Early in January, Governor Hochul pledged support for the Clean Slate Act. However, a comparison of the version of the bill included in the Executive’s proposed Public Protection and General Government Article VII bill (Part AA) and the Senate bill (S1553-C) reveals some differences. Most notably, the Executive Budget version includes a new definition of “expiration of sentence” that would mean most clients have to wait longer—often years—before being eligible to have their convictions sealed. In the Senate version, the clock starts upon completion of the incarceration portion of a sentence; in the budget version, it starts at the maximum expiration of the sentence, including parole or any other post-release supervision. The budget version also takes effect over a year later, removes a cause of civil action for violations of the bill, and removes a timing element for when DCJS must seal a conviction.

 

The Clean Slate New York Coalition, while expressing appreciation for the bill’s inclusion in the budget, said the changes “significantly weaken“ the bill. Meanwhile, Assemblymember Catalina Cruz, a sponsor of the Assembly bill (A6399-B), expressed optimism that Hochul’s office is willing to negotiate. Relatedly, Manhattan District Attorney Alvin Bragg published an op-ed in the Times Union expressing support for the bill.

In addition to the Clean Slate proposal, the proposed budget includes $10 million for pre-trial services for counties outside New York City as well as $2.5 million for the creation of a pilot program to provide transitional housing to people coming out of prison. In relation to public defense funding, the Executive budget includes $250 million for the fifth year of the statewide expansion of the Hurrell-Harring settlement and $2.5 million for family defense representation, which is $6.5 million less than the Office of Indigent Legal Services requested. Unfortunately, the proposed budget did not include an increase in assigned counsel rates, a priority legislative item for many public defense groups. NYSDA and others will be continuing to advocate for this to be included in the final budget.

 

NYSDA testified on January 25th regarding the Executive budget. More information about our testimony, including NYSDA’s request for funding for our Public Defense Backup Center and Veterans Defense Program, is in Association News below.

 

The Center for Appellate Litigation (CAL) offers some potential challenges relating to pandemic-related protocols and concerns in its January 2022 Issues to Develop at Trial (ITD). Subjects include jury-related questions, from blanket-rule excusing of prospective jurors who have COVID-19 concerns and disproportional racial impacts to the effect of masks on proper voir dire. Other questions posed relate to confrontation of witnesses, client-attorney communication, public trials, and effects on plea bargaining. NYSDA thanks CAL for sharing this resource with the defender community. CAL’s website includes an archive of ITD, including a Racial Justice Series.

 

Past editions of News Picks have also addressed COVID-19-related trial issues. Examples include providing information on a Center for Court Innovation report (Dec. 10, 2021 edition) and other publications (Oct. 12, 2021 edition).

 

These primarily addressed issues in criminal court. A CLE training last November addressed Post-COVID Practice: A Trauma-Informed Approach for Family Court Defenders; attorneys can contact NYSDA’s Family Court Staff Attorney at kbode@nysda.org about materials.

 

An updated summary of decisions regarding Raise the Age (RTA) issues, prepared by Nancy Ginsburg, Director of the Adolescent Intervention and Diversion Practice of The Legal Aid Society’s Criminal Trial Practice, is available from the Backup Center. Email info@nysda.org to request a copy. From the initial summary of just a few pages, this resource has grown to 47 pages. Its Table of Contents helps attorneys find their particular issue, from Timeliness of Retention Motion to Juvenile Offenders. The detail of the summary is reflected in subcategories like those under Extraordinary Circumstances – Found, Not Found, and Turning 18. NYSDA appreciates the opportunity to share this resource.

 

Melissa Bickford describes in a Marshall Project article how she has navigated the criminal justice system as a person with a brain injury caused by domestic violence. She also recognizes that such an injury “can turn a victim into a perpetrator.” Studies suggest that 40% to 80% of people in prison have suffered a brain injury; the article cites the work of Kim Gorgens, who has presented a TEDxMileHigh talk about it.

 

Examples in the talk include the case of a veteran who suffered a brain injury in a fall. NYSDA’s Veterans Defense Program (VDP) works to ensure that lawyers representing military personnel and veterans understand and address the role that brain injury and other physical or mental health issues can play in clients’ cases. Such issues were among those addressed in the two-part CLE program on The Fundamentals of Veteran Representation that VDP presented last November. VDP can be contacted here.

 

Defenders in both the criminal and family legal systems may encounter allegations that their clients have caused severe injury or death to young children. These allegations are often based on the results of autopsies or medical scans and examinations said to prove or indicate that the injury occurred due to shaking, or shaking combined with an impact injury. Expert assistance is required to challenge assertions that children died of so-called Shaken Baby Syndrome (SBS), also called Abusive Head Trauma (AHT) when shaking alone was shown unlikely to cause the severe injury. The Backup Center has materials and information about nationwide resources, including a recent trial court decision out of New Jersey. As noted on the New Jersey Public Defender website, the judge barred the introduction of an SBS/AHT diagnosis in the case following a Frye hearing. The decision contains strong language about the danger such prosecution evidence would pose to the integrity of the case and the criminal justice system.

