2nd honker
Mar. 16, 2015
News Picks from NYSDA Staff

News Picks


California Supreme Court Strikes Down Statewide Blanket Sex Offender Residency Restriction.  In a decision that may be influential in other jurisdictions, including New York, the California Supreme Court has struck down the state's "predator free zone" residency restriction, which bars all registered sex offenders from living within 2000 feet of schools and parks. Ruling in a consolidated habeas corpus proceeding involving parolees under supervision in San Diego County, the high court declared that the residency restriction placed 97% of the multifamily rental housing units in the county off-limits to sex offenders, effectively banished them from large areas of the county, "including most of the downtown area in the City of San Diego" and resulted in a significant level of homelessness. In re William Taylor, No. S206143 (CA Sup Ct 3/2/2015). The court held that the law could not survive even minimal "rational basis" review because it "has imposed harsh and severe restrictions and disabilities on the affected parolees' liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, [the law] bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive." The court struck down blanket applications of the law, but upheld the state's right to impose special residency restrictions based on the "particularized circumstances of each individual parolee." 


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Kings County Family Court Awards Unsupervised Visitation over ACS Objection, Including in a Res Ipsa Case. Despite a finding of permanent neglect and a disposition goal of adoption, both parents requested unsupervised visitation with the child. Matter of T.S. v T. McG., 2015 NY Slip Op 50260(U) (Family Ct, Kings Co 2/4/2015). ACS lodged many objections including claims that neither parent has been perfectly compliant with service planning and the mother engaged in a confrontation with an individual unrelated to the case and spoke to the child about returning home. Further, ACS submitted an affidavit from a Licensed Master Social Worker that suggested that a change in visitation would be "'destabilizing and confusing'" for the child. Citing the ACS Policy Guidelines for Determining the Appropriate Level of Supervision for Family Visits and a lack of legal authority to support the objections, the Family Court found no merit to ACS's objections. Instead of using visitation or denial of same as a punitive measure against parents, the court clarified that for consideration of visitation modifications, "[t]he issue is a safety issue, not a compliance issue ...." The court allowed for a future hearing to determine if ACS can supply objective evidence to support the claim that unsupervised visits will be harmful to the child.


In similar fashion, the Kings County Family Court granted unsupervised visitation for the mother prior to the fact-finding hearing. Matter of I.R., 2015 NY Slip Op 25072 (Family Ct, Kings Co 2/9/2015). In this res ipsa proceeding, a pre-fact-finding service plan was developed for the parents and the mother's compliance with the plan and engagement in services compelled a psychologist from the parenting program to recommend unsupervised visits, including overnights, with the child. Additionally, the Attorney for the Child did not object to unsupervised visits. Despite that, ACS objected to the mother's request "arguing only that the Child suffered serious, unexplained injuries and, in these circumstances, such visits should not be permitted prior to fact-finding." The court pointed out that the parent retains the "right to reasonable and regularly scheduled visitation" as mandated by Family Court Act 1030, and the ACS Policy Guidelines for Determining the Appropriate Level of Supervision for Family Visits "require foster-care agencies to implement unsupervised visits 'unless visitation poses a risk to the physical and/or emotional safety of the chi[l]d ....'" The court also indicated that the fact-finding scheduled for March 2 "must be adjourned because ACS has not yet obtained or provided Respondents or the Attorney for the Child with crucial hospital records or even a definitive witness list--including the experts it intends to call along with the information required by CPLR � 3101(d)." The Family Court found that "[t]o deny ... unsupervised visits until after fact finding when fact finding will be delayed for months because ACS has not gotten its evidence and witnesses together is not acceptable."


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Don't Let Jurors See All Those A/K/As. Nicknames, common misspellings of a name, and culturally acceptable changes of last name, as upon marriage or divorce, are among many reasons almost all of us could have a list of names designated "a/k/a" in a court document. Inclusion of such "aliases" on indictments (especially street names with incriminatory connotations) should be challenged, according to a recent blog post by William T. Easton, a/k/a "Bill", a/k/a "Billy." The post, "A Rose by Any Other Name,appeared on New York Criminal Defense, a blog from Easton Thompson Kasperek Shiffrin LLP.


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Asking Questions about Race in Jury Voir Dire. Current publicity and discussions about racism in the criminal justice system have focused on police encounters with civilians of color, particularly in black communities. But race can matter at many different points. When a case going to trial involves individuals whose race differs from that of jury pool members or from each other, lawyers face the question - what should be asked on voir dire about race? The National Association for Public Defense (NAPD) recently posted one lawyer's suggestions in "Racial Discrimination in Criminal Defense Cases[:] Some Jury Selection Questions to Reduce the Problem." A more thorough examination of the issue appears in Chapter 8 of the manual noted in the Nov. 26, 2014 edition of News Picks, Raising Issues of Race in North Carolina Criminal Cases; it includes sample voir dire questions as well as social science information and legal references dealing with race issues, not limited to North Carolina. A few years ago, an article appeared in the Kentucky Department of Public Advocacy's publication, The Advocate (May 2008, p. 57), entitled "Confronting the Race Issue in Jury Selection." It too contains both a discussion about why and how to talk about race and sample questions.


