2nd honker
Feb. 14, 2017
News Picks from NYSDA Staff
News Picks
Preparing for a Batson Challenge Based on Skin Color. The January 2017 edition of the Center for Appellate Litigation's Issues to Develop at Trial discusses a recent decision of the Court of Appeals, People v Bridgeforth (2016 Slip Op 08586 [12/22/2016]), which recognized skin color as a category distinct from race for purposes of challenging the discriminatory removal of a prospective juror during voir dire. The opinion also implicitly endorsed "hybrid" groups; the successful challenge in Bridgeworth included both color and gender. The CAL provides a helpful review of each of the three steps set forth in Batson (476 US 79 [1986]). When making a Batson argument based on the number of peremptory strikes used against the protected class, "it is vital that you clearly identify not only the class of jurors who were struck, but their makeup on the venire and the prosecutor's allocation of its strikes. E.g., 'Of the five peremptory challenges used by the People, they struck four of the five potential African-American women on the 18-member venire.'" That way, you can create a sufficient record for a court to assess whether the prosecutor has disproportionately struck members of the protected class. Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial

Rochester-Based Moot Court Program to Begin Aiding Appellate Defenders in April. Starting in April, the Monroe County Public Defender's Office will begin accepting cases from attorneys handling assigned criminal appeals for participation in a new moot court program. Inspired by a similar program run by the NYS Bar Association , the program will provide guidance and support for defenders with cases set for oral argument before either the Court of Appeals or the Appellate Division, Fourth Department. Appellate moot programs currently exist in both Erie and Albany counties and are run by their respective local bar associations.
If selected to participate in the Monroe County program, attorneys will argue their case twice before a panel of three "judges" who are experienced local appellate practitioners, with one argument designed to address a "hot" bench and one for a "cold" bench. Attorneys who wish to participate should expect to submit the appellant's brief, respondent's brief, and reply brief (if applicable) in PDF format to the Public Defender's Office and should contact Tim Donaher at tdonaher@monroecounty.gov or (585) 753-4531 as soon as they receive notice of their argument date. Moot court sessions will be scheduled approximately two weeks prior to the date of argument.

Article on Memory in Disputed Sexual Encounters Available Online. An article authored by renowned memory expert Elizabeth Loftus and Professor Deborah Davis, which "reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants," is now available for free online. " Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research " is a self-described "call to arms for memory researchers to dive into this complicated, challenging, yet vitally important arena." It looks at "three broad phases at which memory might fail: encoding, storage, and retrieval" in the context of accusations of sexual assault, especially encounters involving alcohol. The article concludes that an accusation of acquaintance rape may sometimes be, instead of a contest of honesty, a contest of memory in which both people involved are "'honest liars' who believe earnestly in their accounts, unaware of the extent to which their own memories deceive."

Family Court's "Repeated Judicial Errors" Necessitate Assignment of New Judge. Two recent decisions from the Third Department offer a window into the long and error-filled "saga" of related Family Court Act article 6 and 10 proceedings involving a mother and her three children. Matter of Angela F. v St. Lawrence County Dept. of Social Services , 2017 NY Slip Op 00513 (3rd Dept 1/26/2017); Matter of Angela F. v Gail WW. , 2017 NY Slip Op 00514 (3rd Dept 1/26/2017). "Given the extraordinary history of this saga," the Third Department directed that a new judge be assigned to preside over all further proceedings.
The first decision details the family court's extensive delays and various errors, which were at least in part responsible for the lack of contact between the mother and two of her children for almost five years. Despite the Third Department's 2013 order reversing the 2011 termination of the mother's parental rights, the family court denied that the order "reinstate[d] the mother's parental rights and restored her to the position that she was in prior to the erroneous termination." Further, instead of reinstating visitation and requiring the respondent Department of Social Services to show that visitation would be detrimental or harmful to the children, the court improperly put the burden on the mother to prove that visitation was in the children's best interests. And the court erroneously denied visitation without making express findings that supervised visits or other contact would be detrimental to the children.
The second decision involves an article 6 proceeding regarding the mother's third child. The Third Department previously modified a family court order reducing the mother's visitation, finding that the record did not support the reduction. Upon remand, the family court failed to acknowledge, let alone address the lack of record support for the visitation reduction and instead focused exclusively on whether the mother's husband could serve as a visitation supervisor. The Third Department has again found that there was no record support for the order reducing visitation and it also concluded that the family court's finding that the husband could not be a visitation supervisor was not supported by a sound and substantial basis in the record.

Association News
Annual Metropolitan NY Trainer Saturday, March 11. NYSDA's 31st Annual Metropolitan New York Trainer will be held on Saturday, March 11 at the New York University Law School. The registration information, program, and speakers are listed on the program brochure. Registration forms must be received by Friday, March 3.

NYSDA Among Amici in Case About Counsel During Interrogation. NYSDA is one of several defense organizations that signed on to an amicus brief prepared and filed by The Bronx Defenders and Debevoise & Plimpton LLP in People v Slocum. The Court of Appeals held oral argument on the case on Feb. 7, 2017, as reported by the Albany Times Union. Slocum involves the right to counsel during police questioning. While a primary issue in the case is whether there was an unequivocal invocation of the right, the amicus brief focuses on whether a public defender's letter to authorities constituted entry of counsel into the case. That letter said that a public defender client in another matter, who would qualify for representation on any additional charges, was known to be a suspect in a potential arson/homicide; the letter specifically asked that the client - the defendant here - "not be questioned or interrogated without counsel present." The Third Department, in an opinion available here , reversed the conviction on the grounds that the defendant had invoked his right to counsel, while also noting that the letter's existence required police to inquire further as to the attachment of that indelible right. A webcast of the oral argument has been posted on the Court of Appeals website . Briefs from the case, including the amicus brief, are available through the Court of Appeals Public Access and Search System (Court-PASS).

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