2nd honker
Mar. 17, 2017
News Picks from NYSDA Staff
News Picks
U.S. Supreme Court Holds Overt Racial Bias in Deliberations Can Impeach a Jury Verdict. In an important ruling concerning widespread procedural rules that bar judicial scrutiny of the tenor of jury deliberations, the Supreme Court held that evidence of a juror's "overt racial bias" can impeach a guilty verdict. In Pena-Rodriguez v Colorado (No.15-606 [3/6/2017]), the defendant was charged with sexually assaulting two teenage girls in the bathroom of a Colorado horse racing facility. He claimed mistaken identification. After the guilty verdict was announced, two jurors reported to defense counsel and later the court that one of the jurors had expressed anti-Hispanic bias during deliberations. The biased juror stated that he was voting guilty because the defendant was Mexican. The juror explained that based on his "experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women," and further stated, "'I think he did it because he's Mexican and Mexican men take whatever they want.'" The juror also expressed bias against defendant's alibi witness, saying he did not find the witness credible because he was "an illegal." (In fact, the witness testified he was a lawful U.S. resident.) Pena-Rodriguez moved to set aside the verdict based on the juror's overt bias but the lower court denied relief, citing the state's rule barring impeachment of a verdict based on statements made by jurors during deliberations. The Colorado Supreme Court affirmed.
In a 5-3 decision, the U.S. Supreme Court reversed. Justice Kennedy's majority opinion discussed the widespread and longstanding state and federal rules that bar judicial scrutiny of the tenor of jury deliberations. But as a constitutional imperative, the Court held, these rules must give way in order to root out the evil of racially biased guilty verdicts. "This Court's decisions demonstrate," Justice Kennedy wrote, "that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy."

American Academy of Pediatrics Recommends Public Health Approach to Drug Use During Pregnancy. In response to efforts in some states to prosecute and incarcerate mothers who struggle with substance abuse, experts have reiterated that those efforts have the unintended consequence of driving away mothers who are most in need of professional care during pregnancy. Last month, the American Academy of Pediatrics (AAP) issued a new policy statement, "A Public Health Response to Opioid Use in Pregnancy," in which it "reaffirms its position that punitive measures taken toward pregnant women are not in the best interest of the health of the mother-infant dyad." The AAP first endorsed a non-punitive approach in 1990 and previously reaffirmed its position in 1995. More than 20 national organizations have published statements against the prosecution of pregnant women who use substances. The AAP recommends, among other efforts to address this issue, that "[a]ccess should be improved to comprehensive prenatal care for pregnant women with substance use disorders, including medication-assisted treatment and gender-specific substance use treatment programs that provide nonjudgmental, trauma-informed services." 

Commission on Judicial Conduct Warns Judges Ethical Duties Apply on Social Media Platforms. In its 2017 Annual Report, the New York State Commission on Judicial Conduct cautions judges that their ethical duties apply when using social media platforms. The report says: "On or off the bench, in person or by electronic communication, a judge must observe high standards of conduct and act at all times in a manner that promotes public confidence in the judiciary and is otherwise consistent with the Rules Governing Judicial Conduct." Specifically, "a judge must be wary of inviting or engaging in social media dialogue with lawyers, litigants, witnesses or others who may be involved in pending litigation." Particularly where persons use pseudonyms, judges might be unaware that they are communicating with a person involved in litigation pending before them or a colleague. The Commission's warning follows its public admonishment of a non-attorney town court justice for making public comments on pending litigation when she posted remarks on her Facebook page criticizing the prosecution of a case against a local town council candidate. See Matter of Lisa J. Whitmarsh, available at page 266 of the report. 

Time to Say Goodbye to the Reid Technique? The well-known and increasingly reviled Reid Technique for interrogating people suspected of crimes just lost a supporter. Wicklander-Zulawski & Associates, Inc. (WZ), an Illinois firm that trains law enforcement personnel and others in interview techniques, announced in a press release that it was discontinuing instruction in the Reid method after more than three decades of use. "Going forward, WZ will standardize their core instruction on multiple techniques including the Participatory Method, Cognitive Interviewing, Fact-Finding and Selective Interviewing, as well as the popular WZ Non-Confrontational Method," the release stated. Over 10 years ago, NYSDA noted both the ubiquitousness of and concerns about the Reid Technique in the April-May 2006 issue of the Backup Center REPORT (pp. 4 and 8 et seq.). Similarly, a session about false confessions held at the 2017 New York Metropolitan Trainer on March 11 included materials entitled "Prepare to defend your case by learning how police interrogate suspects: Understanding the Reid Method of Interviewing and Interrogation." For more information, please contact the Backup Center.

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 1, 2017. 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 who have questions about these programs after reading the available materials may also contact Susan Bryant at the Backup Center at 518-465-3524 or sbryant@nysda.org.

In Case You Missed It/Reminders/Updates

This section offers items from prior editions of News Picks that you may have missed or that address issues that pop up in different areas of the state at different times. Where available, we will also provide updated information. An archive of News Picks, beginning with the January 14, 2015 issue, is available on NYSDA's website at http://www.nysda.org/?page=NewsPicks.
The August 16, 2016 edition of News Picks included the following item about plea agreements that are conditioned on waiver of ineffective assistance of counsel claims.
Prosecutors Cannot Ethically Routinely Require Waivers of IAC Claims in Guilty Pleas. On June 10, 2016, the NYS State Bar Association's Committee on Professional Ethics issued Ethics Opinion 1098, which concludes, "[a] prosecutor may not ethically require, as a routine condition of a plea bargain, that a defendant waive ineffective assistance of counsel claims." The opinion refers to an earlier opinion, Ethics Opinion 1048 (3/3/2015); it concluded, "[a] defense lawyer may advise the defendant as to a proposed plea agreement including waiver of challenges to the conviction based on ineffective assistance of counsel unless a reasonable lawyer would find a personal interest conflict of interest ...."
That earlier opinion declined to state a blanket ban, based on per se conflict of interest, upon defense lawyers advising clients about waivers of ineffective assistance of counsel (IAC). That position runs counter to opinions from at least 12 jurisdictions. When Opinion 1048 was issued, a number of organizations, including NYSDA, requested that it be reconsidered; while the Committee agreed, the opinion remains on the website. And, as it was just referenced in Opinion 1098, the earlier opinion apparently still states the Committee's position. That is, "determining whether advising as to an IAC waiver creates a personal-interest conflict for the defense lawyer -- and whether any such conflict is waivable -- requires a case-by-case inquiry."
That a prosecutor is violating an ethical proscription by making a plea offer contingent on waiver of any IAC claim is likely under Opinion 1098, but not definitively so. The Committee did say "that the harms attributable to a prosecutor's routine conditioning of plea bargains on the waiver of IAC claims are sufficiently substantial as to prejudice the administration of justice in violation of Rule 8.4(d) [of the New York Rules of Professional Conduct]." But the opinion recognizes that specific cases could arise in which an IAC waiver would not raise concerns. An example given is where the defendant has been advised on the issue by an independent attorney.
Opinion 1098 discusses policy issues that contribute to its conclusion, such as the inability of IAC waivers to promote finality effectively because almost all IAC claims in guilty plea cases "arguably impact the voluntariness of the plea" and would therefore be subject to future litigation. When a plea offer includes a requirement that a client waive IAC claims in the case, defense counsel should consider whether to challenge that offer as unethical and will probably have to re-read this Opinion once again to discern its relevancy to the individual case. 

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