Less is More Primer
Following our September 24th edition of News Picks, where we discussed Governor Hochul’s signing of the Less is More parole reform bill, NYSDA put together a primer that reviews various provisions of the legislation. As the law is implemented, the primer will be updated and any feedback on it is welcome. Less is More is one of the topics that will be addressed during our Criminal and Family Defense Update on November 5th. More information appears in the Association News section below.

Court Dismisses Under CPL 30.30 Despite E.O. 202.87
In People v Williams (2021 NY Slip Op 50924 [9/30/2021]), the City Court of Mount Vernon found that the time from November 2020 to July 2021 should be charged to the District Attorney, despite the speedy trial tolls of Executive Order 202.87. In part, the court found that the prosecution needs to establish facts for CPL 30.30 to be tolled beyond the mere existence of the E.O., in particular because the 9th Judicial District had empaneled grand juries for the time in question. As a result, the court granted the defendant’s motion to dismiss.

New Laws Meant to Combat the Opioid Crisis
On Oct. 7, 2021, Gov. Hochul signed into law a package of bills passed by the Legislature “designed to remove barriers to drug treatment and make substance abuse prevention resources available to more New Yorkers,” reported 570 WSYR. The bills include S1795/A533, mentioned in the September 24th edition of News Picks, which will “allow incarcerated individuals with certain substance use disorders the opportunity to participate in a medication assisted treatment program,” according to the sponsor’s memo. A media release posted on the Governor’s website lists the new laws, which are “aimed toward reducing drug-related overdose deaths across New York State and encouraging those suffering from addiction to seek help in their recovery.” The laws include:

  • S911/A2354, amending the CPL, the CPLR, and the Executive Law “to promote the use of opioid antagonists in preventing drug-related overdoses,” by decriminalizing possession of opioid antagonists, “drugs that block opioids by attaching to opioid receptors without activating them.”
  • S6044/A128, establishing “an online directory for distributors of opioid antagonists making them more accessible to New Yorkers ….”
  • S2523/A868, decriminalizing “the possession and sale of hypodermic needles and syringes.”
  • S7228/A5511-A, expanding “the number of eligible crimes committed by individuals with a substance use disorder that may be considered for diversion to a substance use treatment program” and updating “the term ‘substance abuse’ to ‘substance use.’”

Among the comments noted celebrating the signing of the bills were those of Staff Attorney Kayla Simpson with the Prisoners’ Rights Project at The Legal Aid Society, who stressed that “[t]his legislation is a critical public health measure, allowing doctors to utilize treatment for incarcerated patients that will simply save lives.” NYSDA joins LAS and others in thanking the bills’ sponsors and supporters, and Governor Hochul, for bringing the new laws into being.

Kamins Annual Review of New Criminal Justice Legislation
Barry Kamins published his annual review of new criminal justice legislation in the New York Law Journal.

Defenders and Legislators Call on DAs to Stop Requesting High Bail
In a follow up to the crisis at the jail complex on Rikers Island discussed in our News Picks on September 24th, the New York Daily News reported on the open letter that was “sent Tuesday by state legislators and public defender groups calling on the city’s five district attorneys to stop seeking bail for defendants with medical conditions and those who can’t pay — and to stop opposing supervised release.” This comes as a lawsuit was filed by Milbank LLP, The Legal Aid Society, and Brooklyn Defender Services against the New York City Department of Corrections for failing to provide medical care to people in jail. In a joint press release, the parties state, “[t]he lawsuit, which comes amidst widespread acknowledgment of a total breakdown in City jail operations, seeks an order compelling DOC to comply with its basic legal obligations pursuant to state and local law to provide all individuals in its custody access to medical care without delay.”

The New Yorker published a related article, "What Responsibility Do Courts Bear for the Crisis at Rikers Island," on October 9th. 

City Defenders Invite Legislators to Arraignments to Observe Bail Arguments
Reported on by The Nation, lawmakers from the city have been observing arraignments, as discussed by Alice Fontier, Managing Attorney of Neighborhood Defender Service of Harlem and President of the New York State Association of Criminal Defense Lawyers, during a press conference last week. In an effort to understand what is fueling the continued detention crisis at Rikers, members from Queens, Manhattan, Brooklyn, and the Bronx watched arraignments, listening to arguments made by prosecutors seeking bail and observing how judges set bail.

