DOCCS Issues New Directive for Secure Attorney-Client Phone Calls. The Department of Corrections and Community Supervision has amended Directive #4423 (Inmate Telephone Calls) by adding a Part IX that spells out the procedure for lawyers to arrange unmonitored phone calls with their incarcerated clients. Requests must be in writing, or if by telephone, followed by an e-mail or fax communication, addressed to the client's Offender Rehabilitation Coordinator (formerly "counselor"), and must indicate that a telephone call is necessary and a standard legal visit would be "unduly burdensome." The attorney's OCA-registered address must be more than 45 miles from the prison (or 30 miles if the attorney is located in New York City), and the attorney must provide at least three dates and times (excluding weekends, evenings, and holidays) for the proposed phone call. The call must be initiated by the attorney from the business telephone number on file with the Office of Court Administration. Calls may not exceed thirty minutes and only one such call can be made within a thirty-day period.
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US High Court Finds Child's Statement to Teachers Not Barred by Confrontation Clause. Admission at trial of a three-year-old child's statements to preschool teachers in response to their questions about injuries they had observed did not violate the constitutional right to confront witnesses, the US Supreme Court ruled on June 18. The opinion in Ohio v Clark focused on whether the child's statements were "testimonial" under Crawford v Washington (541 US 36 ), finding they were not. Statements made to individuals other than police, the Court said, "are much less likely to be testimonial than statements to law enforcement officers." Further, the opinion by Justice Alito adds, "Statements by very young children will rarely, if ever, implicate the Confrontation Clause." Factors the Court addressed included that: nothing in the questioning of the child indicated that it was for the purpose of prosecution or punishment of the person inflicting the injuries; the conversation was informal and spontaneous; and the fact that the teachers were required to report abuse did not, alone, convert the conversation into a law enforcement mission.
As noted in a post on the SCOTUSblog, "Justice Antonin Scalia, in a separate opinion joined by Justice Ruth Bader Ginsburg, openly and directly accused Justice Alito of trying to undermine the Crawford precedent and its support for a sturdy enforcement of the Confrontation Clause." Among the points made in Scalia's opinion: before Crawford, "we had been allowing hearsay statements to be admitted against a criminal defendant if they bore 'indicia of reliability'.... Prosecutors, past and present, love that flabby test." Justice Thomas also wrote a concurrence.
The Clark decision leaves defense counsel with a diminished confrontation basis for challenging admission of extra-judicial statements by children to adults other than those in law enforcement. But creative lawyers may seek other routes to challenging such evidence. A law review article written while Clark was pending suggests that statements found not to be testimonial may still be challenged as hearsay, and if a hearsay exception is invoked to allow admission, defense counsel might seek, under the Compulsory Process Clause of the Sixth Amendment, to examine the declarant. The article goes on, "The accused should be allowed to select a qualified expert to examine the child out of court .... The expert could then testify at trial as to her conclusions."
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Proposed Rule Would Authorize Transfer of Cases to Specialty Courts. The Office of Court Administration is soliciting comments on a proposed addition to the Rules of the Chief Administrator of the Courts that would authorize transfer of cases from a local criminal court to another local criminal court in the same county designated as a problem solving court (e.g., drug court, mental health court, veterans court, community court, adolescent diversion part, domestic violence court, human trafficking court, sex offense court). As proposed, the transfer motion would be initiated by the defendant and would require prosecution consent. Under the plan, both judges would have to approve the transfer. Comments on the proposed rule must be received by July 17, 2015 and may be submitted by email to email@example.com or by mail to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, NY 10004. Other OCA requests for public comment are available here, and public comments received by OCA are posted here.
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Deferral Box Must be Checked on Sentencing Commitment Form to Ensure DOCCS Doesn't Deduct Fees from Inmate Accounts. In People v Greenhalgh (2015 NY Slip Op 25167 [County Ct, Nassau Co 5/20/2015]), the court granted the defendant's request for a new sentencing commitment that specifically checks off the payment "deferred" box and not the "not paid" box. The defendant's letter motion explained that the Department of Corrections and Community Supervision (DOCCS) was collecting fees and surcharges from his inmate account, even though his sentencing commitment indicated that such fees were to be collected by civil judgment, and he was told that DOCCS must collect the fees unless the "deferred" box is marked on the Uniform Sentence & Commitment form (UCS-854). The court concluded that, "against the backdrop of CPL Article 420 and, particularly, CPL 420.40(5), issuing a civil judgment order constitutes granting a deferral of payment (see People v. Morrison [36 Misc 3d 868 (Supreme Ct, New York Co 2012)] wherein the court notes that entering a judgment on a surcharge has the identical practical effect of deferring collection)." For more information on deductions from inmate accounts, see DOCCS Directive #2788 (Collection & Repayment of Inmate Advances & Obligations).
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Collateral Consequences of Criminal Convictions: Restrictions on Travel to Canada. Especially in New York, many of our clients may be impacted by restrictions on travel into Canada based on their criminal record. Even a conviction for a DWAI violation serves as a basis for inadmissibility in the first five years. Quebec immigration attorney Marisa Feil has written a helpful article on how clients may be able to achieve entry, Canadian Travel Restrictions Based on Criminal Record.
For a person with a criminal record, the process to seek either short term entry in the form of a Temporary Resident Permit (TRP) - essentially what the average traveler gets when driving through a border immigration checkpoint - or a permanent Certificate of Rehabilitation, must be undertaken in advance of travel and can be arduous, involving the filing of particular immigration forms and payment of non-refundable fees through the Canadian Consulate. Applicants will need to gather supporting documents to submit with these forms including certified court and criminal justice documents, NYS DCJS criminal history and NCIC reports, fingerprint cards, passport or other identification papers, and proof of the reason for travel.
Applications can be submitted online through the Citizenship and Immigration Canada (CIC) website or, with the proper forms, a TRP application may be subject to review and approval at a designated border crossing. Individuals can go through the application process on their own or work through a representative authorized by the Canadian Government. The CIC website includes information on admissibility restrictions based on a criminal conviction, guides for filing an application for a single entry permit (TRP) and for a Certificate of Rehabilitation, which serves as a blanket permit for entry, and an index of forms and checklists.
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Clemency Project 2014: Call for Volunteers. In April 2014, then-Deputy United States Attorney General James Cole announced a Department of Justice initiative to encourage qualified federal inmates to petition to have their sentences commuted, or reduced, by the President of the United States. The Office of the Pardon Attorney is working in conjunction with the Federal Bureau of Prisons (BOP) to facilitate this initiative.
Clemency Project 2014 - an independent working group composed of lawyers and advocates including Federal Defenders, ACLU, FAMM, ABA, and NACDL, along with individuals active within those organizations - was launched after DAG Cole asked the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentence if they had been sentenced today. Project members collaborate to recruit and train attorneys on how to screen for prisoners who meet the eligibility criteria established by the DOJ and assist prisoners who meet the criteria to find lawyers to represent them. In less than a year, Clemency Project 2014 has organized an army of volunteer lawyers who are diligently working on behalf of thousands of prisoners who have requested free legal assistance in drafting and submitting clemency petitions.
The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President's term. For more information and to volunteer, please visit www.clemencyproject2014.org. Questions about the project may be addressed directly to Project Manager Cynthia Roseberry at CRoseberry@clemencyproject2014.org.
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