Bail Reform is a Success Story, Says Fwd.us

Despite being used as a political punching bag, the bail reform law “has been an astounding policy success,” according to Fwd.us. The 2019 bail reforms have not driven any uptick in crime or failures to appear for court,” says their webpage announcing a new report and citing a Dec. 15, 2022, report. And the reforms have “made an extraordinary and positive impact on the lives of the poor and working class New Yorkers who have historically been most harmed by cash bail and pretrial detention,” it says. The new report sets out measurable results, including “dollars saved by families, nights spent at home, and an overall shrinking of a [too-large] jail system ….” The findings should come as no surprise to defenders who have seen the benefits bail reform has had for clients, their families and communities, and public safety. With charts and illustrations, the report should be helpful to advocates working to block scare-mongering tactics by reform opponents.

NYPD Release Data on Traffic Stops That Show Extreme Racial Bias

As mandated by 2021 New York City Council legislation, the NYPD released their first quarterly report on car stops broken down by demographics. As reported by Gothamist, while only 59% of drivers stopped were Black and Latinx, they account for 90% of those drivers who were ultimately searched or arrested.

This data can be helpful in equal protection challenges to police stops animated by race, as the Third Department recently found in People v Jones (210 AD3d 150), which was discussed in the Oct. 31, 2022, edition of News Picks. If you want help in crafting an argument along these lines, please contact the Backup Center. Also, as noted in Association News below, NYSDA will be presenting a webinar on pretext stops on April 27th.

The Struggle to Open Police Disciplinary Records Continues

“Nearly three years after New York repealed a statute that for more than four decades had prevented the public scrutiny of police disciplinary records, many departments across the state are continuing to block the disclosure of ‘open’ or ‘unfounded’ complaints against officers,” says the opening of a February 21st Brendan J. Lyons article in the Times Union (TU). The piece discussed the intent of the Legislature in repealing the provision in question, Civil Rights Law 50-a, quoting Assemblyman Daniel J. O’Donnell, a lead supporter of the repeal, who said “it ‘was not my intent’ to have unfounded, unsubstantiated or pending disciplinary complaints against police officers withheld on privacy grounds.” The article references a February 13th TU report about a Supreme Court’s ruling in favor of the New York Civil Liberties Union (NYCLU) concerning police records in Troy. The NYCLU website has information about the case, including the decision, which was also noted in the prior edition of News Picks.

As reported by the New York Law Journal on February 17th, the First Department ruled on the 16th “that the New York City Department of Correction must turn over to the New York Civil Liberties Union, under a Freedom of Information Law request, records that include “unsubstantiated complaints or allegations” leveled against corrections officers, with officers’ personal information redacted.” The decision in Matter of New York Civ. Liberties Union v New York City Dept. of Correction (2023 NY Slip Op 00930) upheld disclosure of requested records but did disturb the denial of attorney’s fees, because the matter “at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, [so] it cannot be said that respondents had no reasonable basis for denying access to the records at issue ….”

Error to Shackle a Defendant Before the Jury During Delivery of Verdict and Polling

“The ‘long forbidden routine use of visible shackles during the guilt phase of a trial’ in the absence ‘of a special need’ … applies during the jury’s reading of its verdict and the court’s polling of the jurors.” The Court of Appeals explains this February 9th holding, in People v Sanders (2023 NY Slip Op 00692), by noting that “the reading of the verdict is an integral part of the guilt-determination phase” and that “‘a verdict reported by the jury is not final unless properly recorded and accepted by the court,’” given that a jury must resume its deliberations if “polling elicits a negative answer from one or more jurors.” The decision notes that shackling during trial may be permitted after “‘close judicial scrutiny’” in “an on-the-record, individualized assessment of the ‘state interest specific to a particular trial ….’” 

Because Sanders is a criminal court case, the more stringent rules against shackling young people in family courts did not apply. Family Court Act 162-a prohibits the use in the courtroom—not just during trials—of restraints on children under 21, with certain exceptions. This law became effective Oct. 8, 2021. As noted at the time in an article from The Imprint, Karen Freedman, executive director of Lawyers For Children, said that “[t]he new law ‘represents an important step in ensuring that the New York State Family Courts provide a truly humane, respectful and antiracist judicial forum for administration of justice’ ….”

Routine Shackling a Legacy of Slavery?

