As news reports continue to document the crisis on Rikers, on Monday, Sept. 20, 2021, another death was reported by the Gothamist; that of a person who was held on a technical parole violation for approximately a month when he contracted COVID-19. He was nearly at the point of being released, per reporting in the New York Times. “‘He should have been released,’ said Lorraine McEvilley, director of the Parole Revocation Defense Unit at the Legal Aid Society. ‘It’s an illustration of the life-or-death situation people are in when they are locked up on parole violations.’” The humanitarian crisis at Rikers and “endless catastrophe“ has been well documented over the last couple of weeks in news reports, including the New York Times, Gothamist, Politico; the media also covered the tours by members of the Legislature and defenders who were able to report horrifying conditions they observed inside, including reports of people locked in showers without food and defecating in bags.  

The problems continue, including a staff shortage and the city’s inability to address employees failing to show up to work. This week, Mayor De Blasio was reported to have moved forward to target the correction union with fines.

Dr. Homer Venters, former Chief Medical Officer of the New York City jail system, and a current member of the president’s COVID-19 Health Equity Task Force, and author of “Life and Death in Rikers Island,” authored an Opinion in the Times Union on Sept. 21, 2021, where he calls for reform of the Commission of Corrections to make it more balanced. “The commission should contain one law enforcement commissioner, one health professional, and another with the lived experience of incarceration.” Dr. Venters also explains, “[t]he current emergency in Rikers Island is not unique; jails and prisons across New York are in desperate need for oversight with a focus on health.” On the same day his Opinion was published, NY1 issued a report to expose lack of medical care while in custody. Newsweek also published an Opinion entitled, Confinement and COVID-19: A Plea for Humanity for People in Prison.

On Sept. 22, 2021, the Times Union reported that “[s]everal immigrant rights groups have filed a civil rights complaint with the U.S. Department of Homeland Security concerning the alleged physical abuse of a woman while in immigration agents’ custody and alleged unsanitary conditions at the Rensselaer County Jail.”

On Friday, Sept. 17, 2021, Governor Hochul held a press conference attended by many members of the Legislature and the advocate community, and signed into law Less Is More (S.1144A/A.5576A). The law takes effect on Mar. 1, 2022, except for some provisions related to calculating earned time credits and recalculating time assessments. The law adds new definitions to Executive Law 259, amends various provisions in Executive Law 259-i, and amends Penal Law 70.04 and 70.45(5). We will be offering a session on Less is More during our November 5th training, Criminal and Family Defense Update 2021, referenced below.

A press release was also issued: “Our fellow New Yorkers on parole deserve to reenter society with our support and respect - reincarcerating parolees for technical violations traps them and doesn’t help our communities,” Governor Hochul said. ”New Yorkers currently serving sentences in jails and prisons also deserve our support - there is no justice in mistreating incarcerated New Yorkers. While this is just one step and more work needs to be done collaboratively with all levels of government, I am proud to take these steps to increase the safety in city jails, not only for those incarcerated, but for the staff who work tirelessly to keep operations running.”

News outlets began reporting on the passage of the law immediately including the New York Times, NBC New York, CBS New York, Gothamist, and Lohud. NYSDA is grateful for the collaborative work of the advocate and defender communities to ensure passage of this law, which will impact thousands of New Yorkers. While the humanitarian crisis on Rikers Island and in other correctional facilities continue to worsen, it comes as a hopeful step in the right direction, but its effective date is not soon enough in light of the continued crisis at Rikers.

Following our News Picks from Aug. 10, 2021, and July 2, 2021, where we discussed the decision in Matter of Crawford v Ally, the Times Union published an op-ed on Sept. 18, 2021. There, Leigh Goodmark, Director of the Gender Violence Clinic at the University of Maryland Carey School of Law, discusses the Crawford decision and the need to reform orders of protection. “[T]he Promoting Pre-Trial (PromPT) Stability Act (A4558A/S2832A) is so important. Sponsored by Assemblyman Dan Quart, D-Manhattan, and Sen. Jessica Ramos, D-Queens, the act would require judges to hold a hearing to determine whether an order of protection should be entered rather than allowing judges to enter them as a matter of course. Judges would still have the discretion to enter temporary orders of protection in cases where those orders are appropriate and necessary, but with more complete information.”

