2nd honker
Sept. 30, 2016
News Picks from NYSDA Staff
News Picks
Tips for Handling First-Time In-Court Identifications. The September 2016 edition of the Center for Appellate Litigation's Issues to Develop at Trial addresses issues that arise when a witness identifies your client for the first time in court. This month's edition highlights the recent Connecticut Supreme Court decision in State of Connecticut v Dickson and offers helpful tips on using Dickson to challenge in-court identifications. The Court in Dickson held that, "in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure implicate due process principles and, therefore, must be prescreened by the trial court." [Footnotes omitted.] Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial

Board of Parole Proposes Revised Parole Release Regulations. In 2011, the Legislature directed the Parole Board to modernize its release decision-making process. By Oct. 1, 2011 the Board was directed to establish new written procedures incorporating "risk and needs principles" to measure a person's "rehabilitation" and "likelihood of success upon release." But the Board failed to act until July 2014 and the regulation it belatedly adopted - calling for mere unguided and indiscriminate "use" of the COMPAS risk assessment instrument - was roundly criticized as meaningless. Court challenges to the regulation were complicated by procedural issues. See Matter of Linares v Evans, 26 NY3d 1012 (2015) (declining to rule on legality of regulation for prudential reasons). Nevertheless, the issue gained traction with a highly critical New York Times editorial, and parole decision-making reform was mentioned in Governor Cuomo's 2016 State of the State address.
The Board has now filed a new proposed regulation for public comment, which appears in the Sept. 28, 2016 issue of the State Register (pp.7-8). The proposed rule would require Board members to be "guided" by the COMPAS risk and needs assessment instrument when making release decisions. Importantly, the proposed regulation provides that "[i]f a Board determination, denying release, departs from the COMPAS scores, an individualized reason for such departure shall be given in the decision." Other regulatory changes include a direction that all statutory parole release factors be discussed during a parole release interview, and that reasons for parole release denials shall be explained in "factually individualized and non-conclusory terms."
The proposed rule also includes new parole release criteria for persons serving sentences for crimes committed as a minor (under 18). See Matter of Hawkins v NYS Dept. of Corr. & Comm. Supervision, 140 AD3d 34 (3rd Dept 2016). Board members would be directed to consider "the diminished culpability of youth" and a person's "growth and maturity." In addition, Board members must consider whether certain "hallmark features of youth" ("immaturity, impetuosity, a failure to appreciate risks and consequences, and susceptibility to peer and familial pressures") were "causative" or "contributing factors" to the crime of conviction.
Comments on the proposed regulation are due on or before Nov. 12, 2016 and should be sent to Kathleen M. Kiley, Counsel to the Board of Parole, Department of Corrections and Community Supervision, 1220 Washington Avenue, Building 2, Albany, New York 12226 or Rules@Doccs.ny.gov. Board members discussed the language of the proposed rule at their Aug. 22, 2016 meeting; the meeting video is available here.

President's Council Releases Final Report on Feature-Comparison Forensics. As noted in the last issue of News Picks from NYSDA Staff, the President's Council of Advisors on Science and Technology (PCAST) voted to approve a report that analyzes the scientific validity of various feature-comparison forensic disciplines, including latent fingerprints, bitemarks, and complex mixture DNA analysis, and a draft of the report was circulated online. The final report has now been released and like the draft report, it identifies significant problems with these disciplines. As noted in the Executive Summary:
[N]either experience, nor judgment, nor good professional practices (such as certification programs and accreditation programs, standardized protocols, proficiency testing, and codes of ethics) can substitute for actual evidence of foundational validity and reliability. The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of "judgment." It is an empirical matter for which only empirical evidence is relevant. Similarly, an expert's expression of confidence based on personal professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.
There have been a number of articles, blog posts, and position statements about the final report, including:

Onondaga County Sheriff's Office Sued for Using Solitary Confinement as Punishment for Children . The New York Civil Liberties Union (NYCLU) and the Legal Services of Central New York (LSCNY) have filed a federal class action lawsuit against the Onondaga Sheriff's Office and the Syracuse City School District. The suit, brought on behalf of six named Black and Latino children and all present and future 16- and 17-year-olds incarcerated at the Onondaga County Justice Center, alleges that subjecting children to solitary confinement is a violation of the Fourteenth and Eighth Amendments and the Individuals with Disabilities Act. An NYCLU press release stated that "[s]ince October of 2015, the sheriff has placed at least 86 children in shocking and dehumanizing solitary confinement conditions over 250 times, forcing them to spend 23 hours a day locked in tiny cells where, in some instances, there is visible feces and urine on the floor." Further, while in solitary, children are prohibited from communicating with other individuals held at the Justice Center, "receive essentially no education or mental health care and are limited to one-hour of 'recreation' in small chain-linked filthy cages." The suit seeks a court order directing the Sheriff's Office to discontinue the practice of solitary confinement as a punishment for children.

Dealing with Trauma as a Public Defender - Including Your Own. Anger, cynicism, and the inability to think creatively can result from vicarious trauma, according to a National Association for Public Defense blog post on Trauma's Hidden Ripple Effects. Stemming from the trauma public defense clients have experienced, vicarious trauma moves through workplaces across the justice system, writes Renate Lunn, a public defender in New York City's Legal Aid Society and a member of Five Boro Defenders. She describes resources for learning more about vicarious trauma's effects, which appear at both the individual and institutional levels, and promises future posts on "how we can care for ourselves in the midst of our trauma and prepare ourselves to be more resilient in stressful situations."
A 2015 NYSDA CLE training pointed out that vicarious trauma/negative stress can cause damage to mental health, other health, organizational health, and relationships. The training, entitled "Job-related Fatigue:  Ethical Concerns for Criminal Defense Attorneys," pointed out that symptoms of negative stress can affect lawyers' ability to meet ethical requirements, such as the Rules of Professional Conduct. Lawyers must bring to every case the "legal knowledge, skill, thoroughness and preparation reasonably necessary" to provide competent representation" (Rule 1.1) and "act with reasonable diligence and promptness" (Rule 1.3)." Vicarious trauma can damage lawyers' ability to comply with these requirements. Managing stress -- developing a work-life balance - is key. Tips for finding that balance were included in the materials provided by presenter Mary Beth Anderson for that Nov. 7, 2015 training; the materials are available from the Backup Center.

Association News
Reminder: Registration for the Families Matter Conference is Open.  We look forward to seeing Family Court practitioners from across the state at the Families Matter: Parent Defense in New York conference that will be held on Oct. 14-15, 2016 at the Albany Hilton. The registration form and information about the program are available at the conference website, www.nyparentdefense.com . While the deadline for receiving the special Hilton conference rate for a room has passed, scrolling down after clicking the HOTEL tab on the conference website lists all the surrounding area hotels (with links) that are competitively priced. The conference is sponsored by NYSDA, the NYS Office of Indigent Legal Services, and the NYS Unified Court System Child Welfare Court Improvement Project. Questions about the conference? Contact NYSDA Family Court Staff Attorney Lucy McCarthy at 518-465-3524 or lmccarthy@nysda.org .
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