, likewise holds no comfort for the accused. “A supporting deposition,” that case states, “which accompanies… an accusatory instrument is not required to refer to the instrument or to have precise facial symmetry with the instrument.” Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers



Thank you to the 2019 Defenders Circle! CHAMPIONS ($1000 Donation) Mark A. Foti James Grable Jr. Benjamin Ostrer COLLEAGUES ($250 Donation) George Goltzer Kevin D. O’Connell Jennifer L. Van Ort SUPPORTERS ($100 Donation) James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Trevor W. Hannigan James P. Harrington Tim Havas

Daniel J. Henry Jessica A. Horani Michael D. Horn John Ingrassia Robert P. Leighton Oscar Michelen Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter

Continued from previous page When contrasted with New York County’s choice as between alternatives, however, that choice favored by Suffolk and other counties can’t but appear to this defense attorney as being reductive, mean-spirited, minimalist. And when we defense advocates seek justice, shouldn’t we—alongside judges and prosecutors—strive for the most just of outcomes, or do we content ourselves with a minimal resemblance thereto? New York State Legislators, consider revising CPL 100.20 to conform to New York County’s expansive, progressive, and just application of it; craft it as tightly, leaving no wiggle room, as you’ve crafted CPL 30.30. Craft it so that it mandates the conjunction, the physical attachment, of the complaint and its supporting deposition, with both cross-referential documents being sworn to—no matter the status of the oath-taker—under penalty of P.L. 210.45. As it stands, CPL 100.20 is imperfect. Yet the imperfect is improvable. A

The Defenders Circle is a donation program that benefits New York State Association of Criminal Defense Lawyers (NYSACDL) members, seminars, and programs. NYSACDL has experienced tremendous growth over the past several years in membership, seminar attendance, advocacy efforts and more. Defenders Circle members play a crucial role in ensuring that NYSACDL maintains its success and strength as the leading criminal defense organization in New York State. Donations starting at $100 are included in the Defenders Circle. Among other benefits, Defenders Circle members will be showcased on the NYSACDL web site and in the quarterly Atticus publication. For more information on the Defenders Circle, including ways to donate, please visit https://nysacdl.site-ym.com/page/DC. *NYSACDL is a 501(c)6 organization. Donations are not considered tax deductible.


Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

• NYSACDL at Work • New York State Clemency & The Trial Penalty Project Your Participation Needed! New York State Clemency Let Governor Cuomo Know that You Support Second Chances for the Deserving. Two Minutes of Your Time May Help Others Save Years of Theirs – Visit bit.ly/ClemencyJuly19 to help!

In 2017, NYSACDL announced its commitment to a major New York State clemency initiative, a program designed to help to recruit, train, and provide resource support to pro bono attorneys to assist state prisoners to submit petitions to have their sentences commuted. This projThe goal of the NACDL/FAMM ect is a partnership with the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory State Clemency Project is to seek Minimums (FAMM). commutations for long serving

More than 200 lawyers have volunteered to assist the project New York State prisoners who have and have already submitted nearly 100 petitions. But we need earned a second chance. Governor Cuomo to act. Working in partnership with NACDL and New Yorkers United for Justice, we are urging all concerned New Yorkers to express their support for this clemency initiative. Please join us in the effort by letting the Governor know that you support second chances for the deserving. This will only take a couple of minutes of your time, but it may help others save years of theirs. Please visit NACDL’s advocacy page at bit.ly/ClemencyJuly19 to e-mail Gov. Cuomo and ask him to exercise his clemency powers. Thank you!

The Trial Penalty Project NYSACDL is involved in a statewide project to investigate, expose, and address the trial penalty throughout New York State. This project is in collaboration with the National Association of Criminal Defense Lawyers (NACDL) and conducted with a large volunteer task force and pro bono assistance from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates. Our goal is to gather the necessary data and human stories that can propel a state-wide reform effort.

Defense lawyers are uniquely situated to fully identify the reasons why people surrender their fundamental constitutional right to a trial with startling regularity, and why they also waive other valuable rights.

The full project scope statement is available here: bit.ly/NYSACDLTrialPenalty You can help! Take the Criminal Defense Attorney Survey Now! https://www.surveymonkey.com/r/nytrialpenalty We urge you to think of your experiences, consider your clients’ decisions and take 15-25 minutes to take the survey and assist this effort. The more broadly we can collect data and the stories that prove the impact of the trial penalty the greater our impact will be. Thank you!

Continued on next page Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Re-Testing of DNA Complex Mixture Sample Ordered

By Raymond Kobus

Raymond Kobus is a criminal defense attorney from Queens with over 40 years experience.

This article discusses an issue which is more common these days; the efforts by the prosecution to use anything they can get to obtain a conviction, and the necessity for us, as defense attorneys, to fight back with all we can. By way of background, I was assigned, as 18-b counsel, to represent Walter Joseph on June 8, 2013 following the declaration of a mistrial due to a hung jury. In that trial, in which Mr. Joseph was charged with possession of controlled substances and handguns, Mr. Joseph was represented by different counsel and the jury was hung eleven to one to convict. The lone juror holdout was troubled by the DNA evidence introduced by The People. Continued on page 30

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


NYSACDL Announces Initiatives for Law Students


here are students in New York State’s law schools today who are interested in being the criminal defense lawyers of tomorrow. NYSACDL President Lori Cohen wanted to ensure that those students saw your criminal defense bar association as a resource starting now and as they move into their careers. Therefore, in May of 2019, she

announced two new initiatives for law students interested in practicing in Criminal Defense. As we move forward through to 2020, the Board of Directors will continue to explore more ways that NYSACDL can work with New York State’s law schools and students.

NYSACDL Foundation Law Student Internship Stipend Program The first initiative NYSACDL announced was the NYSACDL Foundation Law Student Internship Stipend Program. This program is designed to encourage a diverse pool of law students in New York State to consider careers in criminal defense practice through successful summer internships. This program was funded by the proceeds of the 2019 NYSACDL Foundation Annual Dinner and we thank the donors to that dinner for making it possible. Through this program, the NYSACDL Foundation awarded five $1,000 stipends to qualified students in New York with Summer 2019 internships in private or public criminal defense practices. Stipends were awarded based upon determination of the student’s commitment to criminal defense practice and financial need. Through outreach to New York State’s law school career centers and internship providers, we received 18 applications from a variety of students across New York State. A selection committee met in mid-June to choose the recipients and were encouraged by the quality of all the applications. The following students were chosen to receive awards:

Free Law Student Memberships At its March 2019 meeting, the NYSACDL Board of Directors approved a change to the law student membership category, making memberships for law students free until graduation. This change has allowed NYSACDL to provide outreach and resources for law students interested in pursuing criminal defense in New York. All of the students who applied to the above internship stipend program received a free membership in NYSACDL, and we have also added several other students to our membership ranks. We encourage practicing members to


reach out to those law students and offer their support to them as they move forward in their career. If you know of a law student interested in pursuing criminal defense, encourage them to visit the NYSACDL web site for more information on membership! Moving forward, NYSACDL will be reaching out to the law schools in New York State to see how we can collaborate and provide even more resources for students. If you have any suggestions, please do not hesitate to contact us!

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

Grace E. Powell Law School: University of Virginia School of Law Internship: The Bronx Defenders

Aziza Hawthorne Law School: Elisabeth Haub School of Law at Pace University Internship: The Bronx Defenders

Molly Medhurst Law School: CUNY School of Law Internship: Neighborhood Defender Service of Harlem

Kayla Smith Law School: Brooklyn Law School Internship: New York County Defender Services

Evan Pfeifer Law School: Syracuse University College of Law Internship: Syracuse Office of the Federal Defender for the Northern District of NY

Congratulations to this year’s award winners! NYSACDL hopes to continue this program, and possibly expand, this program in the coming years. We encourage those who applied this year and were not awarded to apply again in the future. You can help ensure we can continue this program by securing a sponsorship to the 2020 NYSACDL Foundation Annual Dinner. Watch for more information coming soon!

