State Bar Association Files 18-b Suit

On November 30th, the New York State Bar Association filed suit against the State for its failure to increase assigned counsel fees. The complaint seeks “declaratory and injunctive relief to prevent the continuing violation of the constitutional right of children and indigent adults to meaningful and effective legal representation by assigned private counsel in Family and Criminal Court proceedings at the trial and appellate levels in the fifty-seven New York counties outside New York City ….” State Bar President Sherry Levin Wallach announced the suit. The New York Law Journal noted online that the suit “comes after the New York County Lawyers Association and nine other bar associations won a judgment in a Manhattan trial court in July that yielded raises to $158 an hour for assigned counsel in New York City ….” Other coverage of the suit can be found on Law360.com.

NYSDA and other advocates will continue lobbying and public advocacy for a rate increase as we enter the 2023 legislative session.

Useful CoC Decision and Language from the Bronx

In People v Edwards, a Bronx judge granted the defense’s 30.30 motion arguing that the prosecution’s certificates of compliance were invalid for not handing over police paperwork. 2022 NY Slip Op 22359 (Crim Ct, Bronx Co 11/17/2022).

While that determination is not uncommon, the decision contains some useful language. In response to the argument that the prosecution did not act maliciously, the court wrote, “the Court agrees with the defendant, that it is clear the People were unaware of these documents and were not purposefully withholding their disclosure. Unfortunately, this does not satisfy the People’s obligation of due diligence.” And later, when discussing diligence requirements: “it cannot be that their talismanic incantation is sufficient to demonstrate their application in a particular case. The People must recognize that the subsections of CPL § 245.20 [1] are not mere bins in which to sort the mass of discovery they receive in response to a general request made by them or a paralegal on a given case. Instead, these categories each present an affirmative duty.”

Also of note is this language regarding failure to provide body-worn camera footage for all the officers involved: “These officers were clearly visible on the BWC footage provided by the People that came from other officers.… The fact that once the People were aware of these officers, they were able to immediately access relevant documents demonstrates that tracking these documents or officers down did not require Herculean efforts. That the defendant did not alert the People to these officers earlier is of no moment. It is not the defendant’s burden to manage the People’s discovery obligations.” [Citation omitted.]

DVSJA Statewide Task Force Legislative Working Group Survey

The Legislative Working Group of the Domestic Violence Survivors Justice Act (DVSJA) Statewide Task Force is seeking input on practice around the state and suggestions for legislative amendments that can be submitted to enhance the implementation of the statutory goals. All attorneys are invited and encouraged to participate. The brief survey is available here.

Practitioners are reminded that NYSDA has a DVSJA Attorney Support Project available to assist attorneys interested in information and resources. Please contact Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or 518-465-3524 x 41.

First Department Reverses Neglect Finding

The First Department unanimously reversed a neglect finding from the Bronx Family Court and dismissed the underlying petition against the father In Matter of Zuri F. (2022 NY Slip Op 06747 [1st Dept 11/29/2022]). “Petitioner failed to demonstrate by a preponderance of the evidence that respondent neglected the child by committing an act of domestic violence in her presence …. Furthermore, there is no evidence that the single incident was part of a broader pattern of domestic violence in the home. Petitioner also failed to present any evidence about any impact of the incident on the child.” [Citations omitted.]

A reminder: when representing a respondent accused of neglecting their child based on domestic violence, it is best practice for family court defenders to familiarize themselves with the seminal Court of Appeals case, Nicholson v Scoppetta (3 NY 3d 357), regardless of whether your client is accused of committing the violence, or is the victim charged with failing to protect the child. Those who want to discuss specific cases are encouraged to contact Family Court Staff Attorney, Kim Bode, at kbode@nysda.org.

Court Clerk Can’t Set Own Rules for Releasing Records

A Town Court clerk’s refusal to provide requested records to the Public Defender, described in the October 31st edition of News Picks, was overturned by the Appellate Division, as reported by the Times Union. The Third Department ruled, in Matter of Herrick v Town of Colonie, that the clerk “was not entitled to summarily reject requests lacking a docket number because that information was expected by Town Court policy” given that it is “apparent that a search for requested records can be conducted without a docket number despite petitioner’s unwillingness to conduct one.” The clerk “is a public official who is duty bound, docket number or no docket number, to search for and make accessible public records of the court that she serves,” the court said. Authority cited in the opinion includes “the common law right ‘to inspect and copy public records and documents, including judicial records and documents’” and Judiciary Law 255.

4th Department Requires Police Disclosure of Open and Unsubstantiated Disciplinary Records

After the repeal of Civil Rights Law 50-a, NYCLU submitted FOIL requests to the Syracuse and Rochester city police departments seeking police misconduct records since 2000, whether or not there was discipline imposed. After both departments refused to provide all of the requested records, NYCLU filed suit.

