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Winter 2016 | Volume 28 | Number 1

ATTICUS INSIDE

2015 NYSACDL Foundation

Annual Dinner

this

Award Recipients

ISSUE 3

Message from the President

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From the Editors

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Dispatches from 90 State

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From the Defense Table

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Legislative Committee Report by Lisa Schreibersdorf

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One vs. Eleven by Adam Sirois

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From Vague to Opaque by Patrick O'Donnell

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FYI-DWI by Stephen Epstein

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Court of Appeals Roundup by Claudia Trupp

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Book Reviews

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Cutting Edge CLE

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Poetry Corner

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Anthony L. Michael Ricco, Esq. Shapiro, The Honorable Thurgood S. Esq. Karen Peters Marshall Distinguished Hon. William Brennan Award for Outstanding Jurist Page 25

atticus@nysacdl.org www.nysacdl.org

Award for Outstanding Criminal Practitioner Page 26

Service to the Criminal Defense Bar

Susan Slotnick

Justice Through the Arts Award Page 28

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90 State Street, Suite 700 Albany, New York 12207

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


NYSACDL Officers and Directors 2016 PRESIDENT Andrew Kossover, New Paltz

James W. Grable, Jr., Buffalo Timothy Hoover, Buffalo Mark Hosken, Rochester Robert N. Isseks, Middletown Yung-Mi Lee, Brooklyn Alan S. Lewis, Manhattan Greg D. Lubow, Tannersville Brian Melber, Buffalo Marshall A. Mintz, Manhattan Kenneth Moynihan, Syracuse Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Russell A. Schindler, Kingston Jay Schwitzman, Brooklyn Claudia Trupp, Manhattan

PRESIDENT-ELECT John S. Wallenstein, Garden City FIRST VICE PRESIDENT Robert G. Wells, Syracuse VICE PRESIDENTS Michael T. Baker, Binghamton Lori Cohen, Manhattan Alice Fontier, Manhattan Arnold J. Levine, Manhattan Donald G. Rehkopf, Jr., Rochester SECRETARY Jessica Horani, Manhattan TREASURER Susan J. Walsh, Manhattan DIRECTORS Bruce A. Barket, Garden City Vincent de Marte, White Plains Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan

PAST PRESIDENTS Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti Ira D. London

Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. O’Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec Wayne C. Bodden EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

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

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Publication of the New York State Association of Criminal Defense Lawyers

Message from the President By Wayne C. Bodden

But the mere truth won’t do. You must have a lawyer. – Dr. Allan Woodcourt to the wrongly accused George Rouncewell, in Charles Dickens’s Bleak House

Happy New Year 2016! On behalf of NYSACDL’s Officers and Directors, I’d like to take this opportunity to wish health and happiness to you and yours in the coming year. This year, as we celebrate NYSACDL’s 30th anniversary, we acknowledge the efforts of our founders, past presidents, past board members and past executive directors in making this Association what it is today, the largest and most influential bar association in the state devoted solely to criminal defense. We gain in numbers and strength every year, and the association is now regularly invited to be a part of the decision making process in New York State as it pertains to criminal justice and law. NYSACDL has also been able to increase our support for attorneys and criminal defense organizations nationwide, who face challenges similar to those we face here in New York. This year, the annual dinner returns to the Grand Hyatt in Manhattan, as always during Bar Week. Last year’s dinner proved a rousing success, and we expect the same this year. We have a great slate of honorees who represent excellence in criminal law statewide. I congratulate them all. As we move to the future, I implore all of you to remain diligent in your practice. We are facing new challenges, and a unified association is our best defense against the public reaction to fear. Budget cuts and legislation compromising the constitutional rights of students are among the issues that we will be facing, that have the potential to create serious problems in our defense of our clients. As we begin 2016, my term as NYSACDL President comes to an end. Thank you to all of those who created the opportunity for me to serve, and thanks to the very many who helped navigate this year. As I pass the Presidential baton to Andy Kossover, I offer him my full support, and ask you all to do the same. It has been my absolute pleasure and honor to serve as President of this association. A

Find NYSACDL on Facebook, LinkedIn & Twitter

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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

Read a good book lately? Write a review of it, and submit to our Book Review Editor, Dick Barbuto. Contact Dick at rbarbuto1@hotmail. com

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From the Editors’ Desk Ben Ostrer, John S. Wallenstein, Jessica Horani, Dick Barbuto As you read this edition of Atticus, our first publication for 2016, we hope the end of the year has been as stress free as possible and that you are planning on joining us at our much anticipated annual dinner in Manhattan on January 28. We will be at the Grand Hyatt for the second year in a row, after rave reviews of the location, space, and cuisine. The editors of Atticus thank Wayne Bodden for his leadership and support, as he steps down after a stellar year as President, one in which his first few months were a flurry of activity as we responded to several pressing issues. We look forward to the installation of our new President, Andy Kossover, as he takes over the helm of the organization. Our dinner honorees are all profiled within, and we encourage you to read about their exemplary work and commitment to the values of NYSACDL. 2015 saw many legislative issues come our way, with a strong focus on Raise the Age legislation as well as a response to Campus Sexual Crimes which NYSACDL felt left the accused with few protections, and on which we worked to provide needed recommendations to the final accepted bill. Our Legislative Report details these and other legislative updates from 2015, as well as the outlook for the 2016 session. Also in this issue, the sole holdout juror in the trial of Pedro Hernandez for the kidnapping and murder of six year old Etan Patz, a case that riveted the city and the nation, agreed to write an exclusive piece for Atticus regarding his experience and why and how he came to his decision. It is a fascinating look into the mind of a juror, in what was an emotionally charged trial. Lest we forget the law, our raison d’etre, peruse the articles by James Egan and Claudia Trupp, providing some updates on the current state of criminal jurisprudence, and be sure to read Steve Epstein’s new regular feature, FYI on DWI. The editors of Atticus wish you and yours a healthy and prosperous New Year, as we continue to fight the good fight. A —Ben, John, Jessica and Dick

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Dispatches from 90 State 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.

Jennifer Van Ort Executive Director As I sit in Albany, reflecting out on a sunny, snow-less day, I’m pondering what message to bring to you, our loyal membership, in this New Year issue of Atticus. Do I sing the same tune about membership renewal (send it in today!)? Do I hum about our great 2016 Annual Dinner (tickets and sponsorship still available!)? Perhaps, instead, we take a moment to pause and reflect on NYSACDL as a whole as we enter our 30th Anniversary year, and what we accomplished in 2015. • Over 820 Active Members – NYSACDL continues to grow each year. In 2014, we reached 820 active members. As 2015 draws to a close, we look to surpass that number for at least 3 straight years of membership increase. Membership increases are important to everyone because those added names increase the valuable experience and insight available on the State and Federal listservs; the increased number multiplied by the number of New York State residents you represent has a greater impact on our state lawmakers when we speak to them about important issues; and on a simple note, the increased income for NYSACDL allows us to offer greater services and programs back to our membership. For 2016, we will strive yet again to increase our membership to the tune of an 8.6% increase – in honor of our founding year, 1986. • Trained Over 750 Attorneys – Our live NYSACDL CLE seminars trained over 750 attorneys in 2015. The impact of that training is felt not only by those individual attorneys, but by their peers, members or non-members, and their clients. In addition to our live trainings, the popularity of our online video CLE programming is increasing. If you missed a training you were hoping to attend, or just need to pick up that extra skills or ethics credit, NYSACDL’s online trainings are a great tool at your disposal. Beyond the trackable number of attorneys receiving training through NYSACDL, is the uncountable number of people reached through listserv posts and articles in Atticus. We can continue to push to increase these numbers close to 900 in 2016 – the equivalent of training each one of our members. • Communicated With The New York State Legislature On Over 10 Issues – Throughout the 2015 Legislative session, NYSACDL was actively involved in over 10 issues through: the issuing of letters and memos; direct contact with members of the Assembly & Senate; testifying at two hearings on various criminal justice matters; and communicating views to members and others via email and social media. The impact of our efforts was felt on at least two important issues: sexual assault on college campuses (the final bill included many of NYSACDL’s recommendations for improving those aspects of the bill that put college students at risk for wrongful accusations) and raise the age of juvenile jurisdiction (NYSACDL legislative representatives were an important

Continued on page 38 Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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New member wins full acquittal in three month long Manhattan Gang Conspiracy Trial and a defendant is released from prison 25 years after his murder conviction when his attorneys win him a new trial in this edition of...

From The Defense Table New Member Christine Rodriguez obtained a full acquittal for her client Rolandewidge Alexis before Judge Edward McLaughlin at the end of August 2015 following a three month Gang Conspiracy trial. The trial was the culmination of a four year investigation by NYPD and the District Attorney’s office into alleged rival gangs, 3 Staccs, Money Avenue, and Manhattanville, who were accused of Conspiracy in the First Degree to commit Murder in the Second Degree and other crimes. The investigation resulted in the arrests of over 100 defendants on two separate indictments and was touted as the largest gang roundup in NYC history. The indictments alleged gang member involvement in over 19 non-fatal shootings and two homicides. One of those homicides which gained public attention was the 2011 shooting death of aspiring WNBA player Tayshawna “Chicken” Murphy; a homicide for which two defendants were already separately tried, convicted, and sentenced in June 2013 and April 2014. The use of conspiracy charges against the many minor defendants, and those who were minors when their alleged involvement occurred, as well as the reliance on social media to show connection and culpability was criticized by some. In October 2014, DNAinfo reporter Jeff Mays spoke to some of the

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defendants’ family members, community members and social justice advocates about their concerns in an article titled, “District Attorney Cast Too Wide a Net in Harlem Gang Crackdown, Critics Say”. Ms. Rodriguez’ client went to trial with four other co-defendants and faced eight separate counts in the indictment including Conspiracy in the First Degree, Conspiracy in the Third Degree,

The use of conspiracy charges against the many minor defendants, and those who were minors when their alleged involvement occurred, as well as the reliance on social media to show connection and culpability was criticized by some.

Attempted Murder in the Second Degree and other charges. Mr. Alexis faced a minimum 15 years to life on the violent felony offenses he was charged with and was the only defendant at trial to be fully acquitted of all charges by the jury. The Indictment alleged that Mr. Alexis was a member of the Money Avenue crew and was a source of firearms for other members of the crew. The People presented evidence that Mr. Alexis also participated in the shooting of a rival gang member on February 4, 2012

along with several other members of the crew, including a cooperating witness who testified against Mr. Alexis. Along with three cooperating witnesses, the jury heard from close to 100 witnesses, mostly NYPD and some civilian witnesses. Mr. Alexis did not testify in his own defense. The evidence presented against him included Facebook material from some of the codefendants and other alleged members of the charged conspiracy suggesting that Mr. Alexis was a source to obtain firearms and may have participated in other uncharged offenses. Mr. Alexis did not have any social media accounts of his own that were used by the People. Other evidence against him included recordings of telephone conversations he had while at Riker’s Island after his arrest on the Indictment.  The People also were allowed to present evidence of another uncharged shooting incident for which several of the alleged members of the conspiracy were rounded up and questioned, but never charged. All three cooperating witnesses testified that they knew Mr. Alexis but provided little to no details about how they knew him or why they believed him to be part of the Money Ave Crew.  One of the cooperators claimed that Mr. Alexis provided the gun for the February 4, 2012 shooting and that Mr. Alexis was present when the shooting took place. Judge McLaughlin permitted the People to elicit testimony from lead investigator Detective Espindola that a

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Ms. Rodriguez was able to show that there was no evidence to corroborate the account in the statement regarding her client’s alleged involvement

statement from another defendant (not one of the codefendants at trial) implicated Mr. Alexis in another shooting. Ms. Rodriguez was able to show that there was no evidence to corroborate the account in the statement regarding her client’s alleged involvement and that notably, the statement was not taken by Detective Espindola and the People chose not to elicit the information from the Detective who took the statement although he testified about other matters later in the trial.

On August 20, 2015 the jury reached a verdict on a majority of the counts of the Indictment, but advised the court that they could not reach verdict on the other counts. Over the objection of all defense counsel, Judge McLaughlin chose to take a partial verdict. Mr. Alexis was acquitted of all eight counts against him. All four of his codefendants were convicted; two of Conspiracy in the First Degree along with substantive charges, one of Conspiracy in the Third Degree along with substantive charges and the fourth pled to Conspiracy in the Second Degree prior to the verdict. Mr. Alexis’s acquittal on all charges saved him from what was certain to be a staggering prison sentence. Two of his codefendants were sentenced recently by Judge McLaughlin to upwards of 40 to life prison terms.

We may be trying to let a guilty man go free, I don't know. Nobody really can. But we have a

Members Ron Kuby and Leah Busby won a new trial for Johnny Hincapie after 25 years of incarceration, the minimum sentence for the 1990 subway tourist murder conviction which his attorneys say should never have occurred due to a false confession and new eyewitness evidence. That evidence came out in a hearing where three witnesses testified that Hincapie was not on the platform when the stabbing took place. Kuby and Busby also put on evidence, including their client himself, to show that he was beaten and coerced into confessing to the crime when he was eighteen years old. Hincapie was released from now retired Judge Eduardo Padro’s courtroom on October 6, 2015 after posting bond and returned home to his family to await further news of his fate after the District Attorney filed a notice of appeal. A

reasonable doubt, and that's something that's very valuable in our system. No jury can declare a man guilty unless it's sure. — Juror No. 8, ”Twelve Angry Men”

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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NYSACDL

Legislative

Committee Report

By Lisa Schreibersdorf

As we are about to embark on the 2016 New York State Legislative session, it may be helpful to provide a summary of the 2015 session, which proved to be a very active session for NYSACDL. The Governor and the Legislature each listed criminal justice issues on their respective agendas, and NYSACDL weighed in on many of them. Below are summaries of these issues. More detailed position statements can be found at NYSACDL’s website.