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


DNA Continued from page 26


he People had used the Office of the Chief Medical Examiner´s (OMCE) testing on a Low Copy Number sample (LCN) and the Forensic Statistical Tool (FST). The FST´s Likelihood Ratio was that it was 261 million times more likely that it was the DNA of Mr. Joseph and two unknown, unrelated individuals that was found on the handgun than if it were that of three unknown, unrelated individuals. Given the damning nature of such statistical evidence and the layman´s belief that all DNA evidence is more determinative of identity than fingerprints are (single source DNA is virtually conclusive; DNA mixtures of multiple contributors not so), I filed a motion in limine to preclude The People’s use of the LCN/FST evidence. I presented to Justice Daniel Lewis, the Queens Supreme Court Justice presiding, all of the shortcomings surrounding LCN/FST known at that time (Nov. 2013). When Mr. Joseph was arrested in February 2011, FST had just come online, so his case was amongst the first cases to have had the FST employed. In arguing the motion, I urged the Court to consider the 2011 Dror/Hampikian study ¨Subjectivity and Bias in DNA Mixture Interpretation¨ which examined the subjectivity and contextual bias in this field. Before Justice Lewis rendered his decision on the motion, I also presented him with the scathing report of the NYS Inspector General’s Office (Dec. 2013) wherein the Inspector General exposed Dr. Theresa Caragine, one of FST´s founders, for having re-written reports of OCME criminalists regarding mixture contributor ¨numbers¨ when she disagreed with their findings. Notwithstanding these troubling developments, and despite the fact that the very issue was the subject of a Frye Hearing, then ongoing in Kings County before the Hon. Mark Dwyer, the Court denied my motion in limine. Justice Lewis did state, however, that he would revisit the issue if Justice Dwyer´s decision were favorable to my position. Stuck as I was with the Court’s thinking regarding the OCME´s preeminence in DNA mixture interpretation, I elected, with the Defendant’s consent, to try the case non-jury and adopted a strategy of trying to convince the Court that secondary transfer had likely been the issue, if Mr. Joseph´s DNA was in fact recovered from the handgun. I elicited from two of the arresting officers that they had each gripped the Defendant’s wrists while handcuffing him at different times, and that neither one wore gloves of any sort when doing so, as they had no concerns, in their words, about contamination (transference). Moreover, one detective took receipt of and vouchered the gun without gloves on after cuffing Mr. Joseph. The defense case added the testimony of a witness who was present; the witness testified that Mr. Joseph was wearing a tee shirt when the arrest occurred, solidifying the probability that Mr. Joseph´s skin cells may have been transferred to the hands of the arresting officers. The sample of DNA recovered from the swabs of the gun amounted to only 40 picograms per microliter, approximately six to seven skin cells. Despite testimony of the OCME´s criminalist, J. Lucas Herman, that Mr. Joseph´s DNA profile could not be deduced from the mixture of ¨at least three contributors¨ and that it could not be determined who the major and minor contributors were, the Court found Mr. Joseph guilty in March 2014 of two counts of possession of


Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

the handgun, while acquitting him of all counts relating to controlled substances found in the immediate area of the gun. Defendant was sentenced in August 2014 to 16 years to life. In November 2014, Justice Dwyer ruled from the bench, in People. v. Peaks/Collins, 49 Misc.3d 595, (Sup. Ct., Kings Cty, 2015) that LCN testing and FST were not generally accepted in the scientific community. I immediately began preparing a CPL 440 Motion based on newly discovered evidence and filed the same in March 2015. At that time, Justice Dwyer had not written an opinion underlying his decision. Following public release of that opinion in July 2015 and learning of its specifics, I was permitted by Justice Lewis to obtain the expert services of Dr. Eli Shapiro, a former case supervisor and manager at OCME and one of the defense witnesses in Peaks/ Collins, supra. He prepared the affidavit in support of my 440 motion. The thrust of the 440 Motion was that (1) the Peaks/Collins Frye decision amounted to newly discovered evidence (which the Court, Justice Lewis, had left the door open to during in limine arguments) and (2) the flaws in LCN testing and FST illustrated by Justice Dwyer required the granting of a new trial for Mr. Joseph. Finally, in December 2016 Justice Lewis granted an evidentiary hearing on the 440 motion to determine the number of contributors to the sample. One of my contentions was that if indeed there were four contributors to the mixture, then the FST likelihood ratio should have been inadmissible at Defendant´s trials inasmuch as OCME never conducted validation studies for four contributor mixture samples. Just prior to the granting of the evidentiary hearing, I alerted the Court to the release of the President’s Commission of Advisors on Science and Technology (PCAST) Report on forensic methodologies. In that report´s section on complex mixture samples, the Commission stated ¨it is often impossible to tell with certainty which alleles are present in the mixture or how many separate individuals contributed to the mixture, let alone accurately to infer the DNA profile of each individual¨ (page 76). Immediately prior to the hearing in April 2017, Dr. Eugene Lien sent an email to the ADA conducting the hearing for the People. Dr. Lien was the technical leader of DNA Operations at OCME at that time and he conceded that the mixture in question could have originated from four people. He went on to state, peculiarly, that the FST was capable of having been used in the Joseph case because FST protocols permit the OCME criminalist to ¨characterize¨ the mixture as a three person mixture even though it’s a four person mixture. Said email was shared with the Court. In April 2017 Dr. Shapiro testified for the defense and J. Lucas Herman for the People. Dr. Shapiro established that newly discovered evidence existed here in that, at the time of Mr. Joseph´s trial in March 2014, the artificially low drop out rates OCME was using were not known to the general public. Those rates, arrived at in OCME´s validation studies using pristine samples, were not mentioned in OCME´s protocols, publications or appendices to manuals. Mr. Herman did not know what dropout rates OCME was using in 2012 when he did his analysis. Continued on next page Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


DNA Continued from page 27 As the parameters of the hearing were limited by court order to an examination of the number of contributors, Dr. Shapiro focused on three main points of contention: (1) the sample in this case was indeed a low copy DNA sample; (2) the dropout rates employed by OCME were artificially low; and (3) the sample was likely a four person mixture as well as a ¨Type C¨ mixture and thus not suitable for comparison in the FST per OCME written protocols prohibiting comparison when an ¨excessive number of unlabeled peaks¨ are shown (Mr. Herman testified he did not look at the electronic data and had no idea what those peaks were). The importance of demonstrating that this was a low copy sample was that all of the stochastic effects were clearly seen in the genotyping results (peak height

variability, dropout and/or drop in of alleles, reproducible unlabeled peaks below threshold). If this was not a low copy number sample exhibiting drop-

Single source DNA is virtually conclusive; DNA mixtures of multiple contributors not so. out, Mr. Joseph would be excluded since two of his alleles were missing at a locus in each run. With respect to OCME´s dropout rate, Dr. Shapiro testified that they were clearly too low for the sample in this case. Even though Mr. Herman didn’t know the dropout rates, he entered values into FST which produced dropout


Annual Dinner

Thursday, January 30, 2020

Grand Hyatt New York, 109 E. 42nd Street, at Grand Central Terminal, New York, NY Cocktail Reception at 6pm | Dinner & Ceremony at 7:30pm



parameters that would expectedly show, at most, six dropout or drop in events. Dr. Shapiro´s locus by locus examination of the electropherogram baseline illustrated high dropout, with as many as 35 additional possible alleles to be called, thus increasing the likelihood there were four contributors. Dr. Shapiro was permitted to testify as to degradation of the sample, stacked alleles and the difference between touch DNA and purposive mixtures. That all of these contributed to the assertion that this sample had at least four contributors is critical because ¨characterizing¨ and running a four person mixture as a three person mixture in FST will yield unreliable results. Moreover, the effect of using OCME´s artificially low and incorrect dropout rate on the final likelihood ratio is magnified because the dropout rate is factored into the computer calculations at each locus, replicate and genotype used, throwing denominator values off by the thousands and skewing probabilities by the millions. Late in 2017, a US District Court judge removed the protective order surrounding FST´s source code (¨the black box¨) and upon examination, it was discovered that the FST had incorporated a ¨corrective¨ measure which involved the dropping of a locus from the calculations. Justice Lewis was made aware of this development. On August 30, 2018 Justice Lewis ordered that the mixture sample in this case be re-tested, as The People did not conclusively establish at the hearing that there were only three contributors. Specifically, a 50 RFU threshold was ordered to be used in said re-testing in

