News Picks from NYSDA Staff
August 18, 2020
Executive Order Extended, Report from the Commission to Reimagine the Future of New York’s Courts & Chief Judge’s Updates
The Governor has extended prior Executive Orders for another thirty days through September 4, 2020 (Executive Order 202.55). A document with excerpts from Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, and 202.55 is available here.
On August 5, 2020, the Commission to Reimagine The Future of New York’s Courts issued its first report, which outlined some goals and a checklist for resumption of in-person grand juries, jury trials, and related proceedings:
I. Each court should generate its own plan, based on local conditions, that prioritizes
health and safety when restarting in-person grand juries, jury trials and related
II. General goals to keep in mind:
- A. Health and safety of all visitors and staff.
- B. Clear and up-to-date communications to all interested parties.
- C. Limit courthouse occupancy and interaction among those present.
- D. Dedicate exclusive space for jury trials and jury assembly/deliberations.
- E. Limit courtroom use and the need for interaction in the courtroom.
- F. Strict adherence to all legal and constitutional requirements.
The checklist addresses: when and how to restart trials; courthouse and courtroom access; initial communication with jurors; jury pools; jury reporting and selection; and conduct of trial.
In her update on August 10th, Chief Judge DiFiore discussed resumption of grand juries and other proceedings. The Chief Judge’s August 17th update touched on the preparations for starting criminal and civil jury trials in September and October in counties outside New York City. She noted that as the court system moves toward “restoring in-court operations across the state,” they will rely on the report and recommendations of the Commission, noted above.
In-Person and Virtual Court Appearances Present a Variety of Concerns for Defenders
As we continue to see a combination of in-person and virtual proceedings, and with the announcement of the return of jury trials in a number of jurisdictions starting in mid-September, we encourage attorneys to contact the Backup Center, both for assistance on specific issues and to give us information on what is working and not working statewide. Defenders are also encouraged to review national reports regarding court proceedings during COVID-19, which have been discussed in the June 15th and July 1st editions of News Picks from NYSDA Staff.
In-Person Court Appearances & Disabilities Accommodations
On August 10, 2020, a coalition of defender and legal service organizations and bar associations wrote to Chief Judge Janet DiFiore urging the Office of Court Administration (OCA) to follow the recommendations contained in the “Goals and Checklist for Restarting In-Person Grand Juries, Jury Trials and Related Proceedings” report recently issued by the Commission to Reimagine the Future of New York's Courts (discussed above), and a document from OCA's Advisory Committee on Access for People with Disabilities, “Covid-19 and ADA Accommodations: Frequently Asked Questions.” Both the Commission and the Advisory Committee concluded that high-risk individuals should be able to opt out from in-person court appearances without penalty or disadvantage. The letter also asks OCA to develop and disseminate a clear policy directing OCA staff to implement consistent and uniform procedures for the accommodations to be afforded high-risk individuals (attorneys and litigants) who appear before the court.
Attorney Account of In-Person Court Appearances
Martha Lineberger, an attorney from The Legal Aid Society, offers an account of in-person court appearances in a City Limits opinion piece, “Lives Hang in the Balance As Courts Resume In-Person Work.” As she reports: “The courts continue to be super spreader venues with poor ventilation and little room to socially distance. Even with limited calendars and staggered times, New Yorkers accused of crimes, along with their family and attorneys will wait for much longer than the CDC’s recommended fifteen-minute cutoff for close contact. When courts are operating at full capacity, they often wait for hours. There is loud talking. And close talking. And it is extremely difficult, often impossible, to know who was there on a particular day for contract tracing purposes. Re-opening the New York City courts to non-emergency, in-person appearances right now is an unnecessary mistake. It is a mistake that will have fatal consequences.”
"DeBlasio’s Lies on Crime" and New York City Court Proceedings
In a Daily News opinion piece published on August 9th, The Legal Aid Society's Attorney-in-Charge of the Criminal Defense Practice, Tina Luongo, calls out New York City Mayor Bill DeBlasio, explaining: “Despite what the mayor contends, New York’s court system has been functioning virtually now for months, including arraignments for those arrested, bail hearings, pleas and case conferences, even preliminary hearings. The necessary switch to virtual proceedings does not and has not prevented prosecutors from seeking bail, the courts from setting bail or remanding people charged with certain crimes, or law enforcement from conducting investigations. Since the pandemic broke out in March, the court has advanced thousands of cases.”