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


• Sexual Assault on College Campuses – NYSACDL believed that the originally proposed changes to New York State’s Education Law relating to sexual assault on college campuses created a system lacking the necessary touchstones of due process, fairness, and impartiality. Our Legislative Committee focused a great deal of energy on improving those aspects of the bill that put college students at risk for wrongful accusations. NYSACDL was pleased that the final bill included many of our recommendations. • Raise the Age of Juvenile Jurisdiction – NYSACDL strongly believed that the issue of raising the age of juvenile jurisdiction needed a more complete vetting process before implementing any changes to the current system, and until the proposed reforms are corrected, so as not to exacerbate existing racial disparities in the criminal justice system. NYSACDL Legislative Committee engaged in extensive conversations with the Legislature and the Governor’s Office regarding concerns with the various bills that were introduced. No legislation was enacted last session, but the Governor pledged to move adolescents out of adult prisons and into ageappropriate facilities. NYSACDL supported the Governor’s pledge.

Lisa Schreibersdorf is the Chair of the NYSACDL Legislative Committee, and a past president of NYSACDL. She is the Executive Director of Brooklyn Defender Services.

• Statements and Identification Integrity Bill – NYSACDL members are knowledgeable, perhaps more than anyone, of the very real risk of an innocent person being convicted of a crime, and appreciated the time and effort taken to draft a bill that takes this problem into consideration. This Bill, supported by the New York State Bar Association, The Innocence Project, and the District Attorneys Association of the State of New York, was aimed at mandatory recording of interrogations and blind identification procedures. However, there were several issues of concern in the proposed 2015 legislation, including the numerous limitations of electronic recording of police interviews (interrogations), the omission of providing the perpetrator’s description from lineups and photo arrays, and the inclusion of photo arrays into admissible evidence. The bill failed to address the need for criminal practice discovery reform – one of NYSACDL’s most important legislative concerns that we continue to work for each session. The proposed “Integrity Bill” was not enacted last session, but we expect an identical or similar piece of legislation to be reintroduced in the forthcoming 2016 session. • Special Police Prosecutor – NYSACDL recognizes the inherent conflict of interest, or at least the appearance of a conflict of interest, when a District Attorney is called upon to investigate and prosecute police officers. However, the proposed 2015 legislation only provided for a limited review and NYSACDL strongly urged the drafting of legislation creating an office of an independent special prosecutor to investigate and prosecute crimes allegedly committed by police officers. The end result of this discussion, an Executive Order from the Governor appointing the Attorney General as the special prosecutor in certain cases, is a step toward a proper solution to this issue.

Incoming NYSACDL President Andrew Kossover, former co-chair of the Legislative Committee, contributed to this report.

• Office of Indigent Legal Services Funding – Funding was included in Governor Cuomo’s Executive Budget to satisfy the settlement agreed to in the Hurrell-Harring

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Continued on next page

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Legislative Committee Report Continued from previous page case. NYSACDL supported increasing funding to the Office of Indigent Legal Services to assist every county in the state – not just the five counties named in the Hurrell-Harring case – to reduce caseloads, improve support services, supervision and oversight, and provide counsel as early as possible. • Criminal Justice Reform – NYSACDL Legislative Committee presented testimony to the Assembly when they convened hearings on criminal justice reform. The testimony emphasized the need for discovery reform that has been, and continues to be, the top legislative priority for NYSACDL. IT IS EXPECTED THAT THE 2016 LEGISLATIVE SESSION WILL PRESENT OUR ASSOCIATION WITH NEW CHALLENGES­­— Bail reform – We anticipate that New York will move to reform bail criteria to include “dangerousness,” a factor we believe is inconsistent with the presumption of innocence afforded to all defendants. Furthermore, if an allegation is made that a defendant’s bail should be high (or denied) based upon his/her possible danger to the community, due process would require credible evidence in support of such allegation, and an opportunity for the defense to contest the allegation in order to allow for an informed judicial determination. Public Defense Funding – Assembly Member Patricia Fahy (Assembly District 109) has introduced legislation that would require the State to incrementally increase State public defense funding, by reimbursing counties (and cities within the counties) for the full amount of expenditures for indigent legal services. This would constitute a significant step towards adequate fund-

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ing, appropriate workload limits, necessary oversight to improve the quality of representation, and avoidance of judicial or political interference. Police Body Cameras – In anticipation of legislative action regarding the use and regulation of law enforcement body cameras (“body cams”), last month NYSACDL provided testimony to members of the New York Assembly in favor of body cams because of the added protection recordings afford citizens. NYSACDL recommended that an independent third party serve as the custodial agency for all recordings and that recordings be made available to counsel, either in the case of arrest or the filing of a complaint, at the same time recordings are made available to the prosecution. Not only can recordings be used as evidence, but will be able to serve as a training tool as well.

Based upon the Legislative Committee’s past lessons, we realize that we must be the ones to educate the public, the media, and the members of the Legislature about the critical need for reform. To that end, we have initiated coordinated efforts with other defense organizations towards a comprehensive approach to continue our campaign for what we believe may be one of the single most important legislative goals of NYSACDL: true discovery reform. Pooling the resources of multiple defense organizations towards this single goal provides us with the best chance of success in 2016. A

Finally, despite the passage of 37 years without any meaningful revision to New York’s criminal practice discovery statute (CPL 240.20), and the introduction of various discovery reform measures, the State Legislature has failed to act to ensure fairness, accomplish faster case resolution and shorter pre-trial detention, and eliminate needless motion practice. Time and money could be better directed to necessary defense services in these times of fiscal concern. Essentially, the chief opposition to discovery reform, as annually proclaimed by the District Attorneys Association, is victim and witness protection from tampering and/or harm. However, virtually every discovery reform proposal of late addresses that concern, and not only protects victims and witnesses in vulnerable situations, but would allow those victims and witnesses to gain faster closure.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


One v. Eleven

A ‘Reasonable Doubt’ Holdout “Beyond reasonable doubt is the highest standard used for the burden of proof in our legal system. It is the standard by which we were to hold the prosecutor accountable.”

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very criminal trial begins with a Judge instructing the jury on that most important legal standard, the presumption of innocence. Under it every accused individual is cloaked in the protections of our constitution that declares them to be innocent until proven, beyond a reasonable doubt, to be guilty. Jurors are expected to set aside their assumptions of guilt as they walk into a court of law to begin their jury service in a criminal trial and our system depends on them being able to do just that. The selection process is meant to ferret out those who for various reasons and biases cannot set aside assumptions of guilt and afford the accused what the law promises every citizen who is prosecuted for a crime. A criminal trial cannot begin until twelve qualified jurors have affirmed to the Court that they can and that they will set aside their own assumptions and will require the

prosecutor to prove their case beyond all reasonable doubt before lifting that mantle of presumption of innocence. Having promised to do so; outside of the scrutiny of the Court, how often do jurors really follow the law? Proof beyond reasonable doubt is a high standard; it requires the jurors to go beyond what possibly happened and even what probably happened. It takes them outside the realm of what is likely and requires them to say that the evidence has Continued on next page eliminated all reasonable doubt that the ac-

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One v. Eleven Continued from previous page cused has committed the crime. This standard, sworn to by all twelve jurors in the Etan Patz case, is what caused the one lone holdout, Adam Sirois, to declare that circumstantial evidence, possibilities, and probabilities were not enough to convict Pedro Hernandez for the murder of Etan Patz. It was not what many in the public wanted to hear; let alone his 11 other fellow jurors who would have voted guilty. One of his fellow jurors shouted out, “Pedro Hernandez, you know what you did!” as they were being led out of the courtroom. But did the eleven jurors who would have voted to convict really know, beyond a reasonable doubt, what Pedro Hernandez supposedly did? Did some of the other jurors simply abandon their promise to presume Mr. Hernandez innocent unless and until the evidence persuaded them otherwise beyond all reasonable doubts?

The distinction between a confession and having actually committed the crime became the crux of the defense case.

As far as cold cases go; the case of Etan Patz may as well have been frozen solid when police and prosecutors decided that Hernandez’ ‘confessions’ were enough for them to charge him with the crime. With no body, no forensic evidence, and no witnesses to the crime, the case hinged on persuading 12 jurors that Mr. Hernandez confessed to a murder which he actually committed. The distinction between a confession and having actually committed the crime became the crux of the defense case. Led by Harvey Fishbein and Alice Fontier, the defense argued that Pedro Hernandez was mentally ill, unsophisticated, and most importantly, not a killer. His ‘confessions’, they argued, were the product of an unstable mind, one not even capable of grasping the significance of what he told others about his supposed role in the disappearance of Etan Patz.

A popular verdict in this case would likely have been a guilty verdict. The disappearance of a child, a young boy vanishing from his neighborhood without a trace, cries out for a guilty party being brought to justice. Parents projecting their own fears on such a case can only yearn for an explanation which identifies the shadowy figure which haunts their dreams. But what is popular is not always right and what will soothe the hearts of loved ones searching for answers is not always the truth. The truth may well be that the parents of Etan Patz will never know what happened to their tow headed young boy on that day. We cannot say for certain whether Pedro Hernandez was involved with the disappearance of Etan Patz or not. We can say that it appears that at least one juror, Adam Sirois, took our promises of constitutional protections to heart and stood in defense of our system of criminal justice when he afforded Mr. Hernandez his presumption of innocence and held the People to their proper burden. Mr. Sirois, who has been sought out by the media since the mistrial was declared, has gone on record stating that he saw reasonable doubt throughout the People’s case. Here, in his own words, is why and how he stood alone in voting “Not Guilty”. — Editors

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


In Adam Sirois’ Own Words —

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fter eighteen days of deliberations in the case of the People vs. Pedro Hernandez, all of the jurors knew the next vote would be our last. The judge would not send us back on an Allen charge to further deliberate the case. Aside from me, there was one other juror who still held out doubt. He began an impassioned speech about why he had argued the not guilty side for the past five days after arguing the guilty side for over two weeks. He said that the case was not an easy one and that if anyone in the room thought it was, they should rethink their position. He repeated his concerns about the possibility that Jose Ramos had committed the crime. He repeated his reservations about the missing school bag. He lamented the fact that the police had not video recorded the first seven hours of questioning at the Camden County Prosecutor’s Office. He believed Mr. Hernandez suffered from a mental illness, had a low IQ, and a suggestible nature. It was reassuring to hear someone else in that small room stating all of the concerns that I had been voicing about reasonable doubt. However, at the end of his speech, the juror announced that he was going to vote guilty. There was an explosion of cries in the room. Most of the women wept. Some men cried as well. I was alone. The juror who had voted not guilty with me on May 5th and hung the jury 10-2 had changed his opinion over the last four days and decided to vote guilty. I suddenly had to make a decision whether I would change my vote and go with the other 11 jurors, or stick to my understanding of the charges we received from the judge and the evidence we had seen and heard in the courtroom. As we cast our final secret ballots, everyone watched the forewoman anxiously as she collected and read the votes. She read ten guilty votes and one not guilty vote. But there was still one ballot left. The forewoman opened it and it was blank. No one said who it was. I had my hopes that one other juror had decided to vote not guilty with me. We decided to vote by raising our hands. “Guilty?” the forewoman asked. Ten people immediately raised their hands. One person however, hesitated. He raised his hand very slowly, almost regretfully. At that moment I knew for sure I was going to be alone voting not guilty. I knew everyone in the room was hoping that I would change my mind. That I would vote guilty after finally realizing that everyone else had done so. They tried every maneuver to shake me from my position. One juror assigned probabilities to several pieces of evidence and then applied mathematical calculations to convince me that Mr. Hernandez was guilty. He pressed his arguments further saying that I had made up conspiracy theories about the police. He accused me of making up hypotheses that the defense lawyers had not proposed in court. However, what he and the other jurors failed to see was Continued on next page

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One v. Eleven Continued from previous page that I had only been doing my duty as a juror based on instructions from the Judge himself. The job we were charged with as jurors was to be the “judges of the facts”. We were instructed to begin the trial with the presumption of innocence, that the burden of proving guilt rested with the prosecution, and that we could only vote guilty or not guilty. We were also instructed on reasonable doubt and that it is the threshold beyond which you are certain there are no other reasonable explanations for what could have occurred. We were instructed that a person cannot be convicted of a crime based only on his or her own words. That the prosecution must first prove that the crime took place and that the person charged in fact committed the crime. We were informed that we were to hear every piece of evidence during the trial and then go into deliberations where only we could discern facts based on the evidence we heard and saw in court. We were then to draw inferences from these facts based on our life experience to piece together the story and come to a decision about what happened. We were informed that we had the right to change our decision as many times as we needed to before reaching our own final decision. Finally, we were to vote our conscience and stick to our principles regardless of how many people voted the same way and regardless of what people in the courtroom and public may feel or think. During the ten-week trial, I can say that I became friends with seven of the other jurors and four of the alternates. We often went to lunch together and over time, developed a close bond that only people who serve on a major trial can understand. We never discussed the trial or any evidence. We kept our

