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Summer 2018 | Volume 30 | Number 2

atticus inside

New York Blazes Trail Forward with Historic Creation of


issue 4

From the Editors' Desk


Dispatches from 90 State


Letter to Governor Andrew M. Cuomo by Robert G. Wells


From the Defense Table


Amicus Report by Richard Willstatter


Legislative Report


Court of Appeals by Timothy P. Murphy


2018 Annual Dinner


Justice Prevails in Suffolk County by Laura Solinger


The Drug War is Not Working by William F. Buckley, Jr.


Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Prosecutorial Conduct Commission

atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

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

NYSACDL Officers and Directors 2018 PRESIDENT Robert G. Wells, Syracuse

John Ingrassia, Newburgh Yung-Mi Lee, Brooklyn Greg D. Lubow, Tannersville Elizabeth E. Macedonio, Manhattan Allison M. McGahay, Lake Placid Brian Melber, Buffalo Cheryl Meyers-Buth, Buffalo Timothy P. Murphy, Buffalo Grainne E. O’Neill, Brooklyn Donald G. Rehkopf, Jr., Rochester Russell A. Schindler, Kingston Tucker C. Stanclift, Glens Falls Donald Thompson, Rochester Claudia Trupp, Manhattan Susan J. Walsh, Manhattan

PRESIDENT-ELECT Lori Cohen, Manhattan FIRST VICE PRESIDENT Timothy Hoover, Buffalo VICE PRESIDENTS Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Arnold J. Levine, Manhattan Kenneth Moynihan, Syracuse SECRETARY Mark Williams, Olean TREASURER Alan S. Lewis, Manhattan (To Be Appointed 1/26/18) Directors: Stephanie Batcheller, Albany (NYSDA Designee) Steven B. Epstein, Garden City Edgar De Leon, Manhattan Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Renee Hill, Bronx Alice Fontier, Manhattan

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

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


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org. Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org The editors reserve the right to modify any submission for style, grammar, space and accuracy. Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes. 2. When a Case is mentioned in the text, its citation should be in the text as well. 3. Articles longer than 4 pages may be edited or serialized.

Find NYSACDL on Facebook, LinkedIn & Twitter

Message from the President By Robert G. Wells As this year progresses, it compels me to remark that there is not a year I can think of in which I would be prouder to lead this organization. The goals, functions and purposes of being a criminal defense jury trial lawyer or appellate counsel are at their most important during this critical juncture in American history. There have been, in recent memory, no times more challenging to the liberty of our citizens or any person coming before a court of law. Attacks surround us, and we are rising to the challenge to protect our Constitutionally given rights and our statutory protections to ensure that people receive Justice. This organization, through its legislative committee, and in conjunction with other groups similarly dedicated to fairness and adequate protections and safeguards, has spent much of the Winter and Spring in Albany. We have been in consultation with lawmakers, their staffs, and lobbyists to bring about constructive criminal justice reform. This is the first instance I can recall of these issues receiving the serious and necessary examination of what is called for. Bail reform. Discovery reform, Speedy trial reform. All of these were taken up, for what to me appears to be the first time in generations. Even if not adopted in this term, the consciousness of the problems has risen to become statewide legislative proposals. Now, folks know the truth about how restrictive, opaque, and one-sided the criminal justice system has been. We will continue these focused efforts at change, but we have broken through the silence and the darkness to have the light of day shine upon these issues in a way it has not done before. Additionally, this term was momentous and unprecedented in that, with the aid and singular effort of our Legislative Committee to whom we owe our gratitude, both houses of our New York State Legislature have adopted and passed a bill creating a statewide Commission on Prosecutorial Conduct, which as of this date lies upon the Governor’s desk awaiting signature to become a part of our state’s laws. Our organization worked tirelessly and to a degree I cannot describe here to bring this crucial legislation into this posture. On other fronts, you can be so proud of your amicus curiae committee. They have, Continued on page 31

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


From the Editors’ Desk

Editors Jessica Horani, Editor in Chief John S. Wallenstein Alan S. Lewis Ben Ostrer

A publication of the New York State Association of Criminal Defense Lawyers ©2017 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 Editor, Jessica Horani. Contact Jessica at jhorani@nycds.org


John S. Wallenstein, Jessica Horani, Alan S. Lewis, Ben Ostrer At the heart of our organization is the celebration of the work our members do fighting for the rights of those who are marginalized and unpopular. As President Rob Wells reminded us at our annual dinner, we derive strength and determination for that fight in very substantial part, from love: love of the law, love for our clients, love of justice, and a love for each other. We have reprinted his remarks along with the passionate remarks made by Board Member Susan Walsh about the profound rewards of helping a prisoner regain his freedom through a successful pro bono Clemency petition. Walsh was able to help seven of her clients regain their liberty, work that she did in connection with the NACDL Clemency Project. We encourage our members to take on a clemency case through the program, and thereby rekindle an inmate’s hope for his or her future. Also in this issue, member Laura Solinger writes about her successful appeal for a client, convicted of murder, based on Brady violations and the withholding of evidence by a succession of prosecutors whose win-at-all-costs mentality caused them to lose sight of more important values. Our legislative efforts have borne real fruit this year as we celebrate the passage of the Prosecutorial Conduct Commission Bill which was signed into law by Governor Cuomo on August 20, 2018. We as an association owe a great debt of gratitude to the hard work of Past-President Marvin Schechter, Legislative Co-Chairs Andy Kossover and Amy Marion, their partners in the effort, Bill Bastuk of ‘It Could Happen To You’ who led the effort from its inception, Jennifer Richardson of Ostroff Associates and so many others who came together to lobby for the passage of this bill in the fight for criminal justice rights and against wrongful convictions. While we rejoice in this important step forward we will keep fighting for the issues that affect the justice system, and we urge all NYSACDL members to join the effort in any way they can. Our “From The Defense” Table Column highlights a number of individual successes achieved by our members in connection with the defense of their clients accused of fraud, murder, and various other charges. We also celebrate those members who are passing on the torch as they retire. We recognize Past President Kevin O’Connell and others for their contributions to our profession and their clients. As we celebrate the accomplishments of those around us remember to give yourselves a pat on the back for the work you do every day for your clients, and to take some time this Summer to rest, relax, and regenerate. The fight for justice continues. A

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Dispatches from 90 State Jennifer Van Ort Executive Director As we enter the autumn of 2018, I find myself hoping that it has been a spectacular year for all of you, NYSACDL’s members and friends. This year continues to be one of celebrating for me, both personally and professionally, this year. Personally, I am looking forward to my 40th birthday and celebrating with my family at Disney World, as well as performing a world premiere Christmas Cantata as part of a 200-voice choir at Carnegie Hall in November. Professionally, I celebrated my 5th anniversary with NYSACDL in June. It’s hard to believe that I’m not really the “newbie” anymore, but now entering my “middle school” years with NYSACDL. These past five years have been some of the best professionally in my career. I have enjoyed getting to know criminal defense lawyers across New York State, member or not. I have enjoyed more working with the NYSACDL Board of Directors to encourage non-members to make an investment as a NYSACDL member. This year, we have a membership goal of 950 members. At the end of 2013, we had 758 members. Reaching our goal for 2018 would represent a 25% increase in membership in five years. As of mid-August, we are at 824 members for 2018, so we have a way to go and a plan to get there. You have heard me say this before and I will keep saying it – YOU, as a current member, are the best source of recruitment. If you are in court or at a networking event and find a colleague who is not a member, PLEASE encourage them to join. Every voice added to our membership ranks adds education and experience that is valuable to every other voice. As well as continuing efforts to increase our membership numbers, the Board is also working on ways to increase NYSACDL’s member benefits. Please look for chances to express your opinion about current membership benefits and ones that may be possible for NYSACDL to add in the future. One of the ways we have reached new criminal defense lawyers has been through NYSACDL’s expanding CLE program. Since 2013, we have added two new seminars – one in Lake Placid and one in the Capital District – as well as continuing to look for ways to enhance existing programming. Each year, the CLE Committee sets a CLE attendance goal equal to our membership goal for the year and makes that possible with continued seminar additions. In the next few months, President Rob Wells is working to bring a series of short CLE program to different areas of the State so that NYSACDL can reach more attorneys with excellent faculty and topics, as well as introduce them to all the benefits of NYSACDL membership. If you hear of an upcoming program near you, please share that information with colleagues who may be interested and, of course, please join us if you are able! Another aspect of my role at NYSACDL that has been interesting and exciting is participating as I am able in the government affairs efforts. Supporting the active Continued on page 47 Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers






Transmitted by First Class Mail and Certified Mail Return Receipt Requested July 12, 2018 The Honorable Andrew M. Cuomo Governor of the State of New York NY State Capitol Building Albany, New York 12224 RE: SUPPORT OF S.2412-D/A.5285-C CREATING COMMISSION ON PROSECUTORIAL CONDUCT Dear Governor Cuomo: Introduction The New York State Association of Criminal Defense Lawyers (NYSACDL) writes in support of S.2412-D/A.5285-C which would establish an independent state commission charged with addressing prosecutorial conduct in New York State. The NYSACDL is a statewide organization of criminal defense attorneys, representing approximately 1000 private attorneys and public defenders who practice across the state. We are the New York affiliate of the National Association of Criminal Defense Lawyers, a professional bar association founded in 1958 which has over 40,000 members nationally. Since 1986, the NYSCADL has observed, witnessed and addressed the serious and ever * in the criminal justice system, most notably increasing problem of prosecutorial conduct with the recurring instances of wrongful convictions and the attendant inaction of grievance committees which for decades have failed meaningfully to investigate and sanction prosecutors found by courts to have committed, inter alia, intentional acts of withholding evidence in violation of the Brady Rule enunciated by the United States Supreme Court over 55 years ago. 1 Statistical Review A recent review by the Innocence Project found that of the first 255 DNA exonerations, 65 cases presented allegations of prosecutorial misconduct in their appeals or postexoneration civil suits. Even more startling, of 358 exonerations nationally based on DNA,


Brady v Maryland, 373 U.S.83 (1963).

* should read: “misconduct”


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

the true perpetrators of those crimes were detected and known of in 50% of the cases. Those 155 individuals remained at liberty to commit an additional 150 crimes: 35 murders, 80 rapes and 35 other violent crimes. New York, a perennial leader among the states in wrongful convictions, is not immune from the systemic prosecutorial misconduct plaguing the rest of the nation. Here, over 60% of 249 wrongful convictions overturned involved “official misconduct” by prosecutors, police, or both according to the National Registry of Exonerations. 2 In some cases, prosecutors unconstitutionally withheld favorable information from defendants, coerced witnesses to lie, or tampered with evidence. Misconduct involving the withholding of favorable evidence is rarely discovered during a trial, and when it is, trial judges do not sanction prosecutors for their conduct, nor do they report them to grievance committees. Most misconduct is discovered years after it occurs (generally during defense appeals) since by its very nature it involves material only the prosecutor knows of and is contained in the prosecutor’s files. Thus, trial judges are not a bulwark against prosecutors’ misbehavior at that stage or juncture. Attorney Grievance Committees Despite hundreds of court cases spanning decades describing and reporting intentional acts of prosecutors withholding favorable evidence, New York’s attorney grievance committees have not imposed sanctions against prosecutors for egregious prosecutorial misconduct. 3 The New York State Commission on Statewide New York Attorney Discipline (Disciplinary Commission) was charged with reviewing the attorney disciplinary system and making recommendations. 4 It found that there was uneven application of disciplinary sanctions across the four Judicial Departments charged with adjudicating claims of attorney misconduct and that the system lacked transparency, uniform standards and consistent sanctions for the same conduct.5 The Disciplinary Commission noted in its report the heated criticism of the system from citizens who attended its public hearings. 6 The Disciplinary Commission determined that because of the unique considerations which arise when misconduct allegations are made against prosecutors as opposed to other members of the Bar, further action was required beyond the time the Disciplinary Commission had to prepare the report. 7 The very structure of the current grievance system is at fault. Attorney Grievance Committees are largely occupied with the adjudication of fee disputes and other sundry matters involving technical (though important) violations of the rules governing attorney conduct. For example, of disciplinary complaints filed between 2012-2014, it took an average of 856 days to resolve the same from beginning to end. This system permits prosecutors who engage in misconduct to avoid sanctions for years and allows them to continue committing additional misconduct while their cases are under review. This is particularly National Registry of Exonerations, www.law.umich.edu. See Gershman, Bennett L., Prosecutorial Misconduct, (2d ed. 2012). 4 NYS Commission on Statewide Attorney Discipline, Enhancing Fairness and Consistency, Fostering Efficiency and Transparency (September 2015). 5 Id. 6 Id. At 75. 7 Id. 2 3

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troubling, since prosecutors often argue that the most serious acts of misconduct are usually committed by serial offenders and not the vast majority of prosecutors. Centralized System with Safeguards Against Interference SB 2412 provides for a centralized system focused solely on prosecutorial conduct. The commission will have subpoena power to conduct meaningful investigations in a transparent way. Moreover, the bill provides for a balance of prosecutors and defense attorneys as commission members who recognize the difference between intentional violations that breach ethics rules as opposed to mere error which should not be subject to discipline at all, thus providing added protection to prosecutors from facing complaints with no merit. To prevent an unwarranted complaint against a prosecutor who is conducting an investigation, the bill specifically permits the prosecuting agency to notify the commission that such an investigation would interfere with that of the prosecuting agency at which time the commission can exercise its powers only “in a way that will not interfere with an agency’s active investigation.” (See SB 2412, § D[1]). Recent claims by the District Attorneys Association of New York that prosecutors will sustain interference in their functions are belied by specific provisions in the bill designed to prevent that occurrence. Constitutional Compliance and Authority The bill meets constitutional standards. The original legislative act creating the Commission on Judicial Conduct (upon which SB 2412 is based) provided that the Judicial Commission could only propose the removal of judges found to have committed misconduct. Two years later a ballot initiative was approved when the power of the Commission was extended to enable it to actually remove a jurist from office. Under SB 2412, the proposed prosecutorial conduct commission would only have the power to make recommendations to the Governor. NYS Constitution, Article 13 (Public Officers), § 13(a) and (b), provides that only the Governor may remove a District Attorney from office. The Prosecutorial Conduct Commission bill specifically avoids any conflict with that constitutional provision by providing that it may only recommend to the Governor the removal of a District Attorney, thus preserving, without any limitation, the Governor’s constitutional power. (See SB 2412, § F[1]) and [7]). 8 Instances of Egregious Prosecutorial Misconduct in Actual Cases Prosecutorial conduct which results in wrongful convictions is real. Last May, prosecutor Glenn Kurtzrock was caught in Suffolk County concealing dozens of pages of Brady material from the defendant. Worse still, defense counsel then discovered that Kurtzrock had altered hundreds of pages of police records to

It should also be noted that the bill provides a prosecutor with the right to appeal any recommendation for removal to the Court of Appeals, and if the court upholds the removal recommendation, it must then transmit its recommendation to the Governor who alone shall determine if removal is warranted. (See SB 2412, § F[8]).




Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

remove exculpatory information including information that implicated another suspect. Kurtzrock was immediately fired mid-trial and the murder charge dismissed with the judge calling the case a “travesty.” Further review of Kurtzrock’s cases revealed other evidentiary withholdings and caused the District Attorney to throw out four additional murder convictions. Recently, Shawn Lawrence was freed from a 75-years-to-life sentence when it was discovered that Kurtzrock had concealed 45 different items of exculpatory evidence at Lawrence’s trial with the presiding judge declaring the prosecutor’s conduct “stunning.” Today Kurtzrock is a practicing defense attorney having never been disciplined or charged with a crime. Jabbar Collins (Collins) was incarcerated 16 years for the 1994 murder of an Orthodox Jewish Rabbi which occurred in Kings County. From prison, Collins discovered that prosecution witnesses had been promised perks while some had been threatened by Assistant District Attorneys. He also found, and then District Attorney Charles Hynes later conceded, that exculpatory evidence had been withheld from the defense. Collins was released, sued and won a $10 million settlement. No prosecutor associated with his case was ever disciplined. In Queens County, Derrick Redd (Redd) was convicted in 2012 of murdering his nine-months, pregnant girlfriend. Though the appellate court found there was sufficient evidence to convict, it reversed nonetheless noting the conviction was obtained as the result of “pervasive prosecutorial misconduct which included the prosecutor, in opening and closing statements, misstating evidence, vouching for the credibility of witnesses, calling for speculation, and seeking to inflame the jury.” 9 The Assistant District Attorney was Eugene Reibstein (Reibstein), a career prosecutor, who along with other duties, was in charge of training prosecutors how to prepare for and conduct such trials. Among his intentional acts, Reibstein was found by the court to have flatly misstated the medical examiner’s testimony as to the time of death, a crucial element in a case where the defendant was asserting an alibi defense. Reibstein also read stricken testimony from the trial record to the jury during his summation. In the meantime, Reibstein still practices law. He left the Queens County District Attorney’s office and is in private practice having to our knowledge never been disciplined. When asked by the New York Law Journal about the Appellate Division reversal Reibstein replied that his trial arguments represented “one of the cleanest summations [ Emphasis Supplied] I ever did, because it was all directed toward pointing out the circumstances that established the identity of the killer and his motivation.” 10 Derrick Redd’s case is a prime example of how ill-equipped Attorney Grievance Committees are for effectively addressing prosecutorial misconduct. The NYSACDL filed a complaint in 2016 with the Grievance Committee for the Tenth Judicial District (Grievance Committee) because of the Appellate


People v. Redd, 141 A.D. 3d 516 (2d Dept. 2016). The New York Law Journal, “Citing Prosecutorial Misconduct, Panel Vacates Murder Conviction,” July 8, 2016.


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Division’s reversal of Redd’s conviction based upon pervasive prosecutorial misconduct. 11 In dismissing the complaint, the Grievance Committee explained that “the standard of appellate review that was applied to the conduct of the attorney, and upon which the reversal was based, is not coextensive with the standards to be met in disciplinary sanctions.” In a subsequent letter to the Grievance Committee the NYSACDL sought clarification of the unpublished standards used in their determination. The Grievance Committee replied that the “full committee” would consider the matter under its sua sponte authority to determine if an investigation would be necessary. To this day, we have not received a further response from the Attorney Grievance Committee. Conclusion Reducing the prevalence of wrongful convictions, instituting a transparent complaint system and centralizing the oversight of prosecutors to hold them accountable are the goals of this bill. Above all else the public trust must be restored so that all New Yorkers can credibly believe that we have a fair criminal justice system. On behalf of our entire organization, and for the integrity and fairness to all of our citizens, we ask you to sign this legislation and thank you in advance for your consideration.




People v. Redd, supra.



Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

From the Defense Table: Celebrating the Achievements of NYSACDL Members in the Courts White Collar Acquittal in “pump and dump” allegations in EDNY Member Robert Caliendo and law partner Roland G. Riopelle of Sercarz & Riopelle, LLP obtained a trial acquittal on May 4, 2018 in the EDNY for their client, a securities lawyer accused of participating in what the government called “a $300 million market manipulation scheme”. Charging conspiracy to commit securities fraud, substantive securities fraud, and conspiracy to commit mail and wire fraud in violation of 18 USC Sections 1349 and 371 as well as a substantive count of Securities Fraud charged under 18 USC Section 1348, the government contended that certain stock prices were illegally inflated though a series of “wash” and “match” trades, whereby insiders artificially created stock trading volume for a handful of companies. Caliendo and Riopelle were able to demonstrate that their client had no plans to “dump” the stock, and no knowledge of any supposed effort to “pump” it. After a month-long trial, she was acquitted on all counts within about 24 hours of deliberation.

Pre-Trial Hearings Lead to Dismissal in Orange County Member Kenneth Puig was successful in getting all charges dismissed against his client in Wallkill Justice Court, Orange County following a pre-trial Huntley/ Dunaway hearing. Puig’s client was stopped for allegedly failing to signal while making a right turn when exiting from a private parking lot. He was given a Simplified Information Traffic Ticket for violating VTL Section 1163 (d), and after allegedly failing the three standardized FST and having a positive PBT he was arrested.  He submitted to a BAC test and allegedly blew a .10%.  Puig’s client was charged with VTL 1192 (2) and VTL 1192 (3).  The District Attorney’s office declined to offer a Driving While Ability Impaired due to the client’s prior conviction for same. Counsel argued that under VTL Section 1163 (d) a motorist is not required to signal when exiting from a private parking lot which the officers admitted at the pretrial hearings was the sole basis of the stop. They conceded that otherwise the defendant was driving as a reasonable prudent driver.  The Court ultimately ruled in agreement with defense counsel that VTL Section 1163 (d) did not require his client to signal when exiting and that therefore the stop was illegal and all evidence arising from the stop must be suppressed.  In

light of the Court’s ruling the District Attorney’s office dismissed the case in its entirety. Second Circuit Remand for Failure to Grant CJA Request for Translator Member Zachary Margulis-Ohnuma received a remand, vacatur of sentencing, and transfer to a different judge in USA v. Adamou Djibo from the United States Court of Appeals, Second Circuit on April 17, 2018. The Court found that the denial of counsel’s request for a Swahili translator to translate thousands of pages of cellphone records from the cooperator’s phone disclosed just shortly prior to trial was an abuse of discretion. The records were only partially translated during trial and the lower court failed to respond to counsel’s request for a translator to translate the remaining content in order to prepare post-trial motions following the defendant’s conviction. The Court found that counsel’s Rule 33 motion for a new trial based on alleged Brady/Giglio violations could not have been properly evaluated in light of the failure to afford counsel the opportunity to have the records translated and reviewed for potentially favorable evidence or impeachment material. Continued on page 13

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Volunteers Needed! New York State Clemency Project A partnership with New York State, the National Association of Criminal Defense Lawyers (NACDL), and Families Against Mandatory Minimums (FAMM) NYSACDL has committed to taking 200 cases in this project. Can you help us reach this number? The NACDL/FAMM State Clemency Project is seeking volunteer New York attorneys for state clemency work. The project, designed to help recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting petitions to have their sentences commuted, has begun assigning cases in New York. The project has developed procedures to provide an initial packet of records for each applicant and to facilitate quick access to records and easy communication with applicants. NACDL is also seeking experienced criminal defense attorneys to serve as Advisory Attorneys in the New York State Clemency Initiative, part of the NACDL/FAMM State Clemency Project. Advisory Attorneys will provide operational support to the project by giving legal advice and reviewing case documents. Many volunteer attorneys working on cases are not criminal practitioners, so the experience and perspectives of Advising Attorneys are invaluable. To learn more, email Project Manager Steven Logan at slogan@nacdl.org.

The Only Sweeter Words in a Defense Lawyer’s Lexicon than Not Guilty may be.... You are going home. Imagine saying those words to someone who has spent years in prison. Imagine giving the gift of freedom and a second chance to a prisoner who is rehabilitated and has demonstrated a readiness to return to the community. By representing a single clemency applicant, you can help reverse the misfortune of a generation. This is your chance to make that call to a deserving prisoner in New York.

Under Governor Cuomo’s initiative the crime of conviction is not a determinative factor. Rather, the primary focus will be on making the case for the change in the applicant’s life during his or her incarceration, including rehabilitation, and factors such as age, illness, disability, and any inequalities caused by further incarceration. Underlying mitigation and fundamental inequity in the original case may also be considered.

The New York State Clemency initiative supported by NYSACDL, in partnership with NACDL and others, is the opportunity of a defense lawyer’s career to help salvage the lives of defendants and families who have left behind by a guilty verdict or plea. This effort is about the clients and cases that keep us up at night; the tales of courtroom heartache we share with each other.

This is a unique opportunity for criminal defense lawyers to help undo the incalculable harm of harsh and irrational sentencing policies by giving deserving prisoners a chance to regain their freedom. The first application you draft is the hardest ... but it is a remarkable opportunity to let loose with creative advocacy for a human being, unconstrained or inhibited by courtroom barriers. Join me in demonstrating the compassion and commitment we know NYSACDL members and our New York criminal defense community brings to the profession.

NYSACDL has partnered with volunteer attorneys from several bar groups, but you — our membership of criminal defense practitioners — are uniquely positioned to assist in this effort. You bring expertise, experience, and excellence in criminal defense. And, through its collaboration with its partners,. NYSACDL will facilitate your work. The State Clemency Project will recruit, train, and provide resource support to all pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted. Support includes training materials, webinars with Q&A sessions, resource consultants, model petitions, and reference materials.

As a past volunteer working under Obama’s clemency initiative, I can tell you that I have never had such a personally rewarding professional experience than the calls I made to people in jail who believed they were serving a life sentence and tell them: “You are going home.”

Take a case and take a second chance at changing a life. Click https://stateclemency.org/training and sign up. Susan J. Walsh, Vladeck Raskin & Clark, PC NYSACDL Board of Directors


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

From the Defense Table Continued from page 11 Best Evidence’ Rule Leads to Misdemeanor Dismissal Member Ira Pesserilo obtained a trial order of dismissal in a misdemeanor Petit Larceny in Clay Justice Court in Onondaga County in May. Pesserilo’s client was accused of helping a co-defendant steal merchandise by placing the clothing items in a bag for her. A store security guard claimed to have observed the defendant placing the items in the bag via video surveillance but failed to preserve the video. The trial court ruled that pursuant to the ‘best evidence’ rule the testimony regarding the witness’ observations of the video was stricken and based on the lack of other evidence linking Pesserilo’s client to the co-defendant’s actions the trial court granted the trial order of dismissal. Felony Sex Crimes Acquittal in Delaware County Member James M. Hartmann obtained an acquittal in Delaware County Court of all five counts of a Criminal Sexual Act indictment in September 2017 in a case involving two complainants. The first three counts were for criminal sexual act in the first degree, endangering the welfare of a child and unlawful imprisonment in the second degree, which involved one complainant. The last two counts were for criminal sexual act in the third degree involving a second complainant. The first complainant was a neighbor of his client. He did not report the incident until about 4 years after he alleged it occurred and only when the complainant’s father discovered gay pornography on his phone. Hartman’s client presented a strong alibi defense consisting of four witnesses and records that he was not

at the location alleged in the complaint when the acts were alleged to have occurred. As to the second complainant the defense felt his testimony was simply not credible from the outset. The jury deliberated for less than an hour before returning the not guilty verdicts. Hartmann utilized his demand for a bill of particulars to pin down the times of the alleged offenses which enabled him to present a strong and ultimately successful alibi defense. Third Department Appellate Reversal in SORA matter Member Noreen McCarthy obtained a reversal and dismissal on May 31, 2018 in the Appellate Division, Third Department. The Court vacated the defendant’s conviction for not reporting his Facebook account on SORA’s registration form, ruling that Facebook and other social networking sites do not need to be registered under SORA as they are not considered internet access providers or an internet identifier. “[W] e conclude that the social media website or application – be it Facebook or any other social networking website or application – does not constitute a ‘designation used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication’ (Correction Law § 168-a [18]). An Internet identifier is not the social networking website or application itself; rather, it is how someone identifies himself or herself when accessing a social networking account, whether it be with an electronic mail address or some other name or title, such as a screen name or user name.”

enforcement to routinely search Facebook to see if anyone on the list is using Facebook, and then charge them with failure to report if their Facebook account was not disclosed on the annual registration form. Since this decision determined it was not a crime, it possibly could have a retroactive effect on prior convictions. Queens Double Homicide Acquittal Despite Cooperator Member Michael Horn obtained an acquittal in a double homicide trial in Queens on February 6, 2018. The co-defendant and friend claimed his client was the shooter in a drug deal turned robbery turned murder of two teenage boys. Though the details of the case were tragic, Horn felt the jury ultimately decided that convicting the wrong person would not help anyone. His client was in for over 2 years pending trial and the best pre-trial offer was a 12-year prison sentence made by ADA Tim Regan. The co-defendant/cooperator was promised 3 1/2 years in jail if the DA was satisfied. The acquittal came about despite the Court’s denial of Horn’s application to call any witnesses to refute the DA’s version, stating they would be collateral, or to introduce an alibi witness who Horn hadn’t been able to locate until jury selection.

