Clean Slate Has Been Signed! 

Governor Hochul signed the Clean Slate Act (S.7551A/A.1029C), into law on November 16, 2023. The Governor’s office issued a press release recognizing the event with many in attendance, including lawmakers, community members, and impacted people. The New York Times reported on the event: “Ms. Hochul said that she was proud to sign the legislation, which she said would provide economic opportunities while protecting public safety.” 

NYSDA applauds the signing of Clean Slate, which will allow New Yorkers to re-enter the workforce and break down barriers that have prevented people from providing for themselves and their families. As defenders, we have witnessed how enmeshed penalties and collateral consequences have held New Yorkers back from being able to exist as equal, productive, and positive members of society. Clean Slate has been long overdue, and we are grateful to all who supported the legislation. 

The Act takes effect November 16, 2024. The changes include a new CPL 160.57, which among other things sets forth the types of traffic infractions and crimes that are eligible for automatic sealing and the circumstances under which sealed records are available. Stay tuned! NYSDA will offer a training for defenders about Clean Slate soon. 

Third Department Affirms Dismissal of Custody Violation Petition Without Hearing

In Matter of Tonya YY. v James ZZ., 2023 NY Slip Op 05435 (10/26/2023), the Third Department affirmed a Chenango County Family Court order dismissing without a hearing a violation petition in a Family Court Act article 6 child custody matter for failure to state a cause of action due to lack of specificity of the allegations. The decision states that “[i]n order to prevail on a violation petition, the proponent must establish, as relevant here, ‘that the alleged violator’s actions or failure to act defeated, impaired, impeded, or prejudiced a right of the proponent and that the alleged violation was willful.’” The court continued: “Here, although the allegations contained in the petition establish that the children — who were 13 and 16 years of age at the relevant time — were unwilling to comply with the parenting time schedule set forth in the modified order, there were no allegations in the petition that the father acted in a way that defeated, impaired or prejudiced a right of the mother.” The “generalized allegations in the violation petition, even when liberally construed, failed to provide the father with notice of a particular event or violation for which he could prepare a defense ….”

Although the above-referenced is a custody matter, the law relied on by the court, CPLR 3013, applies to all Family Court and other civil cases.

NYS Senate Hearing on Family Court Elicited Substantial Testimony About the Flawed and Racist System

On November 1st, the NYS Senate Standing Committees on Judiciary and Children and Families held a joint public hearing in NYC “to conduct oversight of the NYS Family Court and its resources, operations, and outcomes.” According to the hearing announcement it was organized to build upon the findings of the 2020 Report from the Special Adviser on Equal Justice in NY Courts, which called out the “over-burdened court system, the dehumanizing effect it has on litigants, and the disparate impact all this has on people of color,” and the subsequent Franklin H. Williams Judicial Commission Report. As covered in the Times Union, the packed day-long hearing saw testimony from parents, attorneys, judges, and advocates about their experiences and perspectives on the failings of the family court and family regulation system and what resources are needed to improve or overall it. Many spoke about the disparate treatment they received from the system because of the color of their skin and socio-economic status. One impacted parent stated: “Our humanity is not recognized by the court system.” An attorney, a supervisor at an institutional provider office, reported feeling targeted by court personnel because she is a person of color. Representatives from the Office of Court Administration blamed the faltering system on a lack of funding for direct mental health and substance abuse treatment and a shortage of family court judges. Although a majority of the hearing was focused on abuse and neglect cases, other matters, including the treatment of domestic violence victims, were also discussed. Those who wish to view the hearing in its entirety and read some of the written submissions can do so here.

Veterans Day Reminder: Consult with VDP about Veteran Clients

Veterans Day, a one-day holiday, can serve as a reminder to defenders to recognize every day that veteran status may play a role in the lives and cases of clients who have served. Because not all veterans identify themselves by that term, clients should be asked if they ever served in the military to determine if they may be a veteran and open a conversation about possible effects that their service had on them.

In observation of this holiday recognizing military veterans of the United States armed forces, NYSDA’s Veterans Defense Program (VDP) released a newsletter that included an article on the treasure trove of useful information in military records. The VDP offers services supporting military cultural competence and promoting trauma-informed and client-centered representation of veterans and service members who are involved in New York State’s criminal and family court system. The VDP is available to assist defenders representing veterans and military members in criminal and family court. Reach out by email at VDPInfo@NYSDA.org or by phone at numbers listed online, www.nysda.org/page/VDP.

