2nd honker
June 15, 2016
News Picks from NYSDA Staff
News Picks
Issues to Develop at Trial : Confrontation Challenges to DNA Experts in the Wake of People v John. The June 2016 edition of the Center for Appellate Litigation's Issues to Develop at Trial addresses the Court of Appeals decision in People v John (2016 NY Slip Op 03208 [4/28/2016]). In John, the Court held:
[The] defendant's Sixth Amendment right to confront the witnesses against him was violated when the [prosecution] introduced DNA reports into evidence, asserting that defendant's DNA profile was found on the gun that was the subject of the charged possessory weapon offense, without producing a single witness who conducted, witnessed or supervised the laboratory's generation of the DNA profile from the gun or defendant's exemplar.
This edition of Issues provides practice tips on dealing with cases involving DNA testing and general reminders on issue preservation.
Past issues of the Center for Appellate Litigation's Issues to Develop at Trial are available at http://appellate-litigation.org/especially-for-trial-practitioners/.
Overview of Public Assistance Program Rules Useful in Defending Welfare-Related Criminal Cases. Empire Justice Center's Senior Staff Attorney Saima Akhtar has prepared an overview of public assistance program rules that are useful to attorneys who represent clients in welfare-related criminal cases. The overview includes general information about public benefit applications, intentional program violations, and preliminary steps to take when you have a client charged with welfare fraud or other crimes related to receipt of public benefits. It also offers a list of helpful resources, with links to many of them. NYSDA has been examining some of the issues surrounding intentional program violations and criminal charges that may arise from alleged violations and working with the Empire Justice Center and other civil legal services providers regarding these issues. The Empire Justice Center website offers a host of resources and links to policy documents and regulations governing issues such as public benefits, health, and housing.
Private Investigators Refuse Assigned Cases Citing Low Pay. An article at Syracuse.com reports that two private investigators in Syracuse stopped taking assigned counsel cases because the hourly rates do not even cover the costs of running their offices. Joe Spadafore and Gabe Ramos believed they were the only private investigators accepting assigned counsel cases in the county due to the low pay; the Assigned Counsel Program's Board President, Lauren Seiter, said there are six other investigators doing assigned work. The $30 per hour rate went up to $50 per hour as of June 1, 2016, but Spadafore and Ramos said they would not work for less than $65 per hour. Attorney Stephen Lance Cimino said in the article he will not accept assigned counsel cases if he does not have access to the assistance of an investigator, because without it, "I wouldn't be providing effective assistance."
The low hourly rates for assigned counsel cases in Onondaga County affect more than private investigators. Spanish interpreter Susana Carman stopped accepting assigned counsel cases, on which she earned $40 per hour. By contrast, the court system's website indicates that per-diem interpreters hired by courts in New York State are paid $250 for a full a day and $140 for a half day. Certified interpreters in federal court receive $418 a day, $226 a half day, and $59 per hour overtime.
The article notes the investigator rates in the counties where the three other large upstate cities are located: Albany County, $75 per hour; Monroe County, $60 per hour; and Erie County, $40 per hour. The article speculates that hourly rates could increase if the State starts paying a larger portion of public defense costs.
Upcoming Free Webinars on Mental Health, Forensics, and Racial Bias. There are several upcoming free webinars of interest to the public defense community.

This webinar will address the basics of bite mark analysis and contextualize the change in the American Board of Forensic Odontology Guidelines within that changing discipline. The presenter is Dana M. Degler, a staff attorney in the Innocence Project's Strategic Litigation Unit.


This day-long program includes presentations by defense attorneys, medical professionals, and judges on topics such as "Ethical Issues in Mental Health in Coercive Civil and Criminal Contexts" and "Leverage (coercion) in Mental Health Treatment and Legal Settings: Common Issues Across Criminal, Civil and Clinical Contexts."


"This webinar will describe the comprehensive racial bias training conducted by the Wisconsin State Public Defenders Office (WSPD) over the past four years. Participants will learn why and how the training was developed, along with details about the substance of the training and ways in which the training can be replicated in other organizations. Practical tips and strategies individual defense lawyers can use to examine their own biases will also be covered."
Amicus Video Submission in Gravity Knife Litigation. Last month, in connection with a pending federal civil rights lawsuit charging New York City and the New York County District Attorney with applying New York's gravity knife law in a way that renders it unconstitutionally vague, The Legal Aid Society filed an amicus video and an amicus brief. Those interested in viewing the video can go to https://vimeo.com/165907233 and enter the (case sensitive) password, SDNY2016. Thank you to The Legal Aid Society for allowing us to share this with News Picks readers.
The Assembly and Senate have passed a bill (A9042-A) amending the definition of gravity knives and switchblade knives in Penal Law 265.00. The bill will take effect upon the Governor's signature. NYSDA submitted a memorandum in support of the bill.
Association News

Registration for NYSDA's 49th Annual Meeting & Conference Now Open. Registration is now open for NYSDA's 49th Annual Meeting and Conference, which will take place from July 24-26 in Saratoga Springs, NY. Please join us for two days of continuing legal education sessions presented by top state and national defenders, as well as the Welcome Defender Reception on Sunday, July 24 and the Defender Reception and Awards Banquet on the evening of July 25. We look forward to seeing you next month!
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