2nd honker
Aug. 16, 2016
News Picks from NYSDA Staff
News Picks

Prosecutors Cannot Ethically Routinely Require Waivers of IAC Claims in Guilty Pleas. On June 10, 2016, the NYS State Bar Association's Committee on Professional Ethics issued Ethics Opinion 1098 , which concludes, "[a] prosecutor may not ethically require, as a routine condition of a plea bargain, that a defendant waive ineffective assistance of counsel claims." The opinion refers to an earlier opinion, Ethics Opinion 1048 (3/3/2015); it concluded, "[a] defense lawyer may advise the defendant as to a proposed plea agreement including waiver of challenges to the conviction based on ineffective assistance of counsel unless a reasonable lawyer would find a personal interest conflict of interest ...."
That earlier opinion declined to state a blanket ban, based on per se conflict of interest, upon defense lawyers advising clients about waivers of ineffective assistance of counsel (IAC). That position runs counter to opinions from at least 12 jurisdictions. When Opinion 1048 was issued, a number of organizations, including NYSDA, requested that it be reconsidered; while the Committee agreed, the opinion remains on the website. And, as it was just referenced in Opinion 1098, the earlier opinion apparently still states the Committee's position. That is, "determining whether advising as to an IAC waiver creates a personal-interest conflict for the defense lawyer -- and whether any such conflict is waivable -- requires a case-by-case inquiry."
That a prosecutor is violating an ethical proscription by making a plea offer contingent on waiver of any IAC claim is likely under Opinion 1098, but not definitively so. The Committee did say "that the harms attributable to a prosecutor's routine conditioning of plea bargains on the waiver of IAC claims are sufficiently substantial as to prejudice the administration of justice in violation of Rule 8.4(d) [of the New York Rules of Professional Conduct]." But the opinion recognizes that specific cases could arise in which an IAC waiver would not raise concerns. An example given is where the defendant has been advised on the issue by an independent attorney.
Opinion 1098 discusses policy issues that contribute to its conclusion, such as the inability of IAC waivers to promote finality effectively because almost all IAC claims in guilty plea cases "arguably impact the voluntariness of the plea" and would therefore be subject to future litigation. When a plea offer includes a requirement that a client waive IAC claims in the case, defense counsel should consider whether to challenge that offer as unethical and will probably have to re-read this Opinion once again to discern its relevancy to the individual case.

First Department Joins Second in Recognizing Freestanding Innocence Claims. In People v Hamilton (115 AD3d 12 [2nd Dept 2014]), the Second Department recognized that convicted persons have a right to pursue freestanding claims of actual innocence. "Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York State Constitution ... [and] the provision of the New York Constitution which prohibits cruel and unusual punishments ...." The claim may be asserted "either as a 'gateway' to review of another claim which is otherwise procedurally barred, or as a 'freestanding' claim justifying relief in and of itself ...." When raised as a freestanding claim "a constitutional violation occurs only if there is clear and convincing evidence that the defendant is innocent ...." The defendant, Derrick Hamilton, was later exonerated when the Brooklyn District Attorney's Office consented to vacatur of the murder conviction and dismissal of the indictment. 

The First Department agrees that a claim of actual innocence is cognizable under the New York State Constitution. People v Jimenez , 2016 NY Slip Op 05620 (1st Dept 7/21/2016). Although it ultimately rejected the defendant's actual innocence claim, the First Department remitted the case for a hearing to determine whether the prosecution violated Brady rules by failing to disclose a quid pro quo sentence reduction arrangement with an important prosecution witness.

