Federal Court Rejects New York Brady Ruling
A man suing New York City, the Manhattan District Attorney, and individual police officers under 42 USC § 1983 for violating the Brady requirement that exculpatory evidence be disclosed to the defense, prevailed against a motion for judgment on the pleadings in federal court. Jawaun Fraser, the plaintiff whose New York robbery conviction had been vacated pursuant to a CPL 440.10 motion, said in his federal filing that he “had uncovered at least thirty-eight lawsuits alleging civil rights violations against the six officers of the narcotics team that had arrested him in 2014 – three more than” the 440 court considered. In its ruling, the federal court addressed the New York Court of Appeals decision in People v Garrett, 23 NY3d 878 (2014), and found Garrett had “no implication for the § 1983 case currently before this Court.” Garrett did not involve allegations that the police witnesses had failed to disclose relevant lawsuits to the prosecution. Further, District Judge Colleen McMahon was “unpersuaded by the ‘distinction’ noted in Garrett between allegations of misconduct ‘which has some bearing on the case against the defendant’ and those that apparently have ‘no relationship’ to the defendant ‘insofar as it would be used for impeachment purposes.’ As long as the evidence could be used to impeach a key witness, a police officer is obligated to share that information with the prosecutor ….” The Fraser v City of New York decision is discussed in an April 9th New York Law Journal article. At the time Garrett was decided, a detailed discussion of that case, including case-specific limitations, was posted on the New York Criminal Defense blog.
 
50-a Litigation Updates
This week brought news in two separate lawsuits regarding Civil Rights Law 50-a. In New York City, the Center for Constitutional Rights announced that the various New York City unions, including police unions, agreed to dismiss with prejudice their lawsuit to stop the release of misconduct and disciplinary records, which was filed after the repeal of 50-a. The announcement comes two months after the Second Circuit affirmed the District Court’s denial of the plaintiffs’ request for a preliminary injunction, which was discussed in the Feb. 22nd edition of News Picks from NYSDA Staff.

In another lawsuit regarding police disciplinary records, a Monroe County Supreme Court judge issued a permanent injunction that bars the release of Town of Brighton Police Department records from before the repeal of 50-a on June 12, 2020. An Apr. 13, 2021, Rochester Democrat and Chronicle article noted that the judge’s decision that the 50-a repeal is not retroactive “seemingly contradicts the predominant position that the repeal of 50a is retroactive. Rulings in Schenectady and Orange counties both determined disciplinary matters from before June 2020 could be released to the public.”

Attorneys with questions about the repeal of 50-a and access to police disciplinary records may contact NYSDA’s Public Defense Backup Center for assistance (518-465-3524, info@nysda.org, or contact form). We also encourage you to share with us decisions issued on this and related topics.

Judge Orders DOCCS to Take Custody of Individual in County Jail; DOCCS’ Intake Procedures Don’t Control
On Apr. 12, 2021, a St. Lawrence County Supreme Court judge denied the motion of the Department of Corrections and Community Supervision (DOCCS) seeking review of the court’s March 2021 decision ordering DOCCS to accept custody of the petitioner, who had been sentenced in early January to a term of incarceration to be served at the Willard Drug Treatment Center. In February, the petitioner filed a pro se habeas petition challenging his continued incarceration in the St. Lawrence County Jail, which the court converted to an Article 78 petition. The court granted the petition, directing DOCCS to take the petitioner into custody on March 30th, so long as the petitioner tested negative for COVID-19.

On March 30th, DOCCS filed an emergency motion to renew/reargue based on information that two others held in the county jail had tested positive for COVID-19, arguing that it could not accept custody of the petitioner in violation of its agency policy against accepting individuals from a county jail where there is “‘an active positive COVID case.’” The court ordered a hearing and assigned the St. Lawrence County Public Defender’s Office to represent the petitioner. In its decision denying the motion, the court found that state law, not DOCCS’ intake procedures, control and noted that its earlier holding “was that the exigent circumstances that warranted DOCCS’s failure to comply with the sentencing order are over – evidenced by DOCCS’s resumption of intake of prisoners from local jails, the reduction of new infections in DOCCS’s facilities and the recovery of the vast majority of inmates in DOCCS system.”
 
IDP Issues Advisory: Criminal Defense Strategies to Avoid “Public Safety” Enforcement Priority Designation
The Immigrant Defense Project (IDP) cautions both criminal defense attorneys and immigration attorneys as recent policy guidelines issued by the Biden administration around immigration enforcement may affect defense strategy and advice to noncitizen clients. “Although the Johnson memo appears to be a shift in policy, it’s important to remember that there has been no change in either immigration law or in the application of Padilla to defense counsel. As part of the Padilla duty, counsel providing immigration advice on criminal cases should remain up to date on immigration policy changes to most accurately advise clients.” In addition to the strategies outlined below, IDP advises defense attorneys to follow best practices to advise their clients of immigration consequences and defend against detention and deportation triggers, as consistent with their client’s priorities. Some points and tips in the advisory: avoid an aggravated felony conviction; avoid “criminal gang participation” designation; consider finality of conviction and diversion adjudications convictions; and provide know your rights information to clients.
 
