On Sept. 4, 2020, Governor Cuomo issued Executive Order 202.60, which provides, in part:

It is not clear whether the use of the term “jurisdiction” in 202.60 is intended to refer to the relevant judicial district or county. A document with excerpts from Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, and 202.60 is available here.

Defenders are encouraged to contact the Backup Center about the timing of speedy trial motions and decisions or information about judicial interpretations of the Executive Orders. You can contact the Backup Center by phone at (518) 465-3524, by email at info@nysda.org, or through our website contact form at www.nysda.org/general/?type=CONTACT.

As announced in her Sept. 14, 2020 message, Chief Judge DiFiore explained jury trials were beginning as part of a “pilot project” in some counties, including St. Lawrence, Saratoga, Washington, Onondaga, Broome and Westchester Counties. Her message was reported in the New York Law Journal where she is quoted, “We describe them as pilots because we’re using them as an opportunity to carefully examine and study every phase of the process in order to frame the most effective protocols and best practices to safeguard everyone’s health and safety as we pursue in-person jury trials on a larger scale.” Since then, jury trials have been scheduled in a number of other areas around the state, according to the Chief Judge’s September 21st and 28th messages.

NYSDA has created several webpages that provide information related to Executive Order (EO) 203, New York State Police Reform and Reinvention Collaborative (June 12, 2020), and other policing issues, including the repeal of Civil Rights Law 50-a: https://www.nysda.org/page/LawEnforcementResources.

We will continue to add resources to these web pages. If you have suggestions for additional resources, please contact us at the Backup Center at (518) 465-3524, by email at info@nysda.org, or through our website contact form at www.nysda.org/general/?type=CONTACT.

In a September 16th piece, the New York Times reported that “[o]fficial misconduct played a role in the criminal convictions of more than half of innocent people who were later exonerated, according to a new report by a registry that tracks wrongful convictions. According to the report, by the National Registry of Exonerations, official misconduct contributed to false convictions in 54 percent of exonerations, usually with more than one type of misconduct. Over all, men and Black exonerees ‘were modestly more likely to experience misconduct,’ although there were larger differences by race when it came to drug crimes and murder.”

The report, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, is based on a review of 2,400 exonerations recorded in the registry from 1989 until early 2019. In 35% of cases, police officers were found to have committed misconduct, “responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence—and a great deal of concealing exculpatory evidence and perjury at trial.” In 30% of cases, prosecutors committed misconduct, with them “responsible for most of the concealing of exculpatory evidence and misconduct at trial, and a substantial amount of witness tampering.”

An Albany Supreme Court judge dismissed a 2017 drug conviction based on the failure of prosecutors to disclose the disciplinary record of a state trooper whose testimony had been key. A defense attorney’s 2020 motion seeking disclosure under new discovery provisions revealed that the decorated trooper, who conducted undercover assignments, had been censured three times for errors in documentation and record-keeping; the Times Union (TU) reported on the trooper’s history on March 5th. The TU noted the recent dismissal in a Sept. 10, 2020, article. District Attorney David Soares did not oppose the dismissal, but denied any Brady violation. However, the court found that the District Attorney’s office breached its duty to “‘to inquire about any misconduct, necessarily including the censure history, which would have been directly relevant to impeach the opinions he gave at trial’ ….”

The Office of the State Inspector General (IG) released a report in August on its investigation of the Drug Enforcement Task Force (DETF), a narcotics unit that also involves the New York City Police Department and federal US Drug Enforcement Administration. An editorial in the Times Union (TU) referred to the initial internal State Police investigation, launched after the TU raised questions, which found several officers “had falsified work records, lied about overtime, ignored department surveillance rules and improperly used publicly owned vehicles.” Many of the officers were allowed to “quickly retire in good standing,” the TU noted. The IG’s report criticized the State Police internal investigation—actually just an “audit”—and noted that, while some significant improvements had since been made in oversight, further changes were recommended.

As reported in the New York Law Journal on Sept. 16, 2020, Judge Alison J. Nathan of the Southern District of New York, “castigated” SDNY prosecutors for discovery violations in connection with a document they “buried” in their disclosures. In its opinion, the court stated, “No responsible Government lawyer should strategize how to ‘bury’ a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense.” Courts have an obligation to ensure that prosecutors exercise their power “in a way that is fully consistent with their constitutional and ethical obligations,” and “hold them accountable if they do not.”