The Freedman comment above referring to the need for courtrooms to be antiracist judicial forums touched on an aspect of courtroom shackling that has not been commonly discussed. Four years before Family Court Act 162-a became effective, the Juvenile Justice Information Exchange Initiative in Illinois posted an opinion essay entitled "Shackling People in Court is Shameful, Unnecessary Legacy of Slavery." The piece focused on the use of shackles on youth, but pointed out more broadly that “respecting the human dignity of all individuals, including those accused/convicted of criminal offending, is essential to ensure a strong civil society,” and noted that routine shackling “is especially problematic given the profound racial disparities in our justice system.” While not every instance of shackling has a racial component, racial connotations have been noted. Consider the statement in a 2018 New York Times op-ed urging scrutiny of prosecutors’ offices, saying that they “claim their actions aren’t related to race, but the shackled black men paraded in and out of courtrooms tell a different story.” The shackling of incarcerated people while they give birth is a another example of when race and shackling may be linked; a 2012 law review article addressed “Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners.” Correction Law 611 provides that jails and prisons may not use restraints on individuals known to be pregnant or within eight weeks of delivery or pregnancy outcome during transport absent extraordinary circumstances.

CPS Can Be Held in Contempt for Failure to Comply with Subpoena

In Matter of Michael Y. v Dawn S. (1st Dept 1/17/2023), the First Department reversed and remanded for a determination of whether the Administration for Children’s Services (ACS) should be held in contempt for failing to produce unredacted reports pursuant to a judicial subpoena. In this Article 6 custody proceeding, the petitioner father sought “modification of an order providing for the mother’s visitation, [alleging] that the mother had made numerous false reports of child abuse or neglect against him, which were determined to be unfounded. As the subject of the unfounded reports, the father is a person entitled to receive access to the otherwise sealed reports [citations omitted]. The court issued a subpoena directing ACS to produce complete investigation progress notes and reports of suspected child abuse or maltreatment to him.” On remand, the family court must determine whether ACS properly redacted the sources of the unfounded reports and whether ACS should be ordered to produce the unredacted reports or be held in contempt. This is a reminder that, through motion practice, a government agency can be held accountable for their actions. We encourage you to visit NYSDA’s Family Defense Resource Page which contains several sample discovery motions.

Incarcerated Parents Have Due Process Rights  

In the Matter of Anthony T. v Melissa U., 211 AD3d 1406 (3rd Dept 12/22/2022), the Third Department reversed and remitted for a hearing on the incarcerated father’s petition for expanded visitation. “[V]isitation with a noncustodial parent, including an incarcerated parent, is presumed to be in the best interests of the child, and the party opposing visitation may overcome this presumption with ‘compelling reasons and substantial proof that visitation would be harmful to the child’ [citations omitted].” No such evidence was offered here. The Appellate Division concluded that, “[o]ther than the mother’s conclusory testimony, there was scant evidence, if any, demonstrating that the child having telephone contact with the father would be detrimental to the child’s welfare ….” This is a good reminder to defenders that even though a parent who is incarcerated cannot have custody of their child, they are still entitled to due process and contact with their child.

Lincoln Hearings: Know About and Prepare for Them

A February 27th article in the New York Law Journal sets out the importance of the Lincoln hearings, in-camera interviews of children by the judge in custody cases, and urges lawyers to prepare themselves and advise their clients what to expect. These interviews are an understandable point of concern and anxiety for parents and their attorneys, as the information that is gleaned during this process can potentially determine who gets custody of the child. The wishes of the child are one factor, but arguably one of the most important factors in a best interests determination. Points include letting clients know early in the case about the interview, cautioning clients against efforts to influence what the child says to the judge, and giving thought when submitting proposed questions. Such questions “should be as non-leading as possible, relate to care and custody issues, and ones that your client is virtually certain as to what the response will be (without having attempted to coach the children, of course).” The article says that “most jurists attempt to glean information relevant to the following topics during the interview: (1) What the children want and why they want it, (2) What the children have witnessed between their parents, (3) What the children have been told by each parent about the case, (4) What, if anything, the parents suggested that the children tell the court, and (5) What they know about conflicting allegations made by one parent against the other?” Attorneys with questions about Lincoln hearings or other matters should reach out to NYSDA Family Court Staff Attorney Kim Bode at kbode@nysda.org.

“Prosecutors and Judges Push for Conviction Reviews, Ban on Junk Science of 911 Call Analysis”

In our December 12, 2022, edition of News Picks, we covered an emerging area of junk science: 911 call “analysis.” To recap, a retired police officer, Tracy Harpster, developed a method that allegedly allows him to “identify guilt and deception from the word choice, cadence and grammar of those calling 911” and offered to train law enforcement on the method. ProPublica has reported on this topic again, noting that some prosecutors’ offices and judges are becoming wary of this method and several organizations have cautioned prosecutors to “guard against these practices and correct past injustices they’ve caused through post-conviction review processes.” After canvassing approximately fifty departments and training associations, reporters received eleven responses, mostly from agencies trying to distance themselves from Harpster and his methods. ProPublica uncovered evidence that this method was used in Westchester County, noting that a prosecutor in that county wrote to Harpster to thank him for a consultation, “which he said, ‘proved to be an invaluable aid in understanding the defendant’s 911 call and greatly assisted in the successful prosecution.’” The Westchester County DA’s office did not respond to ProPublica’s questions. Defenders should pay attention to discovery materials that may indicate use of this method.

