Chief Judge Announces Plan to Resume In-Person Operations, Including Jury Trials
As reported in the New York Law Journal on Feb. 23, 2021, courts are targeting dates as soon as March for resumption of in-person proceedings, including jury trials in some jurisdictions. “Court administrators are working to restart jury trials March 22, said state court system spokesman Lucian Chalfen, describing the timeline as a target date. It’s unclear how many jury trials will move forward under the restart, but Chalfen said it would be a limited number.”
 
In today’s message from Chief Judge DiFiore, she confirmed that they “are moving forward with our plans to resume some in-person operations, including a limited number of jury trials in our courthouses across the State, and jury summons are being mailed out in preparation for jury selection to begin statewide on March 22nd.”
 
However, as the New York Daily News reported on Feb. 23, 2021, “[s]tate court trials will resume in March even though prosecutors and defense attorneys are not yet eligible to get vaccinated.” The article noted the resolution by the New York State Bar Association, as well as a letter sent by the heads of several defender organizations and the five New York City district attorneys. “‘As grand jury operations, victim outreach efforts, and some in-court appearances are resuming, our employees continue to interact face-to-face with first responders, witnesses, clients, victims, court staff, counsel, impacted families and members of the public,’ the letter said.”
 
NYSDA has heard reports that defender vaccination eligibility is inconsistent throughout the state. For instance, there are some counties where attorneys and staff are being recognized under 1B classification for vaccination eligibility, but not in other counties. We support the defender community's need to ensure that defense attorneys and their staff who are required to return to in-person operations are eligible for vaccination. On Feb. 26, 2021, NYSDA sent a letter to Governor Cuomo calling on the State “to immediately revise the State’s vaccination eligibility category 1(b) to specifically include all attorneys and staff who are obligated to make in-person court appearances, including but not limited to public defenders, legal aid society attorneys, assigned counsel lawyers, and members of the defense team who represent clients in criminal and family court, as well as individuals who are incarcerated in county jails and state prison facilities.”
 
NYSDA has been maintaining a list of the various court operating protocols across the state, organized by Judicial District, which can be viewed on our Court Re-Opening page.
 
Ongoing Toll of COVID-19 on Defenders and Others
In a recent article on Law360.com, “Public Defenders Speak Out About The Tolls Of COVID-19,” a supervising attorney at the New Mexico Law Office of the Public Defender, Dayna Jones, was interviewed. “When we spoke in December, Jones worried about the return of jury trials. She worried about her staff taking on their existing caseload plus what has piled up since the pause, and encouraged her colleagues to mentally prepare for the avalanche of work to come. She worried about her clients languishing in jail waiting for resolutions."
 
On Feb. 21, 2021, Time published a piece entitled, “‘I Want This Over.’ For Victims and the Accused, Justice Is Delayed as COVID-19 Snarls Courts.” The article reports that “[s]ince COVID-19 was declared a national emergency in March 2020, every state and Washington, D.C., has canceled or scaled back in-person criminal court proceedings to stem the spread of the virus. The snarled justice system has left hundreds of thousands of families waiting for trials and other resolutions, while creating a cascade of civil rights issues for the accused. More defendants, especially those with health problems, are striking plea deals to avoid sitting in jail for an undetermined amount of time, defense attorneys say. And virtual courts are exposing the disadvantages of the poor, who are less likely to afford Internet access for court dates, as a staggering number of new criminal cases stack up.”
 
As reported by The Imprint Youth and Family News, many involved with family court proceedings are advocating that “substantive hearings need to begin again in-person — and for justice’s sake, as soon as possible.” According to the article, some litigants believe that their case outcomes would have been better in an in-person setting. Stephen Riebling, a family defense attorney, said: “‘I’ve had clients say to me, “I wish we could have actually been in court. Maybe that would have made a difference”’ …. ‘That’s their perception.’” While those interviewed for the article said that “any matter involving testimony should stay in-person after the pandemic,” some expressed support for virtual proceedings for appearances that don’t involve substantive issues. As Mark Funk, Monroe County Conflict Defender, noted: “attorneys report that it’s far harder to gain the trust of clients virtually or over the phone, so it takes longer to prepare a case. It’s also more cumbersome for attorneys to negotiate deals because they don’t run into each other informally in courthouses, he said.” As the debate over virtual vs. in-person court continues, many defenders and litigants are left to wonder what post pandemic court will look like.
 
Virtual Bench Trial Protocols and Procedures
In February, the Unified Court System released a Virtual Bench Trial Protocols & Procedures guide written by the Hon. Norman St. George, J.S.C. District Administrative Judge 10th Judicial District-Nassau County. Nassau County was one of the jurisdictions that held a trial during the COVID-19 shutdown. The introduction of the guide includes commentary: “The following guide demystifies the proceedings and presents a simple and practical roadmap to conducting a Virtual Bench Trial. It also informs all participants on what to expect. This guide has truly been a collaborative effort. These materials represent a collection of the Best Practices from all of the Judicial Districts throughout the State. We thank all of the Administrative Judges, the Presiding Judge of the Court of Claims, the Supervising Judges, the Trial Judges, the Bar Associations, the District Attorneys, the Public Defenders, and the Lawyers who contributed their suggestions, comments, and concerns to this compilation.”
 