In both cases, the Fourth Department modified the judgments below, holding that Public Officers Law 87(2)(b) does not create a “blanket exemption” that would allow police departments to withhold the disciplinary records en masse. Police are required to disclose law enforcement disciplinary records concerning unsubstantiated and open claims of misconduct, but are permitted to redact or withhold records under the personal privacy exemption if they can articulate a “particularized and specific justification” for doing so. However, “[a]ny claimed redactions and exemptions from disclosure are to be documented in a manner that allows for review by a court ….” Matter of NYCLU v City of Rochester, 2022 NY Slip Op 06346. The decision relies on Matter of NYCLU v City of Syracuse, 2022 NY Slip Op 06348. As the court noted in the Rochester case, the respondents did not deny the FOIL request on the grounds of retroactivity and the lower court erred in relying on that argument to deny the petition in part.

In the NYCLU release regarding the decisions, Bobby Hodgson, supervising attorney, said the Fourth Department “‘affirmed for the first time that 50-a must be repealed in theory and in practice’ ….” With these decisions, “‘the public will finally know when and why Rochester and Syracuse police failed to impose discipline.’”

NYCLU has already filed additional lawsuits against the New York State Police, Buffalo, Freeport, Nassau County, Suffolk County, and Troy police departments on similar grounds. These suits have been covered in past editions of News Picks. More information is available on our Law Enforcement Disciplinary Records webpage.

Prison Discipline and HALT Act Updates

New Report Finds Racial Disparities in Discipline in New York Prison

The state Inspector General issued a report in November 2022 finding racial disparities in the administration of discipline in state prisons. “The Inspector General’s analysis identified numerous statistical disparities in the discipline of different races/ethnicities of incarcerated individuals. These racial/ethnic disparities existed in the issuance of Misbehavior Reports and charging of individual rule violations. In most cases, the disparities reflected a disproportionately higher likelihood of Black, and to a lesser extent, Hispanic and Other non-White incarcerated individuals being charged with violating rules compared to White incarcerated individuals.” The Inspector General’s findings include that “racial/ethnic disparities against non-White incarcerated populations were often more significant for Misbehavior Reports requiring less physical evidence, allowing for more discretion and possible bias by the reporting DOCCS employee.” The report includes several recommendations to the Department of Corrections and Community Supervision (DOCCS) and the Department’s response to the investigation and findings.

HALTsolitary Campaign Offering Training for Disciplinary Hearing Representation

The HALTsolitary campaign is offering a training for attorneys or paralegals on representing people at prison disciplinary hearings under the HALT Act this Thursday, December 15th, from 5:30 to 7:30 pm. You can register here. Correction Law 137(6)(l) contains the language regarding representation at these hearings.

DOCCS Failing to Comply With Rulemaking Procedures for HALT Act

NYCLU has alleged that DOCCS failed to comply with the state’s laws governing promulgation of regulations for implementation of the HALT Act, as reported by NYSFocus and the New York Law Journal. DOCCS issued emergency/proposed regulations that took effect on April 1st, and the emergency regulations were extended in July, September, and November. However, DOCCS has yet to assess the public comments submitted regarding the proposed regulations. DOCCS has yet to respond to a letter from NYCLU asking whether the agency planned to release an assessment of public comments. More than 50 legislators had submitted comments to DOCCS “about their ’grave concerns’ with the agency’s proposed regulations violating the spirt of the HALT Act.” For more information about the Act and regulations from the Department of Corrections and Community Supervision and the Commission of Correction, see the April 1st , May 3rd, and June 14th editions of News Picks.

Adversaries’ Views of Body-Worn Cameras and Adjudication

A 2022 Criminal Justice Review article describes research that examines “the downstream impact” of body-worn camera (BWC) footage “on the adjudication process with a particular emphasis on the management of uncertainty.” Prosecutors and defenders were interviewed. Noting that “results indicate that both defense and prosecution anticipate BWC changing approaches to cases and how cases may be negotiated to an outcome,” the article adds that those interviewed “also report that jurors expect BWC footage, and that it functions as a means to establish case facts and the credibility of police, the defendant and witnesses.” The article discusses policy implications—including the need to examine current practices in the handling and use of BWC footage, improve technology, and conduct an early and thorough review of available footage—and the need for further research. The researchers collected data in the Monroe County (NY) District Attorney’s Office and Public Defender’s Office as well as in San Diego County (CA) and Travis County (TX).

The effect of BWCs is not limited to litigation. An article in The Gothamist says that “[a]fter New York City police officers started wearing body cameras during their patrols in public housing in 2018, they had more civil interactions with community members and made fewer arrests, according to a new report.”

Those looking for an in-depth look at how police agencies, and to some extent prosecutor’s offices, implement the use of BWCs may want to read “Managing Digital Evidence from Body-Worn Cameras: Case Studies in Seven Sites.” This report describes a set of studies funded by a federal grant, posted on the Body-worn Camera Training & Technical Assistance website.

