In her weekly update, Chief Judge DiFiore said on August 24th that in-person court operations continue to be phased in throughout the state. Petit jury summonses have been sent out in the Fourth, Sixth, Seventh, and Eighth Judicial Districts and Suffolk County. The Four Departments of the Appellate Division are holding both in-person and remote oral arguments for the September terms. The Chief Judge’s August 31st message provides additional information on court developments. NYSDA continues to post court re-opening plans, trial protocols, and other information on our website at www.nysda.org/page/Coronavirus2020CourtRe-OpeningPlans.

As remote proceedings continue, defenders may want to read Joel Cohen’s recent column in the New York Law Journal, Ethics and Litigating a Criminal Case from Afar, and a recent ABA Resolution and Report on Virtual Courtroom Proceedings. Another resource is an upcoming webinar, Remote Justice: Communication in the Virtual Courtroom, hosted by the National Legal Aid & Defender Association and the Center for Court Innovation. The webinar will be held on September 23, 2020 at 12:00 pm. To register, click here.

As noted in the last edition of News Picks, the State Senate Standing Committees on Judiciary, Codes, and Housing, Construction and Community Development held a public hearing on August 21st regarding the re-opening and operations of the court system during the COVID-19 pandemic. The hearing opened with testimony from Chief Administrative Judge Lawrence Marks. Video of the hearing and written testimony are available on the Senate website. A New York Law Journal report on the hearing is available here.

COVID-19: Use Caution in Advising Clients about Shock Programming as Part of a Plea
Prisoners’ Legal Services of New York (PLSNY) wants defenders to know the effects that COVID-19 related suspensions of 1) transfers from county jails to Department of Corrections and Community Supervision (DOCCS) custody and 2) DOCCS programming have had on individuals sentenced to Shock. Between March 16, 2020, and through early June, people were not able to enroll in Shock, including those who were sentenced to Shock, waiting to be transferred to DOCCS from a county jail, or were in a DOCCS reception center. Thus, what they thought would be a sentence that required them to spend 6 months in DOCCS custody actually required them to spend in some cases approximately an additional 6 months in custody waiting to be enrolled in the program. The suspension and interruption between March and June compounded continuing delays and backlogs in getting individuals enrolled in the program, the full extent of which remains unclear and may continue to be very difficult or impossible to predict going forward. This is also true for people who became time eligible for Shock – reached the date upon which they were within 3 years of their CR date – during the suspension. At the time this article was written, DOCCS had reopened the Shock program. It is possible that in the future, circumstances will cause DOCCS again to suspend programming and the intake from the county jails. Defenders should advise their clients accordingly.

New Law Gives Judges Authority to Waive Surcharges and Fees for People Under 21
Effective August 24, 2020, courts have broad discretion to waive surcharges and fees where the court finds that the person being sentenced was under the age of 21 at the time of the offense and that:
  • the waiver is in the interests of justice;
  • the imposition of the surcharge or fee would work an unreasonable hardship on the individual, the individual’s immediate family, or any other person dependent on the individual for support; or
  • after considering the goal of promoting successful and productive reentry and reintegration set forth in Penal Law 1.05(6), the imposition of the surcharge or fee would adversely impact the individual’s reintegration into society.
The full text of L 2020, ch 144 is available here.

Juvenile Defender Resources: Ambassadors for Racial Justice Program Accepting Applications; Racial Justice Toolkit
Ambassadors for Racial Justice is a program sponsored by the Georgetown Juvenile Justice Initiative and the National Juvenile Defender Center (NJDC) to help juvenile defenders across the country develop strategies to challenge racial injustice in their individual cases and engage with policy advocates, judges, and legislators for systemic reform. The deadline to apply for the 2021 program class is September 14, 2020. As described by Georgetown Law Professor Kristin Henning, Director of the Juvenile Justice Clinic and Initiative: “Throughout the year, the Ambassadors will participate in regular training webinars on civil rights litigation, data collection, race and police trauma, criminalizing normal adolescence, the school-to-prison pipeline, policy advocacy, and much more. They will also complete a capstone project of their own design and have been assigned state-based and national mentors. … Ambassadors continue to work in their own defender offices while participating in our program.”
 
