Wednesday, September 17, 2014

The Parole Board can’t follow their own guidelines what’s the remedy?

Your client is an inmate serving a 3-9 sentence for Grand Larceny Third starting on November 2, 2011.  During his incarceration he is awarded Merit Time pursuant to Corrections Law § 805 on July 31, 2012 which qualifies him for release after serving 5/6 of his minimum. He was also awarded a Certificate of Earned Eligibility on two occasions July 31, 2012 and again on February 6, 2013. His parole eligibility date is June 5, 2013. Prior to his initial appearance before the Parole Board on February 26, 2013 the following were submitted; a personal statement, letters of support, a Parole Board Summary evidencing a clean disciplinary record, a proposed residence upon release, and a guideline release range of 18 - 30 months; a COMPAS Risk and needs Assessment Report evidencing a low risk to re-offend, abscond or for violence; and a letter from prospective employers offering full time employment.

On February 26, 2013, the three panel Board denied release and ordered a hold for an additional 24 months. The Board’s determination recited the boilerplate “there is a reasonable probability that you would not live and remain at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community”. The reasons offered by the Board to support this conclusion include the facts of the underlying offenses – Petitioner’s theft of large amounts of money from people who trusted him; the fact that Petitioner had some misdemeanor larceny convictions from the early 1980’s; and the fact that restitution and child support were owed by Petitioner. The decision of the Board failed to weigh, or even acknowledge, Petitioner’s exemplary prison disciplinary record, his positive programming, positive contributions to the prison community, and the support his family and friends would provide upon release. 

Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County  relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding; 
[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).
Challenging the denial of release couldn't be more straight forward. 

Monday, September 15, 2014

ETKS Partner Lawrence L. Kasperek to receive the 2014 Jeffrey A. Jacobs Memorial Award

Congratulations to our partner Larry Kasperek, the 2014 Jeffery A. Jacobs Memorial Award recipient.  The award is to be presented on September 20, 2014 at the Defense Community Dinner at the Rochester Institute of Technology, sponsored by the Monroe County Public Defender’s Office and the New York State Defender’s Association.  

Jeff Jacobs is remembered as an outstanding attorney and person who was a fierce advocate for his clients and proud of having tried more than 100 felony cases in his career.  Many of his trials were complex cases requiring familiarity with novel scientific theories and the development of effective trial strategies.  In addition, Jacobs was a role model and mentor for younger assistant public defenders, generously giving his time and encouragement.

The award recognizes a criminal defense attorney from the Monroe County area who has demonstrated these qualities, including in particular, zealous client advocacy in complex criminal defense litigation, which may include the effective use of experts and litigating forensic or scientific issues, fearless advocacy on behalf of the client, and creativity in the presentation of the client’s defense.

Past award recipients include Second Assistant Monroe County Public Defender Jill L. Paperno (2010), ETKS partner William T. Easton (2011), Assistant Federal Public Defender Anne M. Burger (2012), and Assistant Monroe County Public Defenders Elizabeth A, Riley and Emily L. Rosmus (2013).

Wednesday, September 10, 2014

Prosecutors' ethical obligations to comply with Brady; Managerial and Supervisory Obligations of Prosecutors under ABA Model Rules of Professional Conduct 5.1 and 5.3

On September 8, 2014 the ABA released Formal Ethics Opinion #467 dealing with the Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3. The opinion begins by noting that prosecutors “must ‘make timely disclosure to the defense’ of exculpatory and mitigating evidence” [emphasis added], contrary to the familiar prosecutorial mantra that “impeachment material is not Brady.”  


The opinion makes clear that “supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations,” noting that “reports, court opinions, and other authorities have drawn attention to prosecutorial misconduct . . . [that] suggest a need for more guidance.”  The opinion goes on to recommend the establishment of office-wide policies, training, supervision, and the creation of a “culture of compliance.”  

The opinion is relatively short, worthy of a careful read and perhaps inclusion as an exhibit in your motions for disclosure of Brady material.  