It seems to be the practice of local law

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From the Defense Table Continued from page 13 Buffalo Attempted Murder Acquittal Member Emily Trott obtained an acquittal in a Buffalo Attempted Murder trial on September 27, 2017. In the press reported case, Trott represented a 19-year-old accused of trying to murder a prosecution witness who had testified previously in the trial of a gang member who was sentenced to more than a century for multiple homicide and assault convictions. Trott’s client did not testify but she suggested the unreliability of the complainant through her cross examination and closing arguments. Her client had a minimal criminal record and no known gang ties and hugged his attorney in relief when the verdict was announced.


Bench Acquittal in Cheesy Queens Cocaine Bust Member Deron Castro obtained a full acquittal following a bench trial in Queens for a client charged with Criminal Possession of a Controlled Substance in the First Degree. Client was arrested at JFK Airport and charged with possession of almost a half kilo of cocaine inside two blocks of cheese. The cheese was inside of her luggage. She was stopped by a customs agent

and her luggage was searched. People moved to preclude any cross examination related to a video interrogation which took place 20 minutes after they claimed she made an incriminatory statement. The trial court, over the People’s objection, permitted cross examination regarding the video interrogation which helped to establish that Castro’s client had no knowledge of the cocaine inside the cheese. His client did not take the stand. We note with sadness the untimely passing of our colleague and friend Deron Castro. We hope his loved ones take comfort in the respect of his colleagues and the thanks of his clients for the work he did. — Eds.

Member Honors & Achievements Past President Benjamin Ostrer, of Ostrer & Associates in Chester was appointed by the Governor’s Office as one of three new members to the 14 member NY State Commission on Forensic Science in May. He replaces Peter Neufeld of the Innocence Project who previously served and was appointed along with State Police Superintendent George P. Beach II and David Loftis, of the Post-Conviction and Forensic Litigation Unit at the NY Legal Aid Society. The commission’s work is to develop minimum standards and accreditation programs for the state’s forensic laboratories.

Member Amy Marion was sworn in as the President of the Criminal Courts Bar Association of Nassau County on May 29, 2018. Past President David Lewis was appointed Judge of the Court of Claims and sitting criminal term in the Bronx.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Amicus Report NYSACDL

By Richard Willstatter, Amicus Curiae Committee Chair

T Richard D. Willstatter is a criminal defense lawyer in Westchester County. He can be reached at willstatter@msn.com.

The Amicus Curiae Committee can be contacted if you have, or learn of, a matter in which our participation is solicited. However, members are reminded to contact us as early as possible in the course of the case because it does take time to recruit an author, prepare, edit, print, copy and file a brief.

he New York State Association of Criminal Defense Lawyers was victorious in the New York Court of Appeals in its support of the appellant in People v. Wiggins, 2018 N.Y. LEXIS 1251, 2018 NY Slip Op 97756(U)(Feb. 15, 2018). In an opinion by Judge Fahey, the Court held that a lengthy delay between defendant’s arrest and his eventual guilty plea violated his constitutional right to a speedy trial. Applying the factors set forth in People v Taranovich (37 NY2d 442 [1975]) to the circumstances of this case, the Court found that defendant’s right to a speedy trial was violated. This was a case in which the defendant was held for years in jail while the prosecutors tried to “flip” another defendant and gather evidence. The time between defendant’s arrest on May 28, 2008 and defendant’s plea on September 23, 2014 spanned six years, three months, and 25 days, from when defendant was 16 years old until he was 22. Mr. Wiggins spent the entirety of that period incarcerated. The indictment was dismissed. Chief Judge DiFiore wrote a 16-page dissent that was joined by Judges Garcia and Feinman. Our brief was prepared by Benjamin L. Nelson and Timothy P. Murphy of the Legal Aid Bureau of Buffalo, Inc. Back in August 2017, NYSACDL filed a brief in the case of People v. Arjune in the New York Court of Appeals. The issue was private counsel’s obligation to help a client he represented at trial learn what he must do to obtain appointed counsel on appeal. In Arjune’s case, his private trial lawyer filed a notice of appeal but did not inform him what he had to do to make an in forma pauperis application to the Appellate Division, so his appeal was dismissed. The Court of Appeals found that Arjune failed to meet his “heavy burden” to show his counsel was ineffective on his coram nobis application to the Appellate Division. See People v Arjune, 30 N.Y.3d Continued on next page

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Amicus Report Continued from previous page 347 (2017). Yet Judge Jenny Rivera’s spirited dissent quoted extensively from our amicus brief. Mr. Arjune then petitioned the Supreme Court for a writ of certiorari. NYSACDL, joined by the National Association of Criminal Defense Lawyers and the Immigrant Defense Project, has now filed a brief in support of Arjune’s petition. In our brief, we argue that the constitution requires the effective assistance of counsel in ensuring a defendant understands how to apply for the appointment of counsel. Our amicus curiae brief was authored by Theresa R. Wardon of Wheeler Trigg O’Donnell LLP of Denver, Colorado. At the June 7, 2018 conference, the Supreme Court asked the State to respond to the petition by July 2, 2018. Ever since the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), this Association has been arguing that New York’s discretionary persistent felony statute is unconstitutional. We had filed an amicus brief in two appeals in the State Court of Appeals, People v. Garvin and People v. Wright. The Court of Appeals rejected the appellant’s Apprendi-based attack on the statute. See People v Garvin, 30 N.Y.3d 174 (2017). Now that Sean Garvin has filed a petition for certiorari, NYSACDL and NACDL have filed a brief in support of his petition. Mark Christopher Fleming, Tiffany Payne and Mark G. Matuschak of WilmerHale prepared our brief. The State was asked to and did file a response on June 6, 2018. This Association joined a brief amici curiae filed by NACDL in the Second Circuit Court of Appeals in the case of Simon v. City of New York, 17-1281. NACDL’s Second Circuit Amicus Committee Vice Chair Joel B. Rudin


authored our amicus brief in the Second Circuit Court of Appeals in the case of Simon v. City of New York, 17-1281 in which NYSACDL, American Civil Liberties Union Foundation, and the New York Civil Liberties Union Foundation joined. In the Simon case, the district court dismissed a 1983 civil rights claim of a woman who was illegally seized and held incommunicado by use of an unlawful office subpoena styled as a material witness warrant. The district judge found that no civil rights claim could be advanced because this illegal practice is widespread. We argue to the contrary. Oral argument was held on March 1, 2018. Oral argument was granted to the amici and reportedly went well. NYSACDL also filed a brief in the Second Circuit in the case of Bellamy v. City of New York, 17-1859 in which NACDL and the Innocence Network have joined. The case concerns whether a municipality can be found liable in a 1983 civil rights lawsuit where a prosecutor’s office has a policy that routinely withholds favorable information from defendants in violation of Brady v. Maryland, 373 U.S. 83 (1963). Our brief was authored by Ross E. Firsenbaum and Andrew Sokol of Wilmer Cutler Pickering Hale and Dorr LLP. Oral argument was held on April 26, 2018. NACDL and NYSACDL jointly filed an amicus brief in the interlocutory appeal to the Second Circuit Court of Appeals, in United States v. Fuller (Lambus), Case No. 16-4296-Cr, defending Judge Jack B. Weinstein’s order (1) suppressing evidence obtained through two years of warrantless GPS monitoring by state parole authorities working with federal criminal investigators, where the primary purpose of the monitoring was to further a criminal investigation, not

parole supervision; and (2) suppressing a Title III wiretap based upon the court’s inherent supervisory powers. Michael C. Miller, Jeffrey Novack, Meghan Newcomber, and David Hirsch of Steptoe & Johnson LLP prepared our joint amici curiae brief. Oral argument was held on February 20, 2018 before Circuit Judges Kearse and Livingston and District Judge Jeffrey Alker Meyer of the District of Connecticut. NYSACDL joined a coalition of defenders supporting the New York City Legal Aid Society’s lawsuit against the NYPD challenging its placement of video cameras in attorney-client interview booths at the Richmond County Courthouse. United States District Judge George B. Daniels ruled against the plaintiffs in the case captioned Grubbs v. Safir, 92 Civ. 2132 (GBD). The plaintiffs are appealing to the Second Circuit. NYSACDL and NACDL will file an amicus brief in support of the proposition that the Sixth Amendment right to counsel is infringed if clients feel they are been watched and perhaps overheard when meeting with their counsel. The City claims its use of “masking technology” is sufficient to alleviate our concerns. Shannon Leitner, Brent Wible, and Stephen Pearson at Freshfields Bruckhaus Deringer US LLP will represent the amici.

“ ...if you throw a skunk in a jury box you can’t instruct the jury not to smell it.”

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Legislative Report W

ith the retirement of United States Supreme Court Justice Kennedy, and the predictable appointment of a far more conservative replacement, state criminal justice reform measures become even more important to protect basic rights in New York in the face of the Supreme Court’s rightward tilt, which may continue for decades to come. Unfortunately, the 2018 State Legislative session ended on Wednesday, June 20 without taking action on many criminal justice initiatives but did pass a bill in both houses to create the Commission on Prosecutorial Conduct, a bi-partisan effort which succeeded with the significant efforts of our Association’s Legislative committee and leadership. The Prosecutorial Conduct Commission Bill was led by Republican Senator John DeFrancisco and Democrat Assembly Member Nick Perry. They were joined in their efforts by Bill Bastuk of a grassroots organization known as ‘It Could Happen To You’ along with Human Rights Watch and the Innocence Project. NYSACDL worked in support of these efforts at the press conferences and tirelessly behind the scenes. Amy Marion, co-chair of the legislative committee, our president, Rob Wells, and past president, Marvin Schechter, along with many others, put in significant time and energy to secure this victory in a difficult legislative year. Moving forward the committee’s work is now focused on convincing Governor Andrew Cuomo to sign this Bill, which would make New York the first state in the nation with an independent entity holding prosecutors accountable for their conduct when it violates ethics and the law. We have the full backing, support and assistance of the Innocence Project who is helping us with this important push and we will continue to work with and strengthen our working relationship with the organizations supporting this bill. We are also looking for any and all compelling New York Continued on page 30

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers



ourt of Appeals Criminal Decisions

Compiled by Timothy P. Murphy, Esq.

November and December 2017 November 16, 2017 People v. Hardee

Timothy P. Murphy, Esq. Chief Attorney Appeals and Post-Conviction Unit The Legal Aid Bureau of Buffalo, Inc. 290 Main Street, Suite 350 Buffalo, New York 14202 Office: (716) 853-9555 ext. 679 Fax:  (716) 853-3219 tmurphy@legalaidbuffalo.org


30 NY3d 991

This is a 4 to 3 memorandum, affirming the AD, with Judge Stein authoring the dissent, joined in by Judges Rivera and Wilson. The issue of whether the likelihood of a weapon in a vehicle was substantial, and whether the danger to the officers who stopped the vehicle was actual and specific (People v. Carey, 89 NY2d 707, 711 [1997]; People v. Torres, 74 NY2d 224, 231 [1989]), was a mixed question of law and fact. Here, there was record support for the determination that circumstances existed justifying the limited search of the interior or the vehicle. People v. Mundo, 99 NY2d 55, 57-59 (2002). The dissent, which was much longer and comprehensive than the majority’s memorandum, set out the facts and the law in some detail. Defendant was pulled over after speeding and changing lanes without signaling. His fiancé was a front seat passenger. Once pulled over, defendant appeared nervous and admitted to officers to having consumed alcohol. He appeared “hyper.” Defendant initially refused to exit the vehicle, but then did so peacefully. Once outside of the vehicle, defendant appeared nervous, but was cooperative during the frisk, which uncovered no weapons.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

While he was standing outside, defendant looked over his shoulder a couple of times toward the vehicle, against the officers’ directions. When handcuffed, he appeared to tense up and resisted. The fiancé was directed to exit the vehicle as well. The officers entered the vehicle with a flashlight and observed a shopping bag on the floor, which defendant was said to have been looking at before. Inside the bag was a smaller black bag containing a firearm. The AD accepted the DA’s argument that this constituted a legal protective search. Absent probable cause, it is unlawful for the police to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has been eliminated. An exception exists allowing for a limited protective search of the vehicle for weapons where a proper inquiry or other circumstances lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety, which means a substantial likelihood of there being a weapon in the car. See Mundo, 99 NY2d at 57, 59 (where defendant absconded three times from police; search deemed legal); Torres, 74 NY2d at 230, 231, n 4 (where suspect was isolated from suspected location of weapon inside vehicle; search deemed illegal); Carey, 89 NY2d at 708, 711712 (where bullet proof vest was found and defendant made furtive acts; search deemed legal); People v. Omowale, 18 NY3d 825, 825 (2011) (where driver failed to immediately stop vehicle and passenger was seen secreting something in the center console; search deemed legal). Analyzing the “narrow” Torres exception, the dissenters found the officers’

conduct to be illegal. Mere reasonable suspicion of there being a weapon inside the vehicle is insufficient to validate a protective search therein. Through objective supporting facts, there must be an actual and specific threat to the officers. This would mean the driver or the passenger having access to a weapon. The facts at bar were indistinguishable from Torres. The defendant did not evade the police vehicle, nor was his nervousness sufficient to justify the search. His subsequent resistance to being handcuffed may not be used as justification, as this conduct was not known by the officers when the search began (and as we know, searches must be reasonable at their inception and at every step along the way).