NY Attorney Registration Renewals Must be Done Online, Effective December 1st

In a news release on October 31st, the Unified Court System announced implementation of mandatory online registration for all New York attorneys effective December 1st. Lawyers will have to “establish an Online Services account to log on to the electronic registration system” to “maintain current contact information, pay the biennial fee (if required), report CLE compliance and affirm other certifications required by court rules.” The credential for this account “also permits attorneys to securely log on to other UCS systems such as NYSCEF, eTrack, and other portals used for eFiling and case management.” Those lawyers required to pay the required registration fee can do so “using a credit card or debit card (with a 2.99% service fee) or with an eCheck (with a $1.00 service fee).”

The announcement indicated that Parts 118.1 and 118.3 of the Rules of the Chief Administrator have been amended to establish the new requirements. Defender programs are encouraged to make the new requirement known to assigned counsel and staff lawyers.

NYPD Fingerprint Mistake Prompts Calls for Review, Represents Nationwide Problem

Early this year, the New York Police Department (NYPD) revealed that, in 2015, fingerprint analysts had identified prints from a crime scene as belonging to a man who had been institutionalized at the time. The error was caught in 2015 but not disclosed till now, according to a report in The City on August 31st. The belated revelation has led NYC prosecutors to assess dozens of cases and also sparked calls for an independent investigation, as a Daily News article noted on October 22nd. That article included a comment from Emily Prokesch, Team Leader of NYSDA’s Discovery and Forensic Support Unit, that this development is part of a widespread problem in how fingerprint evidence is handled. It is “‘part of a broader culture where there is a lack of transparency and oversight about what happens in the lab,’ Prokesch said.” She cited controversies not just in New York City but in Erie County and Niagara County, as well as famous national cases like that of Brandon Mayfield from Oregon, wrongly arrested for involvement in the 2004 Madrid train bombings based on a botched FBI latent print identification.

NYSDA has long sought to keep defenders informed about fingerprint and other forensic evidence. For example, the Mayfield incident was noted in a practice tip on fingerprint analysis and digital technology in the June-July 2006 issue of the Backup Center REPORT. Problems with digital fingerprint storage and comparison continue, as noted in the September 6th issue of the Center for Integrity in Forensic Sciences newsletter.

Researcher Explores How Public Defenders Can Better Understand and Present Digital Evidence with Contextual Input From Clients

The Indigent Defense Research Association (IDRA) recently featured an ethnographic case study of a large Northeastern public defender office in their Notable Recent Publications for November, entitled “Interpretive and Interpersonal Challenges of Digital Evidence for Public Defenders.” Fanny Ramirez, the author of the study, explored the intersection and tension between public defenders’ access to their client’s digital data, how that access impacted their relationships with their clients and affected the narrative of their cases. The digital evidence discussed focused mainly on cell phone extractions and social media posts, both of which exposed sensitive client information and exposed their clients’ relationships with complaining witnesses, family, and friends.

The study illustrated how public defenders can harness their clients’ digital information in powerful ways to impact plea negotiations and present their clients in the best light. One attorney who worked with their juvenile clients to understand slang used within their social media posts was able to contextualize these posts as more joking than serious in nature. Ultimately, with the client’s help, the attorney better understood her client’s relationship with social media and was hopeful to illustrate before a jury that her client’s online persona is not who he is in real life. Other examples of attorneys working with clients to reframe their digital data included getting a more complete picture of who their clients were in their relationships with those closest to them. Through a review of the digital evidence, those attorneys saw happy moments of their clients with family and friends and used that evidence to paint a broader picture of their clients. Ultimately, many attorneys profiled recognized the importance of client-centered representation and worked with their clients to interpret the digital evidence together to develop a narrative that took back some control from the privacy violations from the prosecution and privacy intrusion from the defense attorney having access to sensitive material. An overarching takeaway was that attorney-client trust can be built and arguments can be strengthened by seeing a complete picture of the client despite unique challenges in the digital age that seemingly expose clients’ full lives but actually expose only a decontextualized fraction.

Balko Begins State-by-State Public Defense Comparison Series

Radley Balko has started a state-by-state review of public defense across the country. The first segment, appearing in an October 30th post on The Watch, sets out the series’ scope and covers Alabama, Alaska, Arizona, Arkansas, and California. Balko’s description of the information he is comparing makes clear how difficult such comparisons are. Analysts face myriad, significant, and often idiosyncratic differences among states—geographic, political, and fiscal—that are compounded by the uniqueness of public defense as a governmental function.

Balko’s series was inspired by the RAND workload study noted in the October 4th edition of News Picks. The last well-known study of public defense across the board is Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (2009). Balko’s past work has included reporting on junk science offered as forensic evidence, as has been noted in past News Picks including the Feb. 27, 2015, edition.