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

order to determine if unlabeled sub-thresholds peaks were true alleles, thus increasing the likelihood of there having been four contributors. Another expert, with the requisite software to perform the re-resting, was appointed and the Court signed a subpoena directed to OCME to produce the electronic raw data (ERD) for retesting. OCME agreed to comply with the subpoena. Then, with everything in place, on September 16, 2018, the Defendant Walter Joseph died of cardiac arrest in Sing Sing Correctional Facility, after having spent seven and a half years in custody on this case. Notwithstanding the mandate of Peo.v. Matteson, 75 NY 2d 745 (1989), that the case be abated because Defendant´s direct appeal was then still pending, I lobbied Justice Lewis to permit the retesting to go forward under the holding in Matter of Hearst Corp. v. Clyne, 50 NY 2d 707 (1980), which sets forth the exception to the mootness rule. I urged that the issue is substantial and of great public interest, was likely to recur and involved a situation capable of evading review. As Justice Lewis noted in his decision granting the re-testing, the FST was used in some 1,500 cases before it was phased out on December 31, 2018 in favor of STR Mix, as well as a new DNA amplification kit using a 50 RFU threshold. One could reasonably argue that some of those 1500 individuals still are affected by the vagaries of LCN testing and the FST. The Court denied my entreaty to allow re-testing. As a last resort, I petitioned the Court to publish its decision in The New York Law Journal. I submitted for its perusal The New York Times op-ed piece of September 21, 2018 written by the noted DNA scientist Greg Hampikian, titled ¨The Dangers of DNA Testing¨. It referred to the federal study that revealed that 69% of the labs asked to examine a three person mixture in a purported criminal case wrongly included an innocent person as having contributed to that mixture. In addition the Court was alerted to the very recent Appellate Division, Second Department cases of Peo. v. Herskovic and Peo. v. Powell (slip opinions dated October 10, 2018). Once again, I was rejected. Mr. Joseph’s family, Dr. Shapiro and I take solace from the belief that had re-testing occurred, many more alleles would have been labeled and thereby convinced the Court there were four contributors, requiring the granting of a new trial. A

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


PSR Continued from page 17 cannot be expected to act in the professional manner of a clinical expert who is undertaking a biopsychosocial evaluation for the purpose of mitigation or any other purpose for that matter. PSR SUPPORTING EVIDENCE In theory, the probation officer has the opportunity to interview almost anyone that will help provide insight into the defendant’s behavior so that a more complete PSR is possible. Individuals may include the prosecutor, law enforcement agents, victims, mental health and substance abuse treatment providers, and the defendant’s family members, associates, and employer. The probation officer will also review documents, which may include: court dockets, indictments, plea agreements, trial transcripts, investigative reports from other law enforcement agencies, criminal history records, counseling and substance abuse treatment records, scholastic records, employment records, and financial records. However, the single most important source of information remains the defendant himself. And yet, in so many cases there is an inability of the probation officer to fully connect with the defendant and to elicit all necessary material for a variety of reasons, including lack of trust between the defendant and the probation officer and because the probation officer often has no clinical training in undertaking psychosocial evaluations. HOME VISIT When possible, the probation officer conducts a home visit to meet the defendant and the defendant’s family at his residence. During the visit, the officer interviews the family and assesses the defendant’s living conditions and suitability for potential supervision


conditions, such as location monitoring. Home visits can provide important insight into the defendant’s psychosocial background, the quality of his upbringing, community environment, and much more. PRESENTENCE REPORT It is the responsibility of the probation officer assigned to a presentence investigation to assist the court in

The criminal justice system has been turned into a guilty plea factory. So powerful is this penalty that even innocent persons will succumb to the threat of a worse outcome if they dare to risk the fundamental Sixth Amendment right to a trial. gaining an overall picture of the defendant by verifying, evaluating, and interpreting the information gathered, and to present the information to the court in an organized, objective report. While in many cases the information gathered appears professional, it can be quite superficial in many regards and so it must be carefully scrutinized by the criminal defense lawyer and mitigation expert. Another important part of the preparation of a presentence report involves the probation officer’s

investigation into the offense of conviction, including the defendant’s involvement in any similar or uncharged criminal conduct, the impact of the offense on the victim(s), and the sentencing options under the applicable federal statutes and United States Sentencing Guidelines (USSG). A huge consideration for the mitigation expert is the role that the defendant played in the commission of the crime. This involves not just a behavioral consideration, but a consideration of volition and understanding. It may indeed involve nuances of intent that cannot be accurately captured by the probation officer without clinical training. The presentence report helps the court fashion appropriate and fair sentences and is used by probation officers later assigned to supervise the offender. The supervision officer uses the information contained in the presentence report as part of a comprehensive approach to assess the risks posed by, and the needs of, offenders under supervision. This is crucial because the mitigation expert should consider not only the client’s past and present but also what his future will look like given his own personal needs and given the risks to others in the community. This can only be derived through a clinical and mitigation evaluation. The report is also disclosed to the defendant, defense attorney, and prosecutor, who have the opportunity to make objections or seek changes to the PSR through a formal process established by the Federal Rules of Criminal Procedure. In a sense, the most important person to review the PSR is the mitigation expert because the mitigation expert has the clinical training and understanding to examine

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

the PSR for deficiencies, limitations, and inaccuracies. In my experience as a mitigation expert, it is quite important to review the PSR before interviewing the client not only to gain important background information but to get a sense of how the defendant is viewed by the probation officer. I never regard information in the PSR as objectively true until I have had the opportunity to interview the client through personal verification, as clarification is often needed on a wide variety of subjects. SENTENCING Probation officers conducting the presentence investigation and preparing the presentence report play an integral role in the federal sentencing process. Although practices differ among the various districts, a probation officer may, at the conclusion of a presentence investigation, work with his or her supervisor to formulate an appropriate sentencing recommendation that will be provided to the court. The officer must be prepared to discuss the case with the sentencing judge, to answer questions about the report that may arise during the sentencing hearing, and on rare occasions, to testify in court as to the basis for the factual findings and guideline applications set forth in the presentence report. After sentencing, these presentence reports are utilized by the Bureau of Prisons to designate the appropriate institution for an offender to serve their sentence, to select prison programs to help the offender, and to develop case plans for their custody and eventual release. A presentence report is also forwarded to the U.S. Sentencing Commission, which uses the report to monitor the application of the U.S. Sentencing Guidelines and to gather statistics about sentencing trends.

Almost All PSI’s Miss Out On Crucial Information INTRODUCTION PSR’s tend to appear professional and complete, yet there is a dearth of missing information, including: Misleading, incomplete, insufficient information Lack of empathy Good deeds of the defendant are absent Psycho-social information General mental health information Family information Environment /community ties Cultural sensitivity Defendant’s willingness to accept responsibility; and Mitigation MISLEADING OR INCOMPLETE INFORMATION Although the probation officer has the opportunity to elicit and gain information from a wide range of individuals and sources, the reality is that crucial areas of the PSR are often incomplete or misleading. This is often the case with the section on mental health and medical issues. Because so many criminal defendants have not had the opportunity to be assessed by a clinical expert, even the defendant and his family members may be unaware of serious or chronic mental health issues that play a key role in understanding how the client progressed developmentally or even how mental health issues directly contribute to the client’s present problems. Likewise, the defendant may note a particular medical issue to the probation officer in passing when, in fact, the medical problem is serious and chronic, and without proper

medical attention, it can be potentially life-threatening. Case Example #1: The 25-year-old criminal defendant is a first-generation immigrant whose parents worked tirelessly both in Mexico and in the United States to stave off starvation for their five children. As such, the client did not have proper parental supervision or caretakers in his childhood or adolescence. As such, it was important to clarify in the mitigation report to the judge that his curiosity about child pornography occurred in the context of a teenager without supervision so that his interest in child photography was far more rooted in age-related interaction than puerile intentions or animus towards children. Case Example #2: The 36-year-old manager at the major corporation had a childhood history of eating-related issues that morphed into obesity and an eating disorder in his late adolescence. Although this did not initially seem very important, a clinical analysis revealed that it had a fantastic impact on his self-esteem and destroyed his ability to properly interact with females socially or in a healthy sexual manner. As such, his interest in pornography with teenage girls was primarily rooted in his need to develop an alternate mode to interact socially with females and in fact, the social attraction rather than the sexual aspect of the pornography was far and away his primary interaction of the underage females in the chat rooms. LACK OF EMPATHY The omission of empathy is also the omission of humanization. That is, it is crucial to humanize the client to explain various aspects of the client’s psychosocial background so that the judge or prosecutor will be able to identify the Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