A one-page illustrated flyer about dealing with New York City's Administration for Children's Services (ACS) has been created by the Center for Urban Pedagogy and Brooklyn Defender Services (BDS). Since early advocacy can be instrumental in positive outcomes for parents, this is a resource worth sharing in the community. For parents who may have contact with ACS during the pandemic, the flyer provides contact information for assistance in each of the boroughs. The flyer is posted on BDS's website here.

The U.S. Children’s Bureau, Casey Family Programs, The Annie E. Casey Foundation, and Prevent Child Abuse America recently announced a partnership and joint national effort, “to fundamentally rethink child welfare by creating the conditions for strong, thriving families where children are free from harm.” The effort, entitled Thriving Families, Safer Children: A National Commitment to Well-Being, “will work across the public, private and philanthropic sectors to assist jurisdictions in developing more just and equitable systems that benefit all children and families and break harmful intergenerational cycles of trauma and poverty.” According to a press release issued by the Annie E. Casey Foundation, the program is broken up into three tiers; tier one work is starting soon in California/LA County, Colorado, Nebraska, and South Carolina.

The Youth Justice Research Collaborative (YJRC) has released a brief, Evaluating the Implementation of Raise the Age in New York City, outlining YJRC’s “preliminary findings of Raise the Age’s first year,” including details based on four months of court observations. Categorized as successes were a significant decline in arrests of 16- and 17-year olds and an increase in the number of young people released at arraignment. But persistent problems remain, including:

A September 10th article in The Imprint notes that “the report highlights how racial disparities in arrests have barely budged: 93% of youth arrested in New York City in the first year of Raise the Age were Black or Latino, despite a continuing, years long decline in arrests overall.”

Public defense lawyers with young clients may find helpful information in the report with the above title from the Juvenile Law Center. New York’s Raise the Age law has moved most youth aged 16 and 17 into Family Court, but some remain in “Youth Parts” of adult courts. Furthermore, people 18 and up remain lumped in with all adults in the criminal legal system. Yet those between 18 and roughly 24, denominated “emerging adults,” may differ from older adults in several developmental ways. Those differences call for differentiated accommodations and supports in both the criminal and family court systems; the report laments that despite a substantial overlap in the population of people served by both systems, “there has been little collaboration between the criminal justice system and the child welfare system ….”

As its subtitle indicates, the report casts a “Spotlight on the Great Lakes Region.” However, it seeks to offer to policymakers and advocates there and elsewhere “greater tools to reshape justice for emerging adults in their jurisdictions.”

In its September 2020 edition of “Issues to Develop at Trial,” the Center for Appellate Litigation (CAL) calls on defense attorneys whose cases involve prosecution use of autopsy reports “to object when neither the examining pathologist nor anyone who participated in the autopsy is produced to testify.” [Emphasis in original.] While current New York law says that autopsies are not testimonial, making testimony by someone other than the pathologist permissible, CAL notes that objecting is crucial to getting the issue to the Court of Appeals for possible reversal and into federal court. With a shout out to trial counsel for preserving the issue, CAL notes a current case illustrating the point. See People v Garlick, 144 AD3d 605 (1st Dept 2016), habeas granted, No. 1:2018cv11038 (SDNY 6/2/2020), appeal pending in 2nd Circuit.

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.

Disability Rights New York (DRNY), the designated New York Protection and Advocacy System, published a report on September 14th that documents the “disproportionate use of restraint chairs on people in county jails with a mental health history.” The 29-page report, entitled Systems in Crisis: Restraint Chair Use on People with Mental Illness in New York’s County Jails, utilizes information DRNY obtained both through its power to access and investigate provided by state and federal law, as well as the Freedom of Information Law. DRNY reviewed incident reports involving the use of restraint chairs on prisoners from 2016 to 2019, and conducted several in-depth case investigations of incidents occurring in 2016. All the cases involved took place in county jails throughout New York State. Among the many noteworthy findings in the report: