Both Senate and Assembly Intentionally Omit Part B of Governor’s Proposal to Rollback Discovery                 

The Senate and Assembly both intentionally omitted Governor Hochul's discovery rollbacks from their one-house budget proposals on Monday, March 10, 2025. This will set the stage for three-way budget negotiations over the coming weeks. While the omission of Part B is a win for the Alliance to Protect Kalief's Law, there is more work to do to ensure New York's discovery law is not effectively repealed. NYSDA stands proudly as a member of the Alliance to Protect Kalief’s Law and news coverage from our joint lobby day on March 3. 2025 can be viewed here.

Court of Appeals Grants FOIL Access to Police Disciplinary Records

In late February, the Court of Appeals issued two positive decisions on the June 2020 amendments to the state’s Freedom of Information Law (FOIL). Those amendments, while adding personal privacy protections for police officers, provided for access to “law enforcement disciplinary records” in conjunction with the repeal of Civil Rights Law § 50-a.

In Matter of NYP Holdings, Inc. v New York City Police Department (2025 NY Slip Op 01009), the Court held that 50-a’s repeal was intended to have retroactive application. As a result, any police disciplinary records created while 50-a was on the books may now be disclosed under FOIL requests.

In Matter of New York Civil Liberties Union v City of Rochester (2025 NY Slip Op 01010), the Court affirmed an appellate decision holding that records of civilian complaints against police officers, even those not found to be substantiated, are subject to FOIL. The amended language - “law enforcement disciplinary records”- contains no limitations based on disposition or outcome of the proceeding itself. While the legislature had numerous ways to exclude certain records - both under FOIL and the Public Officers Law - it explicitly declined to do so.

Corrections Officers Strike, Conditions in Prisons Deteriorate with Deaths and Another Killing

Demands for change in New York State’s prison system following the videoed murder of Robert Brooks at Marcy Correctional Facility in December continue, while a wildcat strike by employees of the Department of Corrections and Community Supervision (DOCCS) has dominated recent headlines. The strike began at two facilities on February 17th, as reported in the Times Union on the 18th (the same day that News Picks highlighted the outrage following Mr. Brooks’ death).

Concern for the safety and health of people incarcerated in DOCCS facilities has mounted, though receiving less media coverage. The Gothamist reported on February 28th that two men found unresponsive in their respective cells at Sing Sing were dead. The New York Times reported on March 7th that a total of seven people had died, including from medical issues when response was delayed and from suicide.

At the beginning of the month, we learned that multiple corrections officers beat 22-year-old Messiah Nantwi to death at Mid-State Correctional Facility. The National Guard on the scene are said to have stood and watched, doing nothing. More than 10 staff members were put on administrative leave as the New York State Police claims to investigate the death. Again, Attorney General Letitia James has recused her office from the case, Onondaga County District Attorney, the special prosecutor who was assigned to the case against those alleged to have killed Robert Brooks, has been assigned to the Nantwi case. The Correctional Association of New York issued a statement in response to Mr. Nantwi’s death calling on the Governor and Legislature to “take immediate action to strengthen independent oversight, hold employees accountable for misconduct, and reduce the size of the incarcerated population through all available mechanisms” and noted that, in late January, it had “documented serious concerns about operational failures at Mid-State Correctional Facility and subsequently reported these concerns to .... DOCCS.”

On March 4th, the New York Civil Liberties Union (NYCLU) announced that it was suing DOCCS on behalf of Prisoners’ Legal Services of New York (PLS) for restricting the First Amendment rights of incarcerated people to access the courts and communicate with counsel. And PLS’s Executive Director co-authored an op-ed for the Times Union stressing the need for body-worn cameras in the prisons—something the strikers do not want.

Over the weekend, DOCCS and the New York State Correctional Officers & Police Benevolent Association (NYSDCOBA) reached an agreement that requires 85% of employees to return to work on March 10th. Numerous news outlets including FingerLakes.com reported on the agreement, noting that some officers may not return until a Taylor Law hearing scheduled for March 11th. The agreement requires that 85% of employees return to work on the 10th. Prior agreements have met resistance, including a proposed consent award issued by a mediator that was posted on the DOCCS website at the end of February.