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conversation to the typical things New Yorkers talk about; sports, food, broadway shows, music, fashion, dogs, and of course family. Politics were never discussed except by one juror whose positions quickly became obvious as he was a member of the Ayn Rand Society. On the last day of testimony many of us went for a celebratory lunch to mark the end of the trial, say goodbye to the

the video confessions. It was not until day four that we truly engaged in discussions and started to develop a system for our deliberations. It was at this point that it became clear that most of the jurors already thought Mr. Hernandez was guilty. We took our first informal vote. The results were 8 guilty, 3 “leaning towards guilt”, and one not guilty – me. I argued that a “leaning towards guilt”

Juror Adam Sirois

alternate jurors, and speak about how daunting it was going to be to finally have the opportunity to discuss the case together. On the first day of deliberations, I entered the room with the feeling that most of the people I had gotten to know would start from the presumption of innocence. I could not be sure about the other 4 jurors but I hoped they would as well. The forewoman asked if we wanted to take a vote right away. We all decided it would be best to review our notes on the first day. I began to map out a timeline of key events from May 24, 25, and 26, 1979. On the second and third days we focused on reviewing

vote was equivalent to a not guilty vote because it indicated doubt although some jurors did not see it that way. Following the first vote, we decided to come up with a process for our deliberations. Essentially it consisted of three parts. First, we conducted a thorough review of the evidence. This meant reviewing our own notes, requesting all the evidence from the court, watching and re-watching video evidence, and requesting read-backs from key witness testimony. We were provided with a laptop from the prosecution loaded with all video evidence and were allowed to use it to organize our work. Second, we identified the facts that we could

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


all agree on based on the evidence. We agreed that we would go around the table and each juror could suggest one fact for the jury to discuss. If we unanimously agreed on the fact, it would be entered into a spreadsheet on the laptop. We ended up with six spreadsheets; one for general facts about the case, one for Jose Ramos, one for Mr. Hernandez’s medical history, one for his mental

Pedro Hernandez

health issues, one listing the nine symptoms of schizotypal personality disorder ranked by which ones we agreed he had, and one with a timeline of May 24, 25, and 26, 1979. The third and most contentious part of the deliberation process involved the inferences each of us made based on the facts. It was apparent early in the deliberation process that at least nine of the jurors immediately accepted the story outlined by the prosecution about what had happened that terrible morning. The prosecutor’s story went essentially like this: Etan walked to school alone at about 8am on Friday, May 25th, 1979. It was the first time he had ever walked

to school without someone older to accompany him. Pedro Hernandez, an 18 year old clerk at the bodega located right next to Etan’s school bus stop, had a psychotic break and decided to invite the boy down into the basement of the bodega through bilco doors located on the sidewalk. There were no parents, school children, or customers at the Bodega or the school bus stop when this psychotic break occurred so there were no witnesses. Pedro then chokes Etan to death in the basement. He throws Etan’s tote bag full of toys over the walk-in refrigerator, wraps his body in a plastic bag, places him in a cardboard fruit box, and places the box on his shoulder to carry it upstairs and out of the bodega. He walks a block and a half away and sees an alley next to a fruit stand. He goes down about 10 steps into the alley and leaves the box 10 feet inside the alley. Later that day or the following morning, workers from the fruit stand find the box in the alley, pick it up and place it next to the dumpsters on the street. A man from a private garbage removal service then picks up the box and places it in the garbage truck and drives to a garbage disposal area in New Jersey. It is critical to note that the prosecutor provided no evidence to corroborate any of these details. This was where reasonable doubt began for me. To vote guilty in this case, I would have had to accept that a chain of highly unlikely events occurred in order for the crime

to be committed. I would have had to accept that Mr. Hernandez had a psychotic break at the exact moment Etan arrived at the bodega and that he was capable at that point of killing a child who was a complete stranger to him. Mr. Hernandez is a man with no history of violent crime before or after the alleged event. The prosecutor never produced the tote bag that Mr. Hernandez allegedly threw behind the walk-in refrigerator. In court she stated that the police simply did not search the bodega basement. This seemed extremely unlikely given that Etan’s mother specifically informed police detectives that Etan was excited to go to the bodega that morning to buy a soda before school. A team of bloodhounds was used starting at 7:30 the next morning to canvass the area but they did not pick up any scent of Etan at the bodega or in the alley. Had Etan been in the bodega basement or the alley, it is highly probable that the dogs would have detected his scent. Groups of volunteers assisted the police in the search of the area on Friday night and Saturday as well as on the following days. If the box with Etan’s body had been where it was allegedly placed, it is likely that someone would have found it before a garbage man could have disposed of it a mere two blocks away from the Patz residence. I would have also had to accept that on a busy corner like West Broadway and Prince, no witnesses were around the bodega and two school bus stops at 8 in the morning. Finally, I would have had to accept that a fruit box weighing between 42 and 48 pounds containing a child would not have seemed strange to either the fruit stand worker or the garbage man. Most boxes containing household and food waste weigh

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One vs. Eleven Continued from previous page between 10 to 25 pounds. This box would have weighed and felt more like an awkward bag of cement. If even one of these events did not occur as described by the prosecution, their whole scenario fell apart. Indeed, this is what I tried to argue to my fellow jurors. However, these nine jurors would not budge from their position. And despite the lack of corroborating evidence, they simply defaulted to the story presented by the prosecution because it seemed to capture their imagination and it was the only way to make everything fit together perfectly. By the end, these nine jurors would agree that, “the easiest explanation is always the right one.” Although the other two jurors seemed to have significantly more doubt than the nine above, in the end, they too went with the prosecution’s story because it seemed to be the most plausible. Unfortunately, this is not how our justice system works. You do not choose the person most likely to be guilty. You must only choose the person who is guilty beyond a reasonable doubt – a threshold that is, and should be, very high. And this was the crux of the problem; it seemed to me that most jury members had a very different understanding of reasonable doubt. Their threshold was lower. Perhaps they were confusing it with definitions for the preponderance of evidence or clear and convincing evidence. But those were not the legal standards applied in this case. Beyond reasonable doubt is the highest standard used for the burden of proof in our legal system. It is the standard by which we were to hold the prosecutor accountable. It was up to her and her team to prove that only Pedro Hernandez could have committed the alleged crime based on the evidence. If there was a real

16

doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, then the level of proof had not been met. In other words, no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty. The defense did an excellent job of introducing serious doubt in the trial. The world renowned mental health and forensic psychology experts they brought in as witnesses made it clear that Mr. Hernandez was highly vulnerable to making false confessions and forming fixed false beliefs based on his schizotypal personality disorder, low intelligence, poor memory, and suggestible nature. The defense also raised doubt about the kind of questioning that took place by the police during the 7 hours of unrecorded video and that this could have led to a false confession. When the defense brought up Jose Ramos and produced evidence linking him with Etan’s disappearance and murder it raised serious concerns for me as well as several other jurors. In addition to these arguments, the defense team showed that Mr. Hernandez had never changed his name or attempted to hide his whereabouts from authorities. In fact he was living one block away from the police station in Maple Shade, New Jersey for years when the police picked him up on May 23, 2012. He had been married to the same woman for 24 years and he had a daughter who was 23 at the time. He also had two grown children from his first marriage. He was never accused of abusing any of his children in any way. It became apparent that most of the jurors could not accept any arguments presented by the defense. Each piece of

evidence that could support Mr. Hernandez’s innocence was met with a counterargument that often lacked validity. For example, some jurors argued that Mr. Hernandez was highly intelligent despite consistently scoring between 67 and 70 on IQ tests. They stated that he had manipulated the Social Security system to gain benefits he did not deserve. However, there was evidence of his chronic back pain since 1991 and other reasons that justified his social security benefits. They said he was strong willed and capable of pushing back against authority based on the fact that he had conducted his own divorce pro se (without a lawyer) and he had been controlling his wife and daughter from prison over the telephone. Because of this, they argued that Mr. Hernandez was not intimidated at all by the police during his questioning at the CCPO and could not have made a false confession. Sadly, a part of the decision to vote guilty for some jurors was based on how the jurors perceived Mr. Hernandez’ physical appearance. Five jurors said he looked and sounded gay. Some went so far as to say that he looked like a pedophile and they asserted that his motive for taking Etan to the basement was to sexually abuse him—even though motive had never been established and there was no evidence that sexual abuse was ever a part of the case except for one quick comment by the prosecutor during her closing arguments. Although it is hard to say, it needs to be said— only the women jurors asserted that Mr. Hernandez was gay and most likely a pedophile. Two of the jurors on the panel who were gay confided in me that they were upset by these remarks, telling me they were offended that people could assume that just because someone might be gay, that they would somehow also be more inclined to abuse children.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


In hindsight, it is unfortunate that the defense team did not provide compelling alternative narratives about other things that may have happened that morning. Although they discussed the potential links between Jose Ramos and Etan Patz, they did not use the evidence to support a complete scenario that would have made it more plausible for Ramos to have committed the crime and for Mr. Hernandez to be exonerated. For example, the jurors could not accept that Ramos could have abducted Etan between Wooster and West Broadway because the defense team had not explicitly discussed it in court. Therefore, when I offered the scenario as a possibility, I was accused of making up implausible hypotheticals. Instead, the defense relied on “smart jurors” to stitch together pieces of evidence and exclude evidence that was not relevant to the case. It was

painfully obvious that this was not going to happen. By the end of deliberations it became clear to me that the District Attorney’s office and NYPD detectives had done an excellent job of two things; eliciting a confession from Pedro Hernandez for a crime that he most likely did not commit 33 years ago, and convincing eleven members of the jury to buy into the prosecutor’s story. As American citizens, we are compelled to do only two things by our government; pay taxes and serve as jurors. After ten years of working and living in the former Soviet Union and the

Middle East I experienced what it is like to live without the rule of law and how dangerous that can be. Therefore, when I was selected to serve on the jury for this trial I felt a deep sense of civic pride. I was privileged to take part in our judicial system and witness due process of law. It is an awesome thing to watch and to take part in. I sincerely hope that the Patz family receives justice for the loss of Etan. They deserve it after years of anguish. However, justice is not served if another wrong is committed in its name. A

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From

Vague to OPAQUE

Exploring the Implications of the Supreme Court’s Decision in Johnson v. United States, 135 S.Ct. 2251 (2015), for Sentencing Enhancements By James P. Egan

O

rdinarily, a defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) faces a statutory sentence of zero to ten years’ imprisonment.1 However, under the Armed Career Criminal Act of 1984 (ACCA), codified at 18 U.S.C. § 924(e), that statutory range is increased to fifteen years’ to life imprisonment when a defendant has three prior convictions of a certain type. Determining which prior convictions trigger application of this enhanced penalty has been the subject of extensive litigation in the federal courts and has spawned several analytical doctrines notable mostly for the confusion they have generated. This past summer, however, the Supreme Court eliminated one important source of confusion. In Johnson v. United States,2 the Supreme Court held that ACCA’s residual clause is unconstitutionally vague and is void in all applications. Although removing one vague clause from ACCA, Johnson left two opaque ones. In this article, I will highlight how new (and renewed) challenges to ACCA may be brought following Johnson and identify several ways that Johnson may now be used to attack the application of other statutory and guideline sentencing enhancements. James P. Egan has worked as a Research & Writing Attorney for the Federal Public Defender's Office for the Northern District of New York in Syracuse, New York since graduating from law school in 2007.

I. ACCA’s Statutory Language Congress enacted the Armed Career Criminal Act in 1984 “to supplement the States’ law enforcement efforts against ‘career’ criminals,” who were thought to ac-

1 18 U.S.C. § 924(a)(2). 2 135 S.Ct. 2551 (2015).

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Determining which prior convictions trigger application of this enhanced penalty has been the subject of extensive litigation in the federal courts and has spawned several analytical doctrines notable mostly for the confusion they have generated.

count for a “large percentage” of theft and violence.3 Originally, ACCA’s increased statutory range was triggered if the defendant had three prior convictions for generically defined robbery or burglary, even if the defendant’s instant conduct was limited to firearm possession and did not involve violence.4 In 1986, Congress expanded the predicate crimes that trigger application of ACCA’s increased penalty. Pursuant to the Career Criminals Amendment Act of 1986, ACCA’s increased penalties now apply when a defendant has three previous convictions for a “serious drug offense” or a “violent felony.”5 Instead of providing a list of state and federal offenses considered violent, Congress defined the term “violent felony” to include any crime punishable by imprisonment for a term exceeding one year that – “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”6 For ease of reference, the clauses contained in these subsections have been given the following labels: Force Clause: “has as an element the use, attempted use, or threatened use of physical force against the person of another”; Enumerated Offense Clause: “burglary, arson, or extortion, involves use of explosives”; Residual Clause: “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

II. The Development of the Categorical Approach Before turning to Johnson and the residual clause, it is necessary to outline the general analysis courts employ when determining whether a prior conviction falls within ACCA. As explained more fully below, this analysis now only opened ACCA’s residual clause to a vagueness challenge, it still applies to ACCA’s remaining clauses. In 1990, the Supreme Court decided Taylor v. United States,7 which established two important analytical principles. First, the Court held that crimes listed in the enumerated offense clause are defined generically, and do not depend on how individual states define or label each offense.8 Second, and more importantly for this discussion, Taylor held that courts must employ a categorical approach when analyzing whether a prior conviction falls within any one of ACCA’s three clauses.9 Under the

3 Taylor v. United States, 495 U.S. 575, 581 (1990) (citing H.R. Rep. No. 98-1073). 4 Pub. L. No. 98-473, Title II, §§ 1801-1803, 98 Stat. 2185, codified at 18 U.S.C. App. 1202 (1982 & Supp. II 1984).