“Study Assesses the Accuracy and Reproducibility of Bloodstain Pattern Analysis”

While the American Academy of Forensic Sciences published a list of terms and definitions in bloodstain pattern analysis in 2017, analysts in the real world might not be adhering to these terms as they should when writing reports and/or testifying in court, according to a recent study.

Researchers used practicing bloodstain pattern analysts to review 150 unique bloodstain patterns, including images collected in a controlled lab setting and images from actual casework. When mapping out the study, the researchers importantly noted that the analysts “did not have well-established conclusion standards used throughout the community, so the researchers had to establish a set of conclusions for the participants to use.”

The study found that any two analysts’ conclusions contradicted each other at a rate of around 8%. Looking at incorrect responses, a second analyst corroborated the mistakes of the first analyst from 18% to 34% of the time. These inaccuracies were present regardless of analyst experience or training. While the researchers cautioned that the rates above cannot be quoted directly as error rates, the study made clear that without widely accepted criteria to make conclusions about classifications of bloodstain patterns, results are not highly reproducible between or among analysts. This can lead to conflicting testimony in court. Many of the disagreements were of a semantic nature where there was a conflict between terms like “splash” and “drip” patterns. This led the researchers to conclude that their results (which were similar to results obtained in previous studies) “should raise concerns in the [bloodstain pattern analysis] community,” wherein improved standards are needed.

A link to the paper published in Forensic Science International can be found here. The full results of the technical research report can be found here. If bloodstain pattern analysis plays a role in your case, these studies may be relevant for cross-examination of the prosecution’s expert and for discussion with your expert witness. Defenders with questions about cases involving forensic evidence are encouraged to contact the Public Defense Backup Center’s Discovery and Forensic Support Unit at info@nysda.org, 518-465-3524, or using our contact form.

“Can You Zealously Defend Someone You Virulently Hate?”

The question posed in this heading is taken from an Above the Law blog post that brings attention to a Massachusetts case now under consideration. The post links to a BloombergLaw.com article entitled “Lawyer’s Racist Posts Test Conflict of Interest Standards.” The issue is whether a conflict of interest was evidenced by a public defender’s 20 social media posts made during representation of a Black, Muslim client; finding a conflict would result in an automatic new trial. In that event, identifying specific ways in which the lawyer’s racist, Islamophobic opinions impacted the case, in which the client pled guilty, would not be necessary. What other effects might result from this case? The State is concerned that finding a conflict of interest here would require new trials for the thousands of public defense clients that the lawyer represented over his two-decade career. But advocates say a ruling against this client could damage public trust; several groups weighed in as amici, including the NAACP Legal Defense & Education Fund, the New England Innocence Project, and the Council on American-Islamic Relations - Massachusetts. The case is Commonwealth v Dew, No. SJC-13356, case information here.

People and organizations committed to antiracism must keep working to end the systemic racism that allows bias and blatant instances of overt racism to continue. Efforts can take many forms, including individual case advocacy using reports such as the NYPD traffic stop report discussed above and policy advocacy, both to defend reforms and promote proposed legislation intended to address systemic racism. NYSDA maintains its 2020 commitments, including providing relevant resources and training on systemic racism and implicit bias in the criminal legal and family regulatory systems and seeking guidance from those directly impacted by racism.

Orin Kerr Posts Suppression Motion for Challenging Internet Account Records

Social media posts, Facebook messages, and other types of cloud-based data are frequently sought by police in criminal investigations. In order to obtain these records, authorities often start by sending a preservation letter to the company in control of the target’s data. Renowned author and UC Berkley School of Law Professor Orin Kerr tweeted a motion template for attorneys looking to suppress information seized from internet accounts.

“This motion to suppress may be filed when the contents of an Internet account were preserved under 18 U.S.C. § 2703(f) before the government obtained a warrant to disclose the account contents under § 2703(a). The motion explains why preservation is a Fourth Amendment seizure that requires probable cause or at least reasonable suspicion. Because the government ordinarily uses § 2703(f) without any particularized suspicion, the contents of the account must be suppressed as a fruit of the unlawful preservation seizure.” Kerr’s tweet provided links to both a PDF and DOCX of the template. While the motion template must be adapted to the specifics of each case, it provides attorneys with an invaluable head start in challenging the seizure of internet account records. In 2021, Kerr published a law review article titled “The Fourth Amendment Limits of Internet Content Preservation,” which further explains the argument.