The Governor’s 30-day amendments to the proposed Executive Budget, released on February 21st, included prison-related items. The major provisions include the following. One, Part GG, would establish a DOCCS Body Worn Camera Program. Another, Part HH, would require the State Commission of Correction to annually visit and inspect all jail, DOCCS facilities, and Office of Children and Family Services secure facilities. And another, Part II, would authorize the Governor to close up to five DOCCS facilities in the coming fiscal year.

Leaked DOCCS Email Describes Pilot Program to Track, Stop and Frisk People on Parole on Subway System

Documented NY leaked an internal Department of Corrections and Community Supervision (DOCCS) email outlining a new program aimed to “combat occurrences of new criminal activity in the subway system.” The Transit Recidivist Awareness Initiative, or TRAIN, would assign parole officers to track people on parole who are wearing GPS monitors, and then “interview, surveil, and/or search [them]” once they enter the subway system.

The DOCCS employee who leaked the internal email called the program “a way to use parolees to circumnavigate ‘Stop and Frisk’ ....” The New York Civil Liberties Union Special Counsel for Criminal Justice Litigation Daniel Lambright said in a press release that “[p]eople on parole and supervised release have the right to travel without fear that they are going to be harassed, searched, and followed by parole officers. They should be welcomed back into society, not made to feel like second-class citizens.”

Due Process Requires That Parent Have Full and Fair Opportunity to Testify at Custody Modification Hearing

In Matter of Panizo v Douglas (2025 NY Slip Op 00966 [2/19/2025]), the Second Department reversed an award of sole custody to the mother after the Orange County Family Court improvidently exercised its discretion in denying the father’s request for an adjournment. Such denial caused the father to miss the second and third days of trial and denied him his right to testify. The court stated in its decision that “[w]hile adjournments are within the discretion of the hearing court, the range of that discretion is narrowed where a fundamental right of the parties is involved [citation omitted]. Generally, in a proceeding pursuant to Family Court Act article 6 seeking modification of a prior custody and visitation order, a full and comprehensive hearing is required, where due process requires that a parent be afforded a full and fair opportunity to be heard [citation omitted].”

As a practice note, family defenders should be prepared to object and appeal (where appropriate) a change in custody without consent, and without a hearing, even if the modification is purportedly only on a temporary basis. Those with questions may email our Family Court Staff Attorney Kim Bode at kbode@nysda.org.

Municipalities Owe Foster Children a Duty of Care

The Court of Appeals, in Weisbrod-Moore v Cayuga County (2025 NY Slip Op 00903 [2/18/2025]), offered hope to parents and children who seek to hold a county accountable for sometimes reprehensible foster care conditions, when it held that where municipalities place children in foster homes the municipalities have assumed custody of the children and so owe them a duty of care. In a case brought against Cayuga County and 10 unnamed individuals under the Child Victims Act, the plaintiff alleged that she suffered physical and sexual abuse for seven years in the foster home where she was placed in 1974. The Appellate Division granted the County’s motion to dismiss the complaint, finding that the plaintiff failed to establish that “one of the three recognized categories” of the special duty doctrine applied. The Court of Appeals said that the special duty of care requirement does not apply. The governmental duty of care to safeguard those in its custody, including incarcerated individuals and school children, is not restricted to those over whom the government has direct physical control. While a child in a foster home is not in the municipality’s physical custody, that child has not been returned to the legal custody of any parental authority and so “never truly passes out of the orbit of the municipality’s authority.” The plaintiff alleged that the county was negligent in its placement and in supervising that placement; “[e]xercising a degree of care in selecting and supervising plaintiff's foster placement is exactly the type of duty that flowed from the kind of custody and control the County possessed over plaintiff,” the Court said.

Judge Singas wrote a dissent, in which Judge Garcia concurred. The majority said the dissent’s concern over a “crushing” fiscal burden being imposed on counties was not founded, as the duty involved “does not require government employees to ‘monitor foster children 24 hours a day’ and take responsibility for ‘harm inflicted by third parties on foster children,’” but only to make placement decisions with reasonable care.