People v. Flores 30 NY3d 229 This is a unanimous decision, authored by the Chief Judge, remitting for the lower court to specifically address a CPL 460.30 motion. The People v. Smith, 27 NY3d 643, 647 (2016) holding that recognized affidavits of errors as a jurisdictional requirement for taking a local criminal appeal is reaffirmed. At bar, there was a local court jury trial without a stenographer. Defense counsel made diligent efforts to secure a transcript

of the electronically recorded proceedings. He asked County Court to deem the electronic recordings as a sufficient substitute for the affidavit of errors, or alternatively, grant more time to file an affidavit of errors. The court denied the first request but failed to address the second one. Though the County Court lacked jurisdiction to entertain this appeal, as no affidavit of errors was filed, it is remitted for the court to address the extension motion. Further commentary: As noted by the court in foot note 2, CPL 460.10(3) (a) has been amended to permit a local court defendant that chooses to file a notice of appeal within 30 days of sentencing (as opposed to an affidavit of errors within that time) 60 days from when a transcript of the electronically recorded proceedings are received by the defendant to file an affidavit of errors. CPL 460.30 appears to be still viable for motions for an extension of time. Also note that the Court of Appeals is again recognizing that appellate courts that are deprived of the requisite filings to take an appeal lack jurisdiction to hear the case. This is in contrast to the US Supreme Court’s recent decision in Manrique v. United States 581 U.S. __ , 137 S.Ct. 1266, 1271-1272 (April 19, 2017), where the court all but held that the filing of a federal notice of appeal is Continued on next page

Never write when you can talk. Never talk when you can nod. And never put anything in an e-mail. —Eliot Spitzer

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Court of Appeals Continued from previous page not jurisdictional; instead requiring an objection by the government in order to address the defect on appeal.

People v. Estremera 30 NY3d 268 This is a unanimous decision authored by Judge Wilson, reversing the AD. Unless voluntarily waived (People v. Rossborough, 27 NY3d 485, 488 [2016]), a defendant must be personally present under CPL 380.40 for a PL §70.85 re-sentencing following a PL §70.45 / Catu (4 NY3d 242, 245 [2005]) error, where a defendant was not orally informed by the court of post-release supervision at sentencing. PL §70.85, enacted in 2008, applies to sentences imposed between 9/1/98 and 6/30/08, and permits a defendant to have his or her original sentence with the DA’s consent or the withdrawal of the plea. The fact that a defendant may not have been adversely affected by not being present (i.e., where the re-sentence was a foregone conclusion) is of no moment. This is so because the right to be present for sentencing, which brings with it the opportunity to hear it and address the court, is “fundamental” and codified in C.P.L. 380.40. See also CPL 380.20 (requiring that sentence be “pronounced”); People v. Sparber, 10 NY3d 457, 469-470 (2008). Corr. Law §601-d (4)(a) also contemplates a defendant’s presence, as it requires the appointment of counsel.

November 20, 2017 People v. Arjune 2017 NY Slip Op 08159 From the standpoint of assigned criminal appellate practice, this is one of the


most disappointing decisions in years. This was authored by Judge Stein, with Judge Rivera authoring the primary dissent, joined by Judge Wilson. The new rule: the failure of trial counsel to file a motion for poor person status with the AD, or to respond to a motion to dismiss an appeal as abandoned four years after the notice of appeal was filed, does not constitute ineffective assistance of counsel. The coram nobis denial by the Second Department is affirmed. A notice of appeal was filed by counsel. Five years later, immigration proceedings were instituted against defendant. Appellant unsuccessfully moved to reinstate the appeal. A year later, he moved for a writ of error coram nobis. In support, defendant swore that his attorney did not speak with him regarding an appeal. He did not know that a notice of appeal was filed, and would have pursued his appeal if he had realized his immigration consequences. The court declined to expand People v. Syville, 15 NY3d 391, 394 (2010) here, which itself was a narrow expansion of CPL 460.30 for seeking permission to file a late notice of appeal. See People v. Andrew, 23 NY3d 605, 399-400 (2014). Crucially, this relief does not require the showing of a meritorious appellate issue (Syville, 15 NY3d at 398). Under Arjune, a defendant is not constitutionally entitled to the appointment of counsel to assist in the preparation of a poor person application; it is not a critical stage of the proceedings. Ignoring the limitations of many unsophisticated inmates, the court recalled its previous observation that filing a poor person motion requires only “minimal initiative” on the part of the defendant. (Of course, this also means that it would not require too great an effort by defense

counsel either.) A written notice of the defendant’s rights is apparently enough. Somehow the court concluded that counsel not filing the motion for poor person relief, which is required under AD rules, was not inconsistent with the actions of a reasonably competent attorney. The court observed that the Supreme Court in Roe v. Flores-Ortega, 528 US 470, 478 (2000), did not require that a notice of appeal be filed unless clearly instructed otherwise. The majority further distinguished between failing to file the motion for poor person status and failing to file a notice of appeal, the latter of which, if not filed, forfeits the proceeding. This purported distinction again shows no recognition of the realities of how crucial the motion for poor person status really is. Moreover, the court looks squarely to the federal standard here, apparently not concerned with our state constitution’s often greater protections for New York litigants (see also fn 7, where the majority fends off dissenting Judge Rivera’s criticisms). All that a trial attorney has to do is provide a written warning regarding the poor person status issue. The Arjune court even implies that the court clerk’s warnings may satisfy the “consult” requirement under Roe, apparently adopted by the majority here, regarding whether to take an appeal. This, of course, would contravene the local rules of all four judicial departments. The majority was also overly critical of the supporting affidavits (and affirmations) submitted by the defendant and both his trial-level and immigration attorneys here as part of the coram nobis motion. The court found that they failed to contain non-hearsay proof regarding whether defendant was made aware of his right to appeal or whether

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

his attorneys discussed the taking of an appeal with him prior to filing the notice of appeal. The defendant did not deny understanding the written form handed to him regarding taking an appeal (which was missing from the record on appeal). The trial-level attorney’s affirmation was described as “carefully worded,” as he only indicated that he did not have contact with the client after the notice of appeal was filed. The immigration attorney’s affirmation simply parroted defendant’s affidavit. Defendant even had affidavits from his parents indicating that defendant had limited mental abilities. According to the majority, defendant failed to establish that he was unaware of his appellate rights, or how to seek poor person relief, or that counsel failed to comply with relevant court rules. According to the majority, instead of acting with due diligence to discover the alleged omission, defendant only became interested in his appeal when his immigration issues started. Some cherry picking is necessary here. In footnote 7, the majority does acknowledge that “[n]othing in this decision should be read to minimize the importance of… state rules, … or to contradict our prior decision that a writ of error coram nobis may lie when the violation of court rules results in a complete deprivation of counsel on a People’s appeal.” These bread crumbs are small consolation for the rest of the opinion. With regards to counsel not replying to the dismissal motion four years after the notice of appeal was filed, the majority feared burdening a trial attorney with a constitutional obligation for an infinite period of time.

In dissent, Judge Rivera correctly blasts counsel below for failing to comply with the AD’s own rules, as well as the standards proffered by the ABA, the NYS Bar and the National Legal Aid and Defender Association. Professional standards are essential under Strickland’s analysis for determining ineffective assistance of counsel. See 466 US 668, 688 (1984); see also Padilla v. Kentucky, 55 US 356, 366 (2010). As observed by the court in People v. Montgomery, 24 NY2d 130, 132 (1969), “there is no justification for making the defendant suffer for his attorney’s failing.” Moreover, the defendant had a fifth grade education with low, if any, literacy, as demonstrated by the psychological evaluation that was also submitted with the motion. The right to intermediate appellate review, as the court has many times recognized, is fundamental. It is the state’s responsibility to “make that appeal more than a meaningless ritual.” Evitts v. Lucey, 469 US 387, 394 (1985). Judge Rivera further observed the greater protections that our state right to counsel offers, as opposed to its federal counterpart (see dissent, fn 4). There is a “representation gap” between the notice of appeal being filed and the appeal being perfected; something that the Second Circuit’s Rule 4.1(a), which makes the attorney that files the notice of appeal responsible until relieved by the court, would alleviate. Attorneys are constitutionally required to make objectively reasonable choices. Counsel failed to do so here. This statement says it all: “Apart from the injustice suffered by defendant, the holding here risks disincentivizing compliance with the rules. Instead, we should be conveying their centrality to criminal legal practice.” Judge Wilson’s brief dissent clarified the Roe requirement of “consult” regarding

the right to appeal. This must be done by speaking to the client. A form is not enough. Further commentary: Since 1964, all four judicial departments have had local rules regarding the warning of defendants of the right to appeal. As of the Fall of 2016, both the Second and Fourth Departments now require that trial counsel file a motion for poor person status when appropriate. CPL 380.55 was enacted in 2016, which permits assigned counsel to seek an order from the sentencing court designating defendant as still qualified for assigned counsel on appeal. This enactment was meant to streamline the assignment of appellate counsel. But now in Arjune, the Court of Appeals has taken a monumental step backwards for assuring that indigent litigants have timely access to intermediate appellate review. The coram nobis motion at bar frankly sounded more detailed and substantive than most that are filed. A very disappointing decision indeed.

People v. Helms 30 NY3d 259 This People’s appeal is a reversal authored by Judge Fahey, with Judge Rivera concurring (and Judge Feinman joining in). Here, defendant’s prior (1999) Georgia burglary conviction satisfied the “strict equivalency test” for determining whether a prior conviction in another jurisdiction may serve as a predicate (violent) felony conviction under PL §70.04(1)(b)(i) (requiring that all of the essential elements of the prior felony be authorized in New York). The test requires a comparison of the statutory elements of the crimes from the New York and the foreign jurisdiction. See generally People v. Muniz, 74 NY2d Continued on next page

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Court of Appeals 464, 467-468 (1989). The underlying facts alleged in the foreign jurisdiction accusatory instrument are normally not considered; the exception being where the foreign statute renders criminal several different acts, some of which could constitute misdemeanors under New York law. Case law in the foreign jurisdiction is relevant to this determination. At bar, the “without authority” clause of the Georgia statute was at issue: “without authority and with intent to commit a felony or a theft therein, he enters or remains within the dwelling house of another” (emphasis added). See Ga. Code Ann former §16-7-1 (a). Georgia case law established that the culpable mental state was at least commensurate with New York’s burglary statute and its “unlawfully” phrase. Judge Rivera, in her concurrence, in an apparent attempt to restrict the majority’s holding for future cases, opined that there was no need to compare New York’s law with Georgia’s lesser included offense case law.





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November 21, 2017 People v. Smith 2017 NY Slip Op 08165 This is a unanimous memorandum reversing the AD and ordering a new trial. The trial court failed to adequately inquire into his “seemingly serious request” to substitute counsel. The request was supported by specific factual allegations of serious complaints about counsel. A minimal inquiry into the nature of the disagreement or its potential for resolution was warranted. People v. Sides, 75 NY2d 822, 824-825 (1990).

People v. Dodson 2017 NY Slip Op 08171 This is a unanimous memorandum reversing the AD and remitting to County Court to afford defendant the opportunity to move to withdraw his guilty plea. The trial court had a duty to inquire into defendant’s specific request for new counsel before proceeding to sentence. People v. Sides, 75 NY2d 822 (1990); People v. Porto, 16 NY3d 93 (2010).

People v. Kislowski 2017 NY Slip Op 08169 This is a unanimous memorandum reversing the AD and dismissing the violation of probation petition. The petition lacked sufficient allegations under CPL 410.70 regarding the time, place and manner of the purported VOP. The defendant’s in-court questions posed to the court did not cure the deficiencies.

December 14, 2017 People v. Boone 2017 NY Slip Op 08713 This is a welcomed decision. Judge Fahey wrote for the court, with Judge Garcia concurring. Judge Wilson did not participate. The AD is reversed, and a new trial is ordered. At issue are two Brooklyn robberies committed by a black male (or males) two days apart. Both victims were white. The first robbery had the perpetrator threatening with a knife; during the second incident, the victim was actually stabbed. Trial counsel unsuccessfully requested a jury instruction regarding the perils of cross-race identification. The trial court believed that there had to have been

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

expert testimony at trial on the topic as a prerequisite. Also, the court observed that there was no cross-examination regarding the cross-race issue. Moreover, an extensive ID instruction was given to the jury. In 2011, the NYS Justice Task Force endorsed a new Pattern Jury Instruction regarding cross-race identifications, instructing juries that witnesses may have greater difficulty in accurately making such an ID. The Court of Appeals held here that where identification is at issue, where the identifying witness and the defendant are of different races and a cross-racial ID charge is requested, the instruction must be given to the jury. Neither expert testimony nor crossexamination on the issue is required. A witness that erroneously identifies a suspect will not necessarily display bias. Honesty and accuracy are different categories that the jury may use in evaluating testimony. The Whalen (59 NY2d 273 [1983]) and Knight (87 NY2d 873 [1995]) decisions, which affirmed trial courts’ discretionary authority in determining whether to grant a request for an expansive ID instruction, according to the majority, were not disturbed by the present holding. The better practice continues to be for trial courts to grant expansive ID instructions when requested. The court acknowledged the empirical data supporting the fact that mistaken identity is common when made by a single eye-witness in a cross-race scenario. Indeed, there is acceptance in the scientific community for the principle known as the cross race effect. Only about a third of jurors, however, are thought to have accepted this concept. Three other states (New Jersey, Hawaii and Massachusetts) require this jury instruction. For cross-race ID cases, a new

approach from the deferential Whalen and Knight holdings is necessary. Judge Garcia, in concurrence, was not buying the majority’s claim that trial court’s still had discretion in whether the cross-race instruction was to be given; the holding here effectively made it mandatory. The concurrence agreed that it was reversible error at bar, but that the majority went too far. There were already systematic protections in place to guard against wrongful ID’s (i.e., pre-trial hearings, trial courts’ weighing of probative versus prejudicial value of evidence before its admission, cross-examination, expert ID testimony and discretionary jury instructions). Trial courts, according to Judge Garcia, are the proper gatekeepers in shielding the jury from misleading, unwarranted or irrelevant ID instructions and should have genuine discretion in deciding on whether to give such a charge.