Chief Judge Application Deadline Extended to March 10th 

The Commission on Judicial Nomination has extended the application deadline for the New York Court of Appeals Chief Judge Vacancy to Friday, March 10th. More information about the application process is available here. NYSDA encourages candidates with public defense experience to apply.

Association News

Upcoming Training Programs

Friday, March 10, 2023, 9:00 am – 4:15 pm: 37th Annual Metropolitan Trainer. This year’s all-day program will be held virtually. The program includes the following presentations: Court of Appeals Update (Timothy Murphy, Assistant Federal Public Defender, Federal Public Defender’s Office for the Western District of New York); Sentencing Practice Under DVSJA PL § 60.12 (Jillian Modeleski, Senior Trial Attorney, Criminal Defense, Brooklyn Defender Services, and Jana McNulty, Supervising Attorney, Women’s Defense Project, Criminal Defense, Brooklyn Defender Services); Omnibus Motion Practice Under CPL Article 245 (Erik Teifke, Special Assistant Public Defender, Monroe County Public Defender’s Office); and Introduction to Attorney Cybersecurity (Jerome Greco, Digital Forensics Supervising Attorney, Digital Forensics Unit/Criminal Defense Practice, The Legal Aid Society). The cost for the program is $55 for individuals and $45/person for offices sending five or more attendees. Details and registration are available here.

Friday, March 31, 2023, 12:00 – 2:00 pm: Successful Education Advocacy: Strategies for Family Defenders with Melissa Accomando, Senior Attorney & Team Leader, Education Practice at Brooklyn Defender Services, and Carolyn Lipp, Senior Attorney, Education Practice at Brooklyn Defender Services. This program will address how identifying educational issues and successfully advocating on behalf of clients can lead to positive outcomes in family court. Various family court-related educational issues will be covered, including educational neglect, school stability for children in foster care, and protecting parents’ rights when their children are placed in foster care or otherwise separated from them. There is no cost for this program, but pre-registration is required. Details and information are available here.

Tuesday, April 4, 2023, 11:30 – 1:00 pm: What Parent Attorneys Need to Know About the Parental Equity Act and Family Court Act 1017 with Chris Gottlieb, Director, Family Defense Clinic at New York University School of Law, and Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice at Brooklyn Defender Services. This program will cover the recently passed Parental Equity Act and how its implementation will affect both respondent and non-respondent parents in neglect, abuse, and termination of parental rights cases. Additionally, the presenters will discuss other concerns and considerations related to representing non-respondent parents. Details and registration information are available here.

Save the Date: Thursday, April 20, 2023 (time tbd): Incapacitated to Stand Trial and Stuck in Jail – Now What? with Julie Keegan, Director, People with IDD/ADD (PADD) Program, Disability Rights of New York (DRNY); Ben Taylor, Senior Staff Attorney, PADD; and Sheila Shea, Director, Mental Hygiene Legal Service, Appellate Division, Third Department. This program will review the fundamentals of CPL Article 730 practice and strategies for helping clients trapped in incarcerative settings while determinations under the statute are being made. Details and registration information for this free program will be available soon.

Save the Date: Thursday, April 27, 2023, 1:15 – 2:45: Update on Police Pretext Stops with Yung-Mi Lee, Legal Director, Brooklyn Defender Services, and Jill Paperno, Senior Civil Rights Litigator, Civil Rights Practice Group, Empire Justice Center. Details and registration information for this free program will be available soon.

Sunday, June 11 – Friday June 16, 2023: NYSDA Defender Institute Basic Trial Skills Program. The annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Anyone interested in applying for the program should contact NYSDA at training@nysda.org.

56th Annual Meeting and Conference: July 30-August 1, 2023. The Annual Meeting and Conference will be held at the Saratoga Hilton in downtown Saratoga Springs. We are proud to expand our programming by offering training and networking opportunities for criminal defense and family defense attorneys and members of the defense team. Hotel reservations may now be made at https://book.passkey.com/go/NYSDefendersAssn23. The conference rate is $201 for a standard room. There will be a Welcome Reception Sunday evening, July 30, and the CLE conference will be held Monday, July 31, and Tuesday, August 1. Also, on July 31, we will have our annual meeting of the membership in the morning and our awards dinner in the evening. We look forward to seeing you in Saratoga this summer!