Last October, the Georgetown Juvenile Justice Initiative launched the Racial Justice for Youth: A Toolkit for Defenders in partnership with NJDC. The Toolkit “empowers juvenile defenders with the training, resources, and information to fight the over-policing, over-criminalization, and school exclusion of youth of color.” Professor Henning explained that “[t]hey are actively updating this toolkit and regularly asking defenders to send sample pleadings, state opinions, resources, etc., that can be redacted and uploaded to the website.” If you have pleadings or other resources you are willing to share, please email Professor Henning at hennink@georgetown.edu. To sign up for full access to the Toolkit, visit https://defendracialjustice.org/register/rjd/.

“We Cannot Permanently Separate Families Because of a Pandemic”
The Shriver Center on Poverty Law announced that it “is proud to stand with Representative Gwen Moore and other champions for family integrity in supporting H.R.7976, The Suspend the Timeline Not Parental Rights During a Public Health Crisis Act. This legislation aims to preserve the bonds between children and parents and keep families together by suspending the timeline in the Adoption and Safe Families Act (“ASFA”) in any public health crisis.” The Center explained that “ASFA is a federal law that requires states to file petitions to terminate parental rights ('TPR petitions') for the parent(s) of any child that has spent 15 of the previous 22 months in foster placements. Termination of parental rights, often considered the 'civil death penalty' by courts, legal advocates, and impacted families, forever makes parents and children legal strangers to one another, a cruel attempt of the legal system to nullify a child’s biology, familial connection, ancestral lineage, and cultural heritage. ASFA’s timeline is a barrier to keeping families together and in communities; it ties the hands of local judges and authorities who feel compelled to proceed with TPR petitions even when there is no reason other than the timeline to do so.” Earlier this month, Rise Magazine published an interview with Representative Moore about the proposed legislation.

2nd Annual Indian Child Welfare Act (Virtual) Conference, September 16-17, 2020
This two-day conference is sponsored by the Tribal Court Improvement Project, Saint Regis Mohawk Tribe; Child Welfare Court Improvement Project—Office for Justice Initiatives, NYS Unified Court System; NYS Office of Children and Family Services; Oneida Indian Nation; and NY Federal-State-Tribal Courts and Indian Nations Justice Forum. The presentations will be recorded and attendees will receive access to the recordings. The conference includes an online viewing of the documentary Blood Memory, A Story of Removal and Return. To register for the program, please email Lisa.Burgess@ocfs.ny.gov.

Policing Issues Are Public Defense Issues
How people in the client community are treated by police is a public defense issue. Current highlighting of systemic racism in policing, public questioning of excessive use of force and militarization of the police, and the backlash from police unions and others—these all affect public defense work, in different ways.

Defense Counsel Blamed for Police Complaints
A town justice and former police officer reacted to recent revelations that he was named in 10 complaints of alleged misconduct during his 20 years in law enforcement by reportedly saying that “complaints against officers are ‘a harassment tactic’ used by defense attorneys and their clients.” A Times Union article noted that reaction in a story about accusations made against Daniel Waldron when he was in the New York Police Department (NYPD); the complaints were revealed when disciplinary records were opened in the wake of the repeal of Civil Rights Law 50-a, discussed in the August 18th edition of News Picks from NYSDA Staff and earlier editions.

50-a Repeal and Discovery Reform Usher in a New Day—If We Can Hold on to It.
Leaving aside the question of how defense counsel who appear before the justice described above may want to address any specific bias revealed in the comments, the story is emblematic of pushback to the repeal of 50-a. Police unions and others are fighting to keep records hidden, while justice advocates like the New York Civil Liberties Union (NYCLU) are pushing for disclosure. Some district attorneys have been releasing police disciplinary records. The Gothamist noted on August 24th that the Staten Island District Attorney had released thousands of records showing NYPD misconduct. NYSDA would like to hear about the disclosure of law enforcement records, whether by the municipality itself, a district attorney’s office, local news, or other organizations. Please contact the Backup Center at (518) 465-3524, info@nysda.org, or www.nysda.org/general/?type=CONTACT.