Some ACS Workers Call the System Racist

In a joint press release issued by the Parent Legislative Action Network, including JMacforFamilies, The Bronx Defenders, Brooklyn Defender Services, Center for Family Representation, and Neighborhood Defender Services, “Advocates and Impacted Families Renew Call for Family Miranda Rights Legislation After Uncovered ACS Report Reveals It Knew of Its Own Discriminatory Practices.” As reported in the New York Today Newsletter, an online publication from the New York Times, the Administration for Children’s Services (ACS) commissioned a report based on a 2020 research project in which more than 50 Black and Hispanic ACS caseworkers and managers participated. “The city’s [ACS] is supposed to protect children without overpolicing families. A draft of a report the agency commissioned found that it often fails.” The report was never released publicly but a draft of it was obtained through a Freedom of Information Law request by The Bronx Defenders.

The draft report, entitled “New York City Administration for Children’s Services Racial Equity Participatory Action Research & System Audit: Findings and Opportunities,” was conducted by National Innovation Services, with funding from Casey Family Programs. It gives a startling view of how ACS views itself. The authors of the report stated that “[i]lluminating what we found to be a fundamental tension between how ACS defines and operationalizes safety and the agency’s goal of becoming an antiracist organization are three overall findings:

• “ACS disrupts the safety of Black and Brown families. We first asked parent, advocate, and staff participants to define what safety looks like for families and then if ACS contributes to making families safe in those ways. While each group had slightly different understandings of safety, they all viewed ACS as a system that actively destabilizes Black and Brown families and makes them feel unsafe. ….”
• “Safety is a privilege of race. Participants described ACS as a predatory system that specifically targets Black and Brown parents and applies a different level of scrutiny to them throughout their engagement with ACS. Staff and advocates pointed to the mandated reporting process as the first place where racial bias is evident, describing a dynamic where Black and Brown communities are disproportionately surveilled by staff who are providing social services (teachers, nurses, social workers, shelter staff). ….”
• “Safety is a refuge of class. The way that ACS views safety is clearly linked to class. Participants described how poverty is criminalized, as signs of poverty are often seen as indicators of neglect. Parents felt penalized for being poor, as investigatory processes sought to catalog the ways in which parents struggled to provide food, housing, and resources for their children, and frame it as neglect. ….”

NYSDA, which is committed to exposing and ending racism, has previously publicized problems in the family regulatory system. See, e.g. the August 31st edition of News Picks that described an American Bar Association resolution and report.

National Academies Report – “Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy”

Building upon publications of the National Research Council, which highlighted disproportionately high rates of incarceration for people of color, the National Academies of Sciences, Engineering, and Medicine (NASEM) formed a committee devoted to examining race and racism within the American criminal justice system. In its review and analysis of historical and contemporary studies, the main goals addressed by the NASEM 2022 report were to, “explain why there are such large racial inequalities in crime, victimization, and criminal justice involvement, and to offer evidence-based advice on reducing inequality.” Some key findings cover the following topics: victimization; arrests and criminal offending; police use of force; delivery of public safety, pre-trial detention, and sentencing and corrections. A full PDF version of the 2022 NASEM pre-publication report is available here.

Several studies reviewed by the committee took data from New York State, with an emphasis on the NYPD and New York City, generally. A 2020 study evaluating implicit bias of NYPD officers following implicit bias training resulted in “insufficient evidence to conclude that racial and ethnic disparities in police enforcement actions were reduced because of the training,” the effects of which “decay[ed]” as more time elapsed from the conclusion of bias training. Another study examined “targeted racial disparities in judicial decision making when sentencing post-conviction” more broadly in New York State at the county level. Results were made available to judicial leadership in each county and the New York State Permanent Commission on Sentencing, “but the commission was disbanded before action could be taken based on county-level scoring” following the study’s publication in 2020.

The NASEM report briefly mentioned proposed legislation in New York State: the Elder Parole Bill. If adopted, the bill would permit eligible people age 55 and older who have served at least 15 years of their sentence to receive a parole hearing. NYSDA Executive Director, Susan Bryant, was invited to testify before the NYS Senate on S.15-A Elder Parole Act and S.7514 Fair and Timely Parole Act. Video of NYSDA’s testimony, the testimony of other interested parties, and submitted written testimony is now available on the Senate’s website here.

“Analysis” of 911 Calls Used to Prosecute Those Seeking Aid

A November 20th report from ProPublica.org uses a 2019 Illinois case to highlight law enforcement training titled “911 Homicide: Is the Caller the Killer.” The training purports to provide “the power to solve murders by listening to a 911 call.” The article says the training has been around for over 10 years and has spread largely without notice outside of police departments. The article notes a “peer-reviewed exploratory study” from 2009, co-authored by the training’s chief architect, Tracy Harpster. It is imperative to be mindful that simply because a study is said to be peer-reviewed and is published does not mean the methods have been assessed for appropriate implementation or (especially) admissibility in court. A 2016 master’s thesis pursued the topic “to advance the pioneering work” done in the original publication. But there is evidence that the work should be challenged.