Hurrell-Harring Settlement End Date Extended

The 2014 settlement of the Hurrell-Harring lawsuit that sparked an infusion of state funds into the five counties named in that suit, and eventually statewide, included a monitoring period that was set to expire this last September. That period has now been extended to March of next year, as reported in the Queens Eagle on October 24th. The extension comes as the result of a suit filed last December asserting that the State had violated the settlement, as noted in the Dec. 29, 2022 edition of News Picks. The New York Law Journal, reporting the extension on Oct. 20, 2023, included the following quote from NYCLU staff attorney JP Perry: “‘We feel that the six-month extension of the Hurrell-Harring settlement altogether is going to give us the time that we need to assess if public defender caseloads in the five counties have come back into compliance—and we’ve been very encouraged by the state’s commitment to fund the ACP programs. The lack of funding was really at the heart of the enforcement action that we filed. But we really want to make sure that commitment continues.’”

Caseload standards created and applied by the Office of Indigent Legal Services (ILS) as part of the settlement—see the ILS Hurrell-Harring Settlement Implementation webpage—predate the new national standards set in the RAND Corporation report noted above.

New Leadership Team Announced for State Judicial Task Force on Mental Illness

Back in May, the New York Law Journal carried a column by then-Acting Chief Administrative Judge Tamiko Amaker entitled “Collaborative Efforts Needed to Prioritize Mental Health in New York State.” Amaker noted that in “recent months, Acting Chief Judge Anthony Cannataro established a New York State Judicial Task Force on Mental Illness to implement recommendations laid out in an October 2022 Report by the National Judicial Task Force to Examine State Courts’ Response to Mental Illness ….” An October 26th announcement on the Unified Court System website noted a “new leadership team” for the body originally envisioned by Cannataro. This has now been “mobilized,” according to an October 30th NY Law Journal article drawing from that release.

The Task Force includes many judges and court system personnel, health and mental health professionals, and representatives of state and other agencies. Sheila Shea, Director, Mental Hygiene Legal Services, Third Judicial Department, is a member; she has done training and provided invaluable advice for NYSDA. Public defense lawyers on the Task Force are Colleen A. King, Supervising Attorney, Mental Health Team, Brooklyn Defender Services and Leanne Lapp, Ontario County Public Defender. Patricia Warth, Director of ILS, is also a member.

The report of the National Judicial Task Force, which is to be considered by the New York task force, contains “findings and recommendations to assist state courts in responding to the needs of court-involved individuals with serious mental illness,” according to a release at the time. It recommended that state courts take steps to address the issues discussed. The national report set out many recommendations. Most relate to the systems in which public defenders work.

Federal Defender Budget Worries; FDNY Head Moves to Private Practice

Federal defenders are warning that their proposed allocations in the fiscal 2024 Financial Services spending bills would decimate their offices, resulting in 9-12% of their staffs being laid off. This is in addition to losses due to attrition as the offices prepare for the worst by instituting a hiring freeze.

Twenty three Senate Democrats wrote a letter to Appropriation Committee leaders asking for at least $136 million more than is included in the current version of the spending bill. Judiciary officials wrote similar pleas to House and Senate Appropriation Members in July.

This comes at a tenuous time for the Federal Defenders of New York, which provides representation in the Eastern and Southern Districts of New York, as David Patton—the organization’s Executive Director since 2011—recently joined Kaplan Hecker & Fink LLP as a partner. While the board searches for a permanent replacement, the organization’s longtime head of appeals Barry Leiwant will serve as Interim Director. 

Association News

Now Online: July-October Backup Center REPORT 

The July-October 2023 issue of NYSDA’s newsletter, the Public Defense Backup Center REPORT, is now on the NYSDA website. NYSDA members will receive a hard copy of the issue when printing and mailing are completed. If you have any questions, please contact the Backup Center at info@nysda.org or 518-465-3524.

Forensic Webinar Series Continues with Two Sessions on Pattern Matching

Thursday, November 30, 2023, 2:00 – 3:30 pm: Pattern Matching Part I: Latent Prints, with Kevann Gardner, Supervising Attorney; Senior Member of the Forensic Practice Group, Public Defender Service for the District of Columbia; and Sylvia Smith, Supervising Attorney, Public Defender Service for the District of Columbia. Details and registration information for the series are available here.

*New Date* Thursday, December 14, 2023, 2:00 – 4:00 pm: Pattern Matching Part II: Firearms and Toolmarks, with Richard Gutierrez, Assistant Public Defender, Forensic Science Division, Law Office of the Cook County Public Defender; and Emily Prokesch, Team Leader, Discovery & Forensic Support Unit, New York State Defenders Association. Details and registration information for the series are available here.

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

Sunday, June 9 – Friday, June 14, 2024: NYSDA Defender Institute Basic Trial Skills Program. Our annual Basic Trial Skills Program will return in-residence to Skidmore College in Saratoga Springs. Applications will be available soon. Anyone interested should contact their defender program chief or NYSDA directly at training@nysda.org.