Chief Judge DiFiore Discusses Court Plans in Her March 15th Message
In her March 15th weekly message, Chief Judge DiFiore discussed plans moving forward with resumption of court proceedings, which was covered in the New York Law Journal, “Majority of New York State Court Proceedings Will Stay Virtual for Now.” Last month, the American Bar Association published an article written by a New York defense attorney, Phillip C. Hamilton, entitled “Practical and Constitutional Issues With Virtual Jury Trials In Criminal Cases.” In this piece he frames the issue, “The Confrontation Clause and Virtual Testimony: An Inharmonious Marriage,” and explains that “[v]irtual jury trials in criminal cases are constitutionally questionable and far from ideal in terms of effective criminal trial practice.” The article discusses the challenges of having trials in the virtual space and forum. As defenders continue to navigate these changes moving forward, the Backup Center is here to help.
 
DA Must Turn Over All Police Disciplinary Records, Court Says
The Buffalo News reported on Mar. 15, 2021, that an Erie County Court judge has ruled the defense is entitled to all disciplinary records of police officers who will be called to testify. Among those quoted about the ruling was Kevin Stadelmaier, the Legal Aid Bureau of Buffalo Chief Attorney of the Criminal Defense Unit; he said, “‘I don’t really want the fox watching the hen house’” when noting the importance of the court’s ruling that prosecutors do not have discretion as to what parts of the disciplinary records must be turned over. The court’s decision rejects the prosecutor’s suggestion “that their discovery obligation as it relates to police personnel records is limited to the subject matter of the charges or the case file,” finding this is not a sound interpretation of the statute’s plain language or the legislative intent. Potentially impeaching material may not be “filtered by subject matter or by the People’s assessment of its credibility or usefulness.” And since possession of police records is imputed to the prosecution regardless of whether they have actual possession, no valid certificate of compliance and declaration of readiness can be found where the records have not been obtained and made available to the defense. Requiring the defense to obtain the records through a Freedom of Information Law (FOIL) request would ignore the statutory requirement of automatic discovery and shift the discovery burden; FOIL requests to law enforcement agencies in the county are known to have gone largely unanswered.
 
CAL Begins “Racial Justice Series” in “Issues to Develop at Trial”
With its March issue of “Issues to Develop at Trial” (IDT), the Center for Appellate Litigation begins a “Racial Justice Series.” Devoted to combating racism in New York courtrooms, the series will highlight a number of issues to help individual clients while advancing racial justice. The “inaugural issue discusses integrating the concept of implicit bias into voir dire,” and discusses two suggestions: “(1) ask the court to instruct the venire and the sworn jury at key points on the concept of implicit bias, and (2) integrate implicit bias into your voir dire of prospective jurors.”
 
Prior editions of “Issues to Develop at Trial” are posted on the CAL website. NYSDA thanks CAL for making this resource available to public defenders.
 
NYSDA Supports Addressing Racial Issues at Trial. As noted in our statement that Black Lives Matter to NYSDA, we are committed to exposing and ending racism in the criminal and family legal systems. We welcomed last year’s report of the Special Adviser on Equal Justice in the New York State Courts, which is cited in the IDT issue above. Including the issue of race in jury selection has long been a tenet of NYSDA’s Basic Trial Skills Program (BTSP) (which received the endorsement of the New York State Judicial Commission on Minorities in 1991 and 2011). BTSP was canceled last year due to COVID-19; more information about plans for BTSP this year appears in Association News, below. As CAL notes by citing the North Carolina Defender Training Manual, efforts to reveal and remove implicit bias at trial are not new nor limited to New York. North Carolina has posted a number of materials on litigating race, including a chapter on “Addressing Race at Trial.” There is also, from San Francisco, the late Jeff Adachi’s Litigating Racial Justice Issues.
 
