News Picks from NYSDA Staff
July 1, 2020
News Picks
Bill Allowing Audio-Visual Felony Examinations Takes Effect July 17, 2020
The Legislature recently passed a bill ( S8414 ) that permits the use of audio-visual appearances for hearings on felony complaints during the COVID-19 disaster emergency. The bill and related chapter amendments found in S8428 (Part D) were signed by Governor Cuomo on June 17, 2020. The law takes effect on July 17, 2020, applies during the COVID-19 disaster emergency, as declared by Executive Order 202, issued by the Governor on Mar. 7, 2020, and extensions thereof, and is scheduled to expire on Apr. 30, 2021.
  • The law creates a new CPL section 180.65 concerning preliminary hearings in felony cases. Section 180.65 authorizes the audio-visual appearance of any party or witness at a CPL article 180 hearing where the court finds that, due to the person’s circumstances and such disaster emergency, a personal appearance by such party or witness would be an unreasonable hardship to such person or witness or would create an unreasonable health risk to the public, court staff, or anyone else involved in the proceeding.
  • At the hearing, the judge must be able to see and hear any testifying witness. The law authorizes the parties to exchange documents needed for the hearing by electronic means. The court must maintain a stenographic record or appropriate audio recording of the proceedings, and the court must video record the live testimony received by electronic appearance and other electronic appearances where practicable, and provide a copy of the video to the prosecution and the defense.
  • The law also makes a conforming change to CPL 180.80 with respect to such preliminary hearings conducted by electronic appearance.

Despite Chief Judge DiFiore’s message about the ability of the courts to safely conduct preliminary hearings virtually, and previous orders, including Executive Order 202.28, discussed in the May 8th edition of News Picks , it has been reported that many preliminary hearings have been denied and clients have faced indefinite detention in violation of due process. The relevant sections of Executive Orders from March 20 to June 6 are available here .

The Backup Center has been coordinating and working with attorneys across the state to share resources including information on how hearings are going, case decisions, examples of writs of habeas corpus, and other case support. Please visit our Coronavirus Preliminary Hearing Resources page and if you would like further assistance, please contact Backup Center Staff Attorney Natalie Brocklebank at

In-Person Appearances and Grand Jury Proceedings Resuming in Some Counties
In her June 29th message, Chief Judge DiFiore provided an update and discussed court operations around the state. In some judicial districts outside of New York City, grand jury proceedings will resume the week of July 13th and individuals have started receiving summonses to sit on grand juries. NYSDA regularly updates and posts on our webpage the various re-opening plans from judicial districts as they become available. Attorneys experiencing problems are encouraged to contact the Backup Center, both for assistance and to give us information on how the resumption of proceedings is working statewide.

COVID-19 Screening at NYS Unified Court Facilities
The NYS Unified Court System Office of Court Administration issued a policy  memorandum  concerning new visitor screening protocols to commence Monday, July 6, 2020. All visitors to NYS Unified Court System facilities will be screened for COVID-19 upon entry. Visitors include “parties, attorneys, witnesses, spectators, law enforcement officers, prisoners, vendors, and all other non-USC personnel.” Visitors will be required to submit to temperature screening and questioning by a uniformed officer upon entry and prior to regular security screening. If a visitor’s temperature exceeds 100 degrees or answers yes to any part of the questioning, additional information will be collected and they will be asked to leave. It is advisable to check with the particular court about screening protocols.

Backlog of Criminal Cases Rises in New York City
As reported in the New York Times and in the American Bar Association Journal , the backlog of criminal court cases as a result of COVID-19 is now over 39,000. Although no statistics were provided, this is presumably happening statewide. While there have been virtual appearances in some limited capacity since the beginning of the shutdown, and while some judicial districts are beginning to phase in more operations and court appearances, the backlog of cases created by the suspension of regular court operations will have a tremendous impact on clients' cases. 

Bail Reform Rollbacks Take Effect Thursday, July 2
Unless the Governor takes action to delay implementation of the bail reform rollbacks enacted as part of this year’s budget, the amendments to various provisions of the Criminal Procedure Law governing bail will take effect on Thursday, July 2. More information about the changes to the bail reform law, including updated bail flow charts and reference materials from the Monroe County Public Defender’s Office, is available on our Bail Reform Implementation page. We thank John Bradley and the Monroe County Public Defender’s Office for making these materials available to defenders. Defenders with questions about the bail reform law and its implementation are encouraged to contact the Backup Center by calling (518) 465-3524 or emailing .

Exploring the Impact of the Child Welfare System on Poor and Minority Communities
The Movement for Family Power, the Drug Policy Alliance, and the NYU Family Defense Clinic have issued a report on the child welfare and foster system and the drug war, entitled “‘Whatever they do, I’m her comfort, I’m her protector.’ How the foster system has become ground zero for the U.S. drug war.” As described in a press release , “[t]his report:

  • Explores the impact of the foster system on Black and Brown families and communities;
  • Debunks assumptions about the utility of the foster system and shares data on its harms to families;
  • Clarifies policies where the drug war and the foster system intersect to the detriment of children, parents, and families;
  • Shares data and case studies demonstrating how drug use has been conflated with abuse and neglect and torn families apart; and
  • Makes recommendations for policy and program changes to resist surveillance and family separation and promote supportive practices.”

