NYSDA’s Annual Conference: New Family Court Track!

NYSDA is happy to offer both criminal and family court training for defenders who attend the NYSDA’s 56th Annual Meeting and Conference in Saratoga Springs from July 30th to August 1st. This year we are featuring a separate family court track alongside our traditional criminal track. Many of the Annual Conference presenters have presented at other NYSDA trainings throughout the year and will bring with them that same high level of expertise that our defender community has come to expect from NYSDA programs. To encourage the type of cross-practice that NYSDA believes is essential to providing client-centered representation, we are featuring plenary sessions that offer DIEB, Ethics, and Cybersecurity CLE credits.

Registration for the Annual Meeting and Conference is open. Program details, registration information, and hotel reservation links are available here. The full conference schedule will be posted soon. We hope to see you in Saratoga Springs!

Bail Changes Go Into Effect June 2

As discussed in the May 17th edition of News Picks, the state’s budget amended the bail statute for the third time in four years. As a result, the Data Collaborative for Justice has updated their “bench card” detailing which charges are eligible for ROR, non-monetary conditions, electronic monitoring, money bail and/or remand. They have also published a five-page primer explaining the amendments in some detail. As prosecutors and judges rush to overdramatize the extent of the changes, the report’s conclusion is worth keeping in mind:

“While the recent amendments steer judges away from the more deliberative process of first determining whether there is a risk of flight to avoid prosecution and, if so, contemplating what would be the least restrictive condition to assure court attendance, judges continue to be guided to choose conditions that are ‘necessary’ and well suited for the level of flight risk demonstrated by the individual before them.”

The full text of the revisions may be found here. Additionally, NYSDA has created a document that puts these reforms into context with CPL Articles 500, 510, and 530. A training session on bail reform will be offered at NYSDA’s Annual Conference (July 30-August 1).

NYC Pretrial Detention Study Illustrates the “Cost of Discretion”

Scrutinize.org and the Institute for the Quantitative Study of Inclusion, Diversity and Equity at the Zimroth Center on the Administration of Criminal Law at the NYU School of Law teamed up to analyze pretrial detention data from 2020-2022. Key findings of their report include: “some New York City judges are disproportionately carceral, i.e., these judges are substantially more likely to order pretrial detention than their peers, even when accounting for factors such as the severity of the case and the defendant’s prior criminal history” and a list of 14 judges who “exhibited the most carceral discretion compared to their peers.” A list of those judges and recommendations regarding transparency and further legislative considerations may be found in the full report.

Discovery Case Law Spotlight: People v Jawad, 78 Misc 3d 1217(A) (Crim Ct, Queens Co 3/30/2023)

In Jawad, the court considered whether the DA had discharged their duties under CPL 245.20 regarding police disciplinary records. In their certificate of compliance, the DA named eight police officers who were involved in the case, but indicated that they only intended to call two of these officers at trial. The DA provided defense counsel with a letter summarizing the disciplinary history of the two officers they intended to call. They did not provide the disciplinary records for these two officers, and did not provide a summary or records for the other six officers.

The court held that a letter summarizing an officer’s disciplinary records was insufficient under 245.20(1)(k). The DA must disclose the records.

Furthermore, the court held that the DA must disclose records for all officers, not just the officers they intend to call at trial: “Just because an officer is not a testifying prosecution witness does not mean the People may bury their head in the sand. The People must be judged under the usual statutory standard: whether they exercised ‘due diligence’ and made ‘reasonable inquiries’ to ascertain the existence of favorable information. When it comes to police misconduct records, there is no reason to override this rule simply because the People choose not to call the officer to testify.”

The court held that the DA’s certificate of compliance was not proper and their statement of readiness was therefore illusory: “They did not, in good faith, certify that they had exercised ‘due diligence’ or made ‘reasonable inquiries’ to ascertain the existence of discoverable material. Instead, they categorically refused to make any inquiries into the existence of favorable information in six potential police disciplinary files. And they did not, in good faith, certify that they had ‘disclosed’ all discoverable material.”

For more information about the discovery reforms and case law interpreting CPL 245.20, please visit the discovery reform page on NYSDA’s website, now updated with Caselaw Highlights.

The Bronx Defenders and Arnold & Porter Sue ACS

The Bronx Defenders, together with the law firm of Arnold and Porter, announced in a press release that they have filed two lawsuits against The Administration for Children’s Services (ACS) to “Stop its Reign of Terror Against New York’s Most Marginalized Families.” “The first case seeks information about an internal effort to address racial bias in ACS operations that its leadership quashed and buried.” According to preliminary statement in the court filing, “[t]his petition seeks to vindicate the public’s statutory right to access records regarding an audit that showed New York City’s Administration for Children’s Services (“ACS” or “Agency”) was biased against, and more punitive to, Black families.” “[T]he second is on behalf of a Black mother who was separated from her newborn because of those racially biased ACS practices.” That filing can be found here. This litigation is part of a broader movement that is gaining steam among advocates for parents in NYS to secure the rights of poor, Black, and brown families who are targeted by the family regulation system at a significantly higher rate than other groups. This systemically racist system is resulting in babies being ripped away from their parents because of the color of their skin and/or socio-economic status. Additional coverage can be found in the New York Times article entitled, “She Smoked Weed, Legally, Then Gave Birth. New York Took Her Baby.”