PSR Continued from previous page major challenges, traumas, and stressors that that individual has encountered. This is not easy to accomplish and requires a combination of objective information, subjective perspective, and clinical know-how. Case Example #1: The 25-year-old client was viewed as an individual that proactively sought out child pornography as his main interest. The simple reality is that he was a young adult with no interests, hobbies, direction, support, or love in his life. His family and personal relationships were empty, he suffered developmental challenges, and when understood properly from a clinical perspective a great deal of empathy could be directed towards him. He truly had no animus towards the victims, but rather he himself was terribly lost and alone. Case Example #2: The 36-year-old manager was in the unfortunate situation of being judged against several other defendants who were caught undertaking the same criminal activity in a chat room with underage females and those defendants received sentences of 30 and 35 years. As such, a central focus of the case was quite simply to humanize the client as much as possible and to separate him from his co-defendants by providing a real sense of his thoughts, feelings, behaviors, and proclivities so that the prosecutor and judge could gain a real sense of who he was as a human being. GOOD DEEDS It is crucial to include all good deeds, charity work, volunteer work, and positive membership to churches and other organizations, in an effort to explain that the client’s behavior in the community reflects positive regard for


others in his community. Moreover, if a person really has an animus toward society, it would be very unlikely for them to tirelessly provide their own time and energy towards helping others, especially strangers from whom they would receive no benefit in return. Case Example #1: For this 25-year-old, life had barely started and he had a lot of difficulties finding meaningful

I have never seen a criminal case without mental health issues. Mental health issues can be overt, subtle, chronic, acute… Emotional health must also be explored separate and apart from psychiatric issues and diagnoses direction and goals. However, he had nonetheless engaged in generally normal and healthy hobbies and activities, including spending time with his nephew and nieces, enjoying special occasions with family members, attending church with his parents, and young adult activities, including endless hours of video gaming and simply hanging out with friends in his community. This does not reflect outstanding positive community activity, but it also does not suggest in any way negative endeavors or

misdirected behaviors. Case Example #2: Although the client suffered major anxiety and interpersonal problems with women from his late adolescence onward, it did not detract from his vigorous interest in community service and volunteer work. This included developing wonderful scholarships through his alma mater university to assist undergraduate students with college tuition payments, without which they could not attend the school program. The client’s good deeds were numerous and wonderful and reviewing them truly reflected that while the client had wrongful conduct in one area of his life, which was quite serious, there were other areas of life in which he functioned in an exemplary and selfless manner to help others in the community. PSYCHO-SOCIAL INFORMATION Sometimes the PSR looks like a background check for a job interview rather than a psychosocial history. The psychosocial history is absolutely crucial in uncovering any and all background information that better explains how the client came to be in his current situation. In a sense, psychosocial information is mitigation in and of itself because it better explains the client’s history, decisionmaking, thoughts, feelings, and so on. The psychosocial information is not supposed to be solely concrete in nature, but individual in nature. Case Example #1: In the first case, the client’s inability to self-advocate prohibited him from providing an accurate psychosocial history so that the PSR was necessarily incomplete. It was only through the clinical mitigation evaluation that the client’s developmental challenges, personal traumas, and family

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

issues could be fully delineated. Case Example #2: In the second case, although the client initially reported generally positive memories from his childhood and adolescence, in reality, he suffered significant trauma due to his parent’s separation and divorce that resulted in far-reaching implications on his development and interpersonal relationships with women. GENERAL MENTAL HEALTH INFORMATION I have never seen a criminal case without mental health issues. Mental health issues can be overt, subtle, chronic, acute, and the criteria and symptoms of each problem need to be explained. Emotional health must also be explored separate and apart from psychiatric issues and diagnoses. Clients often have a history of mental health problems that existed at one point and do not exist now, such as childhood trauma. And, many clients have subclinical issues that the probation officer would have no knowledge about. Moreover, personality disorders are almost always missed in the probation report. Case Example #1: The long-term effects of absent caregivers for this client inevitably result in serious emotional deficits, including social withdrawal and poor developmental decisions. Although this cannot be captured as a specific psychiatric diagnosis it still reflects serious general mental health information that was omitted in the PSR. The client’s misguided and poor judgment in downloading and sharing child photography was explained in the mitigation report through the eyes of an individual who quite simply lacked parental oversight when he desperately needed it.

Case Example #2: In this case, because the client enjoyed a normal development with supportive caretakers, mental health issues in his childhood and adolescence were generally ignored in the PSR. Still, it is clear that it was during his formative years that pathology was embedded and took root in low self-esteem, self-doubt, and poor self-concept. His ultimate attraction to

There is generally a division of labor law between criminal defense lawyers and immigration defense lawyers. However, there is, in fact, a very significant overlap because we live in a country of immigrants. pornography could only be understood in this context. FAMILY Family members, familial development and contact, dependence, and hardship issues are crucial mitigating factors. Generally, the PSR is quite good at listing family members and relationships to the client, but it is almost wholly devoid when it comes to considering the quality of the relationships between and among family members. Among the most major concerns as a mitigation expert is that the PSR neglects the interpersonal relationships between family members.

Case #1: In this case, there was a long history of marital dysfunction between the client’s parents during his formative years of development. This left the client with a deep sense of anger andconfusion. He was without the ability to form a proper identity within his family unit so that he sought unhealthy outlets from outside of his family. Case #2: In this case, the client’s father abandoned the client’s mother before his birth due to repeated infidelity, erratic behavior, and unstable moods. The father later married a wonderful woman who helped to stabilize the father’s life. Although the client then enjoyed rather healthy communication and contact with his parents, siblings, and extended family members, there were nonetheless rather crucial subtle issues that continued to plague his family because of his father’s previous behaviors and the client’s mother never recovered from the trauma that she suffered in her early years of marriage. This had a profound effect on the client that was not at all obvious. The material was totally absent from the PSR. It could only be uncovered through a careful clinical evaluation. ENVIRONMENT / COMMUNITY So many of our clients have grown up in deprived socio-economic neighborhoods with systemic abuses or neglect, violence, poverty, and racism. In contrast, clients from middleclass background do not have their environments investigated fully for the possibility of unseen trauma. Case Example #1: The client is a firstgeneration immigrant from Mexico who attended school while his parents worked very hard and strived towards a better life. These were all indicators that the family members were working hard towards the American dream, Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


PSR Continued from previous page but the PSR accepted this veneer without looking underneath to consider more serious issues, including family dysfunction, alcoholism, and clinical trauma. In fact, these issues were all present for the client and it made him feel extremely lost and alone. He redirected his focus to child photography as a means of unhealthy self-discovery. Case Example #2: The client’s childhood and adult environment and community appeared quite healthy and normal. However, it became clear that the client had become entrenched in online chat rooms that supported pornography as an equally important environment and community. Obviously, this was unhealthy and illegal, however, this community of men in the chat rooms was an alternate reality for the client and understanding the reason that he remained connected with these individuals for so many years reflected something fundamental about his psychiatric issues and even about his relationship with the females with whom he had contact. CULTURAL SENSITIVITY Cultural sensitivity refers to a set of skills and awareness that permits the individual to better understand and interact with individuals from other cultures and better understand the context and environment in which they develop. Cultural sensitivity is usually understood in a positive framework, but at times culture supports unhealthy behaviors. There is generally a division of labor law between criminal defense lawyers and immigration defense lawyers. However, there is, in fact, a very significant overlap because we live in a country of immigrants. As such, the lawyer inevitably comes across criminal defendants whose lives need to be


understood with cultural sensitivity to their immigration experience. Similarly, immigration defense lawyers who have clients who have committed crimes need to have cultural sensitivity to the client’s trauma of having grown up in a high crime neighborhood. Case Example #1: The culture of a first-

Family members, familial development and contact, dependence, and hardship issues are crucial mitigating factors. generation immigrant is quite unique because the individual is unfamiliar with the culture of the United States, he may have poor English language skills, and he may face multiple challenges in the school system in the community. First-generation immigrants are also quite preoccupied with helping to care for parents who may have even less adequate English language skills or older siblings who could not complete their education because they had to work to supplement their parents’ meager incomes. This can place a great deal of responsibility and burden on a person at a young age. Case Example #2: Cultural sensitivity applies to middle-class America as much as to any other ethnic or cultural group. In this case, the client experimented sexually as an adolescent, but because of his conservative environment, he assumed that healthy sexual

development was pathological. In turn, this prohibited the client from opening up in a more general way about his sexual history so that he even held back crucial information about his adult sexual development from his attorney. WILLINGNESS TO ACCEPT RESPONSIBILITY In earlier years, I would present mitigation reports by the client’s chronological developmental with healthcare and psychiatric issues as the penultimate section and then contrition as the last. However, recently I have placed a summary of the criminal matter and the client’s contrition front and center so that the prosecutor and judge can immediately see that the client truly understands his wrongdoing and has expressed regret for his illegal behavior. Unfortunately, contrition is rarely a focus of the PSR and it is often overshadowed by a lengthy section contending with the statutory violations and behavioral wrongdoing. Case Example #1: The 25-year-old client grew up as a first-generation immigrant without parental supervision and developed without caretakers so that he did not learn to accept responsibility for his behavior. However, that did not mean that he did not understand and regret his wrongdoing. As such, the client did not have the wherewithal to express contrition to the probation officer and, as a result, his feelings of guilt and wrongdoing were omitted from the PSR. A major focus of the mitigation report was to correct this misperception and to show that the client did indeed understand and feel bad for downloading and sharing the child pornography. Case Example #2: In the second case, the client remained extremely guarded

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

and could not properly convey his sense of wrongdoing because being part of the chat rooms had become an integral part of his social life until that point. Still, the client was quite intelligent and, when given the opportunity, he could clearly articulate not only his wrongdoing but sincere regret for becoming involved in pornography. MITIGATION The PSR should present an empirical outline of the client’s history with aggravating and mitigating considerations for the criminal matter. However, the PSR is really much more of a psychosocial evaluation than anything else, as it does not really place the burden of eliciting such material on the shoulders of the probation officer. This is, of course, the central focus of this volume.