Kings County Judge Grants Clayton Motion to Treatment-Compliant Veteran. In a June 30 decision, a Kings County Supreme Court Judge granted a defendant's Clayton motion (CPL 170.40[1]), which was filed at the end of the defendant's participation in the Brooklyn Veterans Treatment Court (VTC). People v Doe , 2016 NY Slip Op 50995(U) (Supreme Ct, Kings Co 6/30/2016). In Doe, the underlying offense arose from an altercation between the veteran defendant and his landlord and the landlord's girlfriend over the parking of a car, which culminated in the defendant threatening the two with an imitation firearm. The prosecution consented to the defendant's participation in the VTC, but required that he plead guilty to the top charge, second-degree menacing.
As an initial matter, the court rejected the prosecution's contention that the defendant, through his plea agreement, had waived Clayton relief. While the prosecution did not consent to dismissal at the time of the plea, the court specifically stated that it would consider a Clayton motion to dismiss when the defendant completed treatment.
The court, applying the factors set forth in CPL 170.40, found that: 1) the defendant's actions were attributable to battle borne post-traumatic stress disorder (PTSD); 2) he did not have any priors despite a difficult childhood; and 3) he had made an active effort towards rehabilitation since the plea. Additionally, the court noted the potential devastating effect of a civilian conviction upon the defendant's military career and concluded that dismissal would not undermine the public's confidence given the prevalence of PTSD among veterans and the nexus between PTSD and criminal behavior. The court found that the prosecution, by their agreement to VTC participation, implicitly agreed that their goal was rehabilitation. Since the defendant had nearly completed that rehabilitation, to saddle him with a criminal record inhibiting career advancement would be counterproductive. The court emphasized: "Veterans who have given so much in their service and have invested substantial time and effort to be rehabilitated should be rewarded not penalized. The purpose of Veteran's Courts is to eliminate those outcomes and stigmas that prevent veterans from living a full and unrestricted life."
NYSDA's Veterans Defense Program (VDP) provides in-depth training, support, and legal assistance to engender informed and zealous representation of veterans and service members in the New York State criminal or family court system. The VDP provides defense attorneys with training, backup, and litigation support in the defense of veterans, assists public defense programs with best practices for the representation of veterans, and encourages restorative justice programs for veterans. Much of the VDP's work deals with the investigation and presentation of mitigating circumstances such as those that proved pivotal in the case above. Contact VDP Director Gary A. Horton for more information at 585-219-4862 or ghorton@nysda.org .

Chief Judge Appoints Advisory Committee on Evidence. On July 25, 2016, Chief Judge Janet DiFiore announced appointments to the new Judicial Advisory Committee on Evidence. The Committee will create a comprehensive guide to New York's existing evidentiary rules, which are spread throughout case law and statutes. The guide "will be strictly advisory - rather than a binding set of rules - allowing for the continued case-by-case adjudication of the rules of evidence as justice dictates." This is unlike the New York State Law Revision Commission's proposal in the 1990s to codify the state's existing rules, which "was largely rejected because of concerns that a statutory codification of the existing rules of evidence ... would stifle the benefits of the common law evolution of the law of evidence." The New York State Defenders Association has opposed codification of the law of New York evidence.
The Committee, comprised of current and former judges from various parts of the state, is headed by Nassau County Supreme Court Justice William Donnino and retired New York State Court of Appeals Judge Susan Read. It is unclear when the guide will be released.

Illinois Settles Three Civil Rights Lawsuits Alleging Unlawful Removal of Children.  The Family Defense Center , along with pro bono partners, announced the settlement of three pending lawsuits against the Illinois Department of Children and Family Services (DCFS). DCFS allegedly engaged in practices that deprived parents of the custody of their children without due process protections by way of actions that include "safety planning." DCFS argued that the safety plans in place in each of the cases were voluntary. But the plaintiffs asserted that entering into a safety plan was not presented as optional and the removal of the children from their homes was unsupported by facts. The three cases are L.W. v Illinois Department of Child and Family Services (Complaint, Opinion on Motion to Dismiss, and Opinion on Motion to Reconsider), A.B. v Holliman (Complaint), and W.M. v Giscombe (Complaint).

DCFS now has agreed to make specific modifications to the policies and practices that led to the traumatic removal of these children. In an effort to help parents who may not have access to legal counsel, The Family Defense Center issued a manual for parents encountering social service interference. 

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