Several op-eds were published this past week: "Closing Rikers is a matter of life and death" in the Washington Post; "How the population at Rikers Island can be reduced now" in City and State; and "A hellhole yesterday, today and tomorrow: Mayor de Blasio’s epic Rikers Island failure" in the New York Daily News. All of these came days after the Assembly public hearing was held to address the current crisis at Rikers.
 
While the focus in recent days has been on Rikers, we know this is not unique to the five boroughs. NYSDA staff has heard reports that in jurisdictions across the state, defenders have encountered pushback to correct application of the bail laws, which has led to clients being detained. Please contact the Backup Center at info@nysda.org if you are experiencing problems with bail law compliance.

Governor Expands NYC Remote Court Proceedings in Response to Rikers Crisis
Governor Hochul signed Executive Order No. 5 that, according to a press release, “temporarily modifies Article 182 of the Criminal Procedure Law to expand discretion to conduct court appearances virtually. The expanded use of virtual court appearances will expedite proceedings and allow corrections staff to be reallocated from transportation of detainees to housing supervision and safety at Rikers Island.” The New York Law Journal reported that “[t]he governor’s office also said that it was working with the Office of Court Administration to ‘explore other methods to expedite hearings,’ and that the OCA had committed to ‘ensuring the swift review of cases for pre-trial release, clearing warrants and holds, writs and hearing resentencing motions for individuals detained.’” Further, “[a] spokesman for the OCA said Tuesday that the measures applied only to New York City, on the condition that defendants had to agree to remote proceedings.” The latter point is important; in our Nov. 23, 2020, statement on virtual proceedings, NYSDA made clear it “opposes the use of virtual/remote communications for holding non-emergency court proceedings deemed critical stages, and for any proceedings, absent the consent of the person whose case is being heard.”

In-Person or Remote Proceedings? Contentions Continue
A recent entry into widespread debates about whether legal proceedings should be held in person or remotely was reported by The City in a September 30th article. It begins, “[w]hile some city workers rally to continue remote work, judges who rule on fines for littering, building code violations and other offenses are pleading for a return to in-person hearings.” Most sessions of the Office of Administrative Trials and Hearings (OATH) in New York City have been held by phone conference since March 2020, the article says. OATH hearing officers, represented by the United Federation of Teachers, are pushing back against a proposal to keep remote hearings as a standard option, highlighting the lack of information on the impact remote hearings have had as to due process and that making credibility assessments of witnesses without seeing them is problematic.
 
Among issues raised by in-person proceedings while the COVID-19 contagion continues is what effect the pandemic, and efforts to stem it, are having on the make-up of juries. An October 6th article on Law.com discussed observations by “jury consultants and litigators across the country” on a variety of issues. Among them: one study “found excluding unvaccinated folks affects jury makeup” because more men and “‘[m]ore minorities are unvaccinated,’” and other studies indicate that “certain populations of people are more reluctant to come in for jury duty.” The article, which focuses on federal and civil trials, also reported comments reflecting a higher number of people in certain professions, such as teachers and health-care workers, seeking to avoid jury service, with varying results depending on the judge hearing their requests. Challenges that lawyers face in in-person trials during the ongoing COVID-19 pandemic were also discussed in the May 10th edition of News Picks.

More in Issues to Develop at Trial Racial Justice Series from CAL
The Center for Appellate Litigation (CAL) has issued another installment of its Issues to Develop at Trial (ITD) - Racial Justice Series. It “addresses another common scenario whose unfairness falls heavily on Black and Brown clients – the trial penalty imposed on clients at sentencing who had the temerity to reject a plea offer and insist on their constitutional right to a trial.” Calling on trial attorneys to put on the record concerns about the trial penalty – “[n]othing fancy - just a sentence or two when you believe it is happening” – CAL notes that this will preserve the record for appeal, where it may be addressed or at least may encourage sentence reductions on the grounds of excessiveness.