An article in the January 2022 issue of the FBI’s “Law Enforcement Bulletin” looked at two aspects of call analysis—minimization and voice modulation—said to be “deception indicators.” This literature survey concluded that “[o]verall, the evidence on voice modulation and minimization as appropriate indicators of deception in 911 calls is mixed, and these linguistic features should not be used on their own for evaluating veracity versus deception.” Results of a more recent study conducted by the FBI and others, published in October 2022 and not authored by the creators of these methods, reached the conclusion that “established criteria for analyzing deceptive calls may be dependent on crime type or may be unreliable indicators altogether.”

The ProPublica report notes that before a coroner’s report was issued and before any other investigation was done in the Illinois case, a detective decided that the mother “probably killed her baby” based on his analysis of her 911 call. He had taken the two-day “is the caller the killer?” training five months earlier. Defenders whose clients are accused of causing the death they reported via 911 may need to determine whether the police involved are similarly relying on this training, dubbed a “new field of junk forensics” by Radley Balko on The Watch.

Unprecedented Use of Google Geofence Search Warrants

WIRED published A Peek Inside the FBI’s Unprecedented January 6 Geofence Dragnet, an article that explains how “Google provided investigators with location data for more than 5,000 devices as part of the federal investigation into the attack on the US Capitol.” Eventually, “the FBI received identifying details for 1,535 users, as well as detailed maps showing how their phones moved through the Capitol and its grounds.”

According to the article, “[g]eofence search warrants are intended to locate anyone in a given area using digital services. Because Google’s Location History system is both powerful and widely used, the company is served about 10,000 geofence warrants in the US each year. Location History leverages GPS, Wi-Fi, and Bluetooth signals to pinpoint a phone within a few yards.” A defense court filing “suggests that dozens of phones that were in airplane mode during the riot, or otherwise out of cell service, were caught up in the trawl. Nor could users erase their digital trails later. In fact, 37 people who attempted to delete their location data following the attacks were singled out by the FBI for greater scrutiny.”

A spokesperson for Google stated the company has “‘a rigorous process for geofence warrants that is designed to protect the privacy of our users while supporting the important work of law enforcement’ .... ‘When Google receives legal demands, we examine them closely for legal validity and constitutional concerns, including overbreadth, consistent with developing case law.’” However, the validity of geofence search warrants is still up for debate.

“Matthew Tokson, a law professor and Fourth Amendment expert at the University of Utah, says there remains a high level of uncertainty around the whole idea of geofence warrants: ‘Some courts have said they are valid. Some have said they are overbroad and sweep up too many innocent people. We are still in the very early stages of this.’”

An NLS Blog post from June 6th outlines the three-stage process law enforcement uses to obtain data from Google with a geofence warrant, commenting on various legal and technical issues. “Once Google receives a geofence warrant, it takes on the extrajudicial role of determining when law enforcement officers have complied with probable cause such that additional information will be provided.” “The use of Google geofence warrants implicates a number of Fourth Amendment issues.” “[B]eyond the legal challenges, those encountering Google location warrants should remain mindful of the limitations of the data as well as the absence of concrete answers from Google regarding their methodology for determining location data.”

An item about geofence warrant challenges appeared in the April 13th edition of News Picks. Proposed legislation that would prohibit reverse location and reverse keyword searches is pending in the state legislature; more information is available on the NYCLU website here. Attorneys with questions about geofence warrants or other issues related to digital evidence seizures are encouraged to contact the Backup Center.

Association News

NYSDA Welcomes Oneil McDonald and Heather Rapp

Oneil McDonald has joined NYSDA as an Information Systems Specialist. Oneil is working with our three other Public Defense Case Management System (PDCMS) team members, Darlene Dollard, Dandre Wheeler, and Asaph Ko. Heather Rapp has joined NYSDA as a Program Assistant. Heather will be handling NYSDA’s membership program, maintaining our database of public defense contacts, and providing other office and program support.

Upcoming NYSDA Training

Friday, December 16, 2022, 12:30 – 1:30, Reviewing Digital Discovery in Criminal Cases, with Brian Cummings, Staff Attorney, Discovery and Forensic Support Unit, NYSDA. This program will cover the most common digital evidence files encountered in criminal cases. Topics include opening a wide variety of file types, viewing and preserving metadata, identifying missing files, and efficiently reviewing voluminous discovery. There is no cost for this web training but pre-registration is required. Register here.

Coming in 2023

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the end of July at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Information about hotel reservations will be available soon.