 

Exonerations of people convicted of killing children based on testimony about SBS/AHT have occurred nationwide. Last October, a Michigan woman was freed after serving 18 years for the death of a daughter known to have been sick her whole short life. The first known SBS/AHT exoneration in Ohio was also reported in October, by ABCNews. A few months before that, a California man who said he fell with his son, whose head hit a wall, received a reduced sentence after serving 15 years; the judge and the prosecution agreed that scientific research regarding SBS has changed significantly, an Associated Press item reported.

 

As a 2019 CUNY Law Review article noted, “the use of defense expert witnesses in these types of cases is particularly effective and important.” The Court of Appeals has said, “where casting doubt on the prosecution’s medical proof is the crux of the defense, a decision that it would be futile to call an expert based solely on the volume of expert testimony presented by the People is not a legitimate or reasonable tactical choice.” People v Caldavado, 26 NY3d 1034 (2015).

 

AHT/SBS evidence still has supporters. The chief medical correspondent for CNN presented a series that, according to a news account, “examined the established science behind shaken baby syndrome, also known as abusive head trauma, and the band of physicians who deride the diagnosis as ‘fake.’” Dr. Alice Newton, a child abuse specialist involved in the case that spurred the series, is quoted as saying, “‘[p]seudo experts have falsely claimed that a debate is raging in the medical community about whether abusive head trauma is a real diagnosis,’” and adding, “‘[l]et me be clear. There is no controversy.’” Newton was involved in another Massachusetts case where charges were dropped after the medical examiner’s determination changed from injuries caused by shaking to natural causes according to a 2015 news article.

 

NYSDA helps attorneys keep up with developments regarding AHT/SBS. See for example the note in the June 21, 2021, News Picks indicating that sickle cell conditions may provide an alternate explanation for some children’s injuries. NYSDA’s Forensics Resources page provides links to resources about AHT/SBS and other forensic disciplines.

Family Integrity & Justice Works, with its two newly minted Co-Directors Jerry Milner and David Kelly, former Associate Commissioner of the U.S Children’s Bureau, and former Special Assistant to the Associate Commissioner of the U.S. Children’s Bureau, respectively, have announced the “Inaugural issue of the Family Integrity and Justice Quarterly.” “Every article in this publication offers eye-opening information regarding the inequitable and traumatic consequences of the Adoption and Safe Families Act, causing needless separation of families and injustices to poor, Black, and Indigenous families.” This resource is published by the nonprofit organization Public Knowledge, which has a stated mission of promoting “freedom of expression, an open internet, and access to affordable communications tools and creative works ….” Co-Editors Milner and Kelly are sure to offer a unique perspective, given their vast experience in the field.

 

The Governor’s Blue-Ribbon Commission on Forensic Custody Evaluations, tasked with making recommendations on how and if forensic evaluations should continue to be used in child custody cases within the state, has released its report. The Commission was established in June 2021, in the wake of “well-documented flaws in forensic custody evaluations.”

 

There was a wide range of views among the Commission members on the issue of whether forensic evaluations should even continue within the court system. A slim majority of the members favored an all out elimination of forensic evaluations, “arguing that these reports are biased and harmful to children and lack scientific or legal value ….” Other members were in favor of the evaluations continuing, but acknowledged “flaws with the current practice must be addressed ….” Significantly, the Commission stated, “[t]here are systemic biases and inequities … in the overall justice process that go beyond this singular issue,” while acknowledging that addressing those issues would be outside the Commission’s mandate. Also of significance was a recommendation that the state’s rate of pay for court appointed counsel and Attorneys for Children be raised above the $75/hour that is was set at in 2004, calling that rate “significantly below market.” Other recommendations included:

 

Since the coverage discussed in the January 14th edition of News Picks, opponents of bail reform have continued their assaults in the media. But the skewed nature of their claims and lack of factual support for their claims is also being noted. A Times Union (TU) editorial on January 25th criticized opponents of bail reform for “hijacking” the news about two New York City officers being shot to rant about “the entirely irrelevant topic of bail reform.” Just as this edition of News Picks was nearing publication, news reports appeared saying that the Governor and state legislative leaders are rejecting NYC Mayor Eric Adams’ calls to curtail bail reform and others like Raise the Age. See articles in the Daily News, Press Republican, and New York Post.

 

One article on bail, published by Long Island News too late for inclusion in the last News Picks, said that on Long Island, data showed that only 0.9% of all defendants released were rearrested for violent crimes while awaiting trial. It also said that comparing rearrests of those who posted bail and those who did not showed bail to be only “1.3% more effective at preventing future crime.” Given the inequities of cash bail, that does not support a return to pre-reform laws. Also to be considered: most prior research has “‘has found that while detaining people can depress the rearrest rates in the first place, it actually increases rearrest rates in the long run,’” according to a Center for Court Innovation spokesperson. The article concluded that the period covered by available data is not large enough to assess the impact of reform.