The September IDT also includes updates on its July installment about pretext stops and racial profiling, noting the concurring and dissenting opinions in the Second Circuit en banc decision in United States v Weaver, 9 F4th 129 (8/16/2021). Those opinions, CAL notes, add support to the call for revisiting and overruling Whren v United States, 517 US 806 (1996). Also included is an article from The Champion on “Fighting Racial Bias by the Police Through Suppression Litigation.”
 
NYSDA again thanks CAL for making resources like ITD available to the defense community and for continuing to highlight ways to challenge racial disparities in the legal system. Other installments in the ITD - Racial Justice Series have been highlighted in News Picks, most recently in the July 23rd edition. CAL’s website includes an archive of Issues to Develop at Trial.

The Family Regulatory System Devastates Black and Brown Communities
An item in the Final Call, entitled “Child Protective Services agencies are tearing Black families apart, advocates warn,” highlights a series of devastating stories of Black families targeted by the child welfare system for no other reason than the color of their skin. Comparing the system with the criminal justice system, the author suggests that a better name for the agency would be the “‘family policing services,’” due to the level of intrusion black families are forced to endure and its punitive nature.
 
“Black families have come to dread the horrible knock on the door, which can come at any hour, day or night with the announcement, ‘We have received a report that your child is a victim of abuse and neglect.’” It goes on, “[w]hat follows next is an intrusion like no other. Children are awakened and can be strip searched, asked to take off their clothes by total strangers looking for signs of physical abuse. Caseworkers can rifle through the home, turn on faucets and ask, ‘why there is no milk in the refrigerator?’” Advocates say this “humiliating, punitive and overstepping system” must change.
 
In an opinion piece published in the Sept. 27, 2021, edition of the Imprint Youth and Family News, BJ Walker and James T. Dimas highlight the persistent problem of race inequity that causes Black and brown families to be unfairly targeted by the family regulatory system. The authors argue that, “[w]hile we desperately need to fix how public child welfare systems function, public systems alone cannot get the job done. Why? Because the rules driving public systems are designed to target the individual — rather than the lack of resources and under-investment that contributes to adult ‘failure to thrive’ in many Black and brown communities.” They instead argue for “a supply-side strategy that includes both government and community,” beginning by a restructuring that mobilizes “internal responses and resources in ways that divert and connect struggling families to supports” and builds those community supports “in tandem with the people and places that see these families every day and understand their lives and challenges.” They call for “mobilizing a community infrastructure that currently is more inclined to see itself as mandated reporters, rather than mandated helpers.” The overdue implementation of such a holistic model would spare Black and brown youth from being raised in a broken foster care system, instead of with their families.
 
In the coming weeks NYSDA will be announcing a training on the issue of racism in family court cases; the program will assist defenders with developing strategies to advocate for their clients through a racial justice lens. Please keep an eye on your inboxes for this opportunity.
 
2020 Uptick in Homicides Doesn’t Mean Criminal Justice Reforms Aren’t Working
The above-entitled USA Today article reports on the newly released FBI crime statistics report. The article notes that “[s]everal states have modernized their pretrial systems, curtailing the use of cash bail, a practice that disproportionately punishes low-income individuals and people of color. Reform skeptics warned that such changes would cause upticks in crime. Critically, those opponents were wrong.” It goes on, “[u]nfortunately, the newly released annual FBI crime statistics report, showing a sharp increase in homicides last year across the country, may encourage those who oppose commonsense criminal legal reforms to repeat that mistake. To prevent a similar rush to bad policymaking, it’s critical to think through the data.” Further, “[t]he new report shows a complex reality, reflecting the unprecedented and volatile nature of 2020 – a year in which the nation experienced stressful lockdowns, economic insecurity, deep social unrest and tensions between communities and law enforcement.”
 
Pushing Back on Fearmongering, a Former Public Defender’s Perspective
Former public defender Scott Hechinger authored a piece in The Nation about the media’s role in perpetuating fear. “This kind of ‘justice’ reporting is not just false; it is dangerous, widespread, and long-standing. I write this not to attack the Times or NPR or the reporters of these stories, nor to take away or distract from the very real and disturbing tragedy of every single one of these murders, but to call attention to an insidious and historically rooted contributor to the system of policing and prison in our country: a pro-police worldview deeply ingrained in journalism.” He explains how police and prosecution “cherry-picking” and “weaponizing” of sensational cases, along with short-term statistics, drove an untrue narrative about reform leading to a rise in crime, which resulted in a rollback of bail reform mere weeks after its enactment.

