2nd honker
Mar. 1, 2017
News Picks from NYSDA Staff
News Picks
Justice Task Force Report on Attorney Responsibility in Criminal Cases . The New York State Justice Task Force has released a report on attorney responsibility in criminal cases. The Task Force recommendations are grouped into eight categories: Use of the Term Misconduct; Encouraging Reporting of Attorney Misconduct; Grievance Process; Data Collection and Statistics; Role of Judiciary in Making Referrals; Training; Order Regarding Disclosure Obligations for Prosecutors; and Order Regarding Obligations for Defense Attorneys. Specific recommendations include:
  • Use of the Term Misconduct: Among other things, "the Task Force recommended that the terms 'prosecutorial misconduct' and 'defense counsel misconduct' be reserved for instances where a prosecutor or defense attorney engages in conduct-including a pattern or practice of behavior-that violates a law, ethical rule, or standard, either with the intent to do so or with a conscious disregard of doing so, and where there is no good-faith reason for having done so."
  • Encouraging Reporting of Attorney Misconduct: "Instead of basing the decision regarding whether to report solely on Rule 8.3(a) [of the New York State Rules of Professional Conduct], the Task Force recommended that lawyers (including District Attorneys' offices and institutional defense providers) and judges be encouraged to report misconduct, regardless of whether it is required, in situations where a lawyer or judge knows or is aware of a high probability based on credible evidence that another lawyer has engaged in misconduct."
  • Order Regarding Disclosure Obligations for Prosecutors: "[T]he Task Force recommended that courts issue an order directing the prosecuting authority to disclose all covered materials and that such order should be directed to the District Attorney and the Assistant responsible for the case." A model order for trial courts appears at Appendix B of the report.
  • Order Regarding Obligations for Defense Attorneys: "[T]he Task Force recommended that courts adopt an order to be issued by the trial court on every criminal case, directing defense counsel to comply with the defendant's statutory notice obligations and seeking to ensure constitutionally effective representation. This order should be directed to the firm or institutional defender (and also to the individual attorney responsible for the case at a firm or institutional defender). For non-institutional providers, it should be directed to the individual defense counsel. The defendant should be provided with a copy of the order." A model order appears at Appendix C of the report.

State of the Judiciary; Year One of the Excellence Initiative. Last week, Chief Judge Janet DiFiore delivered the 2017 State of the Judiciary address at the Bronx County Hall of Justice. The address focused on the Chief Judge's Excellence Initiative and a report about the first year of the Initiative was released in conjunction with the address. The Chief Judge discussed the Office of Court Administration's new case management tool, the "Dashboard," which allows judges and court staff to review details about caseloads. That tool is also being used by Administrative Judges to identify cases "that are not moving through the system efficiently."
The Excellence Initiative report highlights changes that have been made in criminal, family, and civil courts in New York City and each of the judicial districts and offers statistics from those courts. While there has been a reduction in the number of cases over "standards and goals" and increased court efficiency, it is unclear what impact the reduction has had on the administration of justice. According to the report, in at least some jurisdictions, criminal courts have been using speedy trial audits to dismiss cases. In other jurisdictions, there is increased pressure to resolve criminal cases with plea bargains, trials are being double or triple booked, and/or there is a reduction in motion practice, all of which raise concerns. In some family courts, hearings are being conducted on consecutive days until they are completed, while in other family courts, there is an increased use of quasi-judicial staff to resolve cases. NYSDA is interested in hearing from criminal and family court defenders regarding the effect of the Excellence Initiative on client outcomes and attorney caseloads/workloads.
Regarding appellate practice, OCA plans to launch a pilot program for e-filing in the Appellate Division later this year. Also, the Presiding Justices of the Appellate Division have formed a working group that is developing a uniform set of appellate rules that is expected to be released for public comment by the Fall of 2017.
The Chief Judge expressed support for Governor Cuomo's six-point criminal justice reform plan, announced as part of his State of the State Address. And the Justice Task Force, created by then-Chief Judge Jonathan Lippman to address the principal causes of wrongful convictions, which issued the report noted above, was mentioned. The Chief Judge said the Task Force will begin "to address broader issues of concern for a fair and effective criminal justice system, such as the impact of protracted delays on the disposition of cases, a review of the ethical requirements and disciplinary measures for attorney conduct, and systemic problems in affording all persons due process."

