2nd honker
Aug. 31, 2017
News Picks from NYSDA Staff
News Picks
Comments Sought on Proposed Increase in Expert Witness Rates; US Supreme Court Addresses Ake Requirements for Defense Expert Assistance. The New York State Administrative Board of the Courts is seeking public comment on a proposal to increase the hourly rates for experts appointed under County Law 722-c and Judiciary Law 35. While NYSDA has for years advocated for an increase in the hourly rate schedule that has remained unchanged since 1992, these proposed changes were prompted by the Attorney for the Child (AFC) Directors in the Appellate Division who recommended rate increases as well as changes to the compensation limits for expert services contained in the Judiciary and County Laws.
The Request for Public Comment, including the AFC Directors' memo, existing fee schedule ("guidelines"), and the relevant statutes, can be found here . NYSDA will be commenting on this proposal and we strongly urge defenders to do so as well. If you have any questions about the proposal, please contact the Backup Center. Comments must be received by October 11, 2017. They can be submitted via email to rulecomments@nycourts.gov or via mail to John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, NY 10004. If you submit comments, please email a copy to NYSDA's Deputy Director, Susan Bryant, at sbryant@nysda.org .
Information on the process for requesting expert funds is available in NYSDA's publication "Getting the Expert Funds You Need Under County Law § 722-c," available here .
The United States Supreme Court held, in McWilliams v Dunn (137 SCt 1790 [6/19/2017]), that Alabama did not meet basic requirements guaranteed in Ake v Oklahoma (470 US 68 [1985]), which "requires the State to provide the defense with 'access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.'" The Court concluded that the Alabama Court of Criminal Appeals' decision that the defendant "got all the assistance that Ake requires was 'contrary to, or involved an unreasonable application of, clearly established Federal law.' 28 U. S. C. §2254(d)(1)." The Court acknowledged that the easiest way for a state to meet its obligations under Ake may be to provide the defense with a qualified expert retained specifically for the defense team, but it did not need to decide that issue because Alabama failed to meet "even Ake's most basic requirements." 

Free Webinar on Working with Parents with Intellectual Disabilities and Their Families. T he National Research Center for Parents with Disabilities is sponsoring a free webinar, "Working with Parents with Intellectual Disabilities and their Families: Strategies and Solutions for Social Workers," on Wednesday, September 27th at 2:00 pm EST. This webinar will provide information about "how to best work with parents with intellectual disabilities and their families, including the definition of intellectual disabilities, background information on parents with disabilities, the application of disability law in the child welfare system, strategies for supporting families, and how to conduct accessible and appropriate parenting assessments." Continuing social work education credit will be provided by the National Association of Social Workers. Family court attorneys and parent support persons may also find this webinar helpful in identifying and addressing issues of concern, especially in abuse and neglect proceedings.  This webinar may provide information in addition to that noted in the last edition of News Picks in Resources on Representation of Individuals with Disabilities. To register, click here

First Department Affirms Order Granting Mother's Request for Modification of Disposition Order. Addressing an issue of first impression, t he First Department recently affirmed an order that granted a mother's motion to modify a disposition order entered in a neglect case, granted a suspended judgment, retroactively, and vacated the neglect finding. Matter of Leenasia C. , 2017 NY Slip Op 06050 (1st Dept 8/8/2017). The Administration for Children Services (ACS) originally brought a neglect petition against the mother and her partner and the children were placed in kinship foster care. The mother fully engaged with service and treatment providers, separated from her partner, and was eventually granted unsupervised visitation. Later, the mother consented to a finding of neglect and the court decided to postpone the disposition, indicating an application for a suspended judgment may be appropriate. Soon thereafter, the court issued a dispositional order releasing the children to the mother with ACS supervision for 12 months.
After satisfactory completion of the supervision period, the mother filed a post-disposition motion requesting that the court change the dispositional order to a suspended judgment, vacate the fact-finding, and dismiss the neglect petition as it was interfering with her job as a home health aide. ACS opposed the motion, but the attorney for the children supported it. The court granted the mother's motion and the First Department affirmed. The appellate court held: "'[a]s a threshold consideration, we find that a postdispositional, retroactive grant of a suspended judgment is consistent with the statutory scheme for child protective proceedings contained in the Family Court Act."
Noting the difficult balance between protecting children and "destigmatizing a parent in an effort to stabilize the family unit," the First Department identified four factors that are relevant when deciding whether to vacate a finding of neglect: "'(1) respondent's prior child protective history; (2) the seriousness of the offense; (3) respondent's remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent's amenability to correction, including compliance with court-ordered services and treatment' .... " [Footnote omitted.] Vacating the neglect finding was appropriate where the mother did not have a prior history of neglect, consistently tested negative for illicit substances, demonstrated "an unwavering commitment to be reunited with her children and to maintain sobriety in the face of ending an abusive relationship that contributed to the neglect finding," and the "removal of a barrier to the mother's ability to find work in her chosen field ... was in the best interests of the children ...." 

DC Circuit: More than Likelihood of Cell Phone Ownership Needed for Warrant. The DC Circuit recently suppressed the fruits of a search warrant executed at the home of a targeted individual because: the warrant was issued without any basis to believe that the targeted individual owned a cell phone; some circumstances suggested that the targeted individual might be less likely to own a phone (e.g., recent release from incarceration and association with a person known not to have one); no basis was stated to believe a phone belonging to the targeted individual would be found in his home (given that most people keep their phones on their persons, and there was no indication the targeted person would be home); and the warrant was overbroad, allowing seizure of all electronic devices found in the home. United States v Griffith , No. 13-3061, 2017 US App LEXIS 15636 (DC Cir 8/18/2017).
The Griffith decision is a caution against reliance in this context on the language of Riley v California (134 SCt 2473 [2014]), which, in considering the reasonableness of a search of a cell phone's contents, noted the ubiquity and scope of cell phone use. The circumstances in Griffith contrast to those in a Kings County decision upholding a warrant to search the data on a cell phone on which a suspect had been seen apparently talking soon after a shooting and which was seized from him upon his arrest soon thereafter. People v Frederick , 52 Misc 3d 648 (Supreme Ct, Kings Co 6/22/2016).

New National Guidelines on Password Creation. The National Institute of Standards and Technology (NIST) has released a new publication, Digital Identity Guidelines , that provides technical guidelines to federal agencies regarding the implementation of digital authentication. A recent NPR article about the publication, "Forget Tough Passwords: New Guidelines Make It Simple," provides a laymen's overview of the recommendations: NIST "suggests keeping passwords simple, long and memorable. Phrases, lowercase letters and typical English words work well .... Experts no longer suggest special characters and a mix of lower and uppercase letters." According to Paul Grassi, the NIST senior advisor who led the revision of the guidelines, "[w]hile these rules may seem suspiciously easy, ... these guidelines help users create longer passwords that are harder for hackers to break." An interview with Grassi about what makes a strong password is available here .

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