HT: Donald Rehkopf

Tuesday, September 9, 2014

And speaking of Brady violations . . .

This article by Ernie Lewis, Executive Director, National Association for Public Defense:

http://publicdefenders.us/sites/default/files/styles/large/public/field/image/SUBTITLE.png?itok=RK--ycWo

It’s time for another list.  This time the focus is on prosecutors. Admit it, you have things you want to say about prosecutors.  Please join in with your own.   Of course, prosecutors come in all shapes and stripes.  There are plenty of good ones and plenty of, well, not so good ones.  But they all know, if they’re honest with themselves, the following ten things that apply to many if not most of their colleagues: 

10.  They don’t believe the cop either.  How could they?  Michelle Alexander recently wrote an article in the NY Times, concluding with this:  “The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, ‘get tough’ mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.”  Prosecutors and judges both know this, and tolerate it at best, encourage it at worst. 

9.  They can control their caseloads much easier than we can.  Sometimes when I advocated for lower caseloads in the Kentucky legislature, prosecutors would testify that they had far higher caseloads than we did.  County attorneys in particular would cite the tens of thousands of traffic “cases” they handled, compared to “only 495 cases for public defenders”, knowing full well they did little or nothing on those cases, most of which were prepaid.  Where prosecutors really control their caseloads occurs when they decide to dismiss cases, or to offer sweet-heart deals, knowing that their case is weak.  Prosecutors can force us to try cases we don’t want to try, and to plead cases we want to try. 

8.  They are helping to destroy the jury trial.  The fact that the prevalence of the jury trial is shrinking is well known.  One cause known by all of us is that the laws that have been advocated successfully by prosecutors, laws such as 3-Strikes, mandatory minimums, and such, have made it unwise in many cases to throw the dice and let a jury decide.  When the offer on a 5-30 is 1 year on a reduced charge, what’s a client going to do?  Many if not most states over the last 30 years have rewritten their sentencing laws so that the thumb is firmly on the side of forcing pleas.  And prosecutors are complicit in that. 

7.  Innocent people confess.  Just this week, it was revealed that two half-brothers had pled guilty over 30 years ago to a rape-murder of an 11 year old that they did not commit.  There were both intellectually disabled.  Yet, confess they did, and despite their recantations, they were convicted.  One of them lived for 30 years on death row for a crime he did not commit, the other was serving a life sentence.  They were only released when DNA proved their innocence.  The Innocence Project reports that in 30% of cases resulting in exoneration through DNA, the defendants confessed or pled guilty where they were innocent. 

6.  Private lawyers often get better deals than public defenders do.  This used to occur with regularity in my practice.  Private paid lawyers would get a sweetheart deal for their client, while the public defender client would be offered a much harsher sentence.  The only difference between the two cases, as far as I could tell, was the poverty of the latter.  Perhaps poverty wasn’t the governing factor.  Perhaps the relationship between the prosecutor and the private lawyer governed the plea offer.  But it still stunk. 

5.  Their office is the farm team for the judiciary.  The progression always seems to be assistant prosecutor to prosecutor to judge.  At the federal level, 45% of President Obama’s nominees for the federal judiciary have been former prosecutors.  40% of President Reagan’s had a similar background.  Only 15% of President Obama’s nominees had been public defenders.  And perhaps it goes both ways.  When Texas Judge Elizabeth Coker was caught sending helpful texts to a prosecutor during trial, she resigned her office and then followed that by announcing that she was running for district attorney.  Isn’t it time for balance on the bench? 

4.  Even if they don’t believe the death penalty is a deterrent, they continue to support it so they can get better pleas or a death-qualified jury.  In Kentucky, we have 60-90 death eligible cases each year, and in many of those the death penalty is noticed until a plea is entered.  We have only 2 or so death penalty verdicts per year, with 5-10 trials.  More recently, we have had only one death verdict in several years.  This is a pattern that is common throughout the nation in death penalty states.  Why?  Because states have aggravating circumstances that apply to a high percentage of homicides, allowing prosecutors to notice death in order to force a plea.  