Senate Committees Holding Public Hearing on Court Operations and COVID-19 on Aug. 21
The Senate Standing Committees on the Judiciary, Codes, and Housing, Construction and Community Development are holding a public hearing on Friday, August 21, 2020, at 10:00 am “to examine the re-opening and operation of New York’s courts during the COVID-19 pandemic.” The hearing will be streamed online at https://www.nysenate.gov/events.
Incarcerated People Remain at High COVID-19 Risk; Supreme Court Lets a Jail Slide
Reports like one posted by the Brennan Center for Justice say that “COVID-19 is Turning Prison Terms into Death Sentences.” The Daily News noted on August 10th that four New York prisons (Shawangunk, Wallkill, Fishkill, and Green Haven) have an “infection rate of 4.6% - over twice the statewide infection rate of 1.9% ....” Jails, including Rikers Island, also face continuing COVID-19 problems; The City headlined on July 20th the June death of a homeless man jailed for failing to report an address as required for someone subject to the Sex Offender Registration Act.
Despite this, a slim majority of the U.S. Supreme Court recently stayed a federal district court injunction requiring officials at a California jail to implement certain safety measures. Justices Breyer and Kagan would have denied the emergency application for the stay by the Sheriff of Orange County, and Justices Sotomayor and Ginsburg dissented. The dissent noted, among other things, that the jail had “reported 15 new cases of COVID-19 in a single week (even with the injunction in place)” and had misrepresented to the lower court the measures being taken to combat the virus’ spread. See Barnes v Ahlman, No. 20A19 (8/5/2020).
Black Public Defender Association Issues Report and Key Findings
- Race-neutral advocacy in criminal legal and public health systems is harmful to Black lives. The first reporting of COVID-19 was presented under the guise of underlying health conditions and age, which soon had race-specific realities. Similarly, much of the advocacy around protecting people in prison has been race-neutral, even though Black people are over represented in carceral systems, and once released, will likely return to communities that are COVID-19 hotspots.
- Black public defenders and Black researchers play a critical role in advancing equitable policy solutions to the COVID-19 pandemic within the criminal legal system. As members of a community impacted most severely by COVID-19 and incarceration, their voices are critical to developing culturally-responsive solutions, instead of blanket policies and research findings that fail to account for race or engage the Black community.
- The COVID-19 crisis presents an opportunity to fight for decarceration measures that address and reduce racial disparities in the criminal legal system.
- Decarceration must be coupled with effective reentry support and services. The overrepresentation of Black people in prisons and jails, combined with the alarmingly high rates of infections and deaths in the general Black population, shows the importance of proper reentry support to prevent the additional spread of this deadly disease. Policymakers have a responsibility to ensure reentry programs are adequately funded because the safety and health of people returning home from prisons and jails, and their communities, depend on it.
- The COVID-19 crisis has highlighted that mass incarceration is a public health concern, and even more so, that we need to shift the traditional punishment paradigm of the criminal legal system to the more established approaches of public health and interdisciplinary perspectives for reducing social problems that often cause people to commit crimes.
Don’t Forget About the Child Welfare System
In an effort to draw much needed attention to the systemic racism that runs rampant through the child welfare system, four family defenders in New York City penned an op-ed entitled “The Sad Omission of Child Welfare from Mainstream Discussion on Race,” published in the August 6th edition of The Imprint Youth and Family News. The op-ed authors are: Tehra Coles, litigation supervisor at the Center for Family Representation; Zainab Akbar, managing attorney for Neighborhood Defender Services of Harlem; Emma Ketteringham, managing director of the family defense practice at Bronx Defenders; and Lauren Shapiro, director of the family defense practice at Brooklyn Defender Services.
In the op-ed, the authors discussed bias and racial inequality in the child welfare system. They compared the unjust removal of a child, sometimes in the dead of night, and without due process, with the violence against Black and brown people that is depicted every day in the media. And they urge societal recognition that “[t]he so-called child welfare system suffers from the same structural racism as the police and destroys Black and brown lives through family separation and government surveillance. … It’s time to see the similarities between these two systems and the need for change.”
Statistics startling to those not involved in the system show that, before turning 18, 53% of Black children are investigated by child protective services, compared to 28% of white children. The op-ed also points out that Black children are disproportionately removed from their parents and placed in foster care. The authors, who all manage or supervise in offices that represent family court litigants in child welfare proceedings, conclude the op-ed with two examples of the injustice of family separation, which aren’t easily captured on video. “The pain goes unseen but it’s as real and pervasive as the brutalities we see on the news every night.”