NYC Panel Discusses Changes to Mandated Reporting System
As reported in the Imprint Youth and Family News, a virtual panel was hosted by the New School’s Center for New York City Affairs on Monday March 15, entitled Child Welfare at a Crossroads: Where Do We Go from Here?, to discuss proposed changes to New York City’s mandated reporting system. Among the panelists for this event were David Hansell, Commissioner of New York City’s Administration for Children’s Services (ACS); Halimah Washington, Community Coordinator, parent, and former foster child; and Dr. John Robertson, Lecturer, Columbia School of Social Work. According to the Imprint, Ms. Washington, who is a Black woman and mother of four from the Bronx, gave an account of her experience with the child welfare system, after a worker at the hospital she had brought her toddler to for care called ACS, accusing her of “seeking to leave with her son ‘against medical advice.’ For the next 60 days, Washington said, [ACS] investigated ‘intimate details of my life, my community care network- anyone that supported me and my family, ACS was at their door asking questions about my mothering and my motherhood.’” Washington said she felt as if “ACS is weaponized against me and my family.” According to the Imprint, in partial response to Washington’s concerns Hansell said, “We have to make sure mandated reporting as a system is not using-essentially weaponizing the child welfare system, to use your words - to address issues that are not really fundamentally child safety or child welfare issues ….”
 
NYSDA has included numerous items in past editions of News Picks highlighting the racial disparity and systemic racism that take place in the family regulatory system every day, resulting in Black and brown families being separated at an alarmingly high and disproportionate rate. These articles can be found on NYSDA’s Family Defense Resources Articles and News of Interest page. Additional items can be found on our Racial Justice and Equity page. As reported in the February 22nd edition of News Picks, advocates are urging the Legislature and Governor to enact legislation that would help to reduce the harm caused by the family regulatory system. Among these proposals are a requirement that all non-mandated reporters have to give their name when making a report of suspected child maltreatment, as well as a requirement that caseworkers investigating suspected cases of maltreatment notify parents of their rights. One piece of legislation that was passed as part of last year’s budget (L 2020, ch 56, Part R), and is scheduled to go into effect on Jan. 1, 2022, will raise the standard of proof before someone can be placed on the Statewide Central Register from the bare minimum standard of some credible evidence to a preponderance of the evidence, and, in some cases, shortens the period of time that their names appear.
 
Albany Mental Health Court to Open; Such Courts Not a Catch-All Fix
Albany County has announced the opening of its first mental health court, which will be limited to people charged with non-violent misdemeanors. The County Executive said the new program was a “result of work between the county, state courts, the district attorney’s office, and former state Supreme Court Judge Thomas Breslin,” according to a Times Union article on February 27th. While public defense providers were absent from that statement, current Public Defender and former County Court Judge Stephen Herrick is quoted in the same article as saying this move is long overdue, and that lawyers in his office are “clamoring to get some of their clients into the court ….” New York State Chief Judge Janet DiFiore, in her weekly update on Mar. 8, 2021, noted that the “new ‘Albany Alternative and Treatment Court,’” the first such court in the Third Judicial District, was opening notwithstanding the challenges of the pandemic.
 
DiFiore lauded those who serve in New York State’s “300-plus problem-solving drug treatment, mental health and veterans’ treatment courts,” which provide what she called “often life-saving treatment services ….” But specialty courts, including mental health courts, are not a panacea for all problems that the criminal and family court systems are called on to address, including—or especially—mental illness.
 
A Mar. 7, 2021, analysis on Law360.com noted the wide variation in mental health court models and practices. While according to “a 2017 meta-analysis of 17 studies published by Psychiatric Services in Advance, mental health courts reduce recidivism by 20%,” the Law360.com article notes, “some judges and advocates say that people who commit low-level offenses and have mental health problems should be identified and directed to mental health services without being arrested and filtered through the court system at all.” In 2019, a University of Illinois at Chicago academic noted in a paper that self-selection bias and other selection biases had been found, and that mental health court “programs serve less than 2 percent of the target population in those jurisdictions where they exist, and participants may not be those most impacted by criminal justice involvement and a lack of services (Wolff, 2017).”
 
Mental health courts, like all specialty courts, provide challenges to the public defense lawyers who practice there. NYSDA encourages those lawyers to reach out to the Backup Center when they encounter issues specific to such courts.
 