Developments in NYC Litigation Surrounding Disciplinary Records; New NYCLU Database
In recent weeks, there have been a few decisions in the lawsuit brought by various police and other unions against New York City, which is pending in the U.S. District Court, Southern District of New York. U.S. District Court Judge Katherine Polk Failla lifted a temporary restraining order barring NYPD disciplinary records from being made public. As reported in the New York Times, the records had been sealed for decades, but after a contentious political battle, the records are now open. The NYCLU promptly published a database after a Second Circuit panel denied the plaintiff unions’ motion for a stay, as reported by the New York Law Journal. Organizations that have long championed police reform lauded the ruling. Corey Stoughton, an attorney with The Legal Aid Society, said Failla’s decision “rightfully rejects the police unions’ baseless attempts to undermine the Legislature’s decisive repeal of Police Secrecy Law 50-a and to continue hiding records of police discipline and misconduct.” The Courthouse News Service and The Gothamist also reported on the Court’s decision.

Described on the NYCLU website, the NYPD Misconduct Complaint Database “is a repository of complaints made by the public on record at the Civilian Complaint Review Board (CCRB). These complaints span two distinct periods: the time since the CCRB started operating as an independent city agency outside the NYPD in 1994 and the prior period when the CCRB operated within the NYPD. The database includes 323,911 unique complaint records involving 81,550 active or former NYPD officers. The database does not include pending complaints for which the CCRB has not completed an investigation as of July 2020. Using the CCRB complaint history data, which the NYCLU obtained through a Freedom of Information Law (FOIL) request, the NYCLU built a search tool to make the information more accessible.”

The records in the NYCLU database and the ProPublica database lead to new issues, including one discussed in an August 18th article in The Gothamist, “Why The Majority Of NYPD Misconduct Complaints End Up ‘Unsubstantiated.’”

Defense Counsel’s Use of Disciplinary Records
The role of defense counsel in using this information will certainly continue to be touted, both “pro and con.” As noted in the “Justification” section of the bill repealing 50-a, the provision “was adopted in 1976 by the Legislature in order to prevent criminal defense lawyers from using such records in cross examination of police witnesses during criminal prosecutions.” But what was meant as a narrow exception was expanded by the courts “to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer.” Now, with the 50-a repeal and discovery reform, defense lawyers have an opportunity to apply fully the broad right, set out in caselaw, to cross-examine officers about prior misconduct. See, e.g., People v Rouse, 34 NY3d 269 (2019). NYSDA will continue to support access to police disciplinary records and the skilled use of such records to provide proper representation. Lawyers with questions should contact the Backup Center.

Defense and Community Involvement in Police Reform Panels is Vital
Localities continue to form groups to examine police “reform and reinvention” as mandated by Executive Order (EO) 203. On August 19th, a day after the order was discussed in News Picks, the Governor announced a new Guidance concerning this collaborative. Among key stakeholders who “must be involved” is “the local public defender,” which can cover a range of individuals given the myriad ways in which counties choose to provide public defense services under County Law 722. The Town of Guilderland, for example, has included an assistant public defender, as noted in a News 10 item on August 20th. Poughkeepsie has announced that its Procedural Justice Committee, established last year, will review the Governor’s order; no mention is made in the announcement of defense participation. And according to the Malone Telegram, as the Village of Malone proceeds with its efforts to comply with EO 203, the police chief has said, “I don’t have a problem sitting down with the community and talking about the issues,” but added that there were some members of the community he may have a hard time sharing a round-table with: “‘It’ll be hard for me to sit in a room with a public defender,’” he is quoted as saying. Whether said in jest or seriously, this statement reflects a too-common problem of public defense not being including in local criminal justice conversations and planning. Defenders and others with questions about EO 203 committees are encouraged to call the Backup Center.
 
