2nd honker
May 16, 2016
News Picks from NYSDA Staff
News Picks
Legal Action Center Offers Assistance to Criminal Defense Bar to Secure Client's Right to Opioid Addiction Medication . Do judges or probation officials prohibit your clients from taking opioid addiction medication, such as methadone, buprenorphine (Suboxone), or naltrexone (Vivitrol)? Such practices are common, and yet run counter to all accepted science, undermine the public health response to the opioid epidemic, and increase the chance of relapse and overdose. They also are illegal under anti-discrimination laws and state law governing CPL article 216 (judicial diversion) cases.
The Legal Action Center (LAC) would like to work with criminal defense attorneys to challenge these illegal and dangerous practices. LAC also wants to help defense attorneys educate courts about the value of addiction medication and how to incorporate it successfully into criminal justice settings. Please contact Melissa Trent, mtrent@lac.org, or Sally Friedman, sfriedman@lac.org, if the court you are practicing in (or probation or parole) does not permit the use of medication for opioid addiction. You can also call them at 212-243-1313. LAC has also produced a guide for defense attorneys on addiction medication advocacy and recently released a new report, "Medication-Assisted Treatment in Drug Courts: Recommended Strategies."
Persons Serving Parole-Eligible Life Sentences for Crime Committed When a Minor Are Constitutionally Entitled to "Meaningful Opportunity" for Release. In a major parole decision, a divided panel of the Third Department has held the U.S. Supreme Court's recent 8th Amendment jurisprudence barring mandatory life imprisonment without parole for juvenile offenders (those under 18) applies at New York parole release hearings involving inmates sentenced as minors to parole-eligible life sentences. In Matter of Hawkins v NYS Dept of Corr & Community Supervision (2016 NY Slip Op 03236 [3rd Dept 4/28/2016]), the petitioner was sentenced in 1979 to 22 years to life for murdering his girlfriend, a crime committed when he was a 16 year-old. After 36 years in prison, at age 54, Hawkins was denied parole for the ninth time based solely on the seriousness of the crime. A lower court judge ordered a new hearing and the Board of Parole appealed.

Relying on the Supreme Court's decisions in Miller v Alabama (132 SCt 2455 [2012]) and Montgomery v Louisiana (136 SCt 718 [2016]), the three-justice Appellate Division majority affirmed, holding that the "petitioner was denied his constitutional right to a meaningful opportunity for release when the Board failed to consider the significance of petitioner's youth and its attendant circumstances at the time of the crime." The majority stressed that under the Supreme Court's 8th Amendment jurisprudence, "'life without parole is an excessive sentence for children whose crimes reflect transient immaturity,'" and states must provide such persons "a 'meaningful opportunity to obtain release' ...." Applying this principle to parole-eligible sentences under New York law, the majority held that "[a] parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court." "We agree with petitioner that an analogous procedural requirement is necessary at the parole release hearing stage.  For those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue ...." The two dissenting judges concluded the Supreme Court's 8th Amendment jurisprudence has no application to parole-eligible sentences under New York law.

The petitioner's counsel, Issa Kohler-Hausman and Christopher Seeds, have advised us that the Board of Parole has declared its intention not to appeal the 3-2 decision to the Court of Appeals.
Recognizing that Juveniles are Different - In Any Court. Reprising the long accepted maxim in capital litigation that "death is different" and therefore death penalty cases must be undertaken with a greater degree of diligence than non-capital cases, a brief article published as part of the New England Journal on Criminal and Civil Confinement's symposium on juveniles offers a compelling look at why and how criminal defense lawyers should be reviewing and litigating cases involving criminal allegations against juveniles with greater scrutiny, especially concentrating on families and family life as a launch point for case development. A potentially useful research tool citing evolving U.S. Supreme Court precedent, "The Place of Families in Juvenile Defense Work after Miller v. Alabama," includes two case studies that illustrate the ways in which careful investigation and case presentation can make a difference in the outcome.