3.  They could do something about over-incarceration.  A growing consensus is that we have become the “incarceration nation.”  We have grown our prison population from a little over 200,000 in 1970 to over 2.2 million today.  We incarcerate at a higher rate than any other nation in the world.  (And don’t get me started on Louisiana).  Yet, a voice largely missing at the table encouraging reform of our nation’s laws, from long prison sentences to 3-Strikes laws to mandatory minimums, is that of the prosecutors.  They are a powerful voice in most State houses.  Why don’t they step up and use those powerful voices to do something about over-incarceration? 

2.  There is not parity with public defender offices.  I often use the analogy of the Harlem Globetrotters and the Washington Generals when describing what many prosecutors want in their adversary.  Many prosecutors have and want to preserve a systemic advantage.  They want their budgets to be two and three times the public defender’s budget, despite the public defender representing 70-90% of the cases.  They want higher salaries.  They want loan forgiveness.  They don’t want to include law enforcement in their budgets, but count investigators in public defender budget comparisons.  They don’t want to include their forfeitures and federal grants in comparing their budgets with defender budgets.  And while the ABA Ten Principles call for parity between the prosecution and defense functions, prosecutors do not for the most part advocate actively for parity. 

1.  Brady violations are rampant and they know they can get away with it.  Rodney Balko recently wrote a piece for the Huffington Post, entitled “The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them.”  Need I say more? 

Thursday, September 4, 2014

"The People are fully aware of their Brady obligations" - revisited

A recent Stanford Law Review article, "The Brady Colloquy" (http://www.stanfordlawreview.org/online/brady-colloquy), by visiting assistant professor Jason Kreag, “offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record.”  This procedure is proposed as a means to ameliorate the “distinctly vexing problem for the criminal justice system” of “wrongful convictions caused by prosecutorial misconduct,” in this case, prosecutorial failure to recognize or comply with Brady obligations. The suggested Brady colloquy includes 5 questions (four pretrial questions, the fifth at the conclusion of the prosecution’s case):   
1. Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense? 
2. Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense? 
3. Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material? 
4. Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard? 
5. Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?
As the article suggests, a Brady colloquy is “at a minimum . . . an idea worth testing – test that could be implemented today by any judge who wants to . . . actively protect the rule of law by ensuring that prosecutors meet their due process and ethical obligations.”  While the article notes that some judges may see this suggestion as too pro-defense, or overly as judicial meddling in the prosecution’s case, given the undeniable recurrence of wrongful convictions resulting from prosecutorial misconduct in this area, some meddling would seem to be warranted and salutary for the criminal justice system as a whole.

HT: Jill Paperno 

Friday, August 22, 2014

Judicial notice of facts on appeal

May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice of that fact?  The answer, somewhat counter-intuitively, is yes. 

In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate practice that it is improper for an attorney to argue matters that are dehors (outside) the record on appeal” (see also, e.g., People v Chiles, 70 AD3d 1453 [4th Dept 2010]).  There are exceptions to this rule, however.  One exception is evidence of a defendant’s post-sentencing rehabilitation on the issue of whether a sentence is harsh and excessive (Id. at § 23:36).  Another relates to judicial notice of facts for the first time on appeal, which appellate courts may take, whether the parties have asked for it or not.  Usually (see below), this doesn’t help the defendant any.  However being aware that an argument in favor of such judicial notice can properly be made may be a valuable tool in the appropriate case.  

For example, in People v Schreier, 22 NY3d 494 [2014], discussed in “Surreptitiousness is an element of Unlawful Surveillance” below, the Court of Appeals took judicial notice of the time of sunrise on the date charged in the indictment, citing to a report of the United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A-U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, http://aa.usno.navy.mil/data/docs/RS_One Day.php.  Significantly, according to the Court’s citation to that authority, the Court itself accessed the reference material on January 23, 2014, just three weeks before its decision was published, well after the appeal had been filed and argued.  