More News on Police Policies and Reforms
The above issues reflect only some of the news around policing reforms. NYSDA collects and disseminates information of interest, like this link to Court Watch of Dutchess County noting the NYCLU resource, Behind the Badge website, which documents various policies of police departments. There is this article from the Vera Institute of Justice: “No Access to Justice: Breaking the Cycle of Homelessness and Jail.” And defenders or others involved in reviewing police practices, whether as part of the EO 203 procedures discussed above or otherwise, may wish to check out the Council for State Governments Justice Center “brief” on “How to Reduce Repeat Encounters.”

Also of possible interest to defenders is a case from the Second Circuit, discussed in the New York Law Journal on August 25, 2020 in the context of ongoing concerns about policing. The column focuses on United States v Walker, 965 F3d180 (2d Cir. 2020), a case arising from actions by the City of Troy Police Department that eventually resulted in a federal prosecution for possession with intent to distribute a controlled substance under 21 USC 841(a)(1). The Second Circuit found that a “stop out” conducted so police could determine if the defendant was a person known as “Suspect #2” to be unconstitutional. The officers had stopped Jaquan Walker “on the basis of a photograph that provided little meaningful identifying information to the police besides the race of the suspect,” the court noted. Because the police “lacked specific and articulable facts giving rise to a reasonable suspicion of criminal wrongdoing, we hold that the stop violated the Fourth Amendment.”

Family Court Finds It Does Not Have the Power to Intervene with Collection of DNA Evidence from Minors in Police Custody
As reported in an August 25th article in The City, a Brooklyn judge has ruled that family courts don’t have the power to intervene with the NYPD’s stealthy collection of DNA evidence from minors in its custody — a practice that police officials staunchly defend. In Matter of Logan C., 2020 NY Slip Op 32681(U) (Family Ct, Kings Co 8/18/2020), Judge Alan Beckoff found that he did not have the authority to order the Office of the Chief Medical Examiner to purge a DNA sample collected from a 15-year-old who had been offered a water bottle by a cop at Coney Island’s 60th Precinct. The court also found that it could not stop the record of the teen’s DNA from being uploaded to an NYPD databank used in investigations.

The State Legislature is considering a bill, S6009/A7818, that would amend Executive Law 995-c to, among other things, provide for the expungement of a DNA sample taken in connection with a juvenile delinquency arrest if a proceeding under Family Court Act article 3 was not commenced within the applicable statute of limitations or a juvenile delinquency proceeding resulted in acquittal, dismissal, or adjudication or conviction of a non-criminal offense. The bill also would bar counties, cities, and other municipalities from establishing or maintaining a computerized DNA databank.

Other DNA News from NYC
On August 19th, NY1 reported that approximately 2,000 DNA samples have been added to the Office of the Chief Medical Examiner’s DNA database in the past six months, bringing the total number of samples in the database to 33,800. The City Council’s public safety chair has raised questions about whether the police collected DNA samples from individuals arrested during recent Black Lives Matter protests. In February 2020, the NYPD announced that it was changing its policies on the collection and retention of DNA samples, including the removal of samples taken from people who were not charged with a crime after two years, and that it was working with the Office of the Chief Medical Examiner on reforms to the DNA database. However, the head of The Legal Aid Society’s DNA Unit, Terri Rosenblatt, has not seen any evidence of the promised reforms. “‘Instead, we’ve seen less transparency, and more people being added to the DNA index every day.’”


Association News

Veterans Defense Program Services
In follow-up to the Veterans Defense Program’s recent, well-received lunchtime webinar series, we would like to remind defense attorneys in New York that we are available to provide you with direct assistance for you and your clients. Many of you are familiar with the veteran experience mitigation that we can provide, but we can also assist with military record retrieval, referrals to the appropriate intake points for treatment and benefit referrals for your clients, and developing trial strategies based in your client’s military history. Please do not hesitate to contact us with regard to your veteran cases: (585) 219-4862, ghorton@nysda.org, or www.nysda.org/page/VDPContactUsForm