6 Id. 7 See supra note 4. 8 Id. at 599. 9 Id. at 600.

5 Pub. L. No. 99-570, §§ 1401-1402, 100 Stat. 3207-39 to 3207-40, codified at 18 U.S.C. § 924(e) (Supp. V. 1987).

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Johnson v. United States Continued from previous page

categorical approach, the sentencing court “must look only to the statutory definitions of the prior offenses,” and not any “other evidence concerning the defendant’s prior crimes.”10 However, the Taylor Court acknowledged one wrinkle to this general rule. As expressed in Taylor, a sentencing court may “go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.”11 As an example, the Court noted when a state burglary statute has separate elements criminalizing unlawful entry into a building, which is an ACCA qualifying generic offense, and unlawful entry into an automobile, which is not an ACCA qualifying offense, the prior conviction falls within ACCA’s enumerated offense clause “if the indictment or information and jury instructions show that the defendant was charged only with burglary of a building, and that the jury necessarily had to find an entry of a building to convict.”12 This has come to be called the modified categorical approach. In Shepard v. United States,13 the Supreme Court identified which documents a sentencing court may consult when applying the modified categorical approach to a conviction resulting from a guilty plea. Specifically, the Shepard Court held that in determining whether a defendant’s guilty plea to a burglary under a non-generic statute necessarily admitted elements required under the generic offense, a reviewing court

Confusion about how and when to employ the modified categorical approach spread throughout the district and circuit courts. For example, some courts used the modified categorical approach as a way to investigate whether the defendant’s actual conduct constituted a violent felony.

“is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”14 Importantly, Shepard rejected the government’s attempt to rely on police reports and complaint applications.15 After Taylor and Shepard, confusion about how and when to employ the modified categorical approach spread throughout the district and circuit courts. For example, some courts used the modified categorical approach as a way to investigate whether the defen-

Just as importantly, Descamps clarified that a predicate offense does not constitute a violent felony simply because it is capable of being committed (or, in fact, was committed) in a way that falls within one of ACCA’s three clauses. Take for example a statute requiring a jury to find a defendant used an indeterminate “weapon,” which can include all sorts of enumerated and unenumerated weapons. Descamps clarified that this statute is not divisible as to a particular type of weapon, even where “the jury could have readily reached consensus on the weapon used.”18 This is because the jurors do not all have to agree on a particular type of weapon – one juror could have found the defendant used a gun, another five an axe, and the remaining six a knife. Only a fact necessarily found by a jury and required to support a conviction rises to the level of an element capable of triggering ACCA.

16 133 S.Ct. 2276 (2013). 17 Id. at 2286 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).

10 Id. 11 Id. at 602 12 Id.

14 Id. at 26.

13 544 U.S. 13 (2005).

15 Id. at 21-22.

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dant’s actual conduct constituted a violent felony. In an attempt to correct that misapplication, the Supreme Court held in Descamps v. United States16 that the modified categorical approach is a mere “tool” to aid the categorical approach and only applies to so-called divisible statutes, i.e., statutes that set out one or more elements of the offense in the alternative. “All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates ‘several different . . . crimes.’”17

18 Id. at 2290. See also Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. Aug. 17, 2015) (explaining difference between elements and means).

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


As Justice Scalia exIII. The Supreme Court’s plained, “It is not the Application of the Residual job of this Court to Clause Prior to Johnson Turning now to the residual clause, the impose a clarity which Supreme Court decided four cases involving (and devised just as many meth- the text [of the residual ods for interpreting) ACCA’s residual clause] itself does not clause prior to Johnson. The first challenge was brought in James v. United honestly contain. And States, in which the Court held that Florida’s attempted burglary statute fell even if that were our within ACCA’s residual clause because job, the further reality the risk posed by attempted burglary was deemed comparable to that posed by its closest analog among the enumer- is that we have by now ated offenses, completed burglary. demonstrated our The Court’s decision drew a strong inability to accomplish dissent from Justice Scalia, joined by the task. Justices Stevens and Ginsburg, who

statute was not covered by the residual clause because, as in Begay, the offense does not involve purposeful, violent, and aggressive conduct. The Chambers Court’s conclusion was buttressed by statistics provided by the United States Sentencing Commission, demonstrating that of the 160 failure to report offenses committed over a two-year period, none involved violence.26

19

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complained, “If we are not going to deny effect to this statute as being impermissibly vague . . . we have the responsibility to derive from the test rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.”21 Although obviously already concerned about the vagueness of ACCA’s residual clause, and confessing to lack “an all-encompassing solution that provides for crystal-clear application of the statute in all contexts,” Justice Scalia initially sought to retain the residual clause. 22 To that end, and driven by the rule of lenity, Justice Scalia promoted an approach that limited application of the residual clause to prior offenses posing a degree of risk “no lesser than the risk posed by the

least dangerous” enumerated crimes – burglary.23 In the second pre-Johnson case, the Court held in Begay v. United States24 that New Mexico’s offense of driving under the influence did not fall within the residual clause. The Court reasoned that the offense was not “roughly similar, in kind as well as in degree of risk posed, to the examples” in the enumerated offense clause because DUI usually does not involve purposeful, violent, and aggressive conduct.25 Next came Chambers v. United States, in which the Court held that Illinois’s failure to report to a penal institution

The final pre-Johnson decision came in Sykes v. United States,27 in which the Court held that the residual clause covered Indiana’s offense of vehicular flight from a law enforcement officer. As explained by the Sykes majority, “[a] criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.”28 Vehicular flight was also deemed to present a “more certain risk as a categorical matter than burglary.”29 Support for these assessments was provided by certain statistical studies of harm created by vehicular flight.30 The Court’s decision in Sykes drew another strong dissent from Justice Scalia. This time, instead of trying to formulate a workable approach to applying the residual clause, Justice Scalia declared it was time the Court “admit that ACCA’s residual provision is a drafting failure and declare it void for vague-

26 Id. at 129. The Court rejected the government’s reliance on three reported cases over a 30-year period in which a defendant committed violence after failing to report. Id. at 129-30. 27 564 U.S. 1 (2011).

19 550 U.S. 192 (2007). 20 Id. at 203.

23 Id. at 219, 225 (Scalia, J., dissenting)

28 Id. at 2273.

21 Id. at 217 (Scalia, J., dissenting).

24 553 U.S. 137 (2008).

29 Id. at 2274.

22 Id. at 216-17 (Scalia, J., dissenting)

25 Id. at 143, 145

30 Id. at 2274-75.

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Johnson v. United States Continued from previous page

The second uncertainty comes about when courts are forced to “interpret ‘serious potential risk’ in light of the four enumerIV. The Court’s Decision in ated crimes—burglary, Johnson arson, extortion, and The Supreme Court’s decision in Johnson represents the culmination of crimes involving the use Justice Scalia’s campaign to invalidate the residual clause. Samuel Johnson was of explosives,” each of convicted of being a felon in possession which possesses an of a firearm in violation of 18 U.S.C. § 922(g). At sentencing, the district court uncertain degree of risk. found that he had three qualifying prior

ness.”31 As Justice Scalia explained, “It is not the job of this Court to impose a clarity which the text [of the residual clause] itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.”32

violent felony convictions and imposed a mandatory minimum sentence of 180 months’ imprisonment. One of those prior convictions became the subject of the Supreme Court’s decision – a 2007 Minnesota conviction for possession of a short-barreled shotgun.33 Initially, the Supreme Court granted certiorari to decide whether possession of a short-barreled shotgun falls within ACCA’s residual clause. However, after the parties had briefed and argued that question, the Court directed the parties “to present reargument addressing the compatibility of the residual clause with the Constitution’s prohibition of vague criminal laws.”34 In a decision written by Justice Scalia, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan, the

Court struck down ACCA’s residual clause as unconstitutionally vague in all applications.35 The Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without the due process of law.” Among other things, the Due Process Clause forbids “taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforce-

ment.”36 Johnson held the residual clause violates both features of the prohibition of vagueness in criminal statutes. At bottom, the reasons underlying Johnson are fairly straightforward. Experience in both the Supreme Court and lower courts had demonstrated impermissible uncertainty about “how to estimate the risk posed by a crime” and “how much risk it takes for a crime to qualify as a violent felony.”37 This first uncertainty is a direct result of the Court’s adoption of the categorical approach. Judicial assessment of risk is tied “to judicially imagined ‘ordinary case’ of a crime, not to realworld facts or statutory elements.”38 A question then naturally arises, “How does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves? ‘A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?”39 The second uncertainty comes about when courts are forced to “interpret ‘serious potential risk’ in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives,” each of which possesses an uncertain degree of risk. Ultimately, Johnson held that this indeterminacy “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”40

36 Johnson, 135 S.Ct. at 2258.

31 Id. at 2284 (Scalia, J., dissenting). 32 Id. 33 Minnesota Statute § 609.67, sub. 2 34 Johnson, 135 S.Ct. at 2556.

22

35 Justices Kennedy and Thomas would have found possession of a short-barreled shotgun does not fall within the residual clause and avoided addressing the vagueness issue. Justice Alito filed the sole dissent, arguing that the residual clause should not be struck down as impermissibly vague and that possession of a short-barreled shotgun is a violent felony under either the categorical approach or a conduct-specific inquiry.

37 Id. at 2557. 38 Id. 39 Id. (quoting United States v. Mayer, 560 F.3d 948, 952 (C.A.9 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc). 40 Id. at 2558.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


V. Johnson’s Impact on Statutory and Guideline Enhancements Although limited to ACCA’s residual clause, Johnson can be used to challenge the application of the two remaining provisions of ACCA and other statutory and guideline enhancements. In the wake of Johnson, there are several things to consider when challenging the application of ACCA, many of which also apply beyond the ACCA context. First, it is worth recalling that the Court struck down the residual clause in all its applications and overruled James and Sykes. Quite obviously, this means the residual clause cannot be used to find a prior offense qualifies as a violent felony. It also means only two ACCA clauses remain: (1) the force clause and

(2) the enumerated offense clause. Prior to Johnson, courts failed to provide a rigorous interpretation and application of these two clauses. This is because courts knew they could use the residual clause as a backstop to capture offenses that could not be firmly fixed within one of the other clauses.41 That is no longer possible. Therefore, for reasons elaborated more fully below, you should not assume your client’s prior offense qualifies as a violent felony just because a court previously held that the particular offense falls within either the force or enumerated offense clauses.

41 See, e.g., United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006) (“We hold that, even if Matthews’s third-degree burglary convictions are not convictions for ‘generic burglary,’ they are convictions for violent crimes under the [residual clause] because they satisfy this alternative definition.”).

Second, as a practitioner challenging ACCA’s application in a given case, it is usually helpful to forget what you think you know your client did. Recall that courts applying ACCA must apply the categorical (or modified categorical) approach. What conduct the defendant actually engaged in has no place in this analysis, unless it is necessary to show that the offense in question can be applied in a way that takes it out of the core of the force and enumerated offense clauses. Instead, a sentencing court must only look to “how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”42 A prior conviction will only be

42 Begay, 553 U.S. at 141.

Continued on page 32

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Recipient of the Hon. William Brennan Award for Outstanding Jurist

THE HONORABLE

Karen K. Peters New York State Court of Appeals

served in that capacity under Governors Hugh Carey and Mario M. Cuomo. In 1983, she became the director of the State Assembly Government Operations Committee.

Presiding Justice Karen K. Peters received her BS from George Washington University (cum laude) and her JD from New York University (cum laude, Order of the Coif ). From 1972 to 1979, she was engaged in private practice, served as an Assistant District Attorney in Dutchess County and worked as an assistant professor at the State University at New Paltz, where she taught courses on criminal law, gender discrimination and the law, and civil rights and civil liberties. In 1979, Justice Peters was selected as the first counsel for the newly created New York State Division of Alcoholism and Alcohol Abuse and

Justice Peters’ judicial career began in 1983 when she was elected to serve as an Ulster County Family Court Judge. She remained on the Family Court bench until 1992, when she was elected as the first woman Supreme Court Justice in the Third Department. Subsequently, on February 3, 1994, Justice Peters was appointed to the Appellate Division, Third Department by Governor Mario M. Cuomo and was appointed Presiding Justice of that Court by Governor Andrew M. Cuomo on April 5, 2012. She was the first woman to have been appointed as the Presiding Justice of the Appellate Division, Third Department. Justice Peters currently serves on the New York State Permanent Judicial Commission on Justice for Children and the New York State Task Force for Wrongful Convictions. She has also served on the Commission on Judicial Conduct from 2000 to 2012. Justice Peters is the Chair of the New York State Bar Association Committee on Judicial Wellness and has also served on

the New York State Bar Association Special Committee on Alcoholism and Drug Abuse, the New York State Bar Association Special Committee on Procedures for Judicial Discipline, and the President’s Committee on Access to Justice. She is also a member of the American Bar Association, the Ulster County Bar Association, the Albany County Bar Association, both the Mid-Hudson and Capital District Women’s Bar Associations and the Association of Supreme Court Justices of the State of New York. Justice Peters has received numerous awards including, among many others, the Albany County Bar Association’s President’s Award, New York State Bar Association’s Judicial Section Inaugural Award for Advancement of Judicial Diversity, the Center for Women in Government and Civil Society’s Public Service Leadership Award, the Capital District Women’s Bar Association Judge Kaye Distinguished Membership Attorney Award, and Albany Law School’s Kate Stoneman Award. An avid supporter of the arts, Justice Peters serves on the Board of Directors of the Woodstock Byrdcliffe Guild. She is also a member of the Mohonk Preserve and the NAACP.