Weisbrod-Moore may be of help to family defenders and parents who seek to challenge the placement of a child into foster care, especially when there is concern that the placement is inappropriate or dangerous.

Conviction Integrity Unit Failures Examined by NYFocus.com

An investigation by New York Focus and Columbia Journalism Investigations, reported on Feb. 24, 2025, found that prosecutors’ so-called “conviction integrity programs have fallen short of their promise” and, in some cases, served only to delay ultimate exonerations. The article described the high hopes around the creation of conviction integrity units (CIUs) and ultimate disappointment with CIUs in, among other places, Monroe and Erie counties and the Bronx. For example, some witnesses in the Bronx said CIU investigators made them feel intimidated; a judge who vacated a conviction that the CIU had decided to let stand called the CIU’s treatment of some witnesses “‘unconscionable.’” Other problems reportedly plaguing existing CIUs include lack of funding and lack of support by the elected District Attorney. Many defendants who did not gain support from a county CIU later had their convictions overturned by courts.

While airing concerns about existing CIUs, the NY Focus article also reported concerns about the lack of CIUs in many counties. If new CIUs are created, one source of information on getting them right may be the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania, described by WTOL.com Toledo (OH) last year as “the premier source of best practices for conviction integrity units.” Those best practices include independence from the trial unit from which convictions emanated, sufficient resources (including investigators and other independent attorneys), and a plan for how decisions are to be made. CIUs failing to follow best practices may deserve the label “political stunts;” as the WTOL.com article noted, “[r]oughly half of the CIUs in the country have not had an exoneration.”

Given the information presented by NYFocus and other criticisms, it can be argued that it would be better to provide resources and counsel to individuals asserting innocence rather than look to prosecutors’ offices for evaluation of wrongful conviction claims.

Earlier in February, the Gothamist reported that misconduct complaints against NYPD are rising, but that the Civilian Complaint Review Board had to close “more than 1,400 cases last year without fully investigating the complaints because of staffing shortages and hirer workload.” And the New York Times reported that New York City paid out $206 million in police and prosecutorial misconduct settlements last year. Nearly 10 percent of that figure came from two wrongful conviction settlements. Amanda Jack of The Legal Aid Society tied these wrongful convictions to New York District Attorneys’ attempts to roll back discovery reform: “‘Our analysis, based on City data, comes amid attempts by elected officials and law enforcement to completely gut New York’s widely successful discovery reform, which helps guard against wrongful convictions and prolonged detention while exposing police misconduct’ .... ‘If they succeed, injustices will surge, and taxpayers will ultimately bear the financial cost.’”

U.S. Supreme Court Reverses in Two OK Death Cases

Defendants in two separate Oklahoma capital cases were recently granted relief by the U.S. Supreme Court. In the first, a divided court, in a per curium opinion, granted habeas relief to a woman because introduction of overly prejudicial evidence—information about her extramarital affairs, provocative way of dressing, etc.—violated the Due Process Clause. Andrew v White, No. 23-6573 (1/21/2025). The Court found that Andrew met the requirement of showing “‘clearly established federal law governing her claim’” as required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The majority said that the legal principle at issue—whether the Due Process Clause can, in some cases, protect against unduly prejudicial trial evidence—was indispensable to the decision in Payne v Tennessee (501 US 808, 825 [1991]), cited by Andrew.

As an article on Law360.com reported, an attorney for Andrew “said the ruling was ‘historic’ because it marked the first time the Supreme Court recognized that gender bias and sexual stereotyping wielded against a criminal defendant can violate due process — a precedent that can affect all criminal defendants, not just people in capital cases, and not just women.” The lengthy article also noted a study examining the trial transcripts of all 48 women sentenced to death between 1990 and 2022 that found “‘numerous’ instances” of gender bias, including “invasive, even graphic, lines of questioning ….”