How jurors will react to voir dire questions on race, or to questions of race generally, is a question of much interest that is not easily answered. See, for example, "What We Do (and Don't) know About Race and Jurors," in the e-journal, The Jury Expert: The Art and Science of Litigation Advocacy (July 2010). The article discusses studies showing that the influence of race on the decisions of white "jurors" varied depending on whether the trial scenarios themselves were racially charged. And, perhaps counterintuitively, the studies indicated that decisions by whites on guilt were not statistically influenced by race in racially-charged scenarios, but were influenced by race in scenarios where the only changed factor was the race of the defendant. 


How to address issues of race in jury selection--and across the criminal justice system-- poses a challenge to defense lawyers. Talking about race in general is difficult--see the Washington Post article, "We can all have an honest conversation about race, if we're willing to learn how," recently circulated by NAPD. It is much harder in the context of jury selection where the fear of offending potential jurors looms large. Lawyers with past or current experience on this issue are encouraged to contact the Backup Center to share materials and thoughts as well as to seek assistance. 


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New Study Demonstrates Veterans Treatment Court Effectiveness. Justice for Vets has reported about the first published study on the effectiveness of Veterans Treatment Courts. The study, "A Specialized Treatment Court for Veterans with Trauma Exposure: Implications for the Field," appears in the Feb. 2015 issue of the Community Mental Health Journal. The study followed 86 veterans charged with felony and misdemeanor offenses who had significant post-traumatic stress disorder (PTSD) symptoms and were participating in a Veterans Treatment Court. The study found that participants who received peer support saw improvements in social connections and emotional limitations. Other treatments, including trauma treatment, inpatient substance abuse treatment, and psychiatric medication, significantly predicted improvements in areas such as PTSD, depression, and functioning. "The importance of trauma-specific therapy and positive peer role models may be important for veterans with combat exposure who have re-integrated into a society unfamiliar with the struggles associated with combat experience."


This study provides strong evidentiary support for the goals and practices of NYSDA's Veterans Defense Program, and should be cited by defenders in advocating for treatment and diversion for veteran clients facing criminal prosecution. Defenders with questions about the representation of veterans and active duty military may contact the Program Director, Gary Horton, at 585-219-4862 or ghorton@nysda.org.


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Stingrays Can Disrupt Cellular Service in the Area of Use. As reported in Wired Magazine, the American Civil Liberties Union (ACLU) recently discovered a warrant application filed by the federal government that acknowledges, in the article's words, that "stingrays can disrupt cellular service for any phone in their vicinity--not just targeted phones--as well as any other mobile devices that use the same cellular network for connectivity as the targeted phone." The ACLU has questioned whether the FCC was aware of this when it approved the use of Stingrays and the possible impact on emergency and non-emergency cell phone calls when such devices are being used. According to this ACLU map, in New York, at least two agencies are using it: the Erie County Sheriff, which has spent $350,000 to spy on cell phones, and the New York State Police. The New York Civil Liberties Union has filed a CPLR article 78 action against the Erie County Sheriff's Office after it denied their FOIL request for records about the Office's use of the device. The use of Stingrays and other IMSI ("international mobile subscriber identity") catchers raises substantial Fourth Amendment questions. As a recent Times Union editorial put it, "[t]he public has a right to know the ground rules for conducting this surveillance, what happens to their data, and how their privacy is or is not protected."


Further training on this issue can be gained at NYSDA's upcoming Criminal Defense Tactics and Techniques XVI program at the Rochester Institute of Technology on Saturday, April 25, 2015. Mariko Hirose, a staff attorney at the New York Civil Liberties Union who focuses on statewide civil rights and civil liberties impact litigation, will be presenting on "Fourth Amendment Issues and New Technology." See the brochure for registration information.


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State Loan Forgiveness Application Period Now Open. The application for the state's District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law � 679-e) is now available on the NYS Higher Education Services Corporation (HESC) website. The application deadline is May 15, 2015. Attorneys who received a state loan forgiveness award last year should receive a payment application and verification directly from HESC. For more information about the state loan forgiveness program, contact HESC at 1-888-697-4372 or scholarships@hesc.ny.org. A summary of the state program and other loan forgiveness and repayment assistance programs is available here. Public defense attorneys with questions about these programs may also contact Susan Bryant at the Backup Center at 518-465-3524 or sbryant@nysda.org


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