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Recipient of the Thurgood S. Marshall Award for Outstanding Criminal Practitioner

Anthony L. Ricco, Esq. Mr. Ricco served as a law secretary to Hon. Bruce M. Wright in New York County, and then entered private practice in December of 1982. Since that time he has concentrated his practice in federal and state criminal defense, and in capital defense litigation. He currently serves as a National Resource Counsel for the Federal Death Penalty Resource Counsel Project, which provides expert assistance and backup for counsel engaged in defense of federal capital cases nationwide.

Anthony L. Ricco, Esq., is the recipient of the 2016 Thurgood Marshall Award for Outstanding Criminal Defense Practitioner. Mr. Ricco received his J.D. from Northeastern University School of Law in 1981, and was admitted to the New York Bar in January of 1982. He is a member of the bar of the United States Supreme Court, the United States Court of Appeals for the Second and Fourth Circuits, and the United States District Courts for the Eastern, Southern, and Northern Districts of New York.

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He has been an instructor at numerous CLE programs offered by NYSACDL, the California Attorneys for Criminal Justice, the Appellate Division, First Department, and other venues. He is a faculty member at the Bryan R. Schechmeister Death Penalty College at Santa Clara University. Mr. Ricco, “Tony” to his friends and colleagues, is a Past President of the New York Criminal Bar Association, and a former Board member of NYSACDL. He has received numerous professional awards and recognition. He was the 2012 recipient of the New York State Bar Association’s Outstanding Criminal Defense Attorney Award,

and he has been inducted as a Fellow of the American College of Trial Lawyers. In 2008, he was honored by the Second Circuit Court of Appeals and the American Inns of Court with the Professionalism Award, presented to him at the United States Supreme Court by Justice Samuel Alito. Also in 2008, he was named Attorney of the Year by the Metropolitan Black Bar Association. He has served as “learned counsel” in more than 45 Federal capital cases, in such diverse jurisdictions as Pennsylvania, Michigan, Indiana, New Jersey, and of course New York. He was capital counsel in over a dozen death penalty eligible cases in New York before the Court of Appeals declared the state death penalty unconstitutional in 2004. He has served as defense counsel in several high profile controversial cases, including the World Trade Center bombing conspiracy, U.S. v Omar Abdel Rahman, and the Embassy bombing case, U.S. v. Usama Bin laden et al . He represented a detective in the Sean Bell case in Queens County, People v. Michael Oliver et al. Mr. Ricco lives in Harlem with his wife, Ayanna, and their two children.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Recipient of the Distinguished Service to the Criminal Defense Bar Award

Michael Shapiro, Esq. Carter Ledyard & Milburn LLP

Although having travelled for pleasure and handled cases all over the world and nation Michael Shapiro has never resided more than 15 miles from The Bronx, where he was born and raised. Suffice it to say, he is a real New Yorker, born and bred and proud of it. He attended NYC public schools and CCNY before obtaining his law degree from NYU. While enrolled in the Law School’s Criminal Law Clinic, Mr. Shapiro encountered the first of a succession of legal mentors who helped hone his skills and shape his career. Graduation from NYU in 1973 resulted in Mr. Shapiro meeting his next two great mentors, Michael Armstrong and John Keenan, respectively the District Attorney and Chief Assistant D.A. of Queens County. They hired him as an ADA and had him learn how to become an appellate lawyer from their appeals chief, Cornelius O’Brien, who eventually sat on the Appellate Division, Second Department. Mr. Shapiro’s tenure in Queens was brief because in early 1975 he joined the newly-created Nursing Home Special Prosecutor’s Office, the first of its kind

in the country, where he investigated and tried Medicaid fraud and patient abuse cases. His white collar credentials had their start. 1977 saw John Keenan become the Special Prosecutor for Corruption in the New York City Criminal Justice System. For the next eight years Mr. Shapiro tried cases and prosecuted appeals for the Special Prosecutor’s Office, eventually becoming its chief appellate counsel. In 1985, Mr. Shapiro left for private practice. Because he prosecuted a police corruption case that had been defended by Bruce Cutler, and having made a favorable impression, Mr. Shapiro was invited to join what was then the firm of Slotnick & Cutler, which began his 21-year relationship with his next mentor, Barry Slotnick. Almost immediately upon his arrival, Mr. Shapiro became part of the Bernhard Goetz appellate defense team as New York’s current justification jurisprudence was being created. Later, the defense lawyers in the first federal trial of John Gotti retained Mr. Shapiro as the team’s “lawman” to write and argue motions, and, as it turned out, Mr. Gotti’s Second Circuit appeal

of his detention order. Goetz and Gotti provided quite the initiation to private practice. The firm eventually became Slotnick, Shapiro & Cracker and the high profile cases kept coming. Ten years ago, Mr. Shapiro joined the venerable Carter Ledyard & Milburn, where he is co-chair of its white collar practice. Mr. Shapiro, his wife Marcy, and their children all live in southern Westchester County, less than 15 miles from The Bronx.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Recipient of the Justice Through the Arts & Journalism Award

Susan Slotnick Rehabilitation Through the Arts

also studied a philosophy based on mindfulness and practicing kindness. In 1995, the Company attained professional status, launching a paid tour of New York State schools with a dance drama aimed to prevent bullying.

Susan Slotnick and some of her dancers

Currently, and for the last 11 years, Susan Slotnick has gone behind the walls at The Woodbourne Correctional Facility every Friday and Sunday to bring the joy of modern dance to incarcerated men under the auspices of Rehabilitation Through The Arts (RTA). After 40 years, Susan retired her Figures-In-Flight Dance School. Susan never wanted to own a building for her dance school. Without the economic pressure of ownership, she could teach in accordance with her humanistic values; no glitz costumes, no competitions, and everyone no matter their size, shape or finances was welcome. Her choreography dealt with serious themes geared to inspire audiences and students toward social justice activism. Students

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This endeavor fulfilled Susan’s lifelong desire to use dance to foster social justice. But it is her work with male prisoners teaching philosophy and modern dance that she claims is the apex of her long career. She has volunteered for 15 years in boy’s and men’s prisons as well as with AIDS and cancer survivors, the homeless, and the indigenous poor of the Caribbean. All have been the recipient of her love, talent and attention. Feature articles about her have appeared in Dance, Dance Teacher, and Dance Studio magazines. In 2014 she received the “Caring Heart Award” from Dance Studio magazine for her work with incarcerated populations. In 2010 Susan was featured in the Huffington Post as the “Greatest Woman of The Day” in celebration of Women’s History Month.

Two radio documentaries have aired about her humanitarian work with prisoners. In addition to her work in dance, Slotnick continues her career as a painter. For ten years, one of her paintings, Compassionate Baby, was on display in the Sloan-Kettering Hospital’s Pediatric Oncology Waiting Room. Slotnick is also a writer. Since 1988 to the present, she has been a featured columnist for the New York State newspaper The New Paltz Times. A documentary profile about her entitled “The Game Changer,” has been accepted at 15 film festivals including the prestigious Cannes Film Festival. In 2014, “The Game Changer” won first prize for best documentary short at The Harlem Film Festival and The Cannes Film Festival (The American Pavilion). She is currently writing a memoir. Susan is honored to be recognized by The New York State Association of Criminal Defense Lawyers.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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FYI-DWI* What You Do In The Midnight Hour Can Win Your Case!

A

ttorneys from time to time are awoken in the middle of the night by a telephone call regarding a client who is in the process of being arrested. When attorneys handle such a telephone call that pertains to a driving while under the influence of alcohol or drugs offense (“DUI”) offense they should be aware that the actions they take at that very moment can dramatically change the outcome of their client’s case.

By Stephen Epstein

Motorists arrested for a DUI offense in New York are typically asked to submit to a breath or a blood test to determine their blood alcohol concentration (“BAC”). This evidence is instrumental in a DUI prosecution and New York Vehicle and Traffic Law §1195 gives such evidence significant importance at trial. In short it can result in prima facie evidence that will establish intoxication and make or break the government’s case. When faced with the choice given to them by law enforcement to take or refuse a breath test, motorists often do not know what to do. In trying to make that decision motorists sometimes reach out to an attorney for advice or assistance. In other instances, the client’s family or friends may reach out to an attorney early on in the process to retain you to represent the person being charged. New York’s Vehicle and Traffic Law does not address whether a motorist arrested for driving while under the influence of alcohol has a right to consult with a lawyer prior to determining whether to consent to a breath test. At this early stage, the Sixth Amendment right to counsel has not yet attached because “official judicial proceedings” have not been commenced. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877(1972). New York courts have however, long recognized that a motorist

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


at this early stage does have a right to consult with a lawyer prior to determining whether to consent to a breath test. This has been described as a limited right to counsel. See People v. Gursey, 22 N.Y.2d 224 (1968). This limited right to counsel mandates that upon a request by an accused to speak with counsel, law enforcement “may not, without justification, prevent access between the criminal accused and his lawyer.” Gursey, at 227. Up until recently, this limited right to counsel was triggered only by a motorist’s request to speak to counsel. That changed with the Court’s decision in People v. Washington, 964 N.Y.S.2d 176 (2d. Dept. 2013). In Washington, the Court affirmed the lower court’s ruling suppressing the results of a breath test and extended the right to counsel to instances where the assertion of the right is made by counsel and not the accused. In Washington, the police requested that the defendant submit to a breath test and the defendant gave her consent at 3:30 a.m. The breath test was administered at 3:39 a.m. At 3:31 a.m. an attorney retained by the defendant’s family called and spoke to a police dispatcher at police headquarters. The attorney notified the police that he represented the defendant and stated “[y]ou have to stop all questioning and we are not consenting to any form of

testing whatsoever.” The police did not allow counsel to speak to his client. Applying the holding in People v. Garofolo, 46 N.Y.2d right or access to counsel may not be deprived. This decision is important because it significantly broadens the State Constitutional right to counsel and the principles that apply to individuals faced with the choice of submitting to a breath test. Based on this holding, it is essential that counsel who undertakes to represent a person accused of DUI notify the police promptly, request that they stop all questioning and refrain from all testing whatsoever until they allow them to speak to their client. The attorney should be sure to document the precise time of any such efforts, who they spoke to and what their exact language was in the conversation. It may also be advisable to record the conversation if feasible. If the efforts to speak to a client are frustrated by the police it may in fact lead to the suppression of the most important piece of evidence in the case, the results of the breath test itself. A *FYI/DWI is a news brief which will be published by NYSACDL in each issue of Atticus. It will keep readers informed of recent developments which impact clients charged with DUI offenses in New York.

Steven Epstein, Esq. is admitted as an attorney in New York and Connecticut, as well as before the United States District Courts for the Eastern, Southern and Northern Districts of New York and the United States Supreme Court. General Member, National College for DUI Defense (NCDD)

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Johnson v. United States Continued from page 23 deemed a violent felony if the statute’s elements are the same as or narrower than the elements of the generic offense. Put alternatively, if the “most innocent conduct” or “full range of conduct” covered by the statute does not match these definitions, the prior offense is not a “violent felony.”43 Third, to determine the full scope of conduct criminalized by a prior offense, be sure to research case law interpreting the elements of the offense in question. All that is required to take the offense out of the force and enumerated offense clauses is a single example of how the offense lacks the required elements of either clause or captures a broader range of conduct than either clause proscribes. For example, because robbery in any degree in New York State can be committed when a defendant and his accomplices form a “human wall that block[s] the victim’s path as the victim attempt[s] to pursue someone who had picked his pocket,”44 the offense lacks the required level of force to fall within the force clause and should no longer be deemed a violent felony.45

43 See United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). See also Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the lease of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.”) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).

Fourth, very few offenses meet the requirements of ACCA’s force clause. In the absence of a residual clause to fall back on, courts analyzing whether an offense falls within the force clause must now take seriously the physical force requirement Fourth, very few offenses meet the requirements of ACCA’s force clause. In the absence of a residual clause to fall back on, courts analyzing whether an offense falls within the force clause must now take seriously the physical force requirement, which the Supreme Court interpreted in 2010 to mean “violent force,” i.e., “strong physical force” that is “capable of causing physical injury or pain” to another person.46 In addition, an offense only falls within the force clause if the defendant intended to cause violent force; it is not enough for the offense to have been caused recklessly or negligently.47 Many offenses that

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Fifth, when analyzing whether an offense satisfies either of the two remaining clauses, do not be fooled by labels. For example, New York State defines burglary as unlawful entry into a building to commit a crime. On its face, this would seem to constitute a generic burglary for purposes of satisfying the enumerated offense clause. However, “building” is defined to include “any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer.”51 Because New York State burglary in the third degree does not require a jury to find which type of building a defendant

48 442 F.3d 787, 788 (2d Cir. 2006). 49 N.Y. Penal Law § 120.05(2).