He adds that while “problematic reporting by the Times and NPR has resulted in millions receiving harmful misinformation, it also offers a critical teaching moment for reporters and consumers of media,” offering “a road map by which to ‘call in’ other media outlets and journalists to ensure that these same mistakes are not replicated.”

In a similar vein, Fwd.us has re-circulated their April 2021 report on harmful media reporting and its impact on bail reform, “Freedom, Then the Press: New York Media and Bail Reform.” Like Hechinger’s op-ed, this report points to “irresponsible articles that falsely portrayed bail reform as harming public safety, stirring up public fears.” The report analyzed the media, highlighting three practices that shaped public opinion against the reform: dissemination of inaccurate information, use of dehumanizing and racist language, and relying solely on law enforcement sources.

NYCLU Sues Nassau County Police Department
After the repeal of Civil Rights Law 50-a, NYCLU submitted a FOIL request to the Nassau County Police Department seeking police misconduct records since 2000, whether or not there was discipline imposed. The Department refused to send any records prior to June 2020, when 50-a was repealed, and even subsequent to repeal any records that did not result in officer discipline. NYCLU has already filed lawsuits against the Buffalo, Freeport, Rochester, Syracuse, and Troy police departments on similar grounds. For more information, see NYCLU’s press release and a pdf of their petition. The suit was covered by Newsday and WSHU.

NACDL Releases Report on “Data-Driven Policing” and Bias
The National Association of Criminal Defense Lawyers (NACDL) released a report last month on police departments’ use of “data-driven policing technologies to surveil communities, track individuals and, purportedly, predict crime.” The technologies used include algorithms “designed to interrogate massive troves of data gathered in a myriad of ways, using inputs that can range from police-generated crime reports to publicly available social media posts” that are then used in police decision making. The report shows, NACDL notes, that “‘data-driven policing technologies amplify the effects of systemic racism in policing by collecting data based on racist policing (including, for example, overpolicing of communities of color) and treating that garbage data as gospel for future policing decisions.’”
 
Algorithms and data play a role in several, different aspects of public defense work. Decisions by various actors in criminal (and family) legal system may be based in whole or in part on information interpreted by algorithms, as in risk assessment tools used in proceedings from pretrial release, to setting sex offender risk levels, to parole release. Data collected from systems infected with racial or other bias can skew resulting decisions, as noted for example in the item “PJI Rejects Pretrial Risk Assessment Tools” in the Feb. 12, 2020, edition of News Picks. An article in the latest issue of the REPORT discusses issues regarding New York’s sex offender risk assessment instrument (see pp. 5-6). Defenders are encouraged to contact the Backup Center when algorithms may be impacting a case.

How Do Child Support Obligations Affect Reintegration?
The National Institute of Justice has issued a report, entitled “Child Support and Reentry.” According to the Executive Summary, “[t]his paper focuses on what social scientists and policy analysts have learned about how child support, criminal justice, and reentry are related: How do child support obligations affect reintegration? How does incarceration affect child support repayment and debt? What policies exacerbate the debt-recidivism link? Which policies show promise in ameliorating it?”
 
The report recommends a number of policy reforms on the state, local, and federal level to address the two main barriers facing indebted parents: the accumulation of support debt and related enforcement measures. Among some of the most important recommendations are:
 
On the Federal Level:
  • Strengthen the directives and modification guidelines given to states.
  • Create incentives for states to modify the support orders of institutionalized parents.
  • Advance guidelines and incentives to curtail the use of custodial punishment for debt.
  • Waive institutionalized parents from restrictions on retroactive modification.
  • Ensure this exemption is consistent across states and not undermined by local discretion.
 