The report notes that a significant number of neglect cases involve allegations of substance abuse, and they share common threads and focus “on individual responsibility for alleged parenting failures while completely ignoring the structural failings that often instigate involvement in the first place.” Among the disturbing findings in the report is the disproportionately high rate at which low income people and people of color are found to have maltreated their children, when compared to other groups. “Between 2000 and 2011, one in seventeen white children, one in nine Black children and one in seven American Indian children had been removed from their parents’ care.” The authors describe a child welfare system that seems focused on punitive punishment and “resembles the criminal legal system but lacks even the most basic rights protections ….”

Among the more than two dozen Movement for Family Power’s Recommendations for Change are:
  • for philanthropic organizations to stop giving money to child protective services agencies, and instead fund directly-impacted leadership and community based organizations;
  • for drug treatment providers to “[t]reat parents with dignity and respect,” and employ the goals of harm reduction;
  • for attorneys for the children to “[l]isten and learn from parents who have been through the system,” and to “[a]dvocate and request material resources for the family on behalf of your client”; and
  • for family court judges to “[c]hallenge the bias that the war on drugs has left on all of us, and how it is enacted in the courtroom,” and to challenge ACS/CPS.

Child Welfare Agencies are Urged to Think Twice Before Filing a “TPR”
The United States Children’s Bureau, tasked with providing funding and guidance to state and tribal welfare agencies, recently issued guidance “(1) to address concerns related to filing petitions to terminate a parent’s rights (TPR) when services have not been available; (2) to highlight some service delivery strategies; and (3) to highlight challenges that adoptive families may face during the pandemic.”

Typically, a child welfare agency is required to file a petition for termination of parental rights if the subject child has been in foster care for 15 of the most recent 22 months. However, in his June 23rd letter, Associate Commissioner Jerry Milner urged child welfare agencies to use discretion before rushing into filing TPRs. Milner reminded agencies that “statutory exceptions exist to ensure that an agency only files a petition to terminate parental rights when a parent has had access to the necessary services that can lead to a meaningful opportunity to reunify with his or her children.” A TPR petition is not required if “the agency is required to make reasonable efforts to reunify the family, but has not provided the family the services necessary for the safe return of the child” or when “the agency has documented a compelling reason that filing a TPR petition is not in the child’s best interests.” Milner further stated: “In light of the devastating impact that the COVID-19 pandemic has had on child welfare systems and applicable exceptions to the 15/22 requirement, I cannot emphasize how strongly I urge agencies to carefully consider whether it is appropriate to terminate a parent’s rights pursuant to the 15/22 requirement.”

Organizations Partner to upEND Racism in the Child Welfare System
The Center for the Study of Social Policy (CSSP) and the University of Houston Graduate College of Social Work, in an attempt to combat a long history of structural racism that has led to devastating consequences for children and families of color, have announced “a collaborative movement aimed at protecting Black, Brown, and Native children and reimagining how we serve and support families. The upEND movement works to create a society in which the forcible separation of children from their parents is no longer an acceptable intervention for families in need. Instead, the upEND movement seeks to end the current child welfare system as we know it and to reimagine new, anti-racist means of keeping children safe and protected in their homes.”

On its website , CSSP states that its policy work “is aimed at advancing equity, increasing opportunities for low-income families, and promoting child and family well-being.” Its areas of focus include addressing poverty, child welfare, and immigration. According to its website , the University of Houston Graduate College of Social Work’s vision “is to achieve social, racial, economic, and political justice, local to global.” The full press release can be found at .

NAPD Issues Statement on Issues Involved in Virtual Court Technology
The National Association for Public Defense (NAPD) recently issued an NAPD Statement on the Issues With the Use of Virtual Court Technology . After acknowledging the rapidly expanding court use of electronic communication during the COVID-19 crisis, the first paragraph of NAPD’s 12-page statement states, “New technology should be used only when it either enhances access to justice or avoids a shutdown of access that clearly would be worse than the temporary limitations posed by the technology, or where a client exercises their right to proceed.” The document “is organized in four sections: (1) guiding values; (2) constitutional considerations in virtual court; (3) minimum requirements for the implementation of virtual court; (4) special considerations for public defenders.”

The guiding values are the need to safeguard human dignity and to ensure that all clients have access to technology “that ensures meaningful participation in virtual court.” Constitutional considerations include the right to counsel; confrontation and cross-examination rights; compulsory process, due process, and equal protection; and rights concerning a public trial. The lengthy list of minimum requirements includes limiting virtual court proceedings to certain circumstances, not including serious contested hearings or jury trials, and guaranteeing clients the right to decide whether to proceed virtually. Adequate notice, private and unrecorded client-attorney communications and access to incarcerated clients, access to court documents, enforcement of rules for witnesses, and on-the-record client consent are also listed. Other requirements include ensuring that clients’ on-screen images are not dehumanizing, that public access is limited where a client may be harmed, that access to documents and exhibits is not curtailed, and that family and community members are included in online hearings. Only courts should retain copies of virtual proceedings, but the press should have the same access to virtual proceedings that they held previously; “open access should not create a permanent record that erases the effect of expungement or a sealed record.” Worthy of special mention is the requirement that “ Court administrators should consult with directly impacted individuals when assessing the value of video court .”