44 See People v. Bennett, 631 N.Y.S.2d 834 (1st Dep’t 1995). 45 While the Second Circuit has consistently found all degrees of New York State Robbery satisfy the force clause, see, e.g., United States v. Spencer, 955 F.2d 814 (2d Cir. 1992) (first degree); United States v. Williams, 526 Fed.Appx. 29 (2d Cir. 2013) (second degree); United States v. Brown, 52 F.3d 415 (2d Cir. 1995) (third degree), each of those decisions preceded the Supreme Court’s 2010 holding in Johnson, and even following that holding, the Circuit had no reason to review its prior Robbery

were found to fall within both the force clause and the residual clause prior to 2010 are now subject to fresh attacks because the residual clause no longer provides a backstop. Among other cases, this includes the Second Circuit’s decision in United States v. Walker,48 in which the Court held that New York’s Second Degree Assault with a Deadly or Dangerous Weapon49 falls within both the force and residual clause because to “cause physical injury by means of a deadly weapon or dangerous instrument is necessarily to use ‘physical force.’” Subsequent decisions in other circuits highlight the failure of this logic.50

46 Johnson, 559 U.S. at 140.

50 See, e.g., Torres-Miguel, 701 F.3d at 168-69 (“Of course a crime may result in death or serious injury without involving use of physical force.”); United States v. De La Rosa-Hernandez, 264 Fed. Appx. 446, 449 (5th Cir. 2008) (finding California assault statute does not fall within the force clause because it can be committed by “threatening either to poison another or to guide someone intentionally into dangerous traffic, neither of which involve ‘force’ …”).

47 See Leocal v. Ashcroft, 125 S.Ct. 377 (2004).

51 N.Y. Penal Law § 140.00(2).

decisions because, prior to the Supreme Court’s recent decision in Johnson, robbery offenses would have fallen within the residual clause. With the residual clause now out of the way, defendants are now free to challenge those Circuit robbery decisions. See, e.g., United States v. Jones, No. 15-15180cr.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


burglarized, it is an indivisible, nongeneric offense.52 Beyond ACCA, Johnson has the potential to positively impact several statutory and guideline enhancements. For example, Johnson affects several guideline provisions that contain the same or similar residual clauses. Perhaps most important among these are the career offender guidelines of U.S.S.G. §§ 4B1.1, 4B1.2 and the guidelines for firearm offenses in U.S.S.G. § 2K2.1. Fortunately, the government has conceded that Johnson applies in these contexts, and the Second Circuit has remanded career offender cases relying on the residual clause.53 When challenging the application of the guidelines following Johnson, many of the same points outlined above concerning ACCA equally apply. There is, however, one additional obstacle you may have to overcome. The commentary to U.S.S.G. § 4B1.2 includes a gloss on the guideline definition that purports to list additional offenses qualifying as crimes of violence.54 Following Johnson, this list of offenses is no longer operative. As the Supreme Court held in United States v. Stinson, 508 U.S. 36 (1993), guideline commentary cannot expand the text of the guideline. This means that enumerated offenses in the commentary now only qualify as “crimes of violence” if they fall within the force clause.55 Therefore, the offens-

One final short note on a complicated issue—the retroactive application of Johnson is currently the subject of intense litigation and, consequently, the landscape is in flux.

es in the commentary no longer present an independent obstacle to challenging the career offender guidelines. In addition to guideline provisions, Johnson also impacts several criminal statutory provisions. For example, the residual clause in 18 U.S.C. § 16(b) – although not preceded by an enumerated offense clause and the word “otherwise” – is nearly identical to the one in ACCA. Because of this, the Ninth Circuit recently held in Dimaya v. Lynch,56 a case involving application of 8 U.S.C. § 1227(a)(2)(A)(iii), that § 16(b) is unconstitutionally vague for the reasons expressed in Johnson.

54 U.S.S.G. § 4B1.2, application note 1.

It is also worth noting that Johnson’s impact is not limited to prior convictions. For example, 18 U.S.C. § 924(c) requires varying levels of mandatory minimum sentences if a defendant possesses a firearm in furtherance of an instant crime of violence or drug trafficking crime. Under § 924(c), the definition of crime of violence contains the same residual clause as 18 U.S.C.

55 See United States v. Shell, 789 F.3d 335, 340-41 (4th Cir. 2015) (“[T]he government skips past the text of §4B1.2 to focus on its commentary,” but “it is the text of course, that takes precedence.”)

56 803 F.3d 1110 (9th Cir. 2015).

52 See United States v. Brown, 514 F.3d 256, 265 (2d Cir. 2008). 53 See Letter Br. for United States, United States v. Zhang, No. 13-3410 (2d Cir. Aug. 13, 2015); Order Remanding for Resentencing, United States v. Zhang, No. 13-3410 (2d Cir. Aug. 18, 2015).

§ 16, and is, therefore, vulnerable to attack for the reasons expressed by the Ninth Circuit in Dimaya. Eliminating the residual clause from § 924(c)(3)(B) would open the door to challenging the application of 924(c)’s consecutive mandatory minimum provisions to several federal crimes, including Hobbs Act robbery,57 bank robbery,58 carjacking,59 murder,60 assault,61 and violent crimes in aid of racketeering,62 each of which can be committed without violent force. One final short note on a complicated issue, the retroactive application of Johnson is currently the subject of intense litigation and, consequently, the landscape is in flux. While there appears to be near unanimous agreement that Johnson applies retroactively to ACCA cases,63 the government and at least one circuit court have resisted its retroactive application outside of the ACCA context, including career offender cases.64 To date, the Second Circuit has not taken a formal position as to Johnson’s retroactive application in either context. A

57 18 U.S.C. § 1951. 58 18 U.S.C. § 2113. 59 18 U.S.C. § 2119. 60 18 U.S.C. § 1111. 61 18 U.S.C. § 111. 62 18 U.S.C. § 1959. 63 See, e.g., Joint Emergency Motion, United States v. Striet, 15-72506 (9th Cir. Aug. 12, 2015). 64 See In re Rivero, 797 F.3d 986 (11th Cir. 2015) (holding Johnson does not apply retroactively to career offender guideline); United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (holding Johnson inapplicable to career offender guideline even on direct appeal) (petition for en banc pending); But see United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (finding, on direct appeal, residual clause in the career offender guideline unconstitutionally vague); United States v. Franklin, __Fed.Appx.__, 2015 WL 4590812 (6th Cir. July 31, 2015) (same).

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Court of

Appeals

Roundup

By Claudia Trupp

The New York Court of Appeals issued a number of significant criminal law rulings this year, clarifying New York’s legal landscape. What follows is a summary of some of the year’s important decisions.

h Fourth Amendment

People v. Rebecca Guthrie Defendant was stopped for running a stop sign which had been placed in a manner that violated the Village code. The Village court dismissed the traffic violation. The Court of Appeals reversed and held that because the officer’s mistake of law was objectively reasonable, the stop was not unconstitutional. People v. Richard Gonzalez A disorderly conduct arrest was held patently without probable cause where it was based on the defendant’s cursing at police officers in a subway station. “[T]here is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct,” the Court found.

Claudia Trupp is an attorney with the Center for Appellate Litigation, and a member of the Board of Directors of NYSACDL.

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People v. Anthony Barksdale The court rejected a challenge to the admissibility of evidence seized following the defendant’s arrest in the lobby of an apartment building enrolled in the Trespass Affidavit Program (TAP). The record supported that the police had an objective credible reason to approach and request information, to initiate the encounter that resulted in the seizure of the evidence.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


h Evidence

People v. Joseph Inoa In a first-degree murder prosecution, it was an error for the court to allow a detective to testify as an expert in decoding telephone conversations, where the meaning of the conversations was clear and the testimony merely served to harmonize recorded conversations with the prosecution’s overall theory. Although portions of the testimony were admitted in error, in light of overwhelming evidence, the Court affirmed the conviction. Nonetheless, the Court recognized this case as a situation “in which an expert so palpably overtakes the jury’s function to decide matters within its unaided competence” that an abuse of discretion existed. A particular danger is created where an officer qualified as an expert has participated in the investigation and “with the mantle of an expert steeped in the particulars of the case, gives seemingly authoritative testimony directly instructive of what facts the jury should find.” People v. Paul Williams, decided April 7, 2015 The Court held that as a matter of state evidentiary law the prosecution’s reference in their case-in-chief to defendant’s selective silence during custodial interrogation after waiving his Miranda rights was improper. Such evidence cannot be used either to raise an inference of consciousness of guilt or to impeach a defendant’s credibility where he has not testified. Silence, the Court recognized, is generally of low probative value as it is ambiguous and jurors can use it to draw unwarranted inferences, justifying its introduction only in “rare cases.”

People v. Joshue DeJesus The Court held that police testimony that a defendant became “a suspect” during the course of an “investigation” did not violate the Confrontation Clause so long as “out-of-court” statements do not become a substitute for trial testimony. Thus in a companion case People v. Garcia reversal was required because the police testified that the deceased’s sister had told them that he was having a problem with the defendant. In DeJesus no such problem arose because the testimony was more generalized without specific reference to how the police acquired the information that made the defendant a suspect. People v. Jose Martinez Baxin Defendant’s due process rights were violated during the SORA hearing where the court refused to allow the defense to see grand jury minutes upon which the court ruled in reaching its risk level decision. But in light of overwhelming evidence supporting the contested risk factor which was disclosed to the defense the error was harmless. People v. Darius Dubarry Reversal was ordered due to the trial court’s erroneous finding that the defendant had procured the absence of a key prosecution witness so as to allow admission of the witness’s grand jury testimony. The evidence at the Sirois hearing demonstrated that the threats to the witness were made by individuals aligned with the defendant, but no direct link was established between the defendant and the threats to support a finding that defendant had forfeited his right to confrontation. The court also held that depraved indifference murder and transferred intent murder had to be charged in the disjunctive so that a conviction for both crimes could not be upheld.

People v. Dean Pacquette The Court held that the prosecution was required under the plain language of C.P.L. 710.30 to provide timely notice that the “ghost” officer in a buy and bust transaction had previously identified the defendant prior to trial. The failure to provide the requisite notice meant that the court erred in allowing the officer to testify relative to his identification of defendant, although the error was deemed harmless. The Court rejected the prosecution’s invitation to extend to a ghost officer it’s holding in People v. Wharton, 74 N.Y.2d 921 (1989) that a defendant is not entitled to a Wade hearing prior to an undercover officer testifying about a prior identification following a face-to-face drug transaction because such an encounter is not ordinarily compromised by forbidden suggestiveness. People v. Everett Durant The common law does not require the trial court to issue an adverse inference instruction against the prosecution based solely on the police failure to electronically record the custodial interrogation of a defendant.

h Right To Be Present During Proceedings

People v. Benny Garay, decided March 31, 2015 Although defense counsel was not present when the discussion about replacing a sick juror transpired, he was present when the actual replacement occurred and did not register an objection. The error did not impact the mode of proceedings so as to render an objection unnecessary. The Court also ruled that the trial court properly closed the courtroom during the testimony of an

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Continued on next page

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Court of Appeals Continued from previous page

undercover officer and assumed the court properly considered alternatives to closure. Additionally, the court upheld the summary denial of a suppression hearing because the prosecution alleged the defendant had committed a crime prior to his arrest rendering a pleading that the defendant had not been committing a crime when arrested inadequate to warrant a hearing. Matter of New York v. Robert F, decided May 14, 2015 In this Mental Hygiene Law Article 10 civil confinement proceeding, the Court held that the hearing court erred by permitting an expert to give rebuttal testimony via live, two-way video conference. While a court has the discretion to employ such technology “pursuant to its inherent power” such power should be exercised only where exceptional circumstances require or when all parties consent. People v. James Poleun Defendant failed to preserve his claim that his waiver of his right to appear at this SORA hearing was invalid. Counsel had presented a signed waiver of appearance to the court and did not object to proceeding in his client’s absence.

h Enterprise Corruption

People v Matthew Keschner and Aron Goldman In an enterprise corruption case the prosecution may prove a defendant was a member of a criminal enterprise with a continuity beyond the scope of individual incidents without showing the enterprise would have survived the removal of a key participant. Were the prosecution required to prove that a criminal enterprise would survive the removal of a key participant it would be

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impossible in most case to demonstrate the enterprise’s existence. The continuity requirement is not that the group would continue in the absence of a key participant but rather than the enterprise continues beyond individual incidents. The Court also rejected an ineffective assistance of counsel claim based upon defense counsels’ failure to object to an erroneous accomplice liability instruction.

sufficient evidence that the defendant only meant to assault the victim. The Court left open the question raised in People v. Cahill, 2 N.Y.3d 14 (2003) whether a person who enters a building with the intent to kill may properly be convicted of felony murder.

h Double Jeopardy

People v. William Middlebrooks and Fabrice Lowe When a defendant who would otherwise be an eligible youth has been convicted of an armed felony the sentencing court is required to make a determination on the record whether one or more of the factors set forth in C.P.L. §720.10(3) is present so as to render the defendant an eligible youth. The plain reading of the statute and the Court’s prior decision in People v. Rudolph, 21 N.Y.3d 497 (2013), requires the sentencing court to make this on-the-record determination even if a defendant does not request youthful offender treatment or has agreed to forego it during plea bargaining.