On the State Level:
  • Institutionalized parents should be given a right to $0 incarceration orders.
  • Incarceration orders should be administratively set and discretionary practices should be curtailed.
  • In states where state directors of child support services set interest rates, they should be 0% for institutionalized parents.
  • Introduce statewide protocols to be followed in all contempt cases.
  • Use alternative-to-incarceration programs prior to issuing jail time for debt.
  • Set clear limits on the amount issued to purge from contempt of court.
  • Create independent oversight committees to review cases of custodial punishment.

On November 8, 2021, NYSDA will be presenting a CLE on representing parents in child support contempt proceedings. More information appears under Association News below.

NYCLU Seeks Information on OCA’s Memo Undermining the Crawford Decision
As reported in the New York Daily News, the NYCLU “wrote the state’s Chief Judge of the Court of Appeals Janet DiFiore and Chief Administrative Judge Lawrence Marks to express ‘serious concerns’ and filed a Freedom of Information Law [FOIL] request for” directives “advising judges how to rule on challenging cases ….” “The NYCLU says it learned of the unusual practice through a confidential Office of Court of Administration memo that instructed judges how to interpret a June court decision regarding New Yorkers facing an order of protection.”

NYSDA staff examined the troubling internal memo that was circulated within the court system soon after the Crawford decision. The memo, which seems to violate the intent and purpose of the court’s ruling, was discussed in the August 10th edition of News Picks.
 
Public Service Loan Forgiveness Presentation on October 28th at 12:30 pm
NYSDA has partnered with the Education Debt Consumer Assistance Program to offer a free presentation about the federal Public Service Loan Forgiveness Program (PSLF) for attorneys and non-attorneys who work in public defense. The program will be held on Thursday, October 28th at 12:30 pm and will be presented by Carolina Rodriguez, LMSW, JD, Director, Education Debt Consumer Assistance Program, Community Service Society of New York. The program will address the PSLF program requirements, how to make sure your student loan payments count, and what to do if things go wrong. To register, click here.

On Oct. 6, 2021, the U.S. Department of Education announced “a temporary period during which borrowers may receive credit for payments that previously did not qualify for PSLF or TEPSLF [Temporary Expanded Public Service Loan Forgiveness].” More information about this time-limited opportunity is available on the Federal Student Aid website.
 
Fourth Annual NYS Public Defenders Career Fair, October 29th
The Fourth Annual NYS Public Defenders Career Fair will be held on Friday, Oct. 29, 2021, from 1:00 – 5:00 pm via Zoom. The fair is hosted by University at Buffalo School of Law, the Chief Defenders Association of New York, and NYSDA. Interested employers and candidates can register at www.law.buffalo.edu/cso/public-defender-career-fair.html.
 
National Public Defense Icon Marshall Hartman Has Died
Marshall J. Hartman, who died on Sept. 20, 2021, was a nationally-known public defender from Illinois. Among the many in New York who remember him well and mourn his loss is retired Oneida County Public Defender Frank Nebush. Hartman, as a consultant for the National Legal Aid and Defender Association (NLADA), prepared a study of Nebush’s Office in 1999. Nebush, responding to news of Hartman’s death, said, “[h]e did a great service for our office. We will be always in his debt. His legacy lives on in the policy and procedures he instilled in our office.” NYSDA Senior Staff Attorney Mardi Crawford, who first met Hartman while working at NLADA in the late 1980s, recalls that Hartman was among those that Jonathan E. Gradess, NYSDA’s founding Executive Director, turned to for information on historical public defense developments across the country; they also shared strategies in their respective work opposing the death penalty. Larry Benner, a long-time friend of Hartman and frequent co-presenter with him at NLADA conferences, wrote this obituary.


Association News

Elyse Sheehan Joins NYSDA as a Veterans Defense Program Staff Attorney
Elyse has joined NYSDA’s Veterans Defense Program as a Staff Attorney on Long Island. She is a Hofstra Law School graduate and has been an attorney with the Legal Aid Society of Suffolk County. The Veterans Defense Program assists attorneys who are representing veteran or a member of the active duty military in criminal or family court. We are excited to have Elyse on our team!