Where the defense gave proper notice of its intent to present a psychiatric evidence at trial, and defense counsel, who attended the first interview of the client by the prosecution’s psychologist, was not allowed by the psychologist to attend the second interview, the constitutional right to counsel was violated. The error was not harmless, said the Court of Appeals in People v Guevara, (2021 NY Slip Op 04955 [9/9/2021]). The right to counsel at such proceedings was established in Matter of Lee v County Court of Erie County (27 NY2d 432 [1971]). Where the right is violated, the prosecution “—not the defendant—bear[s] the burden of showing that ‘there was no reasonable possibility that the trial court’s admission’ of that part of the expert’s testimony based on the uncounseled examination ‘affected the jury’s verdict,’” the Court of Appeals noted, and found that the burden was not met. This contrasts with the overturned Appellate Division’s finding that “the error was harmless, because defense counsel was provided with a copy of the expert’s report and permitted to cross-examine the expert …, the court permitted defendant’s own expert to be present during testimony by the People’s expert, and permitted defense counsel to recall him if needed, … defense counsel was able to consult with the defense’s expert before commencing cross-examination of the People’s expert,” and “nothing in the record indicates that counsel’s presence at the psychiatric examination ‘would have enhanced that cross-examination and in any way affected the outcome’ ….” People v Guevara, 189 AD3d 455 (1st Dept 12/3/2020).

A footnote in the Court of Appeals decision pointed out that a case relied on by a lower court “concerned an examination to determine the defendant’s competency to stand trial pursuant to CPL article 730, not evidence to be offered at trial to rebut a psychiatric defense ….” This serves as a reminder that the law relevant to the cases of clients with mental illness can be complicated; attorneys are encouraged to contact the Backup Center if they have questions.

In April, the New York Civil Liberties Union (NYCLU) and the American Civil Liberties Union’s National Prison Project announced that they had “sued Jefferson County over its discriminatory and life-endangering policy of denying prescribed medication to people with opioid use disorder in the Jefferson County Jail.” The suit, which focuses on methadone opioid use disorder (MOUD), was reported in an article posted by WWNYT that said, “[t]he lawsuit argues the jail’s methadone policy violates the Americans with Disabilities Act and the U.S. Constitution.” NNY360 also noted the suit. On September 7th, the U.S. District Court for the Northern District of New York issued a preliminary injunction that, the NYCLU said in a press release, found the plaintiff was “likely to succeed on claims that the jail’s blanket ban on methadone treatment is discriminatory and unconstitutional” and that the ban’s risk of irreparably harming the plaintiff “is ‘clear.’”

The Legislature passed a bill this year (S1795/A 533) that, as noted in a May 28th story in the Times Union, would require “every county jail and state prison in New York to make medication assisted treatment (MAT) available to incarcerated individuals suffering from addiction.” VOCAL-NY is among those calling on Gov. Hochul to sign this (and other) bills; The Legal Aid Society has similarly included the bill in its request for gubernatorial action.

NYSDA has long encouraged defenders to support their clients seeking MAT. The 2016 Annual Conference included a session on “Defense Attorneys & the Opioid Epidemic: Asserting Your Clients’ Right to Addiction Medication” with presenters from the Legal Action Center (LAC). An attorney’s guide to challenging criminal and family legal agencies’ bars to MAT can be found on the LAC website.

Other resources defenders may want to access include “Medication-Assisted Treatment (MAT): Debunking the Myths and Misconceptions,” posted by Childrens Law Advocacy Resources Online, and the links therein.

As published in the Sept. 6, 2021, edition of the New York Times, Sixto Cancel wrote an op-ed entitled, “I Will Never Forget That I Could Have Lived With People Who Loved Me,” a story about his own tumultuous journey through life. That life started with entering the foster care system at the age of 11 months old because of his mother’s drug addiction and poverty, then being adopted at age 9 by an abusive and racist woman, being locked out at age 13. Cancel’s journey brought him to found Think of Us.