December 19, 2017 People v. Smith 2017 NY Slip Op 08798 This is a 4 to 3 decision authored by Judge Rivera; a People’s appeal. The DA appealed from the AD’s reversal, vacating a guilty plea for manslaughter. The defendant had a state and federal constitutional right to the presence of counsel during the People’s motion to compel the taking of a buccal swab for DNA. This evidence was to be used for comparison with DNA recovered at the crime scene. The AD, however, improperly dismissed the indictment without prejudice; it should be remitted pursuant to CPL 470.20 as a necessary and appropriate corrective action. As modified, the matter is affirmed.

A defendant has the right to the effective assistance of counsel at every “critical” stage of the proceedings, which means a proceeding that holds significant consequences for the accused. Here, counsel was relieved from the case after consenting to the DNA motion on the record; the motion for the buccal swab then went ahead in his absence. This was despite defendant indicating that he had not consulted with counsel regarding the motion, was not consenting to the procedure and was also seeking an attorney for assistance at that point. The court, unfortunately, acted as a de facto attorney, advising on the record that there was no reason for defendant to contest the People’s motion. The motion was then granted. Judge Garcia wrote for the three-judge dissent, which included Judges Stein and Fahey. The court below had already signed the order for the buccal swab at the time of the exchange in court with defendant (after counsel had been relieved). The subsequent attorney on the case after the exchange in court did not contest the People’s DNA motion. Though an adjournment would have been the better practice, this was not a critical stage of the proceedings. Timothy P. Murphy is Chief Attorney, Appeals and Post-Conviction Unit, The Legal Aid Bureau of Buffalo, Inc., and a member of the Board of Directors of NYSACDL. A

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


2018 Annual Dinner The Price of Justice Is Love “It’s not some game I play. It’s in my DNA. It’s what I do.” — Donald Fagan

Our Sole Bond to True Justice is Love Love is our surest connection to Justice. It can be our strongest force. It is not the easiest way. It is not always the quickest. Yet, it is what binds every criminal defense jury trial lawyer to each other on a molecular level. Put differently: the price of Justice is love. Love cloaks one in credibility. Love generates its own strength. Love imbues your work with honor. I have never won a case where love was absent. We risk so much of ourselves, every day, in every case. Love is the only explanation for that.

Love of Money We do not pursue Justice for the love of money. First of all, loving money doesn’t work in any context. Secondly, how often have you encountered the term “rich criminal defense lawyer?” Thirdly, if you pursue this work in hopes of getting rich, it will break you. Worse, it will break your heart. With money as your motivation, you will likely fail in reaching what you seek. The focus is wrong. Our focus on Justice, not on money.

Love of Power We don’t defend people for the love of power. Quite the opposite. We defend people from the unjust or unmeasured use of power directed against them. We deflect unjust power.


While it is true that we sit next to the most important person in the courtroom (our client), that is rarely regarded by others as the most powerful place, or the most powerful position, in the courtroom. Nor is ours seen as the most powerful position in the criminal justice system.

What Love? So, what love are we referring to? Just what love are we talking about? We are taught by Gerry Spence at the Trial Lawyers College that there are only two emotions in the universe: love and fear. Every negative emotion you have ever felt is a subset of fear. Love is the cure for that, and the only thing that can overcome it, even in the courtroom.

Love of the Law The most loving of us all, and the most patient, are our appellate lawyers. They expend their days, they expend their souls, poring over mind-numbing transcript after transcript in search of the Holy Grail of cases. They search for the language that will deliver the arguments to those appellate benches by crafting new and persuasive perspectives on old issues. But most of all, they are agonizing in their hearts over our incomprehensible trial mistakes, or even worse, our silence during trial. Why do they do that? Love is the answer.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

2018 Annual Dinner Love of Trial The love of trials is probably what attracted and brought most of us to the law in the first instance. That fiery summation delivered with the utmost of the earnest and sincere passion, gaining trust, building undeniable credibility, and finally bringing a just verdict freeing our client. That cross-examination that tells our client’s powerful, true story through opposing witnesses, until our client’s accuser’s power has waned and abated. Our building of the community of prospective jurors during voir dire (our preliminary opening argument) who will decide to follow us throughout the trial from that time on. Love of trial borders on addiction for me (and sometimes crosses the border).

Love of Others ROBERT G. WELLS President, NYSACDL Office and Post Office Address 120 East Washington Street Syracuse, New York 13202 Telephone: (315) 472-4489

Our experience has shown us the contrasting, discrete, and separate conditions of liking someone as opposed to loving them. We learn we need not like someone to love them as humans…as people. Again, love even with all its attendant power is not the easiest state of being in which to exist and operate. It can be rebuffed over, and over, and over again until it “takes.” This love of others requires the strongest exercise of patience. Moreover, it requires something trial lawyers are not acquainted with: vulnerability. It requires a giving up of yourself. It demands listening, and more than that, it needs hearing. Not reacting. Leaving yourself behind. You may find that your client has never actually been listened

to, meaningfully, in their entire lives. This is the love that leads to understanding. As a part of your function and purpose, their story is told and conveyed and comprehended through your love and your powerful retelling. Just as this is the first time your client may ever have been listened to, it may well be the first time their story has ever been told.

Love of Justice We may be animated by the love of Justice itself, and in its purest form, as we pursue it. A friend and colleague of mine and I discuss precisely what Justice is. For me it is simple. Justice is love.

The Danger of Love Because we love, we may expose ourselves to conditions such as sadness and even rage. It is because we love. It can be an incident of love. And these conditions can be felt through the withholding, denying, or loss of love. Again, persistence, patience, and strength are what call to us here.

Love of Self You cannot effectively represent someone else until you know yourself. We are taught that knowing others is wisdom, but that knowing yourself is enlightenment. And, you cannot represent others from love well, until you accept and love yourself. In so doing, you remove the impediments of self-doubt and dedicate yourself to the cause of others. And with all of this knowledge, I want you to realize love and therefore realize Justice. A

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


2018 Annual Dinner

Past Presidents Gerry Lefcourt & Larry Goldman

Rick Collins & Past President Andy Kossover

President-Elect Lori Cohen & Michael Horn

Past President Wayne Bodden & Earl Ward

President Robert Wells offers remarks

President Wells presents a plaque to Past President John Wallenstein

NACDL ED Norm Reimer speaks on Clemency Project


Cocktail Hour (and a half!)

ED Jennifer Van Ort gets ready for the onslaught; Past President Ben Ostrer looks on

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

2018 Annual Dinner


n January 25, 2018, members and friends of NYSACDL gathered at the Grand Hyatt Hotel in Manhattan for our annual awards and installation dinner. More than 225 people enjoyed a cocktail hour (and a half!) in the spacious lobby area of the hotel, where we were easily able to schmooze with friends and colleagues while enjoying superb hors d’ouevres and cocktails. After stuffing ourselves, we moved on to the Grand Ballroom, for dinner and our program. 2017 President John S. Wallenstein welcomed the crowd, and then proceeded to the installation of 2018 President Robert G. Wells. President Wells inspired us all with his inaugural remarks, which are reprinted elsewhere in this issue. We then heard from NACDL Executive Director Norman Reimer, who urged us all to participate in Governor Cuomo’s Clemency Project, and spoke of the success of NACDL’s national Clemency Project. After a presentation to President Wallenstein, recognizing his service, dinner was served.

Corinne Mullen accepts the Thurgood Marshall Award for Gerry Spence

After dinner, the awards literally took center stage. President Wells presented the Thurgood Marshall Award for Outstanding Criminal Practitioner to Mark Williams presents Lifetime Achievement Award to Seymour James Gerry Spence, Esq., who is, of course, nationally renowned for his prowess in the courtroom. Unfortunately, due to health issues, Gerry was unable to join us in New York, so the award was accepted on his behalf by Corinne Mullen, Esq., and the Trial Lawyers College which Gerry founded.

A Lifetime Achievement Award was presented to Seymour James, Esq., attorney-in-chief of the Legal Aid Society, in recognition of his years of service to indigent defense as he approaches retirement later this year. The award was presented by NYSACDL Secretary Mark Williams, President of the Chief Defenders Association of New York. NYSACDL recognized Susan Walsh, Esq., a member of the Board of Directors, with a Presidential Achievement Award for her hard work and dedication during the Clemency Project. Susan had more petitions granted than any other attorney, and she accepted on behalf of all who worked on the project. All in all, a wonderful evening of celebration of NYSACDL and all its members, who work so diligently to achieve justice. We hope to see you all again next year, when we will honor Women in Justice!

Susan Walsh accepts her Presidential Award for her work on clemency

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


2018 Annual Dinner Susan Walsh Remarks

Editors’ Note: What follows are the remarks delivered by NYSACDL Board member Susan Walsh at the Annual Dinner, upon being recognized for her outstanding achievements in connection with the Clemency Project. Susan had more petitions granted than any other single attorney. When Norman Reimer and Frank Gould asked me to join their law firm, I felt I was the luckiest lawyer in the world. No one is more earnest, creative and relentless than Norman in upholding the ideal of the 6th Amendment. When working with him whether it is a trial, an appellate brief, an amicus brief or a bar association project, Norman makes me up my game every time and the Clemency Project is no exception. You make me a better lawyer and I thank you for that, Norm. I was lucky back then but when I was asked to join my current firm Vladeck Raskin & Clark a plaintiff ’s employment firm, that was a professional milestone difficult to rival. The Vladeck firm has been standing up for fairness in the work place, against discrimination of every type and for employees against the might of their employers since the hashtag symbol was not used for social movements but was called a tic-tactoe board. The deep legacy and the current roster of lawyers at Vladeck are as talented, creative and hard working as any I have ever seen on either side of the aisle. I thank you for your support. I am a better lawyer for working with you. Tonight you don’t need me to tell you that we are living in unprecedented times. I am a dyed-in-the-wool criminal defense lawyer. I was born a criminal defense lawyer. But lately I find myself in front of the TV news every night rooting for the prosecution! How odd that I have added defending the honor of the FBI to my repertoire, too! These are unprecedented times and like you because of these times, I find myself looking especially inward to myself as a lawyer and examining the special role and particular responsibility we have as lawyers. I have sat elbow to elbow with so many of you in the front row of courtrooms waiting for our cases to be called in courtrooms from Troy, New York to Cadman Plaza Brooklyn and from 100 Centre Street to 500 Pearl Street. With you in that front row I have joked, sneered, cursed, and sometimes cried. With you I have railed against the injustice of mandatory minimum sentencing laws that destroy the right to a jury trial; about wrongful withholding of discovery that, let’s face


it, is undiscoverable; about the unfairness of crack versus powder cocaine and the dishonest, cramped reading of Brady vs. Maryland. I know you and I know what you the criminal defense bar of New York are capable of. And, let me share with you that writing these Clemency Petitions was as cathartic and freeing an experience as I have had as a criminal defense attorney. Pouring out all of that unbridled advocacy; detailing the injustice of it all into a pure unadulterated appeal for mercy, untethered from the harness of evidentiary rules or niceties of criminal procedure was extraordinary. Getting all that feeling on paper and reaching for the outstretched hand of a person seeking redemption and a second chance was an extraordinarily rewarding personal and professional experience. It was an indescribable joy when I got the first call from the Pardon Attorney’s Office in DC connecting me with a client to deliver the good news. I stood huddled around the cell phone in City Hall Park with my colleague Renay on the way to court when the 202 area code appeared on the screen from D.C. – one finger plugged in my ear shouting into the cell phone as we were connected to the first client – to tell him:

YOU ARE NO LONGER A LIFER. YOU ARE GOING HOME. It was a personal and professional gift that I got to make that call seven times and sometimes when I returned to my office after a hard day I got to open my mail and read: Dear Ms. Walsh: I want to thank you again for another chance at life. Everyone said that President Obama did a great job but I say it was you who did a fabulous job, but that part we will keep between us, we don’t want to disappoint the President. I know that you will keep up the good work. I wish you the very best. I will never forget you. And on another day read…

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

2018 Annual Dinner Dear Ms Walsh: I would like to thank you on behalf of my family and myself for your good work and efforts. I shall not take this opportunity lightly. I shall make everyone involved in my freedom proud. And the added bonus line that every defense lawyer appreciates: PS: There are some guys in here who want to talk to you, I hope it is ok that I will give them your information.

What we do is a unique and profound mission…when we stand up for the guilty – to uphold the dignity of a human being against the world when it is at its most judgmental. Anyone can defend the innocent but what we do for the guilty is truly extraordinary.

