2nd honker
Jan. 14, 2015
News Picks from NYSDA Staff

News Picks


Orange County Court Suppresses Incriminating Statements Made to CPS Worker. The Orange County Court suppressed statements the defendant made to a Child Protective Services (CPS) worker assigned to investigate a report of child abuse, finding that the social worker was acting as an agent for the prosecution.People v Ledbetter, 2014 Slip Op 24404 (Criminal Ct, Orange Co 12/15/14). The police arrested the defendant for attempted second-degree assault and endangering the welfare of a child, based on allegations of the child's mother and their observations. At arrest, the police did not Mirandize the defendant or question him. The police forwarded their report to the state's Family Protection Registry and a CPS worker was assigned. The defendant was arraigned, assigned counsel, and held in lieu of bail.


On the day of the grand jury presentation, the prosecutor told the CPS worker that the child's mother recanted her allegations and the case would not be presented that day; in response, the worker said she would visit the defendant in jail and report back. When the worker appeared at the jail, the defendant told her that he had nothing to say to her. The worker told the defendant that "he had the right not to speak to her," but did not read him his Miranda rights. She then asked "if he wanted to know the narrative of the report she had received," and the defendant said yes. After hearing the narrative and in response the worker's follow-up questions, the defendant made several incriminating statements.


The court rejected the prosecution's argument that the interview "involved a separate civil investigation and is not subject to right-to-counsel rules," noting that the Court of Appeals has held "that a defendant's right to counsel is implicated where the subject of a civil investigation and separate criminal charges 'are so inextricably interwoven ... as to render unavoidable the conclusion that any interrogation concerning the (civil matter) would inevitably involve some potentially incriminating discussion of the crime itself.'" People v Townes, 41 NY2d 97, 104 (1976). The court concluded "that [the worker's] jail house interview was sufficiently intertwined with the district attorney's potential grand jury presentation that she became an agent of the prosecution," and that the defendant's statements "were, therefore, involuntary because they were the product of questioning by 'a public servant engaged in law enforcement activity or by a person then acting ... in cooperation with him.'" CPL 60.45(2)(b).


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NAPD Releases Ethics Opinion on Mandated Reporters and Client Confidentiality. Last month, the National Association for Public Defense (NAPD) released an ethics opinion addressing issues surrounding client confidentiality in cases where defense counsel seeks the assistance of a social worker or other non-lawyer professional who is a mandated reporter of child and/or elder abuse under state law. Formal Ethics Opinion 14-1. The opinion reviews the applicable Model Rules of Professional Conduct, including Rules 1.6(a) (confidentiality of information), 1.6(b)(1) (permissive disclosure "to prevent reasonably certain death or substantial bodily harm"), and 5.3 (attorney responsibility for the conduct of non-lawyer staff), as well as the Sixth Amendment right to counsel and the right to present a defense, which depend "upon the confidentiality of communications between client and lawyer." (The New York Rules of Professional Conduct are available here.) The opinion concludes: "Social workers and other health care professionals may not report child or elder abuse without the express contemporaneous permission of the lawyer for whom they are doing their work."


In cases where the professional insists on disclosure, "[t]he lawyer ought to take all reasonable remedial steps to prevent such disclosure, including seeking adjudication from a court of law that the lawyer's duty of confidentiality to the client takes precedence over any statutory obligation of the social workers or other healthcare professionals to report." The opinion provides suggestions for attorneys working in jurisdictions where the law is unsettled, including screening clients for potentially reportable behavior and warning clients about mandated reporting. Attorneys with questions about this issue or others related to the employment of social workers may contact the Backup Center for assistance.


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ILS Office Promulgates Standards for Appellate and Post-Judgment Representation. The Office of Indigent Legal Services has promulgated standards for lawyers providing appellate representation in criminal cases, Family Court proceedings, SORA proceedings, and civil commitment matters. The comprehensive standards require a selection committee to approve lawyers new to appellate practice, as well as periodic reevaluation of the work of panel attorneys. They also provide that no brief shall be filed unless it has been reviewed by another experienced appellate lawyer. The standards cover core topics such as record review procedures, brief writing, and oral argument. But they also stress the importance of the attorney-client relationship in appellate practice. "To establish a relationship of trust and confidence," the standards provide, "counsel must meet with the client. If the client is incarcerated, the meeting should occur in the jail or prison, unless such a meeting would not be in the client's best interest." Commentary to that standard recognizes that resources to cover the cost of in-person prison visits are not currently provided; "[f]or this important standard to be satisfied and for prison visits to become routine, funders must cover the additional expenditures that will be required." In another significant development, the standards provide that attorneys assigned to direct appeals in criminal cases must, where appropriate, pursue CPL article 440 relief for a client by raising claims that could not be raised on direct appeal, such as ineffective assistance of counsel, undisclosed Brady material, and newly discovered evidence.


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New Clemency Website Announced. The Governor's Office announced the release of a new website to act as a central resource for those eligible for clemency. The site, www.ny.gov/clemency, offers information about the guidelines for filing and provides a pardon request form; no request form is needed for clemency applications. The announcement noted a steep decline in applications since 2010, the year Governor Paterson created his legacy Immigration Pardon Panel. The new website offers some statistics about clemency grants, including that, in 2014, Governor Cuomo granted 2 pardons out of 21 applications and 0 sentence commutations out of 150 applications.


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Sullivan Correctional Facility Sued For Indifference to Danger to a Transgender Prisoner. A federal lawsuit filed on behalf of a transgender woman who reported being sexually attacked by a male inmate claims Sullivan Correctional Facility officials were aware of her vulnerability and failed to protect her. According to a New York Law Journal article, the client, LeslieAnn Manning, had previously won, in an earlier lawsuit, the right to receive hormone therapy. Manning is represented by two law school clinics, the Cardozo Civil Rights Clinic, which posted information about the case, and the Advocacy for Lesbian Gay Bisexual and Transgender (LGBT) Communities Clinic at Cornell Law School.


Legal issues involving transgender people in prison are not new. As the Village Voice reported last year, Dee Farmer's case made law in the U.S. Supreme Court as to prison officials' duty to people housed in their facilities two decades ago. See Farmer v Brennan, 511 US 825 (1994). But a Slate article on Manning's case observed that trans inmates are still experiencing sexual assaults at a higher rate. Therefore, defense lawyers representing transgender clients may face specific questions when their cases lead to prison sentences. (The Client-Centered Representation Standards, created by NYSDA's Client Advisory Board, point out that clients want a lawyer who "[a]ccurately informs the client who may be incarcerated about the incarceration process, including jail and prison programs, and works with the client to plan the future in terms of treatment while incarcerated, transitional issues, and reentry.") NYSDA works to help lawyers meet the needs of transgender clients. For example, last years' annual conference CLE included a session entitled "Best Practices in Working with LGBTQI Clients."


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