“Why It’s Time to Abandon Drug Courts”
A guest commentary posted by DavisVanguard.org says that after 30 years, the now over 3,000 drug courts in the U.S. have failed to halt addiction and overdoses. The often-touted evidence of reduction in recidivism, the commentators say, “is highly skewed by the common practice of cherry-picking individuals most likely to succeed and excluding those most in need of care,” and, “most importantly, reducing recidivism isn’t the same as ending the criminalization of drug use, improving the health of people who use drugs, or improving community welfare ….” Further, drug courts do not decrease incarceration rates when time spent detained as sanctions for failure to adhere to requirements and lengthier sentences imposed on those who fail to graduate from the courts are taken into account, the authors say.
 
Probabilistic Genotyping and Source Code Revelations
An article published last week in The Markup, entitled “Powerful DNA Software Used In Hundreds of Criminal Cases Faces New Scrutiny,” says: “After decades of secrecy, two judges have ruled defendants can investigate whether TrueAllele’s probabilistic genotyping algorithm works as advertised.” The article goes on to discuss the impact these revelations may have on a criminal case:
 
"The latest practice to come under scrutiny is an obscure technique, “probabilistic genotyping,” that takes incomplete or otherwise inscrutable DNA left behind at a crime scene, often in minuscule amounts, and runs it through a software program that calculates how likely it is to have come from a particular person. One such program, TrueAllele, has been used in more than 850 criminal cases over the past 20 years. The problem? No one knows whether it works—the code, developed by a private company called Cybergenetics, is proprietary."
 
"Government crime labs that use the software don’t get access to the program’s source code. Employees of Cybergenetics don’t get access. Even the authors of the peer-reviewed studies of TrueAllele have never had access to the code."
 
"But now, two criminal cases—one in the U.S. District Court for the Western District of Pennsylvania and another in the Appellate Division of the Superior Court of New Jersey— may give the world a first peek into TrueAllele’s secretive algorithm. Last month, the New Jersey judge ordered prosecutors to hand over the source code for TrueAllele, and a few weeks later, the federal judge in Pennsylvania did the same."
 
In New York, the Center for Appellate Litigation noted in an update that TrueAllele’s source code is at issue in Peope v Wakefield, in which leave has been granted.
 
“Defend the Public Defenders”
Irene Oritseweyinmi Joe, a law professor at UC Davis School of Law, published the above-titled article in The Atlantic, which identifies many of the challenges of being a public defender: “Working as a public defender can be like walking a tightrope. Attorneys are constitutionally required to provide effective representation to their clients, ethically required to do so as officers of the court, and subject to the ordinary human desire to keep their jobs. Other actors in the criminal process complicate the public defender’s ability to do each of these things. At times, courts set restrictive and unconstitutional bail, show little patience for the time it takes attorneys to investigate and prepare cases, and fail to hold prosecutors accountable. Prosecutors sometimes bring so many cases that public defenders cannot meaningfully represent every client they are assigned, and then use this tactic to move cases quickly through the criminal process. Then, the leaders of the institutions within the executive and judicial branches of government can fire or reassign a public defender when they are displeased with his or her work. It can be a vicious cycle, where a public defender is fighting a battle against the very entity that must provide that public defender with the resources and support it needs to do so. So who defends public defenders when they are faced with serious consequences for challenging the decisions of opposing actors, when those very actors oversee the public-defender institution?” The article proposes that inspector general offices might be the answer.
 
Former Chief Judge Lippman and Former NYC Probation Commissioner Schiraldi Call for Parole Reform
In an op ed in the New York Daily News on Mar. 11, 2021, Jonathan Lippman and Vincent Schiraldi call for parole reform now, making the following statement that cites new research:
 
"New York spends billions operating prisons and jails with disappointing public safety benefits and severe racial inequities. Our state sends more people back to prison for technical parole violations — things like missing appointments or staying out past curfew — than any other state. Four out of ten people entering New York prisons do so for violating parole, not a new conviction. Prior to the pandemic, people incarcerated for technical violations were the only population increasing on the notorious Rikers Island that elected officials and advocates agree needs to be shuttered."
 
"This is a costly and ineffective way to improve safety and help people succeed after prison — the two purposes of parole. Our just-released research found that, in 2019, New York spent at least $319 million incarcerating people for parole violations. Before people are returned to state prison for violations, they are incarcerated in local jails awaiting parole hearings, with no opportunity for pre-hearing release, at an additional cost of $365 million — a price borne entirely by county and city taxpayers. All told, state, city, and county taxpayers spent more than $680 million in 2019 to incarcerate people for parole rule violations."
 