Evaluation Tools To Counter The PSR INTRODUCTION This section will explore various evaluation tools to use to better understand the client. The evaluation tools explored in this section include: Neuropsychological evaluation Psychosexual evaluation Psychological evaluation Psychiatric evaluation Social work evaluation Medical evaluation Psychodynamic evaluation Mitigation evaluation NEUROPSYCHOLOGICAL EVALUATION Neuropsychology tries to understand the relationship between the brain and behavior. Neuropsychologists conduct evaluations to characterize behavioral and cognitive changes resulting from central nervous system disease or injury.

The neuropsychological evaluation involves an interview and standardized pencil and paper type tests to assess how the brain functions which indirectly yields information about the structural and functional integrity of the brain. An individual’s scores on tests are interpreted by comparing their score to that of healthy individuals of a similar demographic background (i.e., of similar age, education, gender, and/ or ethnic background) and to expected levels of functioning. In this way, a neuropsychologist can determine whether the performance on any given task represents a strength or weakness. Neuropsychological tests evaluate functioning in a number of areas including intelligence, executive functions (such as planning, abstraction, conceptualization), attention, memory, language, perception, sensorimotor functions, motivation, mood state and emotion, quality of life, and personality styles. It can also be helpful to rule out an organic brain disease or reveal areas of daily functioning (e.g., financial management) with which the client may need assistance or indicate rehabilitation potential. The neuropsychological evaluation is distinct from a neurological examination. The neurologist, a physician specializing in brain-related issues, will often refer the patient for a scan, which is then read by a radiologist to determine if pathology exists. Advantage: The advantage of the neuropsychological evaluation is that it may be based on a wide range of investigative standardized tools that provide an objective sense of the client’s behavioral and cognitive functioning. Limitation: The limitation is that the questionnaires and research tools used to evaluate the client often

may miss nuanced mental health issues and psychosocial background subtleties because the tests are, in fact, standardized and not individualized. Case Example #1: Because the client had learning and developmental issues, there was a concern that he had organic issues that could help explain his behavior. The neuropsychological evaluation was helpful to determine that this was not the case. PSYCHOSEXUAL EVALUATION Sex is a crucial area of inquiry, as sexuality includes a wide range of behavior, biology, and interests, including intimacy, that occurs in the life cycle from pre-pubescent years well into old age. There are also specific psychosexual evaluations that consider: The risk of recidivism. (There are standardized instruments that examine risk). Interventions that could be effective Specific risk factors Willingness to comply with treatment recommendations and interventions Factors that may prevent engagement in treatment and interventions Strengths and protective factors Advantage: The advantage is that sexual development is often relegated to the backbench so that a psychosexual evaluation to examine specific issues can be quite helpful. Limitation: The limitation is that normal developmental phenomenon is often mistakenly pathologized by the judge or prosecutor, or even the client. Case Example #2: The 35-year-old client reported that at about age 10, he Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


PSR Continued from previous page and several male friends about his age on several occasions touched and even tasted each other’s genitals. The client was extremely embarrassed about this matter and had never told anyone. I explained to the client that there is a wide range of normal sexual behavior in development, which often involves same-sex curiosity or experimentation. The client had always believed that his behavior was deviant, when, in fact, his behavior was within the normal range of experimentation. PSYCHOLOGICAL EVALUATION Psychological evaluations consider behavior, personality, cognition, and other domains, as a means to understand psychological health and well-being, including the ability of the individual to function in a safe and healthy manner, or the reason that the individual acts in a destructive or unsafe manner. Psychological evaluations tend to be more general while neuropsychological evaluations tend to be more specific due to specific training and the presenting problem. Advantage: Psychological evaluations tend to focus on conscious behavior in a wide variety of areas, which provides a general overview of the client given his psychological health and functioning. Limitation: Psychological evaluations may omit a fuller consideration of emotional issues as understood in the context of development, family, environment, and community, and those issues that are below the level of consciousness. Psychological evaluations, like psychiatric evaluations, also tend to focus on the present mental state of the individual. In contrast, the present state of the individual may only reflect a narrow psychological presentation or level of consciousness given that the client is contending with


very serious criminal issues perhaps for the first time in his life.

problems, but also patterns of psychopathology.

PSYCHIATRIC EVALUATION The psychiatric evaluation is the first step toward determining if psychopathology does or does not exist, and if so, in what form, the level of seriousness, and what supports or interventions

Limitation: Psychiatric evaluations may undervalue social or community issues, which may serve as crucial windows of insight into the client’s well-being. It should also be noted that in the United States, about two-thirds of all psychiatric medications are prescribed by non-psychiatrists and the vast majority of non-pharmacotherapy is provided by non-psychiatrists. Most importantly, some of our clients simply do not have a psychiatric diagnosis, and yet act in an aberrant manner in a moment of poor judgment. Finally, it is clear that the criminal defense lawyer does not want certain psychiatric diagnoses, such as antisocial personality disorder, to be illuminated. For this reason, alternate forms of evaluation or mitigation considerations would serve the client much better from a strategic point of view.

Mitigating circumstances reduce the degree of moral culpability or blame which in fairness, sympathy, or mercy may lead to a more favorable outcome for the defendant. can help ameliorate the symptoms or offset the illness. The psychiatrist will also consider behaviors in the context of possible genetic, physical, cognitive, environmental, and even cultural issues. Clearly, there is a great deal of overlap between a psychiatric evaluation and a psychological evaluation, just as there is a great deal of overlap between a psychiatric social worker evaluation and psychiatric and psychological evaluations. Advantage: The major advantage of a psychiatric evaluation is that it is a mental health evaluation performed by a physician. It tends to be best when the psychiatrist has a forensic background, though this is not necessarily always the case. The psychiatrist looks for both specific indicators of psychiatric

SOCIAL WORK EVALUATION Because social workers are often trained in a strengths-based manner, they are natural allies in the endeavor to uncover hardships, challenges, and traumas that the client has encountered at various developmental points given the client’s particular culture and environmental experience informed by mental health issues. While the psychologist generally focuses on human behavior and the psychiatrist focuses on psychopathology, the social worker focuses on a holistic understanding of how all of these elements interact in a systemic fashion. Advantage: Social work evaluations are holistic, systemic, bio-psychosocial evaluations that should, in theory, be integrative and may be best to counter the PSR. It also allows for cultural sensitivity, which may be central