NYPD Proposed Revisions to Disciplinary Procedures Reduce Punishment for Some Misconduct – Now Open for Public Comment

The NYPD has drafted proposed revisions to its Disciplinary System Penalty Guidelines. Many of these changes lessen the punishment for police, as reported in the Daily News. Proposed revisions include “recommendations for new misconduct categories, revisions to current misconduct categories and clarification of language.” Examples of misconduct categories include “Unlawful Search/Entry Premises (entry involves substantial physical presence and/or remaining on the premises” and “Threat of Force/Police Enforcement/Notification to Outside Agency/Removal to Hospital – without Justification.” A new misconduct category includes a section under “Off-Duty/Prohibited Acts.” The public comment period on the draft closes on June 18.

“Guards Brutally Beat Prisoners and Lied About It. They Weren’t Fired.”

The Marshall Project and The New York Times partnered to investigate and expose accountability gaps in corrections officer discipline after abusive action toward incarcerated individuals. The Marshall Project obtained and reviewed prison disciplinary records from 2010 and “found more than 290 cases in which the New York State Department of Corrections and Community Supervision tried to fire officers or supervisors it said physically abused prisoners or covered up mistreatment that ranged from group beatings to withholding food. The agency considered these employees a threat to the safety and security of prisons. Yet officers were ousted in just 28 cases ….” And almost all the guards in the remaining cases stayed on the job.

Five takeaways from The Marshall Project’s investigation included:

• “New York’s discipline system favors prison guards.”
• “In many cases of serious abuse, officials don’t try to discipline the officers accused.”
• “A culture of cover-ups among guards makes it hard to hold them accountable.”
• “The corrections officers’ powerful union has protected this disciplinary process.”
• “[Their] investigation captures only a fraction of prisoner abuse.”

Additional reporting on this topic comes from New York Focus, wherein that author discussed reform via a newly proposed Senate bill S6975 that would authorize the state Inspector General to investigate sexual assault complaints rather than leaving investigation up to the individual correctional facility.

AI-generated Images and Social Media are a Dangerous Mix

Publicly available information on social media is an increasingly important component of law enforcement investigations and “can be a treasure trove of useful evidence.” According to a 2022 Congressional Research Service report, only 5% of U.S. adults had used social media as of 2005, compared to over 70% in 2021. The admissibility of social media evidence is a frequently litigated issue and now, thanks to the rise in availability of AI-generated images, attorneys will need to exercise heightened scrutiny when evaluating the authenticity of social media evidence.

Ars Technica recently reported on an AI-generated image that depicted an explosion at the Pentagon. This image was posted on a verified Twitter account named "Bloomberg Feed," which has no affiliation with Bloomberg media. The misinformation briefly caused confusion and a minor dip in the stock market before it was revealed to be a hoax. This incident underscores the potential risks of AI-generated images in the age of instant social media sharing and the ease with which AI models can perpetuate misinformation. The idea of complex computer algorithms fabricating evidence sounded like part of a sci-fi movie plot just a few years ago. Today, it is a realistic concern.

Association News

NYSDA’s New Website: Members Can View Videos of Prior Trainings

We are happy to announce the launch of our new website, which now offers NYSDA members the ability to view many of our prior high-quality trainings at no cost. Videos of programs offered from 2020 to 2022 are currently available and 2023 programs will be added soon. Members need to log in for access to the training videos and program materials. If you need assistance with logging in, please contact Heather Rapp, Program Assistant, at 518-465-3524 x13 or hrapp@nysda.org. Note: At this time, NYSDA does not offer CLE credit for viewing pre-recorded trainings on our website.

You can join NYSDA or renew your membership here or reach out to Heather Rapp who can assist you with membership.

Upcoming Training Programs

Wednesday, June 7, 2023, 1:00 – 2:00 pm: To Participate or Not to Participate: Ethical Considerations in Representing a Family Court Client Absent at Trial with Adele Fine, Family Court Bureau Chief, Monroe County Public Defender’s Office. This program will cover the ethical issues defenders must consider when determining how to proceed when your client is absent from a family court trial or hearing. Details and registration information are available here.

Sunday, July 30 – Tuesday August 1, 2023: 56th Annual Meeting and Conference. Program highlights and registration information are available here. The event will be held at the Saratoga Hilton in downtown Saratoga Springs, with an online option for the training sessions and membership meeting. In-person attendees are encouraged to join us for a welcome reception on Sunday evening and to network with colleagues from around the state throughout the conference.

To reserve a room at the Saratoga Hilton, go to https://book.passkey.com/go/NYSDefendersAssn23. The special room rate of $201 (for a standard room) is available through June 26th or when rooms have been fully booked, whichever comes first. There is a second room block at the Hilton Garden Inn Saratoga Springs (125 South Broadway, Saratoga Springs). The special room rate of $201 is available through June 26th or when rooms have been fully booked. To reserve a room at the Hilton Garden Inn Saratoga Springs, go to https://www.hilton.com/en/attend-my-event/nys-defenders-weblink/.

Save the Date: Thursday, September 28, 2023, 12:30 – 2:30 pm: Representing Disabled Parents: Strategies and Solutions for Preserving Their Rights with Robyn M. Powell, PhD, JD, Associate Professor, University of Oklahoma College of Law. Details and registration information coming soon.