According to its website, Think of Us is a non-for-profit organization that “operates as a Research and Development Lab for child welfare, transforming the system so that people with Lived Experience are at the center of designing, imagining and building.” As part of its work to “systemically center lived experience, not just within our projects but in every element of how the child welfare system operates,” they published a report entitled, “Away From Home, Youth Experiences of Institutional Placements in Foster Care.” It is a study of “78 young people with recent lived experience in institutional placements.” The report recommends that, “[a]fter hearing heart-wrenching story after heart-wrenching story, Think Of Us cannot—in good conscience—recommend that institutional placements be upheld in any way. All possible benefits to institutions that we heard seemed negligible when compared to the overwhelming and obvious harm they caused the vast majority of participants. We feel that eliminating them is critical to ensuring the wellbeing of youth, reducing and healing their trauma, achieving equity and racial justice, and freeing young people from inappropriately restrictive settings. For those reasons, we believe that institutional placements must be eliminated.” They instead recommend that, [l]eaders must replace institutions with alternatives that will succeed where institutions have failed.” The full 100 plus page report with its findings can be found here.

As reported in the Aug. 10, 2021, edition of News Picks, federal Title IV-E funding which has previously been used to support youth in foster care will now also be made available to enhance direct client representation in Family Court Act article 10 and 10-a abuse, neglect, and Termination of Parental Rights (TPR) matters. To further aid and educate localities on the ins and out of this funding, and to further explain how it might be useful to them in enhancing the quality of parental representation, the NYS Office of Indigent Legal Services (ILS) has posted some informational items on their website. These include Frequently Asked Questions “to respond to questions from mandated representation providers and other stakeholders about the Title IV-E funding opportunity detailed in a recently released informational letter from the Office of Children and Family Services.” Also made available by ILS is a document, entitled “Resources for Title IV-E Funding for Independent Legal Representation for Children and Parents in Child Welfare Proceedings.”

There is no special constitutional status for “legal observers” such as the volunteers “in a long-running National Lawyers Guild program that trains and equips volunteers to observe protests and document the conduct of the police who respond to them,” notes a recent article in The Intercept. But “the right of people to observe, record, and document the police” is accepted, supposedly even by police; the New York Police Department (NYPD) Patrol Guide reportedly recognizes it and “specifies that properly identified legal observers are entitled to courtesy and cooperation, including free access through police lines at demonstrations ….” Violation of legal observers’ rights is now the basis of a lawsuit against the NYPD for actions taken against observers at last summer’s protests during the so-called “Mott Haven kettle.” “Kettling” or “corralling” is a police tactic of cordoning off and containing crowds during protests, preventing or limiting people’s ability to leave, see e.g. Wikipedia’s entry; Mott Haven is a neighborhood in Brooklyn, where the tactic was used during a protest a year ago during ongoing demands for racial justice in the wake of George Floyd’s murder in Minneapolis, MN.

 

The number and frequency of such protests may have diminished statewide and nationwide, but they have not stopped. Neither have arrests of protesters. See, for example, ongoing news from Saratoga, including a mention in the August 10th edition of News Picks this year and a Times Union story on September 9th. And of course protests occur around many topics, not just racial justice. Defenders assigned to represent protesters in any situation may want to re-visit the News Picks item on June 15, 2020, about representing such clients, and updated materials provided in the July 1, 2020, edition.

Demands to end social disparities may focus on one group or may list many that experience injustice. The “intersectionality“ of issues—how multiple forms of discrimination, such as discrimination based on gender and race, interact—is a longstanding topic among advocates for overturning systemic injustice. Focusing on an less-often covered angle, an article posted on The Crime Report in August notes that “[e]fforts to tackle systemic racism in the administration of justice need to include a focus on the rights of the disabled community, according to a University of Pennsylvania law professor.” The article points to “Reckoning with Race and Disability,” available on SSRN. The Crime Report item by Emily Riley describes Prof. Jasmine Harris’s positing of three sectors involving race and disability: “how people of color could be treated as disabled just because of their race, and certain difficulties they may face as a result of their race”; “how biased law enforcement can create negative physical or mental health effects that lead to a disability”; and “how those who have had lifelong disabilities may find it difficult because of their race to acquire adequate healthcare and accommodations.”