Make no mistake, I enjoy a bar association lapel pin and a scotch and soda with a courtroom war story at the bar as much as the next lawyer, and probably more than most. And I have enjoyed the camaraderie and lasting friendships I have made in this profession and through the bar association work I have done over these years. But we must take special care with our professional associations. We need to make sure our professional bar associations rise to this occasion and do meaningful work. We need to avoid the risk of becoming social or dinner clubs. We must take special care that we in the defense function are not Balkanized by competing bar groups, nor divided in our pursuit of reform by whether we are assigned or retained to represent someone. And we must not let the color of the collar our clients wear impede our commitment to ensure, that our bar associations have professional meaning and do meaningful work in service to all accused and convicted person. I extend my congratulations to Gerry Spence on his honor and especially to New York City’s own Seymour James for a lifetime of great work. Thanks and congratulations to all the lawyers who volunteered and who are now volunteering in this clemency effort. As proud as I am of my firm and the employment work that we do together, I am and I hope to always be a criminal defense lawyer. You know, it is feels good to fight for the downtrodden, the mistreated, and the innocent. And, of course it is noble and

honorable work to do so – especially the wrongfully convicted. But what you do – what we do – is a unique professional calling. It is a unique and profound mission that all criminal defense lawyers share when we stand up for the guilty – to uphold the dignity of a human being against the world when it is at its most judgmental. Anyone can defend the innocent but what we do for the guilty is truly extraordinary. I can feel as cynical and exhausted as each of you feels some days. And, I admit when I got a Corrlinks email from a federal prisoner on December 25th this year I confess that my first reaction was not “OH JOY – a Christmas morning greeting from an incarcerated client – let’s see what it says!!!” But I am also as compulsive as most of you so this December 25th I opened this one up: Dear Susan: I am somewhat excited, not only is this my last Christmas in prison, but thanks to you I only have 16 days left before I am headed to San Diego for the halfway house after 17 years in prison. I can’t thank you enough for all that you have done for me and my family. I hope your holidays are as joyful as you have made mine. I hope every one of you in this room gets to experience a note from a clemency client like that one. It sounds corny but it is true: a note like that is thanks enough. But, recognition for my work, from you, my colleagues, the Criminal Defense Bar of the Great Empire State is icing on the cake. I thank you very much. A

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Legislative Report Continued from page 17

Legislative Committee: Andy Kossover, Co-Chair (New Paltz) Amy Marion, Co-Chair (Garden City) Lori Cohen Greg Lubow (Greene County) Kenneth Moynihan Marvin Schechter Robert Wells Mark Williams

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


cases of wrongful convictions due to prosecutorial conduct and for individuals and prominent leaders of all communities, especially Upstate, who are willing to lend their support. We have not yet brought this effort to a successful conclusion so let us all resolve to continue working hard. Following a meeting with Governor Cuomo’s legal team, the Governor included discovery reform, bail reform, and speedy trial reform in his Executive Budget Bill at the beginning of the 2018 session. We were excited at the prospects of the Governor’s initiatives. However, in this Association’s opinion, and that of many of our legislative partner organizations, the Governor’s proposals required significant revision to garner our support. Our Association worked along side many other criminal justice organizations to advocate for more meaningful discovery reform. Co-chair Kossover, who also Chairs the New York State Bar Association’s Committee on Mandated Representation, played a pivotal role in successfully convincing the State Bar’s House of Delegates to adopt criminal discovery reform as its top legislative priority for the 2018 session. Assembly Member Lentol and Senator Avella sponsored Assembly Bill 07292 and Senate Bill 06848 respectively. These bills essentially adopted the comprehensive proposals on discovery reform recommended by the State Bar’s Task Force on Discovery Reform, essentially replacing the current Article 240 of the Criminal Procedure Law with an entirely new Article. However, despite “coalition” lobby days, press conferences, and a strong media campaign, including multiple television appearances by your Association’s leadership, the District Attorneys Association of the State of New York was, once again, able to convince a majority of the Republican controlled Senate that innocent witnesses and victims would be placed at risk if discovery reform was passed. This fear tactic by the District Attorneys has continued to serve them well even though the proposed bill specifically addresses several means of protecting witnesses and victims from harassment or tampering. Of course, our Association, joined by many others, went to Albany to educate legislators that those protections are included in the proposed legislation. At one of our press conferences, Senator Jamaal Bailey said: Our criminal justice system is outdated and in its current form, it has allowed rampant injustices to happen, primarily to people of color. The foundation of our justice system is supposed to be fairness, but currently defense attorneys are left ‘blindfolded’ under the archaic discovery statute, Criminal Procedure Law (CPL) 240, that is in desperate need of reform. With providing automatic discovery, criminal cases will go to trial in a reasonable time frame and improve the issues in our criminal justice system, including but not limited to speedy trial and bail reform. Additionally, it is unfair that less fortunate citizens are forced to remain imprisoned solely because of their inability to pay bail. The Senate Democratic Conference’s Criminal Justice Reform bill package is necessary in order to bring balance to the system and ensure that the basic tenet of our justice system, fairness, is more easily achievable.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

From the President Continued from page 3

Nevertheless, like bail reform and speedy trial reform, politics and conflicts over differences in the proposed legislation resulted in the failure of the legislature and Governor to find common ground. Discovery reform, bail reform, and speedy trial reform all failed to yield a vote this session. NYSACDL remains optimistic about realizing our priority of true discovery reform and will continue to push for criminal justice reform during next year’s session, though we will face similar obstacles if Republicans maintain a majority in the state Senate. In addition to the Commission on Prosecutorial Conduct bill, the Legislature passed other criminal justice bills which may be of interest. The Legislature passed a bill enacting “Lulu and Leo’s law” (Penal Law Section 260.35) establishing the crime of misrepresentation by, or on behalf of, a caregiver for children when a person knowingly makes a misrepresentation about a caregiver’s background. The legislature also passed a bill providing for the establishment of a sexual assault survivor Bill of Rights by the Department of Health, in consultation with the Division of Criminal Justice Services and Department of Law. Bills passed by both houses will be sent in batches to the Governor over the summer and into the fall. Once a bill is sent to the Governor, he has 10 days (excluding Sundays) within which to act on the bill. It is noteworthy that the Governor recently signed an act to amend the Penal Law, the Criminal Procedure Law and the Family Court Act, ensuring that domestic violence offenders do not have access to firearms. Finally, New York appears to be on the verge of legalizing recreational marijuana. This issue will undoubtedly be the subject of huge debate in Albany next year. Of interest to the criminal defense community is the suggestion, as adopted in several other states, that the odor of marijuana then becomes insufficient to constitute probable cause (with certain exceptions). Police have been pulling people over and stopping them on the street for years, claiming at the stops that they “smell marijuana.” In the past, this has been about all they need to say to claim they had “probable cause.” But upon legalization, law enforcement agencies have to come up with an alternative, since several other jurisdictions have ruled, and there is no reason to believe New York would conclude differently, that the scent of marijuana will no longer suffice as grounds for probable cause. To do otherwise would make medical marijuana patients and recreational users second-class citizens, losing their rights to privacy and security, including privacy within their own homes. A

with only the thought of right, fairness and Justice help to achieve victories in the appellate courts in our state. Not only am I constantly awed by the intellectual and legal acumen and knowledge of those members, but also of their ceaseless desire for nothing but the purest of Justice. Our continuing legal education programs across the entire state are strongly attended and are comprised of some of the best “teachers” there are. Without listing and recounting them here, they approach, describe and propose creative approaches to the issues of law and of trial practice itself to be utilized in the courthouses into which we all step daily. As a part of this, we are excited, again in these difficult times, to be presenting seminars on diversity. This applies to our clients, our juries, and our colleagues. There could be no better time to assert the beauty and the many facets of diversity in America. All of the issues I describe, are before us and not behind us. Therefore, through this organization, we will redouble our efforts to achieve fairness and Justice across our home state and hope that it similarly inspires the same on the national level. A

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Retirement Notes: Past President Kevin D. O’Connell retired from his position as legal director of New York County Defender Services on June 30, 2018. Upon graduating from Boston University School of Law, O’Connell accepted a position with the Legal Aid Society of New York’s Criminal Defense Division. After only two years, he was promoted to the Major Offense Bureau of the Brooklyn Office, the youngest ever to achieve that distinction. Within that bureau he handled homicides and other major crimes and also represented the first defendant to be tried as a mandatory persistent felon. In 1997, he helped to found a new office in Manhattan, the New York County Defender Services, and since that time has served as its legal director. During his tenure, O’Connell has taught hundreds of public defenders how to analyze the strengths of a case, negotiate with prosecutors and hone trial skills while keeping all attorneys apprised of developing case law. Beloved within the office by both the newest and most senior staff he continued to try cases while nurturing the skills of young lawyers and serving as a respected legal resource. Previously honored by the ABA as their 2016 outstanding Public Defender, O’Connell’s retirement, though well deserved, will leave a much felt absence within our active ranks. NYSACDL Secretary Mark S. Williams retired in February from the Cattaraugus County Public Defender Office after 15 years. Mark began as Public Defender in January of 2003 with only a secretary. By the end of 2004, he grew the office to about its current size, now an office of seven attorneys, two full-time investigators, a full-time social worker, two legal secretaries, an account clerk and two keyboard specialists. A former Navy JAG officer, Mark began in 1981 in local private practice before being named the county’s first public defender. He also served for seven years on the County Legislature, part of the time as majority leader. Mark recently served as President of the Chief Defenders Association of New York and also served as a Town Judge. Mark's retirement plans include relaxing with his wife, Patti, and visiting children and grandchildren in the Carolinas. Cattaraugus County First Assistant Public Defender, and NYSACDL member, Darryl Bloom was appointed to the chief position following Mark's retirement. A


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Justice Prevails in Suffolk County


n May of 2017, a few days after filing the brief on appeal in the murder conviction of Shawn Lawrence,1 I read in the newspaper that the trial assistant on the case, Glenn Kurtzrock, had just been fired in the middle of another murder trial for deliberately withholding Brady material. I wrote to District Attorney Thomas Spota and told him that, while my client had very strong issues on appeal, I now had concerns about possible Brady violations, and asked if we could meet. When I went to Mr. Spota’s Office in early August, he told me that the Prosecution was conceding error on the first point of my appeal and would agree to a new trial.2 The District Attorney said that one of his assistants was reviewing all of Kurtzrock’s cases, and that he would open their file in the instant matter to me; he also said that going forward, the Suffolk County District Attorney’s Office would have openfile discovery.

Laura Solinger has been a solo practitioner and a criminal defense attorney since she graduated from Northeastern University Law School in 1991. Her practice is dedicated almost exclusively to representing the indigent. In 2010, another of Ms. Solinger’s client’s was released from prison when his 60 years-to-life sentence was reduced to 20 years-to-life.

I later met with the Assistant reviewing Kurtzrock’s cases, and he gave me a list he had compiled of 45 items from the file that he believed had not been turned over to the defense and that could be Rosario or Brady material. We went through the file for hours, and he provided me with each of the documents from that list that I 1 Lawrence, arrested over two years after the 2010 crime occurred, was convicted in July of 2015 of one count of murder in the second degree, two counts of attempted murder in the second degree and one count of criminal possession of a weapon in the second degree and sentenced to an aggregate term of 75 years-tolife in prison. 2 Point I of the appeal was that the Court below erred in refusing to relieve defense counsel, who had a clear conflict of interest. Specifically, one of the victims, Ralph Council, told defense counsel, alone, that Lawrence was innocent but that he was being pressured by ADA Kurtzrock and a detective to implicate him. ADA Kurtzrock made a motion to relieve defense counsel; defense counsel then promised the court he would forgo that area of cross. The Court appointed “shadow counsel” but denied the Prosecution’s motion. Point II and III of the appeal were IAC claims.

Continued on next page

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Justice in Suffolk Continued from page 18 requested. The most egregious examples of withheld evidence were: In the hospital, 17 days after the shooting, one of the victims in this case, David Hodges, while walking in the hallway with a nurse, identified another hospital patient and that patient’s visitor as the men who had shot him. A detective dispatched to the hospital confirmed that the Hodges had indeed identified the patient and his visitor.3 This information was neither investigated nor disclosed to the defense. Detectives sought and obtained the video surveillance from the hospital. That video was never turned over to the defense. When I asked to see the video, the Suffolk County Police Department informed the Assistant working with me that the video was now missing. CR, after repeatedly denying he was at the scene of the murder, finally admitted to detectives that he had been at the scene. He said he saw the three (there were four) perpetrators, and admitted to firing his .22 caliber two times. He said the 3 he saw were all his age or younger, and 6’ or shorter. CR was 23 years old and 5’9”. This information was never disclosed. Larry Williams, who testified at trial for the Prosecution, told a detective that all four perpetrators, whom he could not identify, “looked young.” This statement by Williams was never disclosed. JP, 15 year-old gang member who stood 5’6” tall, and who had a violent criminal and school history, was arrested five months after the murder and a few 3 A Google search revealed that the 22 year-old patient had been shot in the back as he sat in his car, 10 days after the shooting and a block away.


miles away, for possession of the 9mm pistol used in the shooting. This information was never disclosed. JP told detectives that he got the gun from another man, TR, a member of the Bloods, who, according to police records, was 23 years old and 5’9” tall; this information was neither investigated nor disclosed. Jim Jones, an admitted crack addict, and one of the Prosecution’s only two eyewitnesses, was paid $4,000 after his testimony to relocate. This information was never disclosed. It is important to note that Lawrence was prosecuted by three different Assistants in as many years, and that none of them disclosed any of the above Brady material. Further, the withheld evidence secreted in the District Attorney file for years also directly supported the defense theory presented at trial: that the perpetrators were all young, relatively short

men or boys and likely members of the Bloods gang, just as was Alan McGhee, Lawrence’s only co-defendant, who stood 5’5”, was 22 years old, and who pled guilty to the shooting.4 In contrast, Lawrence was almost 38 years old the night of the crime, stood 6’4” and was not, according to police and District Attorney records, affiliated with any gang. It seems clear that the Brady evidence was withheld precisely because it made a weak case even weaker; too weak, in fact, for a conviction. The withheld evidence also lent a new perspective to previous claims and arguments that the defense had made, including that the first assigned Assistant failed to inform the grand jury of Lawrence’s alibi witness, and lied when he later averred in response to a 190.50 motion that he never received the notice; that the ballistics report from the 9 mm found on the juvenile was first provided to the defense in a Rosario dump of 600 pages, right before jury selection; that the Prosecution’s star witness victim Ralph Council told defense counsel that Lawrence was innocent, and that ADA Kurtzrock and a detective were pressuring him to implicate Lawrence; that the only other eyewitness the Prosecution called at trial, Jim Jones, was telling the truth when he said in two pre-trial affidavits that he could not see the identities of the shooters, and that the lead Detective on the case gave him $50.00 to implicate the defendants.