Questions Arise as to the EO on Police Reform and Reinvention Collaborative
Two months ago, the Governor ordered local governments that have police agencies to “perform a comprehensive review of current police force deployments, strategies, policies, procedures, and practices, and develop a plan to improve” them. The specific purposes for making changes are: “addressing the particular needs of the communities served by such police agency,” promoting “community engagement to foster trust, fairness, and legitimacy,” and addressing “any racial bias and disproportionate policing of communities of color.” Signed on June 12, 2020, Executive Order (EO) 203 sets a deadline of April 1, 2021, for adoption of plans.
Since then, issues have arisen. For example, as noted in the Onondaga County Bar Association Assigned Counsel Program’s newsletter, The Intercept published a recent article that indicates some police agencies, “scrambling and overwhelmed” by the new mandate, have “reached out to colleagues across the state and found a solution: Lexipol, a California-based consulting company that has quietly drafted the policies of thousands of police departments across the country ….” Lexipol was founded by two former police officers, and is said to focus on protecting agencies from lawsuits, not on transforming policing. The article highlights the possibility that Lexipol policies are being proposed as the way to meet EO 203 without saying anything about “a key component of the order: that the new plans be developed ‘based on community input.’” A Lexipol spokesperson is quoted as saying “customers” are encouraged to review the policies to address agency and community needs, and that “‘customers can—and have—involved community members in review of the policies before they are implemented and integrate changes as a result of that process.’” In some other states, localities are turning to law firms to investigate incidents and review police department policies, as reported earlier this month by Law360.
Meanwhile, at least in some localities, creation of the required stakeholder groups is—or should be—creating controversy. The Batavian reported on a pending City Council meeting agenda that included a resolution to create the advisory group, listing a description for the 15 positions to be filled. A later Batavia Daily News item noted criticism was raised at the meeting about having only “two out of 15 positions as citizens, to help discuss how police can better police citizens .…” Saratoga Springs was one of the first localities to name its group, according to the Schenectady Daily Gazette. In Columbia County, members of the public were invited to submit letters indicating interest in serving on the panel. The HudsonValley360 reported that the offices of the prosecutor and sheriff would be involved in the review of police polices; no mention was made of public defense. NYSDA welcomes inquiries from Chief Defenders and others regarding participation in the panels.
The State Committee on Open Government is apparently saying that the panels, which act only in an advisory capacity, can meet in private. The Committee’s assistant executive director was quoted in the Daily Freeman on this point. While perhaps legal, private meetings hardly seem consistent with an intent to involve the community in the review.
As with other efforts to reform the criminal justice system, there is a need to watch out for pushback. In coordinated July 22nd press conferences reacting to legislative reforms, members of the NYS Sheriff’s Association proposed their own legislation, meant to “protect law enforcement,” such as making offenses against police “hate crimes.” At that time, the Livingston County News reported that Association President and Washington County Sheriff Jeffrey Murphy was quoted as saying that “police can improve their training and processes from Cuomo's executive order [EO 203] that requires each of the state's 500-plus police agencies to publicly meet with people in their communities and redesign policing strategies by April 1, 2021, or forgo state funding.” The sheriffs, Murphy added, don’t want to appear “defensive or divisive,” but want to work with the governor and legislature because “there’s a problem in the state regarding policing and how law enforcement is viewed right now.”
Keep Fighting to Reap the Benefits of the 50-a Repeal
The repeal of Civil Rights Law 50-a, discussed in the June 15, 2020, edition of News Picks, is too often skirted or subverted, as noted in a follow-up item in the July 16, 2020, edition. The repealed law had long been stretched to keep all or nearly all disciplinary records of police officers (and others, such as corrections officers) secret; getting such records still often requires a fight. Defense lawyers are not in that fight alone. The Buffalo News reported on August 16th that the New York Civil Liberties Union (NYCLU) is seeking to intervene in a lawsuit brought by the Buffalo police union over the release of disciplinary records. “The NYCLU doesn't think the city will try hard enough to make sure all of the records are made public.”