Upcoming Trainings

October 14, 2021, 2:00 - 4:30 pm, Identifying and Representing Survivors of Human Trafficking, cosponsored with the Western New York Regional Immigration Assistance Center. Presenters will be Mary Armistead, Staff Attorney, The Legal Project; Sophie Feal, Supervising Attorney, WNY Regional Immigration Assistance Center; Amy Fleischauer, Director of Survivor Support Services, International Institute of Buffalo; Leigh Latimer, Supervising Attorney, The Exploitation Intervention Project, The Legal Aid Society; Andrea Sevene, Resource Coordinator, Rochester Human Trafficking Intervention Court; and Alicia Tabliago, Resource Coordinator, Buffalo Human Trafficking Intervention Court. The program provides 2.5 CLE credit hours. There is no cost for this program but pre-registration is required. For details and registration information click here.

Three session series on The Past, Present, and Future of Forensic DNA Typing: What you need to know to defend your cases, with Jenny Cheung, Staff Attorney at The Legal Aid Society’s DNA Unit & Homicide Defense Task Force; Elizabeth Daniel Vasquez, Director of the Science & Surveillance Project at Brooklyn Defender Services; Jessica Goldthwaite, Staff Attorney at The Legal Aid Society’s DNA Unit; and Kate Philpott, Forensic Consultant. The sessions are scheduled for Friday afternoons from 2:00 - 4:00 pm and will provide 2.0 CLE credit hours for each session.
 
  • Friday, October 15, 2021: The Past: DNA Interpretations by the Human Eye (Reviewing the basics of forensic DNA typing, and preparing defenders for cases involving lab analyst interpretation of DNA results.) Click here to register.
  • Friday, October 29, 2021: The Present: DNA Interpretations by the Computer’s Eye (Reviewing the basics of probabilistic genotyping, and preparing defenders for cases involving STRMix or TrueAllele’s interpretation of DNA results.) Click here to register.
  • Friday November 19, 2021: The Future: DNA Interpretations Don’t Matter (Reviewing the basics of transfer and persistence, and preparing defenses for cases involving seemingly inculpatory DNA results.) Click here to register.
 
The cost will be $25 per person, per session; $20 per person, per session for offices sending five or more attorneys.

Wednesday, November 3, 2021: NYSDA will be presenting a program on Counsel at First Appearance (CAFA) representation offering winning advocacy tips under 2020 Bail Reform laws and handling time sensitive issues. Presenters will be Arline Hanna, Assistant Public Defender, Wayne County Public Defender’s Office and Yung-Mi Lee, Legal Director, Brooklyn Defender Services. There will be no cost for this program. Details and registration information coming soon.

Friday, November 5, 2021, 9:00 am - 4:15 pm: 2021 Criminal and Family Defense Update. Topics will include Fun with FOIL: Using FOIL as a Defense Practice Tool, Less is More Review and Practice, Family Law Update, and Representing Parents in Sex Abuse Cases. The cost is $55 per person, $45 per person for programs sending 5 or more attendees. Details and registration information coming soon.

Monday, November 8, 2021, 1:00 - 2:30 pm: The Basics of Defending Clients in Child Support Contempt Proceedings, with Amanda McHenry, Supervising Attorney, Family Court Program, Hiscock Legal Aid Society and John Menard, Assistant Public Defender, Family Court Bureau, Monroe County Public Defender’s Office. This program will provide 1.5 CLE credit hours. There is no cost for the program but pre-registration is required. For details and program registration, click here.

Tuesday, November 9, and Tuesday, November 16, 2021, 1:00 - 4:30 pm: The Fundamentals of Veteran Representation- Parts 1 and 2, with NYSDA Veterans Defense Program Director Gary Horton; Deputy Director Roy Diehl; and Staff Attorney Blair Hill. There is no cost for these programs but pre-registration for each day is required. Details and registration information coming soon.

Tuesday, November 30, 2021: NYSDA will be presenting an update on CPL article 245 discovery. Details and registration information coming soon.

Thursday, December 16, 2021, 3:00 - 5:00 pm: Whose Witness Is It Anyway? Ethical Issues in Communicating with Witnesses, with Jill Paperno, First Assistant Public Defender, Monroe County Public Defender’s Office. The program will provide 2.0 CLE hours in Ethics and Professionalism. There will be no cost for this program but pre-registration is required. Details and registration information coming soon.