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

in understanding how the client’s family, community, and environment influenced the client both presently and during key periods of development. Limitation: Social workers may regard psychopathology as secondary to the client’s psychosocial background, family, and community context even though psychopathology may, in fact, serve as the best road to understanding and helping the client. MEDICAL EVALUATION The medical evaluation is a comprehensive assessment of the client’s medical and healthcare history and current condition to determine any and all healthrelated problems, and whether specialty consultation is required, as a means to effectuate a medical treatment plan. Advantage: Medical evaluations are supposed to be holistic and consider every aspect of healthcare for the individual. This is particularly important because endocrine and other systems may cause aberrant behavior due to thyroid dysfunction, undetected brain tumors, or a host of other medical conditions. In fact, medical conditions should always be ruled out before psychiatric diagnoses are made. Limitation: Research shows that there is a high rate of medical error in a wide range of specialties and often a second or even third opinion is needed. PSYCHODYNAMIC EVALUATION A psychodynamic evaluation is a systemic study of the psychological forces that underlie human behavior, feelings, and emotions and how it might relate to an early experience with special emphasis on the dynamic relations between conscious motivation and unconscious motivation. Psychodynamics places

a particular emphasis on instinctual drives, attachment, ego functioning, and defenses. Advantage: This can be extremely helpful in providing a humanistic understanding about the client’s feelings, privations, traumas, thoughts, aspirations, hopes, dreams, frustrations and life challenges, personal obstacles and stressors, ideals and values, confusion and disappointments, and resentment and loss. It provides insight into when and how the client has felt safe or unsafe, stable or unstable, at various points in his life. Psychodynamics offers core insights and a deeper comprehensive understanding of the client, which helps reveal insights into the client’s judgment and decision-making. Limitation: In psychodynamics, there is somewhat of a blur between normative functioning and psychopathology. Also, psychodynamics is generally not mainstream with psychiatrists. Whereas 50 years ago psychoanalytic institutes were filled with psychiatrists and it was rather difficult for a non-psychiatrist to gain entrance, now the large majority of psychoanalytic students are nonpsychiatrists. MITIGATION EVALUATION Mitigation is a bio-psychosocial evaluation of the client’s social and psychological history informed by the facts of the criminal case with appropriate recommendations as a means to minimize the negative legal outcome either in court or with a prosecutor. Mitigating circumstances reduce the degree of moral culpability or blame which in fairness, sympathy, or mercy may lead to a more favorable outcome for the defendant. Criminal mitigation is not simply an effective tool for the

sake of argument, but a necessary factual underpinning to support the factors in 18 USC § 3553(a) and other relevant case law. Post Booker, the Court now has unfettered discretion to consider any and all evidence at sentencing and a wide range of arguments may now be considered and submitted at the sentencing phase. Additionally, mitigation can reflect the development and even symptoms of psychopathology without the diagnosis itself or the label. Advantage: In the memorandum of law presented by the lawyer for sentencing purposes, it is crucial to interweave the criteria of 18 USC § 3553(a) into key mitigation factors outlined in the mitigation report. This will allow the prosecutor and judge to consider and understand the client’s psychosocial issues as legal mitigating factors, rather than simply background information established for the sake of general argument. Limitation: Mitigation experts are rarely used by criminal lawyers and they are sometimes best utilized in conjunction with other experts.

Further Challenges SERVICES PROVIDER REQUIREMENT In 2012, the American Bar Association (ABA) House of Delegates adopted resolution 107C, which “formally urges criminal defense attorneys to address clients’ civil legal and nonlegal problems to linkages with other service providers.” The report accompanying the resolution “makes it clear that all defense lawyers are required to provide comprehensive representation,” including using “other service providers,” like social workers, when appropriate. Continued on next page

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


PSR Continued from previous page WHEN TO USE MITIGATION Mitigation should be done as early as possible so that the report can precede the PSR and be available for review by the probation officer to use as background information before the PSR is formulated. However, the mitigation evaluation can also be amended appropriately if new or different information becomes available in the PSR. The same strategy can be employed with regard to the prosecutor. That is before the prosecutor forms biases and prejudices against the client, the prosecutor can read the mitigation report and become disabused of assumptions that may be false or not fully held by fact. For this to happen, the mitigation report must be prepared and submitted quite early to the prosecutor because biases form very quickly. Still, it’s never too early, and it’s never too late to use mitigation as a strategic tool.

PSR EVALUATORS ARE NOT CLINICIANS PSR evaluators are neither clinicians nor social workers. Mitigation serves to integrate various reports and documents and also serves as a clinical expert evaluation to counter the PSR. In other words, the mitigation report serves as a counterbalance filling in the wide range of gaps and missing information of the PSR while also considering what areas require further explication. BIAS AND PREJUDICE IN CHILD PORNOGRAPHY CASES Child pornography cases are similar to white collar cases because the client is necessarily viewed as a monster and their behavior is unforgivable and evil. In such cases, the prosecutor may adopt false assumptions so that it becomes crucial to disabuse the prosecutor of biases, anger, and hostility towards the client. It may even be possible to show that the client has no animus towards others, is not evil, but is rather misunderstood or ill, or that the client

has committed an aberrant decision or misguided error in judgment. This, however, is especially applicable in child pornography cases because the defendant has engaged in child pornography viewing, sharing, and downloading for months or even years. Diminished capacity to life stressors serves as a better clinical and strategic vantage point; however, this too must be approached with caution. At times a cumulative understanding about the client’s background is helpful, but for the prosecutor, this may not provide the specific answers that he seeks. PREPARE THE CLIENT It is crucial that the client is prepared on both a psychological and emotional level to converse with the probation officer in a calm, thoughtful, and reflective manner. Having the right frame of mind is critical as a means to eliminate or minimize anger and defensiveness from the client. The client must show contrition, allow for trust, and be honest. For this reason, it may be helpful to have the client see the mitigation expert early to prepare the client psychologically and emotionally for the PSI to get the jitters out of the way. A

From the Executive Director Continued from page 5 sion! Awardees are included on the Save the Date in this issue of the dinner – it’s going to be a great night! I mentioned above that NYSACDL has a variety of partners we continue to work with on legislative affairs. One of those partners that we work with in a variety of ways is NACDL, of which NYSACDL is a proud affiliate. You will see information in this issue of Atticus about the Trial Penalty Project – an


initiative in collaboration with NACDL and conducted with a large volunteer task force and pro bono assistance from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates. You will be a critical component of this project and we look forward to your participation. As always, thank you for all you do for your clients, colleagues, and NYSACDL! I hope you have a wonderful summer!

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

Book Review Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration By Lauren-Brooke Eisen (Columbia University Press, 2017, 336 pp)

Reviewed by Cheryl Meyers Buth

Cheryl Meyers Buth is partner at Meyers Buth Law Group, PLLC in Buffalo, NY. She is recognized as one of Buffalo’s premier federal court lawyers and serves on NYSACDL’s Board of Directors.


his timely book is a must-read for anyone, lawyer and non-lawyer alike, interested in the moral and practical implications of how our private prison infrastructure profits from the incarceration of human beings. Inside Private Prisons analyzes whether the goals of incarceration — punishment, community safety and rehabilitation — traditionally the province of governments, should be relinquished to private sector businesses pursuing financial gain. Lauren-Brooke “LB” Eisen, a senior fellow at the Brennan Center for Justice at NYU Law School, discusses how the economic, moral and political aspects of this “American Dilemma” are intertwined. Eisen explains how decisions by presidential administrations over the last 30 years have helped entrench this system in some state economies and discusses the quieter but growing resistance from those morally opposed to the idea of profiting from the warehousing of human beings. She addresses the political challenges, options and realities that private prisons represent today. Eisen, who does not argue either for the continuation or the abandonment of private prisons, takes an academic and objective approach, part investigative reporter, part historical researcher. The book begins with an introduction to the “The Prison Buildup and the Birth of Private Prisons” followed by four chapters covering the nuts and bolts of governmental privatization and the developing view of prisoners as commodities. The middle of the book discusses the increase in the number of private prisons, the “heartland” of states employing them, as well as the current political movement in some quarters urging businesses to divest from holdings in companies that operate private prisons. The final four chapters examine private

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Book Review Continued from previous page immigration detention centers (as opposed to Bureau of Prisons and U.S. Marshals private contract facilities), modern public prisons compared with private counterparts, the moral objections to the concept of private prisons and suggested areas of reform. Throughout the book Eisen invites the reader to question whether the private prison phenomena is an economic solution to a political problem (prison overpopulation); or a political solution to an economic problem (financing the increasing need for more prisons). One of the questions the book tries to answer is why private prisons have sprung up now in our history (suggesting the 1994 Clinton crime bill as one factor) and what a plan for moving forward should involve. The book succeeds in effectively explaining both the macro and micro aspects of the prison industry, also keeping in mind the perspective of the individual locked behind bars. The author first takes a close look at the proverbial trees in the political landscape—the operations side of private prisons, their organizational structure, the faces behind the companies that own them, whether they are, as advertised, a cost-savings option, and the distinct prison populations that are most affected by them. Later in the book Eisen pulls back to illuminate the complicated interrelatedness of our modern criminal justice system and the divisive social and racial environment in which this system of private prisons operates. Her 360-degree perspective helps the reader come to the inescapable conclusion, whether of the opinion privatization is a good or bad thing, that it has become dug in with far reaching roots and will be difficult to hack out.