New Immigration Guidance Documents. In response to recent developments regarding immigration enforcement, organizations and state agencies have issued guidance documents that defenders and clients may find useful.
  • Immigrant Defense Project
  • The Legal Aid Society
  • New York State Attorney General and State Education Commissioner 
As a reminder, six Regional Immigration Assistance Centers, funded by the Office of Indigent Legal Services (ILS), are operating around New York State to provide training and assistance to public defense lawyers representing non-citizen clients in criminal and family court proceedings. Contact information for the Centers is available on NYSDA's Criminal Immigration Resources page and the ILS website .

Third Department Modifies a Maltreatment Report to Unfounded for the Victim of Domestic Violence. In a CPLR article 78 proceeding requesting review of an indicated report of child maltreatment, the Third Department modified the report to unfounded, granted the mother's application entirely, and expunged and sealed the record. Matter of Elizabeth B. v New York State Off. of Children & Family Servs. , 2017 NY Slip Op 01424 (3rd Dept 2/23/2017). The Ontario County Department of Social Services (DSS) filed an indicated report with the Office of Children and Family Services (OCFS), concluding that the mother failed to provide adequate guardianship to her three children based on two incidents where one or two of her children were present when the mother was attacked by her partner. The incidents occurred on two consecutive days and the mother reported the incidents to the police three days later, the first day she had access to a vehicle. On review, OCFS denied the mother's request to amend the report. OCFS concluded that the mother's failure to exercise the "minimum degree of care" was "based upon petitioner's delay in reporting the incidents, the fact that she declined counseling services suggested by DSS, her subsequent request to modify the order of protection to permit communication with her paramour, and the possibility of their future reunification."
The Third Department held that OCFS "misconstrue[d]" the "minimum degree of care standard" in relation to victims of domestic violence as a standard that "cannot be 'modified or excused because a parent is under stress or fear.'" The mother took reasonable steps to protect her children and herself before reporting the abuse to the police. She was not required to engage in counseling services suggested by DSS since she had already sought counseling for her and her eldest child elsewhere. The mother's request to modify the protection order to allow her to communicate with her partner concerning finances and child care "amounts to no more than 'undesirable parental behavior,'" not a failure to exercise a minimum degree of care. And finally, speculation about whether the mother and her partner might reconcile does not amount to a failure to address the safety needs of her children. While the children suffered adverse consequences as a result of the attacks, "neither the danger nor the impairment were the consequences of petitioner's actions."

Jury Instructions on Implicit Bias. A jury instruction used in federal court by Senior Judge Mark W. Bennett of the Northern District of Iowa concerning implicit bias was recently posted on the Juries blog. As discussed in the May-July 2016 issue of the REPORT (pp. 3-5), implicit racial and other biases affect every aspect of the justice system, and jury instructions are among proposed methods for curbing the effects of unconscious negative stereotypes. Not everyone agrees that implicit bias should be discussed with juries, as indicated in an online exchange between Judge Bennett and Senior Judge Richard G. Kopf of the District of Nebraska. However, the American Bar Association's House of Delegates adopted Resolution 116 last August, which amended the ABA Principles for Juries and Jury Trials by specifically calling on courts to " Instruct the jury on implicit bias and how such bias may impact the decision making process without the juror being aware of it" and to "Encourage the jurors to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes towards race, national origin, gender, age, religious belief, income, occupation, disability, marital status, sexual orientation, gender identity, or gender expression."  

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.

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