2nd honker
May 31, 2016
News Picks from NYSDA Staff
News Picks
Batson Errors Considered by First Department, U.S. Supreme Court. The First Department recently found that prosecution strikes of African American males could constitute Batson error. People v Watson, 2016 NY Slip Op 03688 (1st Dept 5/10/2016). At the end of round two of jury voir dire in a Bronx prosecution for assault and resisting arrest, the prosecution used peremptory challenges to remove all three black males remaining on the panel. Defense counsel asked that the prosecutor be required to give a race-neutral reason for the strikes under Batson v Kentucky. Counsel declined to define the Batson claim as a gender bias or race bias, "framing the challenge as 'the interaction of both race and gender,'" and asked for an opportunity to brief the court on relevant case law. The court: found all three strikes "'to be absolutely race neutral'"; rejected further efforts by the defense to seat at least one of the three potential jurors; denied counsel's effort to renew the challenge; and denied a motion for mistrial based on the Batson challenge. The defendant was convicted after trial. While recognizing that the U.S. Supreme Court has not ruled on "whether black males are a cognizable group for Batson purposes," the First Department said "[i]t would indeed be incongruous to consider race and gender as cognizable statuses, but not a combined race and gender status." Finding the record insufficient for determining whether the prosecutor's explanations were pretextual, the First Department held the matter in abeyance and remitted for a hearing.
On May 23, 2016, the U.S. Supreme Court granted federal habeas relief to Timothy Foster, a black man on death row in Georgia for a 1986 murder. Batson claims had been raised as to the peremptory challenges that removed all four black prospective jurors qualified to serve in the death penalty case. While state proceedings were pending on other issues, the defense obtained the prosecution's entire file, which revealed that the black potential jurors' names had been highlighted and marked with the letter "B," and notations had been made including, "'If it comes down to having to pick one of the black jurors, [this one] might be okay.'" After a long discussion of the facts, the Court found that prosecutors had been motivated by race in striking two of the black potential jurors. The decision in Foster v Chatman (No. 14-8349) also included analysis of the Court's jurisdiction to hear the claims. Justice Alito concurred, writing separately on the role of state res judicata law in remand proceedings. Justice Thomas dissented.
New National Protocol for Sexual Abuse Medical Forensic Examinations-Pediatric. The U.S. Department of Justice, Office on Violence Against Women has released A National Protocol for Sexual Abuse Medical Forensic Examinations-Pediatric (Pediatric SAFE Protocol). The Protocol is designed for health care providers who conduct sexual abuse medical forensic examinations of prepubescent children and other professionals involved in an initial response to child sexual abuse. It has three main goals: "address the health care needs of prepubescent children who disclose sexual abuse or for whom sexual abuse is suspected; promote their healing; and gather forensic evidence for potential use within the criminal justice and/or child protection systems." But as a footnote states, while the "protocol focuses on examinations for victims, not suspects ... note that in the case of prepubescent children who display problem sexualized behaviors, examinations should be done by health care providers as these children may also be victims of sexual abuse."
The second edition of A National Protocol for Sexual Assault Medical Forensic Examinations-Adults/Adolescents (2013) is available here. More information about SAFE examinations is available on Kidsta.org and SAFEta.org, technical assistance websites provided by the International Association of Forensic Nurses.
Kings County Family Court Awards Custody to Great Aunt over Objection of Foster Parents and AFC. A Family Court Act article 10 matter was commenced after the mother of the child allegedly left the hospital after giving birth without giving the hospital any plan for caring for the child or her contact information. The family court remanded the child to the Administration for Children's Services (ACS) and ACS placed the child in foster care in the home of strangers. The foster care agency attempted to contact the mother numerous times without success, but was able to locate a maternal great aunt in Oklahoma who was interested in caring for the child. The court directed the agency to commence the Interstate Compact on the Placement of Children (ICPC) process. The mother did not appear for the fact-finding hearing and the court entered a neglect finding against her.
By the time the ICPC for the great aunt was approved, the child had been living with the foster parents for almost one year. The court ordered ACS to file a petition to terminate the mother's parental rights as soon as the cause of action accrued and directed the agency to facilitate liberal visitation with the great aunt. ACS later moved for an order placing the child with the great aunt, which the attorney for the child and the foster parents opposed, and the great aunt filed a custody petition. ACS supported the great aunt as a permanent resource for the child and opposed adoption by the foster parents. The mother appeared with counsel and stated that she wanted the great aunt to have custody and consented to a finding of extraordinary circumstances on the record.