People v. Ricky A. Lynch The defendant’s Suffolk county prosecution for forgery, identity theft and offering a false instrument was not barred pursuant to New York’s statutory double jeopardy provisions by his earlier prosecution in Westchester for possessing a forged instrument, unlicensed operation of a motor vehicle and false personation. Under the test presented by C.P.L. §40.10(2)(a) the offense of submitting a forged form in Suffolk county to obtain a non-driver ID and then possessing that ID and presenting it in Westchester occurred several months apart and involved different forged instruments– making them distinct criminal transactions. Nor did this case involve integrated acts as is common in conspiracy or complex fraud cases to constitute a single criminal venture pursuant to C.P.L. §40.10(2).

h Felony Murder

h Justification

h Youthful Offenders

People v. William Henderson Evidence of felony murder was deemed sufficient where the underlying felony of burglary was premised on the defendant’s intent to commit an assault. The Court rejected the defendant’s argument that a felony murder conviction could not be predicated on burglary where the intended crime underlying the burglary is murder because to do so would “double count” a single mens rea intent to kill. The Court found it unnecessary to address this issue because there was

People v. Christopher Walker The court held that the standard Criminal Jury Instructions on the initial aggressor exception to the justification defense misstates the governing legal standard where the defendant claimed that he intervened in an ongoing fight that began in his absence where he intended to shield a third party from an unlawful attack. The court should have given an additional instruction explaining that the defendant could not be considered the initial aggressor if he had

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


nothing to do with the original conflict and had no reason to know who initiated it.

h Jury Deliberations

People v. Edwin Mendez, The jury’s request to see translated transcripts of recorded conversations did not involve a ministerial matter. As such, the trial court’s failure to read the note into the record and reveal it to the attorneys required reversal. People v. Rhian Taylor Reversal was required where the trial court, in response to a deliberating jury, did not provide a substantial portion of the requested evidence regarding the potential bias of key prosecution witnesses and suggested that there was no additional evidence responsive to its inquiry. The court provided the jurors with the cooperation agreements but not the witnesses’ testimony relating to those agreements. People v. Kenneth Nealon A trial court does not commit a mode of proceedings error requiring automatic reversal when it fails to discuss a substantive note outside the jury’s presence but reads the note into the record in the

presence of the parties. Where a trial court paraphrases a note or omits a key term thereby failing to provide counsel with meaningful notice of the precise content of a substantive juror inquiry a mode of proceedings error occurs and reversal is required absent objection. But here counsel was apprised of the specific content of the note in front of the jury and did not object to the improper procedure rendering the error unpreserved.

h Guilty Pleas

People v. Conceicao, People v. Pelligrino A guilty plea is not invalid because the trial court failed to recite a defendant’s constitutional rights under Boykin v. Alabama so long as the record as a whole supports that the defendant knowingly, intelligently and voluntarily waived these rights.

offender statute, by its plain terms, does not require that, in order to classify someone as a persistent felony offender, an out-of-state predicate felony must have a New York counterpart.” People v. Antonio Martinez Defendant’s sentencing comported with due process where he rejected a plea offer of 10 years probation for a single crime and following trial was sentenced to 10 to 20 years in prison. The presumption of vindictive sentencing did not apply where a defendant rejected a favorable plea bargain and proceeded to trial given the quid pro quo nature of the plea bargaining process. A

h Sentencing

People v. Clemon Jones, The issue before the Court was whether the discretionary persistent felony offender sentencing provision (Penal Law §70.10) requires strict equivalency between a foreign conviction and a New York felony to qualify as a predicate offense. The unanimous Court held that it did not. “New York’s persistent felony

By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society. – de Tocqueville on jury service

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From 90 State Continued from page 5 part of the conversations about this bill, including encouraging a more complete vetting process). In 2016, we will be looking at online options to provide access for members and friends to communicate directly with their representatives on issues important to the criminal defense community. Look for these opportunity coming soon! These successes, among others, touch on many aspects of NYSACDL’s founding mission and goals. As we enter this milestone year, I am humbled to be working with our dedicated Officers, Directors and Past-Presidents as we carry the torch lit by our founding members to protect the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Now – here’s the plug. What can you do to help us achieve our goals? • Renew your own and Recommend a colleague’s membership. • Register yourself for and Share with others information about CLE seminars. • Participate in calls to Communicate about legislative initiatives.

As always, thank you for your commitment to NYSACDL and your practice. I hope you have a wonderful and prosperous 2016! A

The great enemy of the truth is very often not the lie — deliberate, contrived and dishonest, but the myth — persistent, persuasive, unrealistic.

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– John F. Kennedy

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Book Review MISSOULA: Rape and the Justice System in a College Town by Jon Krakauer (Doubleday 2015)

Reviewed by Dick Barbuto

Mr. Krakauer, a bestselling author, has written a powerful, provocative and very well researched book about a series of sexual assaults that took place at the University of Montana. The University (often simply referred to as UM) is a public research university located in Missoula. Founded in 1893, it is the flagship campus of the four-campus University of Montana System and is its largest institution. The main campus is located at the foot of Mount Sentinel, the mountain bearing Missoula’s most recognizable landmark, a large hillside letter “M.” The university calls itself a “city within a city,” and contains its own restaurants, medical facilities, banking, postal services and ZIP code. Missoula has a population of approximately 70,000, a 70 member police force and a prosecutor’s office with 16 lawyers.

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

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The sports teams are named the Grizzlies and the major sport at UM is football. Nicknamed the “Griz” (and supported by “Griz Nation”), since the 1990s the “Griz” have established themselves as one of the most dominant football teams in both the Big Sky Conference and in the NCAA Football Championship Subdivision (known as Division I-AA football before 2006). They have won or shared 11 of the last 16 Big Sky football championships since 1990. Football is taken very, very seriously at UM and in the areas surrounding Missoula. If football is a religion at UM then the players are treated as gods. Of the various cases that stand out in the book, two are given special prominence. In each of the two, the names of the parties are pseudonyms.

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


In the first, there is an allegation of rape between two individuals that have grown up together and thought of each other as fast friends. The female, Allison Huguet, goes to a party at the campus residence of her longtime friend, Beau Donaldson who plays football for the UM team. Both Allison and Beau have been doing some drinking during the evening and when the party ended Allison decides to sleep on the couch rather than drive home. She fell asleep and was later awakened with her jeans and panties having been pulled down and Donaldson having sexual intercourse with her. She was paralyzed with fear and said nothing until the conclusion of the act whereupon she got dressed, ran outside and called her mother to pick her up. The following day Allison and her mother confront Beau with his behavior and he breaks down in apparent remorse. Allison, due to the long relationship between the two of them, decides not to report Donaldson upon his promise that he will seek help for his drinking and sex problems. Some 15 months later when it becomes apparent that he has not fulfilled his promise, Allison makes a police report. Ultimately, there is a guilty plea and Donaldson is sentenced to a term of imprisonment that will cause him to spend 2 ½ years in a Montana state prison.

Allison goes through during the time both between her reporting of the rape and afterwards dealing with the police department and the prosecuting attorney. In the second case involving Cecelia Wagner and John Johnson, again pseudonyms, Cecelia has told John, in very clear language, that she would like to have sex with him. A date is made, and John, also a UM football player, goes to the residence of Cecilia. The two began watching a movie in Wagner’s bedroom and engaged in sex not involving intercourse. She did not wish to have intercourse at that time and wrapped herself in a sheet. John, wishing to have sex, tried to pull the sheet off of her and she screamed for help from people also living in the house. Eventually her bedroom door was broken down (Johnson had locked it) and John was pulled off her. After getting a snack, Wagner drove Johnson to his residence. At the trial of the case, the prosecution calls Dr. David Lisak as an expert witness in non-stranger rapes and his testimony is roundly criticized by the defense team through the cross examination of Lisak and in the defense summation.* Lisak attempts to explain all the apparent oddities in Wagner’s testimony.

The author also goes through the tribulations and experiences of Cecilia during her ordeal. Krakauer tells a gripping and very tense story of both these events as well as some others, but to a lesser extent. The book also deals with the politics surrounding Missoula and gets into a Department of Justice investigation of law enforcement, both police and prosecutors, in Missoula. Despite many years of anti-rape activism and legislation regarding campus sexual violence, sexual assault on American college and university campuses remains prevalent, under-reported, and poorly understood. This is a very well written and researched book and anyone who is interested in the subject matter should make it a must read. *During the course of the trial much is made of the expert testimony of Dr. David Lisak who was a professor at the Boston branch of the University of Massachusetts. Since the publication of the book there have been attempts to debunk his theories; some of the debunking appears to have been successful. I mention this not to take sides with regard to the research, but rather, to let the reader know that his theories have come under fire.

John is acquitted. The author tells a riveting story of what

Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Brief Examinations The Triangle: a Year on the Ground with New York’s Bloods and Crips by Kevin Deutsch (Lyons Press 2014)

Reviewed by Dick Barbuto

This book is about the vicious drug war between the Bloods and the Crips, two national well-armed and well-financed gangs on a small piece of real estate in Hempstead, New York, which is part of Long Island. It is known as “the Triangle.” Before going any further, the nature of this type of book makes it difficult to judge how much of it is actually true. With insignificant exceptions, the names of the participants in the book are not real names. That shouldn’t be surprising given the events portrayed in the book but I feel constrained to put in this caveat for the reader. I should also state categorically that I have no reason to believe that any of the accounts in the book are false. The book tells the story of one year in the life of a suburban village-turned-war-zone. It follows the two warring gangs and, to a lesser extent, anti-violence activists and police. What the reader will find truly horrifying, apart from the obvious carnage and terror that make up life in “The Triangle,” is the tender age of many of the “playas” and “gangstas.” The gangs are made up of teenagers and in some cases the leaders of the gangs, who are fabulously wealthy, are in their early 20s.

the firepower. Gunshots are not a rare occurrence in the Triangle. The author spares nothing in his description of murders, shootings, rape and robbery. The book is not for the faint of heart. Drugs are a very serious problem in Nassau County, the county in which “The Triangle” lies, and the problem is not going to be solved by the local District Attorney holding press conferences. As the author notes, there are committed anti-drug activists and cops in Hempstead. They need help. Kevin Deutsh is an award-winning criminal justice writer for Newsday. He previously worked on staff at the New York Daily News and The Miami Herald. He specializes in journalism about street gangs, terrorism, and drug trafficking. He lives in New York City.

And let’s be clear about something. The gang bangers are all armed and both gangs have access to high grade weapons. The war is not being carried out with six shooters and “Saturday Night Specials.” In many cases, the gangs can out-gun the police. And there seems to be no apparent hesitancy in using

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Cutting Edge CLE Fall Seminar Recaps Syracuse Fall 2015 Seminar: Effective Voir Dire: You Can’t Win Without The Right Jury Saturday, October 3, 2015 – Onondaga Community College 7 Skills Credits NYSACDL designed and put on a full day seminar and workshop on voir dire in Syracuse on October 3, 2015 titled, “You Can’t Win Without the Right Jury.” Jury selection is the very foundation of your trial. It is a place to build trust and credibility and to begin to tell your client’s story. Getting the right jury is crucial. Mistakes made in this process can continue throughout the trial and carry over into the jury room. It is rare to find a full day seminar on a single topic such as this one and NYSACDL was proud to provide this intensive learning opportunity for the legal community. We taught lawyers to let go of prior misconceptions and to adopt an intuitive and easily understandable system and procedure for selecting winning juries. Our interactive seminar allowed participants to use their own cases to help them craft jury selection questions and then present those in a mock voir dire in a small group workshop setting. With ten experienced instructors on the faculty we were able to provide individualized attention and support to each participant.

Voir dire is something oftentimes lawyers don’t even begin to address or prepare for until just before trial. Too often they approach voir dire as though it were a cross examination rather than working to create a community among the jurors. The lessons presented in our Fall Seminar brought voir dire to the forefront of our attendees’ trial preparation with an approach geared towards setting a winning tone for the entire case.

w NYSACDL Foundation & Center for Appellate Litigation CLE Seminar: Top Tips For Providing The Most Effective Assistance Of Counsel Thursday, October 15, 2015 – Center for Appellate Litigation, New York 1 CLE Credit in Ethics The NYSACDL Foundation thanks the Center for Appellate Litigation and NYSACDL Board Member Claudia Trupp for helping to present our first members-only free CLE seminar, “Top Tips For Providing The Most Effective Assistance Of Counsel”, approved for 1 sought-after Ethics credit for a limited number of members. This first attempt was a sell-out success and we look forward to partnering on similar seminars in the future and providing members with useful (and free!) CLE credits.