In United States v Davis, 726 F3d 357 [2nd Cir 2013], defendant was federally charged with assaulting another inmate at the Metropolitan Detention Center, which the government alleged was “within the special maritime and territorial jurisdiction of the United States,” an element of that offense.  The government offered no evidence other than the testimony of federal corrections officers that the MDC is a federal facility on federal land.  At the close of the government’s case, the district court denied defendant’s motion to dismiss the charge based on the government’s failure to prove geographic jurisdiction.  The district court denied defendant’s motion but also, as defendant’s request, refused to take judicial notice that the MDC was a federal facility on federal land, holding that that was a question of fact for the jury.  The jury thereafter convicted the defendant of assault as charged. 

On appeal, the Second Circuit held that the testimony of the government’s witnesses relative to geographical jurisdiction was legally insufficient to support defendant’s conviction.  The Court affirmed defendant’s conviction nonetheless, based on its own taking of judicial notice that the MDC is “within the special maritime and territorial jurisdiction of the United States,” based on its review of documents reflecting the transfer of title from New York State to the United States of the land on which the MDC it located.  This was preceded by a detailed examination by the Court of its authority to take judicial notice on appeal of the same fact the district court refused to judicially notice. 

In United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995], the Court drew a distinction between taking judicial notice of  “adjudicative facts” and “legislative facts.”  Adjudicative facts are “those developed in a particular case” which the trial court may take judicial notice of, but must “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” so as not to run afoul of the defendant’s Sixth Amendment confrontation rights (Id. at 810).  By contrast,“legislative facts,” the Court held, are “established truths, facts or pronouncements that do not change from case to case but apply universally” (Id. at 812, quoting United States v Gould, 536 F2d 216, 220 [8th Cir 1976]).  A court that takes judicially notice of a legislative fact may then “remove that issue from consideration by the jury” (Id.).  

In Hernandez-Fundora, the Court found that whether Raybrook Federal Correctional Institution was “within the special maritime and territorial jurisdiction of the United States” was a question “premised upon a determination of legislative, rather than adjudicative, facts.”  Accordingly, the Second Circuit held that after the district court took judicial notice of that fact, it properly removed that issue from the jury’s consideration by instructed the jury that Raybrook fell within the special maritime and territorial jurisdiction of the United States.

The Second Circuit noted that it is particularly appropriate for appellate courts to take judicial notice of facts in the first instance that relate to “‘straightforward questions’ such as ‘geography and jurisdiction,’” i.e., legislative facts (Davis, 726 F3d at 367, quoting Landell v Sorrell, 382 F3d 91, 135 n 24 [2nd Cir 2002], citing United States v Hernandez-Fundora, 58 F3d 802, 812 [2nd Cir 1995]; see also, Mills v Denver Tramway Corp., 155 F2d 808, 812 [10th Cir 1946] [trial court’s refusal to take judicial notice of a fact does not preclude party from raising the issue for the first time on appeal or prevent the appellate court from judicially noticing the fact on its own accord]; Ross v American Exp. Co., ___ FSupp2d ___, 2014 WL 1396492 at *21 n 27 [SDNY 2014]). 

Resort to such judicial notice on appeal might be appropriate where, for example, the trial proof establishes that a police officer acted beyond the bounds of his geographical jurisdiction, as demonstrated by reference to a map of the city or town in which the officer was employed (see, e.g., People v Graham, 192 Misc2d 528 [Sup Ct Erie Co 2002], aff’d 1AD3d 1066 [4th Dept 2003] [where officer lacked authority to arrest defendant for traffic infractions outside the town of his employment, initial stop was tainted and all evidence obtained as a result was fruit of the poisonous tree]).