The family court awarded custody to the child's great aunt, finding that approving the permanency goal of adoption by the great aunt or even approving the goal of adoption by the foster parents pending the outcome of the termination proceeding only prolonged the time the child would spend in foster care. Matter of Kareema H., 2016 NY Slip Op 50781(U) (Family Ct, Kings Co 5/10/2016). In its opinion, the court discussed decisions from the First and Fourth Departments that "have held that where an agency has been awarded care and custody of a child, the agency's refusal to consent to adoption leaves the Court without authority to entertain the adoption petition," and concluded that ACS's opposition to adoption by the current foster parents precludes the foster parents " from proceeding with an adoption petition." The court also distinguished the cases cited by the attorney for the child in support of the argument "that the bonds formed by a child in early development should be prioritized over placement with a relative ...."
Recent Advisory Committee on Judicial Ethics Opinions. The State Advisory Committee on Judicial Ethics recently released a number of opinions of note to the public defense, criminal justice, and family law communities. Committee opinions from 1987 to the present are available here.
Digest: Where a county court judge is aware a town justice presided over an arraignment and then requested the matter be transferred due to a purported conflict, but lacks relevant details of the purported conflict, the judge need not take any further action.
Digest: Where a judge has received a secondhand report of a casually overheard and possibly privileged conversation and has jumped to the unsupported conclusion that the attorney was, despite his/her actual overheard words, somehow encouraging his/her client to engage in intimidation, threats, or coercion, the judge (1) need not take any disciplinary action with respect to the attorney but (2) must disqualify him/herself from the case to avoid any possible appearance of impropriety. Under these circumstances, the judge should not reveal the reason for his/her disqualification.
Digest: (1) Where a judge has no direct personal knowledge whatsoever about purported misconduct of another judge or attorney, he/she has particularly wide discretion to make a threshold decision, based on information the judge has already received, of whether there is a "substantial likelihood" of a substantial violation under all the circumstances currently known to him/her. (2) If a judge believes the information he/she has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the "substantial likelihood" prong is not met, and the judge is not ethically required to take any action at all. (3) Conversely, if the judge concludes, in his/her sole discretion, that the "substantial likelihood" prong is met, he/she must then consider whether the "substantial violation" prong is met and, if so, must also determine what action is appropriate under the circumstances presented.
Digest: Absent an administrative order or rule change allowing judges who preside in treatment-oriented problem solving courts to serve as references for defendants/participants who recently appeared before them, a judge may not be a reference for someone who recently appeared before the judge as a defendant/participant in such a court.
Digest: A judge need not report apparent probation violations committed by an individual appearing before him/her.
Digest: A judge whose first-degree relative is a part-time attorney for the county department of social services may preside in criminal cases alleging welfare fraud where the agency is the victim or complainant, provided this relative has no involvement in the case.
Digest: Unless legally required, a town justice may not assist prosecutors by (a) arranging meetings with the prosecutor's prospective witnesses and/or (b) instructing such witnesses to bring lab reports or other possible evidentiary materials to court.
Digest: (1) A town or village justice may not assist the District Attorney by contacting each prosecution witness, complainant and police officer concerning their upcoming court appearances. (2) Opinion 09-173 is hereby amended so that justice courts should not notify such witnesses for the District Attorney, even if the court is willing to do the same for defendants and defense attorneys on request.
Summary of letter opinion: In response to an inquiry "asking whether you may fax a copy of the court's weekly calendar to the Department of Homeland Security 'for their review and determination in what defendants may be potential risks or illegal aliens, for [the] office to pursue,'" the Committee noted its previous advice "that a judge may not create, maintain and/or produce information about cases specifically and exclusively for the benefit of one side, such as a prosecutor," but concluded that "it would be permissible to post a calendar on the court's website," noting that "whenever possible, it is best for non-judicial personnel, rather than a judge, to produce and/or provide copies of documents the court maintains in accord with governing statutes and rules."
Digest: A judge is not disqualified from presiding over a criminal case merely because the District Attorney has launched a collateral attack on the judge's pretrial rulings in another forum.
Summary of letter opinion: In response to an inquiry "asking if you may require defendants seeking re-sentencing under CPL 420.10 to complete a form requesting the same information you would otherwise request orally in court," the Committee declined to answer the question of whether the proposed form is proper, as that is a question of law, but noted that "the Rules Governing Judicial Conduct do not prohibit a judge from asking a defendant legally permissible questions."
Digest: A Family Court judge whose first-degree relative has a part-time entry-level job with an agency where the county department of social services may place a child (1) is disqualified, subject to remittal, from any cases in which the judge's relative has been personally involved but (2) has no obligation with respect to other cases involving children placed at the same agency. If the judge is satisfied that the agency has an effective procedure in place to insulate the judge's relative from any cases that may come before the judge, the judge may rely on that insulation and preside in cases involving the agency without any obligation to disclose the employment relationship or inquire about the judge's relative's possible involvement in the case.
Digest: Provided the judge can be fair and impartial, a criminal court judge who presided over an ex parte search warrant application may later arraign (1) a confidential informant who testified in support of the warrant and/or (2) the target of the search warrant. Neither disclosure nor disqualification is required.

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