4 McGhee received a sentence of 12 years, and implicated Lawrence at his allocution. However, he testified for Lawrence at trial, and said he was not involved in the shooting in any way, and said that he implicated him to get his favorable plea deal. ADA Kurtzrock later prosecuted McGhee for perjury for this testimony. McGhee allocuted at that sentencing that he had lied either at his sentencing or at Lawrence’s trial, but never specified which. He received 2 additional years.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

In late August, the Prosecution submitted their Reply to Lawrence’s brief on appeal and conceded error, and I submitted a motion to expedite the appeal. I then wrote Mr. Spota a second letter asking for another meeting, explaining that the Brady violations were significant, and that I now thought there was an objective reasonable doubt as to Lawrence’s guilt. Shortly thereafter, however, Mr. Spota himself, along with one of his chief aides, was indicted on federal corruption charges, and he resigned his position as District Attorney of Suffolk County. Emily Constant became the acting-District Attorney, and she agreed to meet with me to discuss the Lawrence case. In November 2017, I met with Ms. Constant and argued that the withheld Brady material dealt a body blow to what was undeniably a thin murder case, and that the picture forming as the dust settled was that my client was actually innocent. If that was the case, I told her the only appropriate remedy was dismissal of the indictment. Ms. Constant said she would get back to me. On December 6, the Appellate Division Second Department overturned Lawrence’s conviction on Point 1 of the appellate brief and ordered a new trial. A week later, the DA’s office called to tell me that they would be moving to dismiss the indictment.

The Prosecution filed a motion to dismiss in the interest of justice pursuant to CPL 210.40(c)(e). I replied under the same subsections, laying out in detail the utter lack of credible evidence that existed against Shawn Lawrence, the egregious Brady and Rosario violations and the specter of other prosecutorial misconduct. On February 15, 2017, the Court dismissed the indictment against Lawrence, denying the Prosecution’s motion, saying that it was “vague” and “unpersuasive,” but granting the defense motion under subsection (e), citing “stunning” prosecutorial misconduct. Shawn Lawrence spent almost 6 years in prison. A


Annual Dinner

Thursday, January 17, 2019

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


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


The Drug War Is Not Working * By William F. Buckley, Jr.

The address reproduced below was delivered to the NewYork City Bar Association on October 11, 1995; Mr. Buckley’s view, through his unique lens, merits revisiting. It propounds a path eschewed by both the left and right, but which experience teaches was and is worthy of serious inspection. —Atticus


e are speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen — yet a plague for which no cure is at hand, nor in prospect.

*Reproduced with the gracious permission of the copyright owner, Mr. Christopher Buckley.


Perhaps you, ladies and gentlemen of the Bar, will understand it if I chronicle my own itinerary on the subject of drugs and public policy. When I ran for mayor of New York, the political race was jocular, but the thought given to municipal problems was entirely serious, and in my paper on drugs and in my post-election book I advocated their continued embargo, but on unusual grounds. I had read — and I think the evidence continues to affirm it — that drug-taking is a gregarious activity. What this means, I said, is that an addict is in pursuit of company and therefore attempts to entice others to share with him his habit. Under the circumstances, I said, it can reasonably be held that drug-taking is a contagious disease and, accordingly, subject to the conventional restrictions employed to shield the innocent from Typhoid Mary. Some sport was made of my position by libertarians, including Professor Milton Friedman, who asked whether the police might legitimately be summoned if it were established that keeping company with me was a contagious activity. Continued on next page

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

I recall all of this in search of philosophical perspective. Back in 1965 I sought to pay conventional deference to libertarian presumptions against outlawing any activity potentially harmful only to the person who engages in that activity. I cited John Stuart Mill and, while at it, opined that there was no warrant for requiring motorcyclists to wear a helmet. I was seeking, and I thought I had found, a reason to override the presumption against intercession by the state. About ten years later, I deferred to a different allegiance, this one not the presumptive opposition to state intervention, but a different order of priorities. A conservative should evaluate the practicality of a legal constriction, as for instance in those states whose statute books continue to outlaw sodomy, which interdiction is unenforceable, making the

law nothing more than print-on-paper. I came to the conclusion that the so-called war against drugs was not working, that it would not work absent a change in the structure of the civil rights to which we are accustomed and to which we cling as a valuable part of our patrimony. And that therefore if that war against drugs is not working, we should look into what effects the war has, a canvass of the casualties consequent on its failure to work. That consideration encouraged me to weigh utilitarian principles: the Benthamite calculus of pain and pleasure introduced by the illegalization of drugs. A YEAR or so ago I thought to calculate a ratio, however roughly arrived at, toward the elaboration of which I would need to place a dollar figure on deprivations that do not lend themselves to quantification. Yet the law, lacking any

other recourse, every day countenances such quantifications, as when asking a jury to put a dollar figure on the damage done by the loss of a plaintiff ’s right arm, amputated by defective machinery at the factory. My enterprise became allegorical in character — I couldn’t do the arithmetic — but the model, I think, proves useful in sharpening perspectives. Professor Steven Duke of Yale Law School, in his valuable book, America’s Longest War: Rethinking Our Tragic Crusade against Drugs, and scholarly essay, “Drug Prohibition: An Unnatural Disaster,’’ reminds us that it isn’t the use of illegal drugs that we have any business complaining about, it is the abuse of such drugs. It is acknowledged that tens of millions of Americans (I have seen the figure 85 million) have

Continued on next page

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Drug War, William F. Buckley, Jr. Continued from previous page at one time or another consumed, or exposed themselves to, an illegal drug. But the estimate authorized by the federal agency charged with such explorations is that there are not more than 1 million regular cocaine users, defined as those who have used the drug at least once in the preceding week. There are (again, an informed estimate) 5 million Americans who regularly use marijuana; and again, an estimated 70 million who once upon a time, or even twice upon a time, inhaled marijuana. From the above we reasonably deduce that Americans who abuse a drug, here defined as Americans who become addicted to it or even habituated to it, are a very small percentage of those who have experimented with a drug, or who continue to use a drug without any observable distraction in their lives or careers. About such users one might say that they are the equivalent of those Americans who drink liquor but do not become alcoholics, or those Americans who smoke cigarettes but do not suffer a shortened lifespan as a result. Curiosity naturally flows to ask, next, How many users of illegal drugs in fact die from the use of them? The answer is complicated in part because marijuana finds itself lumped together with cocaine and heroin, and nobody has ever been found dead from marijuana. The question of deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any conclusions about alcohol consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol consumption if it happened that half of those deaths, or more than half, were the result of drinking alcohol with toxic ingredients extrinsic to the drug as conventionally used. When alcohol was illegal, the consumer could never know whether he had been given rela-


tively harmless alcohol to drink — such alcoholic beverages as we find today in the liquor store — or whether the bootlegger had come up with paralyzing rotgut. By the same token, purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that would qualify for regulated consumption after clinical analysis. But we do know this, and I approach the nexus of my inquiry, which is that

Willim F. Buckley Jr. making a point

more people die every year as a result of the war against drugs than die from what we call, generically, overdosing. These fatalities include, perhaps most prominently, drug merchants who compete for commercial territory, but include also people who are robbed and killed by those desperate for money to buy the drug to which they have become addicted. This is perhaps the moment to note that the pharmaceutical cost of cocaine and heroin is approximately 2 per cent of the street price of those drugs. Since a cocaine addict can spend as much as $1,000 per week to sustain his habit, he would need to come up with that $1,000. The approximate fencing cost

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Drug War, William F. Buckley, Jr. Continued from previous page of stolen goods is 80 per cent, so that to come up with $1,000 can require stealing $5,000 worth of jewels, cars, whatever. We can see that at free-market rates, $20 per week would provide the addict with the cocaine which, in this wartime drug situation, requires of him $1,000. My mind turned, then, to auxiliary expenses — auxiliary pains, if you wish. The crime rate, whatever one made of its modest curtsy last year toward diminution, continues its secular rise. Serious crime is 480 per cent higher than in 1965. The correlation is not absolute, but it is suggestive: crime is reduced by the number of available enforcers of law and order, namely policemen. The heralded new crime legislation, passed last year and acclaimed by President Clinton, provides for 100,000 extra policemen, even if only for a limited amount of time. But 400,000 policemen would be freed to pursue criminals engaged in activity other than the sale and distribution of drugs if such sale and distribution, at a price at which there was no profit, were to be done by, say, a federal drugstore.

The anti-marijuana campaign is a cancerous tissue of lies, undermining law enforcement, aggravating the drug problem, depriving the sick of needed help and suckering wellintentioned conservatives and countless frightened parents. —William F. Buckley, Jr.

So then we attempt to put a value on the goods stolen by addicts. The figure arrived at by Professor Duke is $10 billion. But we need to add to this pain of stolen property, surely, the extramaterial pain suffered by victims of robbers. If someone breaks into your house at night, perhaps holding you at gunpoint while taking your money and your jewelry and whatever, it is reasonable to assign a higher ``cost’’ to the episode than the commercial value of the stolen money and jewelry. If we were

modest, we might reasonably, however arbitrarily, put at $1,000 the ``value’’ of the victim’s pain. But then the hurt, the psychological trauma, might be evaluated by a jury at ten times, or one hundred times, that sum. But we must consider other factors, not readily quantifiable, but no less tangible. Fifty years ago, to walk at night across Central Park was no more adventurous than to walk down Fifth Avenue. But walking across the park is no longer done, save by the kind of people who climb the Matterhorn. Is it fair to put a value on a lost amenity? If the Metropolitan Museum were to close, mightn’t we, without fear of distortion, judge that we had been deprived of something valuable? What value might we assign to confidence that, at night, one can sleep without fear of intrusion by criminals seeking money or goods exchangeable for drugs? Pursuing utilitarian analysis, we ask: What are the relative costs, on the one hand, of medical and psychological treatment for addicts and, on the other, incarceration for drug offenses? It transpires that treatment is seven times more cost-effective. By this is meant that one dollar spent on the treatment of an addict reduces the probability of continued addiction seven times more than one dollar spent on incarceration. Looked at another way: Treatment is not now available for almost half of those who would benefit from it. Yet we are willing to build more and more jails in which to isolate drug users even though at one-seventh the cost of building and maintaining jail space and pursuing, detaining, and prosecuting the drug user, we could subsidize commensurately effective medical care and psychological treatment.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

Continued on next page


Drug War, William F. Buckley, Jr. Continued from previous page I HAVE spared you, even as I spared myself, an arithmetical consummation of my inquiry, but the data here cited instruct us that the cost of the drug war is many times more painful, in all its manifestations, than would be the licensing of drugs combined with intensive education of non-users and intensive education designed to warn those who experiment with drugs. We have seen a substantial reduction in the use of tobacco over the last thirty years, and this is not because tobacco became illegal but because a sentient community began, in substantial numbers, to apprehend the high cost of tobacco to human health, even as, we can assume, a growing number of Americans desist from practicing unsafe sex and using polluted needles in this age of AIDS. If 80 million Americans can experiment with drugs and resist addiction using information publicly available, we can reasonably hope that approximately the same number would resist the temptation to purchase such drugs even if they were available at a federal drugstore at the mere cost of production. And added to the above is the point of civil justice. Those who suffer from the abuse of drugs have themselves to blame for it. This does not mean that society is absolved from active concern for their plight. It does mean that their plight is subordinate to the plight of those citizens who do not experiment with drugs but whose life, liberty, and property are substantially affected by the illegalization of the drugs sought after by the minority. I have not spoken of the cost to our society of the astonishing legal weapons available now to policemen and prosecutors; of the penalty of forfeiture of one’s home and property for violation of laws which, though designed to advance


the war against drugs, could legally be used — I am told by learned counsel — as penalties for the neglect of one’s pets. I leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal,

Willim F. Buckley Jr in his limo with dog companion. Photo by Jill Kremetz

the legal equivalent of a My Lai massacre. And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors. A

Moral equivalence is arguing that there’s no difference between pushing “an old lady into the way of an incoming bus” and pushing “an old lady out of the way of an incoming bus,” because either way, you’re pushing old ladies around. — William F. Buckley Jr.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


Annual Dinner Women for Justice

Thursday, January 17, 2019 Grand Hyatt New York, 109 E. 42nd Street, at Grand Central Terminal, New York, NY Cocktail Reception at 6pm | Dinner & Ceremony at 7:30pm Honoring

2018 NYSACDL President Robert G. Wells, Esq.


2019 NYSACDL President Lori Cohen, Esq.

Presenting The Hon. William Brennan Award for Outstanding Jurist Hon. Colleen McMahon, Chief U.S. District Judge, Southern District of New York Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner Isabelle Kirshner, Esq., Partner, Clayman & Rosenberg LLP Justice Through the Arts: “The Last Defense”

More information about sponsorship & tickets coming soon. To make sure you get information, please visit http://bit.ly/NYSACDLDinner19!


Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


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Clients: Visit On-Line ‘Get a Quote’ at www.smartstartinc.com or call 800-831-3299 Attorneys: Contact Kat Warner, Smart Start NY Judicial Services Kathleen.warner@smartstartinc.com 917-576-5088



Atticus | Volume 30 Number 2 | Summer 2018 | 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 30 Number 2 | Summer 2018 | 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



Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

NYSACDL Spring CLE photos were taken at the following programs: Adirondack Criminal Defense Seminar – Lake Placid 2018; Central New York Criminal Defense Seminar – Spring 2018, Syracuse; Cross to Kill 2018, New York.

Thank you to all of the faculty & sponsors for helping NYSACDL continue its tradition of excellence in CLE programming.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers



NYSACDL Fall CLE Calendar

The NYS Court Brady Order: What’s New, What Will Happen, What To Do

With Marvin E. Schechter, Esq. – 3 Skills Credits Buffalo – September 14

1pm – Hodgson Russ LLP $125 for NYSACDL Members, $150 for Non-Members

White Plains – September 28 1pm – Yankwitt LLP $125 for NYSACDL Members, $150 for Non-Members

Binghamton – October 2 4pm – Broome County Public Library $100 for NYSACDL Members, $125 for Non-Members

New York – October 19 1pm – Carter Ledyard & Milburn LLP $150 for NYSACDL Members, $175 for Non-Members

Nassau County – November 1 4pm – Specific Location TBD $150 for NYSACDL Members, $175 for Non-Members


Program Details This presentation will cover the meaning, usage and strategies for using the new NYS Brady Order. It is intended as a threehour lecture/interactive problem-solving session conducted for no more than a twenty-person group on first-come-first-serve application basis in a conference room setting. All defense attorneys regardless of experience level are welcome. We will address: • the substance of the order itself; • its strengths and shortcomings; • potential problems with district attorneys and judges; • the interrelationship between the order and C.P.L. 240.20; • forensic science Brady issues; and • methods for memorializing Brady requests at every juncture in a case. Attorneys are encouraged to bring their own case files where there is current Brady problem so as to facilitate group discussion.

About the Presenter Marvin E. Schechter, an attorney with 44 years of trial experience is a past president of and a member of the NYSACDL Board of Directors and is currently involved in the legislative effort to secure passage of an independent prosecutorial conduct committee. Mr. Schechter recently finished serving approximately 9 years as a member of the NYS Commission of Forensic Science. He is currently co-chairing an NACDL Task Force studying the effects and usage of Risk Assessment Tools. He has served 9 years on the NACDL Board of Directors. Mr. Schechter is a co-author of “Strengthening Forensic Science in the United States: A Path Forward.” He has lectured extensively for over 40 years on trial tactics, including voir dire, motions to suppress, evidence rules, forensic science issues and prosecutorial conduct.

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

NYSACDL Fall CLE – Upcoming Dates Hudson Valley Criminal Defense Seminar 2018

Friday, October 26, 2018 11:00am – 5:00pm (Lunch Included; Program Lead Sponsor Begins at 11:45) Faculty & Topics Include: - Fun with Ethics & Best Practices on Preserving the Right to Appeal Post-Arjune: Robert Dean, Esq., Attorney-in-Charge, Center for Appellate Litigation - Important Immigration Updates for the Criminal Defense Lawyer: Robert Horne, Esq., Hudson Valley Regional Immigration Assistance Center

Premium Lead Sponsor, Buffalo Superstar Trial Seminar 2018

Friday, November 2, 2018 U.S. District Court for the Western District of New York, Buffalo, NY Faculty Includes: - Herbert L. Greenman, Esq., & Justin D. Ginter, Esq., Lipsitz Green Scime Cambria LLP - John E. Kelly, Esq., Bass, Berry & Sims PLC - Alexandra A. E. Shapiro, Esq., Shapiro Arato LLP Central New York Criminal Defense Seminar Fall 2018

Saturday, November 17, 2018

Lead Sponsor Syracuse, NY

Weapons for the Firefight 2018

Friday, November 30, 2018 New York Law School, New York, NY

From 90 State Continued from page 5 Legislative Committee is a role I am pleased to have. This year, we participated in three lobby days in three months – this is no small feat! Lobby Days take a great deal of planning and coordination and I am grateful to my colleagues at the organizations who join us in these efforts for all their work. Yet again, I must ask of you to play an active role – we can always use more people to join us in our legislative efforts. When you see an opportunity to join us in Albany, please try to arrange your schedule to join us! Your State representatives what to hear your voice, and you provide strength and reality to the message. If your schedule just does not make it possible to join us, please watch for opportunities to participate through email and social media! And, once again, please share those with your colleagues – and your friends and family. This is one area where we can draw on the support of the greater community to also reach out to Albany and speak on our behalf. While it appears I have once again outlined numerous ways NYSACDL needs YOUR help, please do not forget that NYSACDL remains ready to assist you in whatever way possible. Whether it be through the support of colleagues on the listserv, the availability of member resources, or even Strikeforce assistance, both the Board of Directors and I are just a call or email away for whatever you may need. As always, thank you for your continued support of and dedication to your clients, your colleagues, and NYSACDL!

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


nysacdl Membership

The Largest Criminal Defense Bar Association in New York State


President-Elect Lori Cohen, Manhattan

First Vice President Timothy Hoover, Buffalo

Vice Presidents Michael T. Baker, Binghamton James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Arnold J. Levine, Manhattan Kenneth Moynihan, Syracuse

Secretary Mark Williams, Olean

Treasurer Alan S. Lewis, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Life Members Daniel Arshack Wayne C. Bodden Peter E. Brill

David J. Cohen Lori Cohen Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle, Jr. Joshua L. Dratel Russell M. Gioiella Lawrence S. Goldman James P. Harrington Renee Hill E. Stewart Jones Kathryn M. Kase Ray Kelly Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis Thomas F. Liotti Scott Lockwood Mark J. Mahoney Zachary Margulis-Ohnuma Michael P. McDermott

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

President’s Club Members George Goltzer Kevin D. O'Connell Benjamin Ostrer

Sustaining Members James A. Baker Paul M. Callahan Joseph R. DeMatteo Brian J. DeSesa Karen L. Dippold Michael G. Dowd Peter M. Frankel Mario F. Gallucci

David I. Goldstein Trevor W. Hannigan Daniel J. Henry, Jr. Michael D. Horn John Ingrassia Robert P. Leighton Greg D. Lubow Michael P. McDermott Oscar Michelen Kenneth Moynihan Marcos A. Pagan III Steven K. Patterson Verena C. Powell Julie Rendelman Roland G. Riopelle Anastasios Sarikas Richard Cary Spivack Oliver S. Storch Vivian Storch Cannon Scott B. Tulman John S. Wallenstein Harvey Weinberg Richard D. Willstatter James W. Winslow

NYSACDL Welcomes Our New Members (As Of june 4, 2018) Albany County Richard S. Harrow David R. Ross Bronx County Julia Deutsch Pamela Itzkowtich Saif Kazim Marian Mikhail Samuel Natale Janie Williams Alyssa Work Erie County Bill Beck Michael T. Benz


Essex County Brian Barrett Franklin County Stephen Buzzell Barbara Friend Nassau County Cheryl Bartow Maxwell Glass New Jersey Jaimini Vyas New York County Scott Henney Lawrence Schwartz Tesla M. Goodrich

Manuel Portela, Jr. Brian Valerio Evan T.L. Hughes Nancy Hollander Onondaga County James Chatwin

Westchester County Edward Barrett Ben Gold Robert Horne CJ Smalls

Queens County Jonathan Shalom Jacqueline Cistaro Suffolk County Eve Nowak Tompkins County Michael Perehinec, Jr.

Atticus | Volume 30 Number 2 | Summer 2018 | 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

Legislative Committee

Chair: Richard Willstatter (willstatter@msn.com) Members: Marc Fernich, Timothy Murphy, Claudia Trupp

Chairs: Andrew Kossover (ak@kossoverlaw.com); Amy Marion (amarion@barketmarion.com) Members: Lori Cohen, Greg Lubow, Kenneth Moynihan, Marvin Schechter, Robert Wells, Mark Williams

Annual Dinner Committee Chair: Lori Cohen (locohen@aol.com) Members: Timothy Hoover, Jessica Horani, Andy Kossover, Arnold Levine, John Wallenstein, Susan Walsh, Robert Wells

Continuing Legal Education Committee Chair: Arnold Levine (Nyccrimlaw@aol.com) Regional Coordinators: Buffalo: Brian Melber, Timothy Murphy Rochester: Donald Rehkopf, Jr., Andre Vitale Syracuse: Kenneth Moynihan, Craig Schlanger Capital Region/Saratoga: Allison McGahay, Tucker Stanclift Hudson Valley: Andrew Kossover, Benjamin Ostrer Long Island: Steven Epstein, Steven Kunken New York City: Yung-Mi Lee, Arnold Levine, Richard Willstatter

Federal Practice Committee Chair: John S. Wallenstein (jswallensteinesq@outlook.com) Members: Mitchell Dinnerstein, Timothy Hoover, Anthony La Pinta, Arnold Levine, Elizabeth Macedonio, Kenneth Moynihan, Lisa Peebles, Robert Wells, Richard Willstatter

Membership Committee Chair: Steven B. Epstein (sepstein@barketmarion.com) Members: Peter Dumas, James Grable, Jr., Steven Kunken, Alan S. Lewis, Amy Marion, Allison McGahay, Brian Melber, Michael Shapiro

Military/Veterans Affairs Committee Chair: Donald Rehkopf, Jr. (drehkopfjr@brennalaw.com) Members: Kenneth Moynihan, Andre Vitale, Mark Williams

Prosecutorial and Judicial Complaint Committee Chair: Marvin Schechter (marvin@schelaw.com) Members: Dan Arshack, Bill Beck, Lori Cohen (NYSACDL President-Elect), Clare J. Degnan, Jane Fisher-Bryialsen, Russell Schindler, Don Thompson, Richard Willstatter; Bennett Gershmann (Advisory Member), Ellen Yaroshefsky (Advisory Member)

Publications Committee Finance and Planning Committee Chair: Alan S. Lewis (lewis@clm.com) Members: Lori Cohen, Andrew Kossover, John Wallenstein, Susan Walsh, Robert Wells

Chairs: Jessica Horani (jhorani@nycds.org) Members: Alan Lewis, Eric Nelson, Benjamin Ostrer, Claudia Trupp, John Wallenstein

Public Statements Committee Indigent Defense Committee Chair: Michael Baker (mbaker@co.broome.ny.us) Members: Stephanie Batcheller, Jacqueline Cistaro, Alice Fontier, Mark Hosken, Timothy Murphy, Kevin O’Connell, Lisa Peebles, Mark Williams

Justice Courts Committee Chair: Greg Lubow (gdlubow@gmail.com) Members: Craig Schlanger, Peter Dumas, Mark Williams

Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Lori Cohen, Lawrence Goldman, Jessica Horani, Andrew Kossover, Robert Wells, Richard Willstatter

White Collar Crime Committee Chairs: Michael Shapiro (MShapiro@clm.com) Members: Lee Bergstein, Joshua Dratel, Moe Fodeman, James Grable, Jr., Timothy Hoover, Alan Lewis, Brian Melber, Florian Miedel, Aaron Mysliwiec

Lawyers Strike Force Assistance Committee Chair: John Wallenstein (JSWallensteinEsq@outlook.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers



New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

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

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

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

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

$2,525. $316.25 $520. $320. $227.

New or Part-Time Attorney Member


Full-time Public Defender Allied Professional Member

$148. $201.

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

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

Our Mission NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark against error and injustice in the criminal justice system. In an era when the United States has the highest incarceration rate in the world, we expand on the question most often posed to our members and ask “how can we defend those people most effectively?” NYSACDL’s goals are to: n Serve as a leader and partner in advancing humane criminal justice policy and legislation. n Promote the rights of criminal defendants through the adoption of policy positions, targeted concerted action, and the submission of amicus briefs on issues of significance to the fair administration of criminal justice and the protection of civil liberties. n Advocate for individual and systemic accountability in the criminal justice system, with a particular emphasis on instances of judicial and prosecutorial misconduct. n Develop a broad, inclusive and vibrant membership of private criminal defense practitioners and public defenders throughout New York State. n Provide a forum for our members to exchange ideas and information, with a particular emphasis on mentoring those who are new to the profession.

Retired Attorney $94. Law Student/Recent Law School Alumni (less than one year since completion) $68. School: ________________________ Graduation date: ________

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.

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

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

Please charge to my credit card. Credit card #: Exp. date:

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

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


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

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers

NYSACDL Online Video CLE Seminars Earn CLE credit quickly and conveniently from the comfort of your office or home with NYSACDL’s online video CLE seminars. These video reproductions of some of our most popular recent CLE seminars are sure to fulfill your educational needs for a great price!

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

$25/Credit Hour $50-$150

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

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

Sentencing & Appeals


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

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

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

Federal Practice

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

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

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

Registration date coming soon? NYSACDL Video Seminars provide a quick, easy & inexpensive way to complete your credits for BOTH New York & New Jersey. NYSACDL Members Receive One Free Hour of Video CLE Per Calendar Year – Take Advantage of Yours Today!

Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers


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

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“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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Atticus - Summer 2018  

Inside This Issue: Prosecutorial Conduct Commission; Justice Prevails in Suffolk County - Laura Solinger; The Drug War is Not Working - Wi...

Atticus - Summer 2018  

Inside This Issue: Prosecutorial Conduct Commission; Justice Prevails in Suffolk County - Laura Solinger; The Drug War is Not Working - Wi...

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