The second capital victory was in Glossip v Oklahoma (No. 22-7466 [2/25/2025]). Justice Sotomayor’s majority opinion sets out the long history of the case, throughout which Richard Glossip professed innocence of involvement in the killing itself, and which saw growing support for overturning his conviction, including from 62 state legislators. The decision describes the incremental revelations of multiple prosecution acts and omissions that finally led to confession of error by the state attorney general. The majority found that “the prosecution violated its constitutional obligation to correct false testimony” and “has confessed to violation of the rule of sequestration … and to destruction of evidence ….” [Internal quotation marks omitted.] Justice Barrett joined the majority in part and filed an opinion concurring in part and dissenting in part. Justice Thomas dissented, joined by Alito; they would find that relief was barred by AEDPA. Justice Gorsuch took no part.

NACDL Informs of Benefits of AI Prompt Engineering; Center for Justice Innovation Draws “A Line in the Sand”

The Center for Justice Innovation (CJI) offered a key takeaway from a working group the Institute hosted: “Given how little we know about artificial intelligence, and the challenges with managing it, it’s crucial to avoid using AI to make decisions that could drastically change the course of a person’s life.” In its thoughtful policy brief, “A Line in the Sand: Artificial Intelligence and Human Liberty”, CJI recounted some promising uses of AI—an Alabama study which uncovered disparities in criminal legal system fines and fees, and data analysis for courts and researchers—while cautioning, “even these relatively low-risk decisions need human oversight and strong guidelines rooted in shared values and goals to ensure AI is used safely, responsibly, and with dignity for everyone in the justice system.” The authors provided examples of lower risk pre-trial applications of AI to support clients’ access to community resources, housing, and services. They also posited that attorneys could use AI tools to summarize case notes, client histories, and court documents, but attorneys need to be careful about how the AI tool they select may use the data you enter and whether any use would result in a breach of confidentiality.

For more concrete examples of potential AI uses in litigation and a background on prompt engineering, see the National Association of Criminal Defense Lawyers (NACDL)’s article “AI-Powered Advocacy: Transforming Criminal Defense Through Prompt Engineering.” This article in NACDL’s publication, The Champion, provides tips on working with generative artificial intelligence (GAI) and navigating practical and ethical issues involved. What is prompt engineering? In this context, it’s the act of creating a question or phrase to share with an AI tool, which leads the tool to generate a response. Understanding and mastering prompt engineering are key components of working with Large Language Model GAI tools efficiently and may lower your chances of inaccurate and biased responses. Attorney author Patrick Barone explained, “prompt engineering is similar to crafting direct examination questions designed to elicit comprehensive and relevant answers from a witness. It also parallels the construction of cross-examination questions that aim to confine the witness’s responses within specific boundaries. Like a carefully phrased cross-examination question, a well-crafted prompt minimizes unpredictability in the AI’s responses, guiding it toward precise and controlled output.”

Police-Induced Confessions, 2.0 Published

Saul M. Kassin, a psychologist whose work concerning false confessions is well known, has, with co-authors, updated the 2010 scientific review paper that “reviewed basic principles of psychology and forensic research that identified the types of police interrogation practices and suspect vulnerabilities that increase the risk” of false confessions. The new work, Police-Induced Confessions, 2.0: Risk Factors and Recommendations, describes “the situational and personal risk factors that lead innocent people to confess and the collateral consequences that follow” and proposes seven in-depth remedies.

Some are not new, like video recording of all interviews/interrogations of suspects, though additional research is offered in support of this. New York has had a law calling for recording of custodial interrogations for years, if the interrogation involves certain specified felonies; passage of CPL 60.45(3) was noted in the April-June 2017 issue of the Backup Center REPORT. In 2022, Kassin noted that new exonerations illustrated the need to record interrogations. NYSDA’s Aug. 10, 2022, edition of News Picks mentioned that article and also referred to Recording of Custodial Interrogations, a Municipal Police Training Council Model Policy published by the Division of Criminal Justice Services. The limitations in CPL 60.45(3)—no statement can be suppressed solely due to failure to record, and recording can be foregone upon good cause shown—hamper its application. But the new Kassin work may inspire renewed calls to challenge unrecorded confessions and advocate for routine recording. A bill to strengthen the law (S.4149/A.4342) has been introduced.