Update on County and Local EO 203 Reimagining Policing Plans
The Government Law Center at Albany Law School has curated a list of draft plans that local governments have created under Governor Cuomo’s Executive Order 203. The Executive Order directs all communities in New York State to adopt a plan reimagining policing by April 1st. As the deadline for submission of the plans approaches, more localities are finalizing their plans.
 
Last week, the New York State Association of Counties held a webinar entitled, “Policing Policies in 2021 and Beyond: Training, Reform, Reinvention.” The webinar recording is available at https://youtu.be/CPzLDaTsO9o and the presentation slides are available at https://www.nysac.org/files/POLICING.pdf. 
 
WNY RIAC February and March Newsletters
In its February newsletter, the Western New York Regional Immigration Assistance Center (WNY RIAC) features an article entitled, “Requisite Mental States for Crimes Involving Moral Turpitude: Where does that leave Recklessness?” The article explains, “One type of immigration offense that defense counsel should always try to avoid for noncitizen clients are crimes involving moral turpitude (CMTs). A conviction for or a plea to a CMT can negatively affect a noncitizen in many ways. While a single CMT committed more than five years after admission may be a surmountable obstacle for certain noncitizen clients with neither prior nor subsequent criminal histories, two CMTs can clearly render noncitizens deportable, inadmissible, and ineligible for immigration benefits or relief in removal proceedings.” The article goes on to discuss strategies and tips on creatively advocating for your client but also ends with a caution: “Please keep in mind that even where an offense is not a CMT, the crime may still constitute other immigration offenses with harsh consequences. It is always advisable for defense counsel to consult with immigration attorneys when representing a noncitizen client as soon as possible in the representation.”

The March newsletter addresses the question of how a client can become a U.S. citizen, with a particular focus on the “good moral character” requirement. We thank the WNY RIAC for sharing their newsletters as a resource for the larger defender community.
 
A Year in Review for Family Court Cases
The New York Appellate Digest, a self-described independent website, has released its 2020 “Year in Review” of select family court appellate cases. According to an announcement on their website, this 132-page document “is an organized compilation of the summaries of selected decisions addressing Family Law released by our NYS appellate courts in 2020 and posted on the New York Appellate Digest website in 2020. The entries in the Table of Contents link to the summaries, which link to the decisions on the official New York Courts website.” To see other resources offered on this website, including a “Year in Review” for criminal evidence and the Court of Appeals, visit https://www.newyorkappellatedigest.com. 
 
Grand Jury Secrecy, Justice Reform Efforts Collide; Horton Quoted
A lengthy article in the Rochester Democrat and Chronicle on Feb. 26, 2021, discusses grand jury secrecy in New York and beyond in the context of current challenges to police killings and also in historical contexts. As to the latter, it particularly notes the 1971 Attica prison uprising in which law enforcement “fatally shot 29 inmates and 10 prison employees who’d been held hostage” when re-taking the facility. The article includes comments by Gary Horton, Director of NYSDA’s Veterans Defense Program, who was counsel for the Forgotten Victims of Attica, a group organized to advocate for the prison employees who survived and the families of those employees who died. Horton’s comments, and the article itself, acknowledge the complexity of grand jury secrecy. Journalist Gary Craig writes about the need to protect the privacy and, in some instances, safety of accused people who are investigated and cleared, witnesses, and grand jurors themselves versus the public’s need to know if some individuals or groups, like police, are being improperly shielded from indictment by skewed grand jury presentations.
 
The article focuses on public release of grand jury information. It does not delve into release of testimony to the defense under the discovery law reforms of the recent past. Grand jury issues are included in the information that NYSDA provides in training and during consultation with lawyers who contact the Backup Center; references to grand jury issues may also be found in some of the materials on our Discovery Reform Information webpage.
 
Forensics Updates
News about various forensic disciplines appears on a regular basis. Below are a few recent items of note. Forensics resources are available on NYSDA’s website at https://www.nysda.org/page/Forensics.
 
  • Radley Balko recently authored an Opinion in the Washington Post entitled, “Study finds cognitive bias in how medical examiners evaluate child deaths.” The piece notes: “A new study in the Journal of Forensic Sciences suggests the role medical examiners play in the criminal justice system is far more subjective than commonly thought. It also suggests their analysis might be tainted by racial bias.”
 