 

Issues around the criminal legal system fueled election campaigns on Long Island last year and appear to be doing so again. See the Newsday article here. The political battle is visible statewide; see this TU article. Another piece, also in the TU (just a day before its editorial noted above), combined discussion of the tragic shooting of police officers in New York City and bail even though the event was not shown to have any connection to bail. It also noted that efforts to quell violence include work with “violence interrupters.” A different tone was struck in a Legal Aid attorney’s New York Law Journal op-ed setting out the reasons bail reform was necessary and calling for due deliberation and public debate before any changes are made, should any changes be necessary. An extensive look at the issue nationally appeared in USAToday, following a report from the federal Commission on Civil Rights.

 

An extensive op-ed set out the reasons why “The Center for Law and Justice urges state senators and Assembly members to reject calls for bail reform rollbacks.” In short, Executive Director Alice Green said, “[t]o return to that former system, or to 'tweak' the current system to include an assessment of dangerousness, would be to re-institute the sources of trauma inherent in systemic racism. Moreover, it would serve to perpetuate a subtle yet insidious form of vigilantism - punishment without trial.”

As mentioned in our January 14th edition of News Picks, Manhattan District Attorney Alvin Bragg’s “day one” memo to his ADAs called for new policies on pretrial incarceration and the cessation of charging certain misdemeanors unless they came with accompanying felony charges. Predictably, the policies sparked a backlash in certain media outlets, including the New York Post and CNN. Perhaps of more interest are discussions regarding the efficacy of the proposed reforms and their implementation. The New York Times conducted an analysis of the resisting arrest charge Bragg vowed to no longer charge, and found that it was the top charge less than 250 times in 2020. Alice Fontier, Managing Director of Neighborhood Defender Services in Harlem, said that Manhattan prosecutors were already asking and receiving permission from their supervisors for exceptions to their office’s policies. Yet Fontier said that she “continue[s] to be optimistic,” and that “change takes time.”

 

Councilmember Kamillah Hanks, in her first months on the Council, is the new chair for the Public Safety Committee in charge of oversight of the NYPD and CCRB. Hanks is avowedly against Defund the Police, and wants to focus on community policing.

 

Councilmember Carlina Rivera is the new chair of the Criminal Justice committee. In an statement, the Manhattan representative highlighted the “compounding humanitarian crises in our jails” and said, “we must finally end solitary confinement.”

 

The high profile of problems in NYC, including the Rikers Island crisis, should heighten, not overshadow, concerns about similar problems in many upstate localities.

 

The 36th Annual Metropolitan Trainer, traditionally held at NYU, will be held virtually again this year due to COVID restrictions and safety considerations. The scheduled date for the full day program is Friday, Mar. 11, 2022. The program will be finalized shortly. Session topics include: Court of Appeals Update; orders of protection and Red Flag Laws; NYS Forensic Commission Update; and practice implications of the recent U.S. Supreme Court decision in Hemphill v New York. Final details and registration information will be coming soon.

 

Thursday, March 3, 2022, 2:30 – 4:00 pm: Changes to the State Central Register 2022: A Toolbox for Defenders, with Eileen Choi, Supervising Attorney, Family Defense Practice, Brooklyn Defender Services, and Kelsey Draper, Paralegal Supervisor, Family Defense Practice, Brooklyn Defender Services. The program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

 

Wednesday, March 16, 2022, 12:00 – 2:15 pm: Strategies for Litigating Sex Abuse Cases in Family Court, with Annie Carney, Supervising Attorney, Family Defense Practice, The Bronx Defenders, and Sophie Spiegel, Senior Staff Attorney, Integrated Defense Practice, Brooklyn Defender Services. The program will provide 2.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

 

Wednesday, March 23, 2022, 12:00 – 1:30 pm: the Application of the Interstate Compact on the Placement of Children (ICPC) in Article 10 Cases, with Christine Gottlieb, Co-Director, Family Defense Clinic, New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice, Brooklyn Defender Services. This program will provide 1.5 CLE hours in Professional Practice. There is no cost for this program. For details and program registration, click here.

 

This year’s hearing on the proposed Executive Budget as it relates to Public Protection before the NYS Senate Finance Committee and the Assembly Ways and Means Committee was held on January 25th. NYSDA’s Executive Director, Susan C. Bryant, was among those providing oral and written testimony. She asked the Legislature to

 

 

Bryant stressed that public defense funding is entwined with other foundational issues. Such related topics include the need for community-based medical, mental health, and other services, and of course, other efforts to secure justice in the criminal and family legal systems, such as proper pretrial services.