Among the other recommendations in the new paper is shielding “lay witnesses and forensic examiners from confessions to ensure the independence of their judgments,” consistent with decades of research about confirmation biases. “[I]t is now clear that confession evidence can taint eyewitnesses, informants, alibis, and forensic examiners and pathologists,” the paper says, and adds, “most false confessions are accompanied by other evidence errors, thus creating the illusion that the confession was independently corroborated ….” This means that “police should not disclose a suspect’s confession to prospective lay witnesses, crime scene analysts, forensic examiners tasked with matching fingerprints and other physical evidence, and medical examiners conducting autopsies to determine the cause and manner of death.” Defenders are encouraged to investigate whether a client's statement may have tainted other evidence through confirmation bias; the abstract of one study a few years ago noted that many defense attorneys underappreciated the potential impact of forensic confirmation bias.

Confessions also tend to increase the rate of false guilty pleas. A new study noted in the Kassin paper found that false confession was the only one of “known canonical risk factors of wrongful conviction” to positively predict false guilty pleas. This provides support for ensuring that a reasonable standard of evidence be met before a plea is taken. On a related note, see When pleas precede evidence: Using Bayesian analyses to establish the importance of a reasonable standard for evidence prior to plea offers, in the Wrongful Conviction Law Review.

Conviction Overturned Under N. Carolina Racial Justice Act

A North Carolina judge has found that jury selection in the capital case of Hasson Bacote, a Black man, violated the state’s Racial Justice Act (RJA). A novel piece of legislation passed in 2009, the RJA did not require defendants with death sentences to make a showing of discrimination in their own case; they can rely on proof of systemic bias. While the RJA was repealed in 2013, the North Carolina Supreme Court ruled in 2020 that already-filed claims could move forward. The instant case “was the first to move forward since the Supreme Court ruling and is the first North Carolina case where a trial court ordered statewide discovery of prosecution notes from jury selection in all capital trials since 1980,” according to an ACLU press release. This RJA victory may suggest to those worried about erosion of federal constitutional protections against racial and other discrimination the value in creating or strengthening state protections.

Racial imbalance in juries is a problem here in New York. As noted in the December 31st News Picks, the Franklin H. Williams Judicial Commission has been holding hearings on barriers to participation in juries. A post on Law.com reported on comments made at the January 30th hearing in Albany, with panelists noting a lack of jury diversity across the region. Clients who are not white “factor the likelihood of being judged by an all-white jury in deciding whether to take their case to trial,” in the words of one speaker. Lack of representation of other ethnic, religious, and other groups was also noted. Suggestions for improvement included increasing jurors' daily compensation, providing a travel stipend, and making available in-court childcare services.

The article reported that officials say a third hearing on jury diversification will be held in April, in Bronx. The Commission offers updates to those who join its mailing list.

NAMI’s Sharing Hope Videos Explore Mental Wellness in Black Communities

NAMI-NYS (National Alliance on Mental Illness New York State) is promoting, in Black History Month, its Sharing Hope series of videos. These explore “the journey of mental wellness in Black communities through dialogue, storytelling and a guided discussion on” Youth and Mental Wellness: “How Do You Heal?”; Community Leaders and Mental Wellness: “The Art of Healing”; and Black Families and Mental Wellness: “Smiling On Our Journey.”

History Months Invite Scrutiny of the Past to Inform the Present and Future

February is Black History Month and March is Women’s History Month. The contributions and experiences of Black people and women should always be included in the study of history and in acknowledgement of its effect on the present, of course. But these dedicated months provide opportunities to address past suppression of information about accomplishments by and harm done to individuals and these groups as a whole.

NYSDA takes this opportunity to again reaffirm its statement, Black Lives Matter to the New York State Defenders Association. That statement flowed from the police killing of George Floyd in Minneapolis, which we noted in 2020 was a “recent and blatant instance in a devastatingly long line of police murders and brutality against Black people in this state and nation.” Nearly five years later, Robert Brooks was killed in a New York State prison from a horrific beating by white correction officers that was watched without interference by other white employees. Since his death, NYSDA has focused on reporting and decrying this lynching (see News Picks for February 18th) and continuing to identify and challenge the racism embedded in every aspect of the legal system and society. In our testimony in state budget hearings, we asked “that the Legislature and Executive demand changes to upend the institutional culture that led to Mr. Brooks’ torture and death.”