  • Politico published an article last week about the continued expansion of the New York City Office of the Chief Medical Examiner’s DNA database. “Last year, officials vowed an overhaul to expunge many New Yorkers from the city’s DNA database, but the number of genetic profiles held by the city has only grown since.” The article notes that “[a]dvocates are pushing for state legislation that would ban New York City and other municipalities from maintaining their own DNA databases. The state maintains its own, more limited DNA tracking system, which includes only people convicted of crimes.”

  • An article in Slate, “The Trump DOJ Snuck In One Last Effort to Push Junk Science in Court,” explains: “With just days left before Joe Biden’s inauguration, the DOJ abruptly responded to a milestone report on forensic science published years ago. In 2016, Barack Obama’s President’s Council of Advisors on Science and Technology, or PCAST, composed of renowned scientists, pulled the curtain back on the misuse of forensic science in American courts. The council’s report concluded that methods frequently relied upon by prosecutors to convict people, like firearms and bitemark analysis, lack basic scientific validity.” The article goes onto state, “Trump’s DOJ issued an unsigned 26-page statement designed to undermine those findings. It was a smoke-and-mirrors attempt to use the credibility of the federal government to prop up the uncritical use of flawed forensic evidence that has contributed to hundreds of wrongful convictions.” The Innocence Project has called on the Department of Justice to retract the recent statement.
 
Should Public Defenders Be Tweeting?
Vice recently published an article entitled, “Should Public Defenders Be Tweeting?” The article covers a range of issues regarding the use of social media by defense attorneys. Public defenders “are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. ‘Their advocacy could cost them,’ she said.”
 
In the article, Nicole Smith Futrell, an associate professor and supervising attorney in the criminal defense clinic at the CUNY School of Law, and a former public defender, explained, “‘[w]hen you’re going on social media, that creates a larger spectrum of risk and potential downside for the client’ ….” The article reports, “[a]fter becoming concerned about some public defenders’ lack of respect for client autonomy, experiences, and privacy, in December 2019, Smith Futrell published a paper entitled ‘Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy.’” Smith Futrell is quoted as saying: “‘Clients have told me that they care a lot about their privacy, accuracy, being a part of the decision-making, and understanding the purpose of the social/traditional media communication’ ….”
 
Similar sentiments can be found in the Client-Centered Representation Standards created by NYSDA’s Client Advisory Board, and approved and endorsed by our Board of Directors. These standards, found on our website, indicate that among the things that clients want is a lawyer who “[m]akes sure the client’s privacy is respected … and [w]orks and strategizes in collaboration with his or her client.”
 
A Jan. 8, 2021, NYS Bar Association Ethics Opinion addresses whether a defunded not-for-profit public defender office can turn over open and closed client files to the assigned counsel program that is being made the primary public defense entity for the county. The digest of Opinion 1212 states that, absent a client’s consent, “the public defender’s office must facilitate the transfer of open client matters to the client or successor counsel appointed by the assigned counsel program and must maintain the files until this transfer can be accomplished. Closed client files from a defunded program must be maintained in the manner required of dissolving law firms.”
 
A public defender office “is a qualified legal services organization and, therefore, constitutes a law firm” under the Rules of Professional Conduct, but an assigned counsel program is different, the opinion says, citing rules 1.16(e), 1.6, and 1.9(c). As to the cost of maintaining files during the transition, the opinion offers no clarity, stating only that the office “may wish to explore whether this expense may qualify as an obligation of the county under” County Law article 18-A or 18-B.
 
The discussion of closed files notes that while entire files need not be maintained, “a lawyer may have an ethical obligation to maintain certain documents indefinitely, such as when the lawyer knows or has reason to know the client may need the documents in the future. See N.Y. State 1192 ¶ 12 (2020).”
 
Coincidentally, state regulations regarding record retention by counties have been updated recently, with Local Government Schedule 1 (LGS-1) replacing the prior CO-2. Like its predecessor, a provision in Schedule item 95 (legal case file) dealing with public defender case files requires that such files “must continue to be maintained until death of the client concerned, 80 years after date of birth of the client concerned, or the client concerned provides instructions on disposition of the file, whichever is earlier.” The need for long-term retention of public defense client files is explained in the Office of Indigent Legal Services appellate standards, Standard XXV and Commentary.
 
Commission to Reimagine the Future of New York’s Courts Issues New Recommendations
The Commission to Reimagine the Future of New York’s Courts, appointed by Chief Judge DiFiore in June 2020 to “examine regulatory, technological, structural and other innovations and propose practical short- and long-range reforms,” issued two separate reports recently. According to a press release issued on February 2nd by the Unified Court System, one report is aimed at “expanding the use of e-filing,” and the other report focuses on “enhancing remote court operation amid the COVID pandemic and beyond.” Among several recommendations from the Structural Innovations working group is to “[i]nstitute e-filing provisions in the civil courts of lesser jurisdiction and in all courts of criminal jurisdiction.” Recommendations from the Technology working group include the development of “statewide training to educate Court System personnel on the efficient and secure use of mobile devices, as well as case and data management features and platforms that have been or will be implemented by the Court System.”