NAPD recommends that practitioners prioritize in-person communication with clients whenever possible, to work with researchers to study virtual courts’ impact on clients and outcomes, and to help chart a path forward from the aspects of the current system that are “inhumane, inefficient, wasteful, and harmful to our clients.”

Recommended Best Practices for Investigators and Other Professionals to Safely Return to Fieldwork
The National Association for Public Defense (NAPD) has also recently shared a working document entitled “NAPD Best Practice Recommendations and Considerations for Return to Fieldwork in the Post-COVID-19 Era.” It opens by acknowledging that investigators, social workers, and mitigation specialists are in some ways “the community faces and ambassadors of criminal defense teams” and work more in the field than with bricks and mortar offices, putting them at greater risk for COVID-19. The Task Force that created the document included members from across the country and from different disciplines. Their work seeks to help keep these “first responders of the 6 th Amendment” and everyone around them safe while ensuring that clients are well served. Intended as a tool to help those considering the complicated matters involved, the recommendations are not a replacement for expert guidance like that from the Centers for Disease Control and others.

One series of recommendations deals with team-building strategies—questions to ask and answer in the process of developing COVID-19 policies related to fieldwork to address the concerns of staff members with different comfort and risk levels. Other common sense recommendations include becoming familiar with and following trusted sources of information about the novel coronavirus and COVID-19 and conducting vulnerability assessments while recognizing issues about medical confidentiality. Liability risks and concerns, which may vary among institutional offices and private practitioners and contractors, need to be addressed; the document sets out steps for assessing them. Ways to research COVID-19 rates and activity in and around fieldwork are set out, including media and online searches for local information, and speaking “with clients, family members and friendly collateral witnesses for insight.”

A major concern is “Interviewing in the Age of COVID-19," addressing issues around interviewing people in the community, in residences, in the office, in facilities where people are incarcerated, and in hospitals and treatment facilities. Other concerns are record searches and subpoena service. And in “Closing Words of Caution” the document confronts the hard question of weighing the risks and benefits of conducting fieldwork tasks when COVID-19 precautions come at “considerable costs to the quality of” the investigation being done. No easy answers—no answers at all—are provided. But the document provides a detailed base for thinking these questions through.

Representing a Non-Citizen Client? Don’t Forget to Call Your Regional Immigration Assistance Center
As a reminder, defenders who are representing non-citizen clients are encouraged to contact their Regional Immigration Assistance Center (RIAC) about issues regarding the intersection of immigration law and New York's criminal and family laws. The RIACs, which are funded through a grant from the New York State Office of Indigent Legal Services, provide legal support, training, and resources to public defenders, legal aid lawyers, and assigned counsel lawyers representing clients in criminal and family court. The Western NY Region (Region 1) is now a joint project of the Legal Aid Bureau of Buffalo and the Ontario County Public Defender’s Office. Updated contact information for all six RIACs is available on NYSDA's website at .

Voting Information on DOCCS Website Challenged
On May 18, the Legal Action Center ( LAC ) issued an open letter to the Department of Correction and Community Supervision (DOCCS) pointing out incorrect information about voting rights on the DOCCS website. Missing from the website as of the date of the letter, LAC said, was information that voting rights can be restored by a conditional pardon per the Governor’s 2018 Executive Order. It appears that DOCCS has, since the letter, added a cryptic sentence about the right to vote before discharge from parole—“This right can be restored before that time while still on parole by Governor’s pardon”—to the website in question. Anyone wanting fuller information about the voting rights of people who have had involvement with the criminal justice system may want to look at LAC’s brochure, here ; this was included in information presented by LAC at NYSDA’s 2018 Annual Conference. The deadline for registering to vote in the 2020 General Election is Oct. 9, 2020, according to the NYS Board of Elections website .

Updated Materials on Representing Protesters Available
Albany lawyer Mark Mishler offered to share materials he recently developed, updated, or provided at a “representing protesters” CLE at Albany Law School sponsored by a number of organizations, including The Legal Project, Black Law Students Association, Latin American Law Students Association, and local National Lawyers Guild. The materials include the Albany Curfew Order of May 30, a handout entitled “Representing Racial Justice and Other progressive Activists,” a Mishler op-ed from 2018, a 2017 handout , Creative and Informed Representation of Activists in Criminal Cases, and appendices to that handout. Thanks, Mark!

Association News
NYSDA Receives New York Bar Foundation Grant
NYSDA gratefully announces its receipt of a grant from The New York Bar Foundation and the Family Law Section Fund. The funding supports NYSDA’s work to assist family defenders in providing high quality representation by arming them with necessary skills and information through its continuing legal education programs. We thank them for their continued support of our work to support the family defense community. 
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