Defenders with questions about immigration consequences of criminal and family court proceedings should contact the Regional Immigration Assistance Center in their region; contact information is available on our website at https://www.nysda.org/page/CrimImmResources.
 
New Jersey Supreme Court Denies Review of State’s Appeal; Defense is Entitled to Review TrueAllele Source Code
As an update to our Mar. 19, 2021, edition of News Picks, we note that the New Jersey Supreme Court has denied review of the appellate court’s decision in State v Pickett, which ordered the State to turn over TrueAllele’s source code. The Court’s decision was the subject of an editorial published by the New Jersey Law Journal on Apr. 11, 2021, entitled “Court Got It Right On DNA Evidence”: “We agree it is essential for a court to assure the scientific reliability of DNA evidence and to permit defendant the right to contest its reliability in a meaningful way.”
 
Challenging Scientific, Technical, and Other Specialized Evidence at Sentencing
A new law review article posits that “junk science,” the basis of many wrongful convictions, also harms people who, convicted by plea or after trial, are sentenced by judges based on flawed information offered as scientific, technical, or other specialized (STS) evidence. After recounting well-known problems with STS evidence at trial, the article briefly discusses types of STS evidence that may appear in sentencing proceedings, including predictive tools. Concerns about risk assessment instruments (RAIs) used to predict an individual’s likelihood of recidivating are explored. Much of this discussion will be familiar to those who have seen similar criticisms of RAIs used pretrial to predict an accused person’s likelihood of further entanglement with the criminal legal system and/or failure to appear. For example, an item in the Feb. 12, 2020, edition of News Picks noted that the Pretrial Justice Institute had reversed its support for use of RAIs in decisions about whether a person should be released pretrial, and an item in the Oct. 20, 2020, edition noted a call by the Black Public Defender Association to eliminate the use of RAIs in pretrial release decisions.
 
The goal of the new article, “Junk Science at Sentencing,” is to bring about revision of Federal Rule of Evidence 702 (and state analogs) regarding what evidence can be admitted at sentencing. However, its critique of allowing unreliable STS evidence to go unchallenged at sentencing serves as a call to defense lawyers to examine and challenge STS evidence if it does not constitute reliable and accurate information on which the court can base a valid sentence. See People v Outley, 80 NY2d 702 (1993).
 
JusticeText Piloted in Queens, Elsewhere
An audiovisual management software platform called JusticeText is now being piloted in public defender programs in New York and across the nation, according to a March 15th article in Law360.com. Said to be “designed to help public defenders and defense attorneys more effectively comb through hours of video and audio evidence by automating transcripts and using other tools to spotlight key information,” JusticeText grew from its CEO’s experiences while attending the University of Chicago, where she was exposed to activism around criminal justice issues in Chicago and nationally. Version 1.0 was created with initial input from the public defender office in Cook County, IL. Test sites include Washington DC and also Queens Defenders. As noted on the latter’s website, it is believed this new software will help “quickly identify and pursue lines of investigation” from countless hours of police body cam footage and other discovery. Ten attorneys are involved in the Queens pilot, with plans to gradually roll it out to the entire office. JusticeText’s founders, Devshi Mehrotra and Leslie Jones-Dove, are busy promoting it, with their profile appearing on Forbes.com’s 30 Under 30, extensive press noted on the JusticeText website, and a session about JusticeText included in the recent National Association for Public Defense conference program.

Innovative technology presents huge opportunities and challenges to defenders as they embrace the quantities of information to be disclosed in discovery, confront the digital divide that can leave public defense clients—and their lawyers—at a disadvantage in virtual proceedings, and strive to meet the ethical requirement of keeping up to date on technology that affects their practice. NYSDA will continue to offer assistance, from expanding the functionality of our own Public Defense Case Management System to providing information about new developments like JusticeText.

Future of Trials and Court Hearings Addressed in New Reports
Two reports were issued on April 5th by working groups of the Commission to Reimagine the Future of New York’s Courts, as announced in a press release. The “‘Report and Recommendations of the Future Trials Working Group’ offers a series of guiding principles … to follow in evaluating the potential impact of emerging technologies and trial practice, with a focus on equal access to justice, efficiency, reliability, ease of use and financial cost,” according to the release. The report “explores aspects of trial practice likely to be impacted by evolving technology …; examines trial by remote videoconference …; and underscores the need for increased training for judges and court staff related to technological issues,” the release goes on. The Executive Summary of the future trials report notes “that portions of this Report—particularly its overview of certain technologies of the future (holograms, virtual reality, robot judges!)—may strike some readers as fantastical, inaccessible, or even out of touch given the multiple serious and pressing challenges facing the court system at this very moment,” but points out “that developing technologies can temper even once-in-a-century crises” if understood and used by well-prepared court systems.
 
The Trials Working Group report entitled “Improving and Streamlining the Presentation of Evidence: Court Hearings” is described as follows in the press release: “Among other critical information, the report contains an overview of the law governing the New York Courts’ ability to hold remote evidentiary hearings; a ‘best practices’ checklist for conducting remote evidentiary hearings; and safety and other recommendations to consider when holding in-person evidentiary hearings or ‘hybrid’ proceedings (involving both in-person and remote participants) during the pandemic.”
 
Some issues specific to criminal cases are noted in both reports. Specific references to family court issues are scarce, but both criminal and family defenders, and their clients, clearly have in interest in how the court system proceeds into the future. NYSDA will be examining the reports, and issues raised (or ignored) therein, with an eye to how recommendations made could affect client-centered representation.
 
Comment Sought on Replacing Rule 8.4(g)
On Mar. 19, 2021, the Office of Court Administration issued a “Request for Public Comment on the Proposal to Adopt ABA Model Rule 8.4 (g) in New York’s Rules of Professional Conduct.” The Model Rule provides that it is “‘professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination’ on the basis of” a long list of factors including race, sex, and many others. The call for comments notes that under the existing New York Rule “it is only considered misconduct if an attorney engages in unlawful employment discrimination and the victim of discrimination exhausts all remedies ….” The request for public comment includes as exhibits the American Bar Association’s Standing Committee on Ethics and Professional Responsibility formal opinion 493 and the New York City Bar’s Professional Responsibility Committee’s proposed amendment to 8.4(g). Comments must be received no later than June 18, 2021; they may be emailed to rulecomments@nycourts.gov or sent to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004.


Association News

Veterans Defense Program 2020 Report Released
A new report from NYSDA’s Veterans Defense Program (VDP) details how the VDP continues to serve justice-involved veterans and service members. The VDP provided legal and technical assistance, and peer-to-peer mentoring to 216 veterans in 43 counties last year, despite the pandemic and a financial crisis. The VDP helped hundreds of justice-involved veterans to be diverted into treatment and probation, avoiding hundreds of years of incarceration with a cost savings to the State of up to $83 million over the last five years. Its legal trainings, education, and outreach benefited over 1,800 people. The report features compelling veteran case studies, impressive statistics, and testimonials from the many attorneys, veterans and groups assisted by the VDP. Public defense attorneys representing veterans are encouraged to contact the VDP. The VDP main office can be reached at (585) 219-4862; additional contact information is available on our website at https://www.nysda.org/page/VDPWelcome.

Upcoming Training Programs - Save the Date:
  • May 6, 2021, 12:30 – 2:00 pm: Marijuana Legalization in NY: Criminal Defense Basics, presented by Emma Goodman (Attorney, Special Litigation Unit, Case Closed Project, The Legal Aid Society); Eli Northrup (Policy Counsel, Criminal Defense Practice, The Bronx Defenders); and Anne Oredeko (Supervising Attorney, Racial Justice Unit, The Legal Aid Society). Registration information coming soon.
  • May 14, 2021: I Just Got Assigned to a DVSJA Resentencing- What do I do Now?, an orientation program for attorneys taking assignments in DVSJA resentencing matters. Full program details and registration information coming soon.
  • June 11, 2021, 12:00 – 1:15 pm: Family Court Legislative Update: Discussion of new marijuana and SCR legislation, presented by Nila Natarajan (Supervising Attorney & Policy Counsel, Brooklyn Defender Services, Family Defense Practice) and Amy Mulzer (Senior Attorney for Law and Appeals, Brooklyn Defender Services, Family Defense Practice). Registration details coming soon. 

Acknowledging the Racism, Hate, and Trauma Harming So Many
Defenders, like concerned people in general, are being inundated with accounts of traumatic events: recurring images and discussions flowing from the Minneapolis trial of Derek Chauvin for George Floyd’s death; new protests following the shooting of Daunte Wright by then-officer Kim Potter; the disturbing bodycam video of the Chicago police shooting of 13-year-old Adam Toledo; increasing assaults on and harassment of people of Asian descent; crises at the border; and the ever-changing, seemingly every-present effects of the COVID-19 pandemic on lives and on the legal procedures that affect so many people. NYSDA extends condolences to survivors, families, and communities wounded by this physical and psychological violence. We urge policymakers to continue working on meaningful changes to damaging systems. And we extend to defenders both our gratitude for the work you do and any assistance that we can provide as you face these challenges.