In an interview with the National Book Review just before the publication of her book last year, Eisen described it as examining: “[T]he broader prison-industrial complex that relies on a vast infrastructure of financial incentives that create significant hurdles to dismantling a mass incarceration system on which the nation has come to rely. An entire industry exists with a financial stake in keeping prisons filled or ensuring that the numbers of people who become enmeshed in the criminal justice system is maintained, if not greatly increased. . .” Eisen cites the fact politicians and presidential candidates are weighing in on the debate. Senator Bernie Sanders introduced the Justice Is Not For Sale Act in 2015 which would ban all federal government contracts with private prison companies at the state, federal and local level. He has called taking campaign contributions from prison company lobbyists “immoral”. Under the Obama Administration there was a movement away from private prisons which coincided with the formation of groups seeking to abolish the practice. Such groups focused on the asserted unconstitutionality of private prisons under the non-delegation doctrine; ie. the theory being the delegation of an essential governmental function is a violation of the due process clause and, by injecting financial bias into the system, prisoners are turned into property “in violation of the Thirteenth Amendment’s abolition of slavery and the Eighth Amendment’s prohibition of cruel and unusual punishment.”

In the summer of 2016, Deputy Assistant Attorney General Sally Yates announced that the Justice Department would slowly work toward not renewing its contracts with private prison companies. However, in February 2017, President Trump’s new Attorney General Jeff Sessions issued a prophetic memo to the BOP ordering a return to the previous approach since not using private prisons would “impair the Bureau’s ability to meet the future needs of the federal correctional system”. President Trump has benefitted from thousands of dollars in campaign/PAC contributions from private prison companies seeking to influence public debate and administration policies toward mass incarceration. Ironically, earlier this year, the Trump administration’s First Step Act was heralded by some politicians who promoted it as a victory in the battle toward reducing the federal prison population. There is a political undertow, however, of conservative interests and private companies aligned with them, who are reaping the political and economic benefits of continuing and encouraging a culture of mass incarceration. Currently, the two largest private prison firms are CoreCivic (f/k/a Corrections Corporation of America or “CCA”) and GEO Group (f/k/a Wackenhut Corporation). “Although for-profit prison corporations publicly claim that they don’t lobby for changes in criminal justice policy, they spend large amounts of money every year on lobbying firms that advocate for their financial interests in Congress and in state legislatures. From 20022012 CoreCivic spent more than $17 million in lobbying expenditures; GEO Group spent $2.5 million from 2004-2012. Since 1989, GEO Group,

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers

CoreCivic and their associates have spent almost $25 million on lobbying efforts and more than $10 million on campaign donations” Both companies have political and business contacts extending deep into the criminal justice system which will make it difficult to excise them later. Since 2007, CoreCivic and GEO Group have been awarded $8 billion in federal contracts. GEO Group and CoreCivic earned a combined $4.3 billion dollars in 2016, with $382 million in profits. However, BOP contracts with private contractors do not necessarily equate to them having the same transparency, same responsiveness, or goals. Frustrated by a lack of accountability, the ACLU, the Southern Poverty Law Center, the Sentencing Project and the Center for Constitutional Rights have all argued that private prisons should be subject to the same standards of transparency as government agencies. The United States Marshal and Bureau of Prisons now frequently use facilities run by private contractors.1 For years in the Western District of New York federal pretrial detainees were housed in a variety of county jails under contracts with the USMS. However, there is now a trend toward housing clients 1 On April 16, 2019, the USMS issued a memorandum of anticipated funding shortfall for Federal Prisoner Detention during fiscal year 2019. The USMS, working with DOJ, is planning to address rising prisoner populations which, over the past two years, have resulted in a $2 million deficit. In addition to maximizing all existing BOP space and shifting prisoners awaiting sentencing to lower cost detention facilities, districts are being asked to “Actively leverage tiered pricing models at private detention facilities to ensure economies of scale are maximized, if applicable. Neighboring districts may be required to move prisoners into these facilities to ensure cost efficiencies. POD will assist district management in identifying specific detention populations that will accomplish this action.”

awaiting trial in private facilities in Northeast OH and Virginia. Convicted clients, especially non-U.S. citizens, end up in facilities which contract with BOP to house illegal immigrant inmate populations serving criminal sentences. As Eisen points out, it is unclear yet how these facilities are being supervised and evaluated by BOP and Justice Department officials. Courts have also been complicit; by holding that certain convicted inmate populations may be detained in facilities that do not provide comparable access to programs during the service of criminal sentences, they have helped prop up this hybrid public/private system. I read Inside Private Prisons when a former client’s family contacted me about conditions in a federal contract prison in Texas run by GEO Group. The client, Hugh Stevens, is not a U.S. Citizen; he is a native of Scotland who lived for the past 50 years in the United States. Currently age 70, with a limited formal education, no history of violence, and a good institutional record, he is serving the remainder of a 20-year federal drug sentence. He had initially been designated to the federal correctional institution at Ft. Dix, New Jersey and then was transferred to another BOP facility in Louisiana. Several years ago he was sent to a private BOP contract facility in Big Springs, Texas. Since it is expected he will be deported once he completes his sentence, Mr. Stevens is being denied the programs he was entitled to during the years he was incarcerated at prior BOP facilities since his conviction in 2010. Similar to how Eisen recounts her experience, and consistent with reports that private prisons lack transparency, I had difficulty obtaining information

from the staff and counselors. Some of the information I did manage to get was inconsistent and letters and calls often went unanswered. Contact with the BOP district counsel’s office was not helpful. When I finally received a substantive response, I was told Mr. Stevens was not entitled to be transferred to a different BOP facility since he was a “deportable alien”, although no order of deportation has been entered and Mr. Stevens plans to fight deportation. All of his immediate family, siblings, children and grandchildren reside in Buffalo, New York or in parts of Canada and have been financially unable to afford to visit him in the-middle-of-nowhere, Texas.2 In this respect it would have been helpful if Inside Private Prisons contained a chapter summarizing legal challenges to the federal government’s use of private prisons. Most of the inmate populations housed in these facilities are serving sentences and have limited access to lawyers. Harnessing decisions relating to conditions in private prisons from the various federal circuits would be a complement to the other chapters in this book. Understanding what aspects of the private prison system have been brought to the attention of courts would give further context to the author’s definition of the “American Dilemma” and elucidate the nature and degree of differences between public and private prisons. The conclusion of the book in a larger sense has not been written. However, 2 The habeas petition filed on March 18, 2019 seeking to have Mr. Stevens transferred to within 500 miles of his residence is available on PACER from the U.S. District Court Northern District of Texas at docket 19-cv-00034-C

Continued on next page Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


Eisen outlines 10 initial steps that she believes will be needed in coming years for private prisons to continue to be accepted as a viable option to public prisons: contract monitors, termination clauses in contracts, “no guaranteed bed payments” (contracts which pay for a guaranteed capacity/ number of beds even if unoccupied), eliminating disciplinary sanctions that lengthen sentences, plans to remedy


inadequate performance, fines, access & transparency, process measures and outcome measures (eg. reduced recidivism, physical/sexual assaults, etc).

tion does not obliterate the need to make conditions more humane. Eisen quotes Fyodor Dostoyevshky in the last chapter of the book: “The degree of civilization in a society can be judged by entering its prisons”. A

Inside Private Prisons makes the point that as long as private prisons exist it will be necessary to have sufficient oversight to ensure their drive to profit from policies of mass incarcera-

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


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

NYSACDL CLE Upcoming Dates Federal Practice Seminar 2019: Federal Practice for the State Practitioner

Friday, October 18 New York Law School New York, NY Superstar Trial Seminar 2019

Friday, October 25 US Courthouse Buffalo, NY

Hudson Valley Seminar 2019: Criminal Justice Reform, Ethics & Immigration

Friday, November 1 Dutchess County Weapons for the Firefight 2019: The Trial – The Space Between

Friday, December 6 New York Law School New York, NY

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


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Atticus | Volume 31 Number 2 | Fall 2019 | 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


Chair: Richard Willstatter (willstatter@msn.com) Members: Steven Epstein; Mark Fernich; Alan Lewis; Timothy Murphy; Claudia Trupp

Chair: Donald Rehkopf (usmilitarylaw@gmail.com) Members: Kenneth Moynihan; Andre Vitale, Mark Williams



Chairs: Lori Cohen (locohen@aol.com); Timothy Hoover (thoover@hodgsonruss.com) Members: Edgar De Leon; James Grable; Renee Hill; Andrew Kossover; Arnold Levine; Brian Melber