"The cost of preserving the status quo goes well beyond fiscal concerns. Our state’s parole system is reflective of the racial injustices and social inequities that led to mass demonstrations over the past year. Black and Latinx people are significantly more likely than whites to be under supervision, jailed pending a violation hearing, and incarcerated in state prisons for a parole violation. In New York City, Black and Latinx people are 12 and four times as likely to be jailed, respectively, for technical violations. The first two people to die from COVID-19 in Rikers Island, Raymond Rivera and Michael Tyson, were two men of color incarcerated for technical parole violations: leaving a drug program without permission and missing appointments, respectively."
 
“Misdemeanor Convictions Cause Real Harm. New York Needs a New Approach”
The above-named article, published in The Appeal, addresses a topic that should be familiar to defenders who practice in local courts around the state. And now, “[a] growing number of Americans now understand that misdemeanors, despite often being called ‘minor offenses,’ can be devastating, especially for the poor and people of color.”
 
The authors encourage the expanded use of diversion programs: “Reducing the number of people who carry these charges—more than 45 million nationwide—is vital, and New York has developed tools to do just that. But one such tool —pretrial diversion, which allows someone cited for a misdemeanor to avoid being charged with the offense—is underutilized, underfunded, and at risk of collapse because of budget cuts. That’s unacceptable, especially during a pandemic, where thousands of cases have spread through New York’s jails and prisons, endangering the lives of incarcerated people and corrections staff. City and state leaders should be taking every step possible to reduce the risk of incarceration for misdemeanor convictions, and that includes funding and expanding these vital initiatives.”

Association News

NYSDA: Wide Search, Independence Key in Hiring New ILS Director
As noted in the February 22nd edition of News Picks, the Office of Indigent Legal Services (ILS) will be getting a new Director; we stressed that a wide search and focus on independence of the defense function are vital to finding and selecting the best replacement for William J. Leahy. On March 10th, NYSDA’s Executive Director wrote to the ILS Board outlining NYSDA’s “efforts to reach dedicated, experienced defenders across the nation to let them know about the opportunity” and urging the Board to make the selection process transparent, actively seek diversity in the candidate pool, and secure a qualified candidate committed to public defense and the client community. The letter is here.
 
Training News and Updates

BTSP Live Program Cancelled for 2021
NYSDA is disappointed to announce conclusively that the Basic Trial Skills Program has been cancelled as a live program this year upon the announcement by Skidmore College that they were suspending all on-campus summer conference programming. We are exploring options to offer in its place that will include innovative virtual training sessions designed to develop communication skills and courtroom techniques that can be incorporated into future client-centered advocacy as we work toward the return of in-person practice while accommodating a level of remote and virtual practice.
 
Annual Meeting and Conference Plans in a Holding Pattern
The scope of in-person versus virtual programming for NYSDA’s Annual Meeting and Conference is in a holding pattern as we continue to assess the COVID-19 statistics and policies on public gathering are formulated. Under consideration is a hybrid of some live meetings and presentations combined with virtual access. Dependent factors will include state health regulations, venue availability, and a safe and reasonable way to accommodate those interested in live participation. The tentative dates for an in-person event are Sunday, July 25 to Tuesday, July 27. Plans will be shared as soon as decisions can be made. We appreciate your patience and look forward to seeing you in person again soon.
 
End of March CLE Session
Thursday, Mar. 25, 2021, 2:00-3:30 pm: ICE Detainers in Suffolk County: Past, Present, and the Future of Enforcement, presented in cooperation with the Long Island Regional Immigration Assistance Center (RIAC). The presenter will be Elizabeth L. Tonne-Daims, Immigration Unit Attorney, Long Island RIAC. There is no cost for this program, and while geared toward practice in Suffolk County, the issues discussed may be of general interest. Register at https://www.nysda.org/events/register.aspx?id=1494759.
 
Save the Date- Upcoming Program
April 23, 2021, 10:00 am – 2:30 pm: Appellate Division Fourth Department Family Court Appeals Training. Program details and registration information coming soon.