Back in March, Disability Rights New York (DRNY) and the Mental Health Recovery Research and Nadal Racial Justice Research Labs at John Jay College of Criminal Justice announced their joint report, “Systems in Crisis: Identifying Critical Issues in Response to Mental Health Crisis Calls.” That report, which reviewed four instances of people with mental illness dying from police actions following 911 calls, is said to consider “the impact of persistent stigma imposed upon people with mental illness, the disproportional impact of police response on Black, Indigenous and other People of Color, and the impact on those whose identities must be viewed through an intersectional lens.” Attorneys whose clients with disabilities are not getting the services they need or are being discriminated against may want to contact DRNY or refer clients there. DRNY’s availability as a resource was pointed out last year in News Picks on May 22, 2020.

Big-number anniversaries bring large numbers of publications and ruminations about past major events. The Attica uprising of 50 years ago has therefore been in the news. A positive example is Gary Craig’s Democrat and Chronicle article, “50 years after Attica: The unfinished business of our nation’s deadliest prison uprising.” Archival footage of the State’s violent retaking of the prison illustrates the piece. Craig extensively quotes Deanne Quinn Miller, whose story is told in the newly-released book he co-authored with her, The Prison Guard’s Daughter: My Journey Through the Ashes of Attica. Dee is Program Coordinator of NYSDA’s Veteran’s Defense Program, and Director of the Forgotten Victims of Attica. In the new book, she tells of her efforts to learn about her father, William Quinn, who was killed in the uprising when she was only five. Realizing that “I could not fully learn of my father if I did not truly learn of the riot,” she embarked on a remarkable path of discovery and advocacy. Dee also says in the Prologue that she “learned how the simple narrative was often wrong, an empty vessel for the storyteller to shape with his or her own preconceptions.” That observation, and Dee’s story, provide valuable lessons about Attica and about much more.

The Times-Union (TU) reported on Sept. 18th that the arrest of a suspect a month after an April theft was due in part to “synthetic DNA.” Information about that technology, which uses “micro-dots” of liquid containing tracer material, was provided in the Feb. 12, 2020, edition of News Picks. A pilot project using the material, called SelectaDNA and made by the Florida-based company CSI Protect, was installed in the Albany jewelry store last year, the TU said. Using a UV light when the suspect was apprehended, police reportedly determined that the suspect had the tracing material on him; it is said to last a month and a half. Security video of the theft was provided to the news media, with the suspect’s face blurred to protect his identity; the TU did not release his identity “so as not to unfairly influence his pending criminal case.” The Executive Director of the New York State Association of Chiefs of Police (NYSACOP), was quoted as saying, “[t]oday, we can say definitively that [the technology] works.” Note that SelectaDNA has, at least in the past, been listed as an “Association Sponsor” of NYSACOP.

Max joins NYSDA as our newest staff attorney in the Public Defense Backup Center. Max was a public defender at the Bronx Defenders for several years, where he represented clients in criminal cases and became the Arraignment Supervisor. Most recently, he was a legislative counsel for the NYC City Council, working on many of the recent reforms to the criminal legal system. We are excited for him to join our team!

Latest Issue of the Backup Center REPORT is Online

The January-August 2021 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is now available on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing is completed. If you have any questions, please contact the Backup Center at 518-465-3524.

NYSDA will be presenting a number of upcoming training programs this Fall. Below is information about a few of them. If you have any questions about training, please contact us at training@nysda.org.

NYSDA will be presenting a 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 in Professional Practice for each session as follows:

Thursday, October 7, 2021, 11:00 – 12:30 pm, Strategies to Keep and Return Children Home in Family Court Article 10 Cases, presented by Keith Baumann (Training Director, Family Defense Practice, The Bronx Defenders), Janae Hunte (Attorney, Family Defense Practice, The Bronx Defenders), Isamaris Santiago (Parent Advocate, Family Defense Practice, The Bronx Defenders). There is no cost to attend this program. Please find registration and full program details here.