Chair: Arnold Levine (nyccrimlaw@aol.com) Members: John Buza, Edgar De Leon, Peter Dumas, Renee Hill, John Ingrassia, Brian Melber


Co-Chairs: Ben Ostrer (ostrerben@aol.com), John Wallenstein (JSWallensteinesq@outlook.com) Members: Cheryl Meyers Buth, Alan Lewis, Timothy Murphy, Harlan Protass, Russell Schindler

Chair: Steven Epstein (sepstein@barketepstein.com) Members: John Ingrassia, Andrew Kossover, Yung-Mi Lee, Arnold Levine; Allison McGahay; Brian Melber; Kenneth Moynihan; Timothy Murphy; Ben Ostrer; Jill Paperno; Donald Rehkopf; Tucker Stanclift; Andre Vitale; Rob Wells; Richard Willstatter

FEDERAL PRACTICE COMMITTEE Chair: John Wallenstein (JSWallensteinesq@outlook.com) Members: James Grable, Timothy Hoover; Arnold Levine; Elizabeth Macedonio; Brian Melber; Kenneth Moynihan; Donald Thompson; Richard Willstatter

FINANCE COMMITTEE Chair: Alan Lewis, Chair (Lewis@clm.com) Members: Lori Cohen; Edgar De Leon; Andrew Kossover

INDIGENT DEFENSE COMMITTEE Chair: Michael Baker (mbaker@co.broome.ny.us) Members: Stephanie Batcheller, Alice Fontier, Jessica Horani, Mark Hosken, Arnold Levine, Greg Lubow, Jill Paperno, Craig Schlanger, Donald Thompson, Karen Thompson, Mark Williams


PUBLIC STATEMENTS COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Jessica Horani, Andrew Kossover, Arnold Levine, Susan Walsh, Richard Willstatter

TRIAL PENALTY TASK FORCE Co-Chairs: Susan Walsh (SWalsh@Vladeck.com); Arnold Levine (nyccrimlaw@aol.com)

WHITE COLLAR CRIME COMMITTEE Chair: Scott Iseman (siseman@oalaw.com) Members: Joshua Dratel, James Grable, Timothy Hoover, Alan Lewis, Brian Melber

YOUNG LAWYERS COMMITTEE Co-Chairs: Lori Cohen (locohen@aol.com); Lindsay Lewis (llewis@joshuadratel.com)

JUSTICE COURTS COMMITTEE Chair: Greg Lubow (gdlubow@gmail.com) Members: John Ingrassia, Tucker Stanclift

LAWYERS STRIKE FORCE COMMITTEE Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Marc Fernich, Jill Paperno, Richard Willstatter

LEGISLATIVE COMMITTEE Co-Chairs: Kevin Stadelmaier (kstadelmaier@legalaidbuffalo. org); Karen Thompson (karendenisethompson@gmail.com) Members: Derek Andrews, Jason Bassett, Lori Cohen, Alice Fontier, Jessica Horani, Scott Iseman, Andy Kossover, Yung-Mi Lee, Alan Lewis, Greg Lubow, Amy Marion, Kenneth Moynihan

Atticus | Volume 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State



Lori Cohen, Manhattan

Daniel Arshack Wayne C. Bodden Peter E. Brill Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle Joshua L. Dratel Mark A. Foti Russell M. Gioiella Lawrence S. Goldman James Grable Renee Hill E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth H. Kretzer Gerald Lefcourt David L. Lewis

PRESIDENT-ELECT Timothy Hoover, Buffalo

FIRST VICE PRESIDENT Arnold J. Levine, Manhattan

VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Kenneth Moynihan, Syracuse Susan J. Walsh, Manhattan

SECRETARY Alice Fontier, Manhattan

TREASURER Alan S. Lewis, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Thomas F. Liotti Scott Lockwood Zachary Margulis-Ohnuma Florian Miedel Aaron J. Mysliwiec Brian J. Neary Thomas J. O’Hern Benjamin Ostrer Paul D. Petrus Frank Policelli Murray Richman Stacey Richman Joel B. Rudin Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O’Connell

SUSTAINING MEMBERS James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa

Karen L. Dippold Michael G. Dowd Mario F. Gallucci David I. Goldstein Trevor W. Hannigan James P. Harrington Daniel J. Henry Michael D. Horn John Ingrassia Robert P. Leighton Oscar Michelen Greg D. Lubow Christopher X. Maher Mark J. Mahoney Michael P. McDermott Kenneth Moynihan Steven K. Patterson Roland G. Riopelle Anastasios Sarikas Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Susan J. Walsh Richard D. Willstatter


ENGLAND Christina C. Haynes

BRONX COUNTY Jeremy Bennie Tania Brief Gregory Herrera Karume James Gerald W. Koch Deborah Lolai Grace E. Powell


BROOME COUNTY Jake Buckland Alexander Keene Mark L. Rappaport CHENANGO COUNTY Zachary T. Wentworth CLINTON COUNTY Melinda Seiden DUTCHESS COUNTY Margaret M. Walker


ESSEX COUNTY Reginald Bedell GENESEE COUNTY Jerry Ader Christian A. Catalano Lisa M. Kroemer Jeffrey T. Mallaber Victor Mui Jamie B. Welch GEORGIA Erin Gerstenzang KINGS COUNTY Remy Bogna Fatih S. Cangoz Diane Fischer Payton Fisher

Andy Friedman Leon Jacobson Ed Mandery Naphtali Moore Kayla Ayanna Smith Yanina Tabachnikova Danielle Young MONROE COUNTY James D. Doyle Mark A. Foti James Riotto Melissa Wells-Spicer NASSAU COUNTY Alexis N. Epstein Hanna ODriscoll NEW YORK COUNTY Eric Michael Arnone Michelle Benoit Matthew Bova Evan Brustein

Mehdi Essmidi Ammara Farooq Ellen Frye Dara Gell Marissa Gillespie Gary Lesser Abi S. Lillo Molly Medhurst Sharon Morales Jean O’Hearn Sophia A. Rivero Thomas Rotko Melinda Sarafa Nathaniel E. Sundel Lisa Taapken Rhidaya Trivedi Sarah Zaboli Raoul Zaltzberg

ONONDAGA COUNTY Chanan Brown Evan Pfeifer Laurie Rolnick


SUFFOLK COUNTY Jason Bassett Joseph H. King

QUEENS COUNTY Jennifer J. Bacon Sophie Cohen Anna Demidchik Daniel Fazio Ami Kim Hadassah F. Phillips ROCKLAND COUNTY Rabbi Tzvi Hirsh Goldstein SCHENECTADY COUNTY Veronica L. Reed

TIOGA COUNTY Thomas R. Cline ULSTER COUNTY Kevin F. Richards Catherine M. Ryan WAYNE COUNTY Griffin Dault John Gilsenan WESTCHESTER COUNTY Thomas Eddy Daniel Harnick Aziza A. Hawthorne Michael Litman Simon Ramone David Rasmussen

Atticus | Volume 31 Number 2 | Fall 2019 | 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 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

Name: ______________________________________________________ Firm Name:__________________________________________________ Address:____________________________________________________ City/State/Zip: ____________________ County: _____________________ Phone:__________________________ Fax:________________________ Email:_______________________________________________________ Website:_____________________________________________________ Bar Admission State:_______________ Year Admitted:________________

Please circle membership type *All memberships include $15 donation to the NYSACDL Foundation, Inc. o Please check here to remove.

Lifetime Member Quarterly pymts over 2 years President’s Club Sustaining Member Regular Member

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

$2,525. $316.25 $565. $340. $240.

New or Part-Time Attorney Member


Full-time Public Defender Allied Professional Member

$155. $215.

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

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

Retired Attorney $100. Recent Law School Alumni (less than one year since completion) $75. School: ________________________ Graduation date: ________ Law Student Free Membership dues can be paid by check or charged to American Express, MasterCard, Visa, or Discover Please charge to my credit card.

Our Mission 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?” NYSACDL’s goals are to: n Serve as a leader and partner in advancing humane criminal justice policy and legislation. 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. 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. 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. 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:

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

Signature of applicant: Date:______________________________ CVV code_____________ Billing Address:____________________________________________


NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 31 Number 2 | Fall 2019 | 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


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 31 Number 2 | Fall 2019 | New York State Association of Criminal Defense Lawyers


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


Profile for NYSACDL

NYSACDL Atticus - Volume 31, Number 2