We also take this opportunity to again commemorate former Board of Directors and Client Advisory Board member Dr. Alice P Green, who died last August (see News Picks for Sept. 17, 2024, and the July-Sept. 2024 Backup Center REPORT). We are sure that Dr. Green would have been at the forefront of protests around the death of Robert Brooks and other Black people—and others—in New York prisons. She founded the Center for Law and Justice (CFLJ) in 1985, following the killing of Jesse Davis, an unarmed Black man with mental illness, by police. CFLJ’s work continues. Ta-Sean Murdock, current director of operations, stressed in December that Robert Brooks’ death was not an isolated incident. “We know from families who come into our office on a regular basis that they are aware of situations where their loved ones have also been abused and mistreated by corrections officers — only to have a deaf ear turned to them,” he told WNYT.com.

Even as Dr. Green focused her energies on racism, she personified the ability of women to be champions. A champion of justice, she received many accolades, including some highlighting women’s achievements. During last year’s Women’s History Month, Dr. Green reflected on her accomplishments during a CBS6albany.com segment; the interviewer noted that “Green hopes her story encourages women, this month during Women's History Month, and all year long, to take a stand and work hard to follow their dreams and make a change in their communities for the better.”

Women, Black people, and their allies face challenging times, not just during February and March but for the foreseeable future. NYSDA strives to be part of the work needed to secure justice for all. We stand with public defenders and parent advocates who fight every day to expose and change structural and case-specific racial and gender bias. Defenders in criminal matters must provide client-centered advocacy that, when appropriate, can include, during plea bargaining and sentencing advocacy, references to prison conditions, noting clients’ particular vulnerabilities and offering factual, individualized mitigation that could include specific ways in which prison would likely lead to a client’s harm. Family defenders similarly must confront institutional biases that lead to disproportionate separation of Black families and reinforce unfair gender norms. NYSDA offers training materials to help defenders with these issues and welcomes suggestions for additional steps.

Association News

New Issue of the Public Defense Backup Center REPORT Published

The October-December issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is available on the NYSDA website. NYSDA members will receive their hard copy of the issue when printing and mailing are completed. If you have questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Upcoming Webinars and In-Person Training Programs

• Wednesday, March 19, 2025, 1:00 – 2:30 pm, Should My Client Testify? Negative Inferences & Other Considerations in Abuse & Neglect Cases (free webinar). For more information and to register, click here.

• Thursday, March 27, 2025, 1:00 – 2:00 pm, Understanding Sapphire W. and Its Impact on Respondent and Non-Respondent Parents (free webinar). For more information and to register, click here.

• Wednesday, April 2, 2025, 2:00 – 3:30 pm, Challenging Software- and AI-Generated Evidence (free webinar). For more information and to register, click here.

• Thursday, April 3, 2025, 12:30 – 1:45 pm, Protecting the Rights of Non-Citizens in Family Court (free webinar). For more information and to register, click here.

• Wednesday, May 21, 2:00 – 3:30 pm, AI Analytics and Fourth Amendment Challenges (free webinar). For more information and to register, click here.

Application Period Open for the 2025 Basic Trial Skills Program

Our annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs from Sunday, June 8 to Friday June 13, 2025. The application deadline is Friday, April 4, 2025. Anyone interested in applying should contact their defender program chief or NYSDA directly at training@nysda.org.

SAVE THE DATE: NYSDA’s 58th Annual Meeting & Conference will be held at the Saratoga City Center and Saratoga Hilton located in Saratoga Springs from July 27 to 29, 2025. The conference will again feature training for criminal and family defenders and defense team members and various networking opportunities. Program registration will be available later in the Spring.

Hotel Reservations: Rooms at the Saratoga Hilton are available now for booking: https://book.passkey.com/go/NYSDefenders2025. The special room rate of $212 (for a standard room) is available through June 27th.

Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.