NYSDA continues to add information—both good and bad news—to its Law Enforcement Disciplinary Records webpage. Among the information posted there is an advisory opinion from the Committee on Open Government that concludes: “it is our opinion, in the absence of judicial precedent or legislative direction, that the law does not require a law enforcement agency to disclose ‘unsubstantiated and unfounded complaints against an officer’ where such agency determines that disclosure of the complaint would constitute an unwarranted invasion of personal privacy, but also does not require an agency to withhold such a record.” Dismissed charges and allegations found to lack merit may also be withheld on the basis of privacy. Litigation, whether directly related to 50-a or to discovery more generally, continues in many courts. NYSDA will continue to report on developments and work with public defense lawyers who contact the Backup Center seeking assistance to keep fighting for the information needed to best represent clients.
Media Raises Questions about Police Misconduct
An August 4th article in Slate examined the question: “Would the criminal justice system collapse if cops were forced to tell the truth?” And police misconduct and credibility were highlighted in a Times Union Editorial Board article on August 11th, “Two Standards of Justice.” The Editorial Board discussed recent articles including “Scathing IG investigation says State Police mishandled internal probe” and a report where “Activists Ask Essex County DA to probe an incident involving a Cohoes cop.” The Editorial Board stated: “Unfortunately, two cases highlighted recently in the pages of the Times Union show that police misconduct is still not taken seriously enough by some public officials, who seem too willing to shrug it off.” They further said, “We wish we could say these two cases are outliers, but that obviously isn't true. Instead, they're examples of how public officials have long handled police misconduct.”
ProPublica Makes Records Accessible
As reported in “Shedding new light on NYPD complaints,” ProPublica has published a database detailing complaints against nearly 4,000 officers. According to the Riverdale Press article: "These were complaints made to the Civilian Complaint Review Board, an independent oversight agency that is supposed to serve as a watchdog for the New York Police Department. The board consists of 13 members, chosen by the city council, the mayor, and the police commissioner. While the board can make recommendations on disciplining officers they find to be operating outside of established protocol, final decisions on what happens to officers is generally left up to the police commissioner."
NY Ethics Rule Change is Good News for Public Interest Attorneys
An article in Law360 last month reported on the amendment to Rule 1.8 of the New York Rules of Professional Conduct that allows certain attorneys to provide financial assistance to indigent clients. The "new exception applies to lawyers providing legal services pro bono, public interest organizations, and law school programs. The financial assistance they give cannot include loans, or otherwise be so substantial as to cause the client to be financially beholden to the provider of assistance. In practice, this means that attorneys can now help cover small costs that quickly stack up to onerous amounts for low-income members of our communities."
Completed 53rd Annual Conference a Success
Over 400 people registered to participate in NYSDA’s 53rd Annual Conference, completed at the end of July. This first-ever online version of the annual gathering included 20 hours of continuing legal education (CLE) and other conference staples such as a Meeting of the Membership and a Chief Defender Convening. Among CLE offerings, for both criminal and family defenders, were presentations on new skills for representing clients during virtual court proceedings and updates, like information about new legislation. NYSDA thanks the wonderful presenters, and all who attended, for making this new experience a positive one!
Entitled “Transforming Public Defense in a Crisis World,” the conference offered many opportunities for attendees to confront the pressing issues of the day. Both the impact of COVID-19 and the systemic racism highlighted by the police killing of George Floyd and the protests that followed received attention. In several settings, conversations revealed the importance and difficulty of addressing the inequity and bias that permeate society as a whole and the worlds of public defenders and clients. The Board of Directors, which met right before the conference, approved and endorsed the organizational statement, Black Lives Matter to NYSDA. In the coming months, NYSDA will develop processes for learning about and overcoming bias internally and in the wider field, striving to fulfill the promises in the statement.
As noted in a press release, the conference was dedicated to Charles F. O’Brien, who had a tremendous impact on NYSDA’s training programs and its many other services.
Don’t Miss This Week’s VDP Webinars
NYSDA’s Veterans Defense Program (VDP) is offering “Learning at Lunch” webinars this week. Registration is free! Sign up for one or more of the two remaining sessions this week:
Collateral Consequences: Military Impacts of Civilian Justice (Roy Diehl)
Thurs., 8/20/2020 at 1:00 – 2:00 pm. Register here.
PTSD, TBI and Suicide Within the Veteran Community (Blair Hill)
Fri., 8/21/2020 at 1:00 – 2:00 pm. Register here.
NYSDA Offering Parole Representation Webinar on September 9
On Wed., Sept. 9, 2020, from 3:00 – 4:30 pm, NYSDA will be hosting a CLE program on parole representation, “Practicing Parole – From Release to Revocation: What every criminal defense and parole attorney needs to know.” Pre-registration is required. For more information about this free program and to register, click here.
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