The article is co-authored by Elsie Chandler, Senior Staff Attorney and Director of the Youth Law Practice at Neighborhood Defender Service of Harlem, who will be leading a workshop with Professor Alexandra Cox on Representing Children in Adult Court at NYSDA's Criminal Defense Mitigation Training at SUNY New Paltz on May 19. One of the two other co-authors, Dr. Richard Dudley, Jr., Clinical and Forensic Psychiatrist, will be presenting on the Ethnoculturally Competent Life History Assessment at the May 19 program.
Latest Issue of the Center for Appellate Litigation's Issues to Develop at Trial. The Center for Appellate Litigation (CAL) has released its May 2016 installment of Issues to Develop at Trial. The topic this month relates to the use of recorded jail telephone calls in a prosecutor's case-in-chief, as addressed in People v Johnson (2016 NY Slip Op 02552 [4/5/2016]). The Johnson decision was discussed in the April 19, 2016 issue of News Picks from NYSDA Staff.

The CAL newsletter offers litigation strategies to challenge the use of such evidence and preserve the record in a way that will hopefully lead to a resolution that protects our clients. The April 2016 issue is available here.
Third Department Reverses Custody Order, Questions Family Court Treatment of Expert Report. In a Family Court Act article 6 proceeding involving cross-petitions by the parents to modify the existing joint custody order to obtain sole custody and increased parenting time, the family court ordered an evaluation by a clinical/forensic psychologist. In her report, the psychologist "opined that the mother 'views [the father] as an irresponsible father ... and ... feels it is appropriate that he be marginalized in their lives.'" However, she also opined that both parents were "highly capable of parenting the children ...." Despite the psychologist's opinions, substantial trial testimony that the mother and father are both good and loving to the children, and the attorney for the children's position supporting joint custody, the court granted the mother's petition for sole legal custody.
The Third Department reversed, awarding both parents joint custody and setting a new schedule for parenting time. Matter of Stephen G. v Lara H., 2016 NY Slip Op 03562 (3rd Dept 5/5/2016). "Although Family Court was not required to adopt [the psychologist's] opinions ..., we are troubled that it did not address her conclusions without offering any explanation as to why it found them to be lacking in credibility or otherwise contradicted by the record ...." Acknowledging that the parents have had a contentious relationship, including five Child Protective Services investigations, none of which has led to a finding of abuse or neglect, the Third Department concluded "that there is a 'modicum of communication and cooperation' such that joint legal custody is in the best interests of the children ...." The Appellate Division noted that the court did not conduct a Lincoln hearing, which is generally the better practice, but that such a hearing "is not mandatory, particularly where, as here, the children's wishes are already known and are not in dispute ...."
Association News
NYSDA's Strutin Highlights the Need for a Right to Post-Conviction Counsel. Ken Strutin, NYSDA's Director of Legal Information Services, has written what a May 10 post on the Sentencing Law and Policy blog describes as a "notable new paper" entitled "Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel." Published in the Cardozo Public Law, Policy & Ethics Journal, the article is available for download here. While heavily footnoted, providing sources, caveats, and nuances for nearly every expressed idea, the article blazes with Strutin's own outrage at the denial of post-conviction counsel to people in prison. The environment in which men and women are incarcerated intensifies the need for counsel; prison law libraries, no matter how comprehensive (as if any are), cannot suffice. "Even if it rained law books day and night in the prison yard, it could not possibly obviate the trauma and oppression of incarceration sufficiently to turn prisoners into lawyers," Strutin says.
The Role of Public Defense in Reentry and Preentry. An April 28 webinar, "Remote Town Hall on the Role of Public Defense in Reentry," sponsored as part of the Right to Counsel National Campaign, includes a segment in which NYSDA Client Coordinator/Client Advisory Board Chair Jay Coleman and Organizing Coordinator Anne Rabe responded to questions about NYSDA's pilot Prisoner Preentry Mentoring Project. A recording of the full webinar is available here. Jay and Anne can be heard starting at about 1:16:00 of the recording. The "town hall" includes discussions of various public defense-based models and experiments in helping clients through reentry programs. Programs and lawyers representing clients under 25 years of age may find information of interest about an National Juvenile Defender Center fellowship under which a lawyer is assisting a South Carolina public defender office with representation of clients in that age group, whether in juvenile or adult proceedings (starting at approximately 0:11:45 of the recording). 
Copyright © 2012-2016 New York State Defenders Association