Hudson Valley Fall 2015 Friday, October 30, 2015 – Poughkeepsie Grand Hotel 1.5 Ethics Credits; 3 Skills Credits Once again, NYSACDL’s traditional Hudson Valley FALL CLE seminar provided more than 60 private practitioners and public defenders an afternoon of study centered on timely and helpful topics. Jackie Kellso, President of PointMaker Communications, Inc., a trainer and coach who gives leaders the edge to think and communicate for maximum impact, started the afternoon using her training skills with “Managing a Case while Dealing Effectively with Difficult People”. This interactive session had those in attendance on their feet refreshing their conflict management skills. Following Ms. Kellso’s presentation, attorney Joshua J. Horowitz, whose practice is concentrated on matters requiring expertise in technology and computer software, provided an indepth presentation into the defense of

CLE

Continued on next page

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Fall Seminar Recaps Continued from previous page cybercrime cases. Mr. Horowitz fielded questions concerning mobile phone and computer forensics, an area of evidence that is fast becoming more prominent in current and future criminal defense practice. Joseph Gerstenzang, an associate at the law firm of Gerstenzang, O’Hern, Sills & Gerstenzang, presented on DWAI/ Drugs Defense – specifically, legally used prescription medications. He brought his expertise, enthusiasm and experience to Poughkeepsie. Mr. Gerstenzang’s informative presentation kept participants in their seats well beyond closing time.

w Superstar Trial Seminar 2015 Thursday, November 5, 2015 – United States Courthouse, Buffalo 7.5 Skills Credits NYSACDL’s annual Buffalo Superstar Trial Seminar was held on Thursday November 5, 2015 at the United States Courthouse. More than 95 attorneys attended the all day program providing 7.5 CLE credits with breakfast and lunch included. The attendees were an impressive mix of private practitioners, institutional defenders and assigned counsel attorneys. Attendees traveled from Saratoga County, White Plains and New York City to attend. Rusty Hardin of Houston kicked off the program, walking attendees through the strategic considerations, theme development and trial execution that led to the acquittal of Major League Baseball hurler Roger Clemons in his false statements trial in 2012.

attorneys. Buffalo’s Joe LaTona presented a program on the aggressive use of pre-trial motion practice, including canvassing the strategy and work that led to the complete pre-trial dismissal of all charges against all defendants in the Kingsmen motorcycle club case (United States v. Koschtschuk (W.D.N.Y.)). Andre Vitale of Rochester provided a comprehensive roadmap for cross-examining the complainant in a sex case. Third, Andrew LoTempio of Buffalo, taking a break from defending a federal murder case, discussed trying homicide cases, with a special focus on RICO and gangrelated homicide trials in federal court. Ben Ostrer of Orange County, pastpresident of NYSACDL, delivered a primer on dealing with DNA evidence at trial. The day was capped with a discussion led by Rob Cary of Washington, DC. Rob discussed the Department of Justice’s prosecution of the late Senator Ted Stevens of Alaska, detailing the discovery abuse and examples of misconduct during the trial. The program and slate of exceptional speakers was again made possible by our generous sponsors: LEXIS-NEXIS, the premier electronic research provider; Dopkins & Company, a Buffalo-based, full-service accounting firm with a deep experience in forensic accounting and investigations; and, AppealTech, an appellate printer that provides services to attorneys state-wide for all New York state and federal appellate courts. As in the past, the United States District Court for the Western District of New York, and Chief Judge Frank P. Geraci, Jr., allowed us to use the Courthouse’s jury assembly area to host the seminar.

SPONSOR CONTACTS: LEXIS-NEXIS Linda Coons (716) 656-1221 DOPKINS & CO. Bart McGloin (716) 634-8800 APPEALTECH (585) 471-7020 Kevin Momot

Judicial reform is no sport for the shortwinded. – Arthur T. Vanderbilt

The program featured a trio of seasoned and diverse Western New York

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


Cutting Edge CLE NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year. Seminar Registration Available at www.nysacdl.org Questions? Call the NYSACDL office at (518) 443-2000 or email jlvanort@nysacdl.org

Spring 2016 Seminar Calendar Federal Practice in 2016 and Beyond Friday, February 5, 2016 7.5 Skills Credits 9:00am – 5:00pm New York Law School, New York, NY

Cross to Kill 2016 Friday, April 8, 2016 New York Law School, New York, NY

Faculty & Topics Jury Selection in Federal Court – Linda Moreno, Esq., The Law Office of Linda Moreno Examining Cell Phone Evidence & Other Technology Discovery Issues – Richard Willstater, Esq., The Law Offices of Green & Willstatter; Louis Cinquanto, EnCE, Cornerstone Discovery Issues for Jury Instructions in Federal Court – Marc Fernich, Esq., Law Office of Marc Fernich; Maurice Sercarz, Esq., Sercarz & Riopelle, LLP Panel Presentation: Sentencing and Mitigation Advocacy – Judge Vincent L. Briccetti, Southern District of New York; Thomas E. Mixon, Deputy Chief U.S. Probation Officer, Southern District of New York; Michael Shapiro, Esq., Carter Ledyard & Milburn LLP; Rachelle D. Veasley, LMSW, Director of Client & Mitigation Services, Federal Defenders of New York; Moderated By: John S. Wallenstein, Esq.

Watch for faculty & topics coming soon!

Judge: “Is there any reason you could not serve as a juror on this case?” Juror: “I don’t want to be away from my job that long.” Judge: “Can’t they do without you at work?” Juror: “Certainly, but I don’t want them to know it.” – from The Furrow, Volume 119, Issue 6

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NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

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

LIFE MEMBERS

Andrew Kossover, New Paltz

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

PRESIDENT-ELECT John S. Wallenstein, Garden City

FIRST VICE PRESIDENT Robert G. Wells, Syracuse

VICE PRESIDENTS Michael T. Baker, Binghamton Lori Cohen, Manhattan Alice Fontier, Manhattan Arnold J. Levine, Manhattan Donald G. Rehkopf, Jr., Rochester

SECRETARY Jessica Horani, Manhattan

TREASURER Susan J. Walsh, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

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

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

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

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

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF DECEMBER 21, 2015) ALBANY COUNTY

FRANKLIN COUNTY

NEW YORK COUNTY

ORANGE COUNTY

ROCKLAND COUNTY

Nora Christenson Michael D. Jurena Michael P. McDermott Amanda Oren Lisa Robertson

Thomas G. Soucia Andrew R. Zahnd

Michael Collado Randall Inniss Robert N. Isseks Amir Sadaghiani

John H. Hughes

David P. DeSantis Gerald D. Raymond

Alan M. Abramson Joseph M. Caiazzo Michael Cirigliano Edgar De Leon Donald Duboulay Melissa Erwin Ronald Hart Robert Hodgson Raymond Loving Chris R. Neff Archana Prakash Christina Rodriguez Herman B. Weisberg

NASSAU COUNTY

ONONDAGA COUNTY

BRONX COUNTY Ann Matthews

CORTLAND COUNTY Ronald T. Walsh

DUTCHESS COUNTY Richard Berube Jamie Greenwald Kristen Verrino

ERIE COUNTY Terence B. Newcomb Kevin Stadelmaier

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GREENE COUNTY Olivia Lieber

KINGS COUNTY Elizabeth Seymour John Stebe Sonia Tate-Cousins

MADISON COUNTY

Jonathan (Gianni) Karmily Michael H. Ricca Harleigh Tensen

William Sullivan

ONTARIO COUNTY

OUT OF STATE David Angeli Tina Miller

QUEENS COUNTY Kaliopi Vasiliou Michael Hartofilis

SARATOGA COUNTY Frederick Rench

ST. LAWRENCE COUNTY Krista Freego

ULSTER COUNTY Joseph O’Connor Deborah L. Robbins

WARREN COUNTY

RENSSELAER COUNTY

Lawrence Elmen

Arthur R. Frost

WESTCHESTER COUNTY

RICHMOND COUNTY

Tamika Coverdale Jeff Hersh

Manuel Ortega

Mollie Dapolito

Atticus | Volume 28 Number 1 | Winter 2016 | 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 Chairs: Marc Fernich (maf@fernichlaw.com), Brendan White (brendan@whiwhi.com) Members: Timothy Murphy, Richard Willstatter

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

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

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

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

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

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE Chair: Wayne Bodden (wcb40@aol.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

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

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

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

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

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

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

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NYSACDL

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 President’s Club Sustaining Member Regular Member

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

$2500 $515 $315 $219

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.

Regular Member

$142

Full-time Public Defender Allied Professional Member

$142 $193

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

Retired Attorney $91 Law Student/Recent Law School Alumni (less than one year since completion) $66 School: __________________________

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

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

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

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa. Please charge to my credit card.

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

Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________ Date:______________________________ CVV code_____________

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Please make your check payable to NYSACDL and send it to: NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 28 Number 1 | Winter 2016 | 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 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Animal House

State Hotel

by Mitchell Sands

by Mitchell Sands

I’ve just joined this new fraternithy It’s exclusive as can be for in order to get in You must commit a felony Now I’m not trying to sound snobbish But it’s plain as you can see The only way to get in our frat house Is if the Police bring you personally You don’t need a high school diploma Race matters to us not But you climb the ladder quickly If you have access to some pot We have a chef to cook for us We even have our own barber Before he took up cutting hair He was a fairly good armed robber We also have a comedian He makes us laugh until we cry He killed two people just to join our club If we don’t laugh we die Our frat is universal We have a club in every state So no matter where you are You’re never far from our front gate. So now i’ve become a member Of this exclusive clan But I hope to pay my dues real quick And get out fast as I can.

It’s three thirty in the afternoon I’m here six weeks today I must really be the perfect guest For they insist that I stay. I’m glad they think so much of me But I really must confess This place leaves much to be desired My accommodations are a mess The mattress is kind of skinny A pillow I have not In fact what I’ve been calling my bed Is really not more than a cot There are no rugs laid on my floor The view is not too grand The food they serve is not freshly cooked I’ve suspicions it’s been canned My suite is not too large It’s maybe five by six I definitely don’t recommend this place If you want to bring home chicks Now I’m not trying to sound humble But still I really can’t conceive Why they like me so much They can’t bear to have me leave It must certainly be my charm So I guess I’ll stay here till My welcome finally runs out Or they present me with a bill

Mitchell Sands was a client of NYSACDL Past President Murray Richman. Mr. Sands found redemption in prison, and wrote these poignant poems to celebrate that. Atticus is pleased to present them for your perusal.

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Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers


CLEMENCY PROJECT

NEEDS

YOU!

An Open Letter to the Criminal Defense Bar Perhaps one of the single most gut-wrenching moments defense lawyers experience is when, standing alongside a client, we hear a judge pronounce an inordinately lengthy sentence and apologetically proclaim that “my hands are tied.” This is the tyranny of mandatory minimums and, for decades, it was the reality of the mandatory federal sentencing guidelines. Now we have a chance to undo some of that cruelty. I ask you to join in this noble and necessary cause. In January 2014, Deputy Attorney General James Cole announced a new clemency initiative that provides an opportunity for many nonviolent federal offenders to have their sentences commuted, and asked the profession to assist qualified inmates. Clemency Project 2014 (CP 2014) was created to answer that call. It is a working group composed of lawyers and advocates, including the Federal and Community Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and NACDL, as well as individuals active within those organizations. CP 2014 members collaborate to recruit and train attorneys on how to screen for prisoners who meet the stated criteria and provide pro bono representation for prisoners who meet the criteria. CP 2014 is now fully operational, and this is an opportunity for all lawyers to help. The Project has developed a comprehensive training program that can be viewed at your convenience. The program provides everything a lawyer needs to know to evaluate an inmate’s eligibility, and offers comprehensive guidance on what must be included in a clemency petition. Lawyers who currently serve on federal Criminal Justice Act panels are not required to complete the training, but they will find the section on how to determine if an inmate’s sentence would be lower if imposed today — the core requirement of the clemency initiative — quite valuable. Additionally, CP 2014 provides input and resource support for all volunteers. As of early March, more than 30,000 federal prisoners have submitted applications for clemency consideration. More than 5,000 applications are currently under review, and more than 1,500 attorneys have volunteered to take on pro bono cases via CP 2014. But, with so many applicants, more volunteers are needed. Time is also a factor because we cannot be assured that the initiative will continue under the next administration. This is an historic opportunity for the criminal defense bar to rise up. We simply must make sure that we find every single prisoner who may qualify and present the strongest possible petition on every prisoner’s behalf. I ask for your help. Please volunteer now.

Cynthia W. Roseberry

Project Manager, Clemency Project 2014

CYNTHIA ROSEBERRY has been a criminal defense lawyer for 17 years and a proud member of NACDL for most of that time. She served as executive director of the Federal Defenders of the Middle District of Georgia, Inc., a position she held for five years. In June 2014, when she was asked by the organizations participating in Clemency Project 2014 to serve as project manager, Cynthia left that position for an opportunity to help obtain freedom for countless nonviolent offenders who have languished in jail serving horrifically severe sentences. It is in the capacity of project manager that she writes this letter seeking your assistance.

For more information and to

VOLUNTEER for

CLEMENCY PROJECT 2014 please visit www.clemencyproject2014.org Atticus | Volume 28 Number 1 | Winter 2016 | New York State Association of Criminal Defense Lawyers

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Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

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

atticus@nysacdl.org www.nysacdl.org

“Miss Jean Louise, stand up. Your father’s passin’.” Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird.

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

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