Friday, August 8, 2014

Ear-witness identification procedures, like eye-witness identification procedures, may not be unduly suggestive

As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted by suggestion, identification procedures can lead to irreparable misidentification (People v Rodriguez,79 NY2d at 449); “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor; perhaps it is responsible for more such errors than all other factors combined”(People v Rodriguez, 79 NY2d at 449). 

With respect to eyewitness testimony, the United States Supreme Court has acknowledged that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (United States v Wade, 388 US 218, 228 [1967]), while studies and psychological research support the court’s finding that identification testimony, among the most common form of evidence presented in criminal trials, is frequently wrong (see e.g., Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,” 22 Law & Hum. Behav. 603, 605 [1998] [study of 40 cases involving innocent people who were convicted of serious crimes and served time in prison, five on death row, in which 36 involved eyewitness identification where one or more eyewitnesses falsely identified the person]; Innocence Project, http://www.innocenceproject.org/Content/2080.php [179 of first 230 DNA exonerations involved mistaken identification]).  The Court, explicitly recognizing the relationship between suggestiveness and mistakes in identification has repeatedly expressed concern that police arranged identification procedures may alter a witness’s memory rendering the subsequent identification testimony unreliable (United States v Wade, 388 US 218 [1967], Stovall v Denno, 388 US 293 [1967]; Simmons v United States, 390 US 377 [1968]; Manson v Braithwaite, 432 US 98 [1977]). 

In People v Collins, 60 NY2d 214, 218 [1983], the Court of Appeals held that voice identifications are subject to the same concerns relative to suggestiveness, and same constitutional safeguards, as visual identifications (see also, People v McRae, 195 AD2d 180, 185 [1st Dept 1994]; People v Shepard, 162 AD2d 226 [1st Dept 1990], lv den, 76 NY2d 944). Thus, upon a motion to suppress, it is the prosecution’s obligation to come forward with evidence establishing that the police procedures used were not unduly suggestive as to either visual or aural identifications (People v McRae, 195AD2d 180, 185 [1st Dept 1994]). 

The suggestiveness of pretrial procedures is determined by examination of the totality of the circumstances (People v Valdez, 204 AD2d 369 [2nd Dept 1994]).  The People have the initial burden of going forward to show the “lack of any undue suggestiveness” (People v Chipp, 75 NY2d 327, 335 [1990]; People v Ortiz, 90 NY2d 533 [1997]).  While suggestiveness is often the result of factors that highlight a particular suspect, a suggestiveness inquiry “must also review any actions taken by, or circumstances attributable to, the authorities which prompt, influence, or strengthen the witness’s identification” (Hibel, New York Identification Law, 142 [2006]).

The need to conduct a lineup, and to insure that fillers in the lineup have similar characteristics to the suspect and any description of the perpetrator applies to ear-witness as well as eye-witness identification procedures (People v McRae, 195 AD2d 180 [1st Dept 1994]).  The First Department has held, with respect to an aural identification procedure that 
suggestiveness could be caused by the selection of fillers whose voices were so dissimilar to a description given by the complainant of the criminal’s voice that the complainant would eliminate the fillers out of hand or by the selection of fillers whose voices were so similar to each other and yet so dissimilar to defendant’s as to unfairly highlight defendant’s voice.
(People v McRae, 195 AD2d 180, 185-186 [1st Dept 1994]).

The Court also held that “where the police conducted the voice identification and the defendant was compelled to participate, due process considerations require that the procedures have been conducted in a way not conducive to mistaken identification (internal citations omitted).”  For example, a physical lineup in which the fillers were all of a different race than the defendant would not be permissible merely because the prosecution was able to show that the fillers had been selected by a totally random process (People v McRae, 195 AD2d 180, 186 [1st Dept 1994]).

So too with voice identifications: offering a single recorded voice for identification, for example, is the practical equivalent of displaying the suspect's mug shot to the witness.  Likewise, in a voice lineup, disparity in the voice characteristics of the fillers may be just as suggestive as differing physical characteristics.  

That any failure to meet the constitutional standard may have been through oversight and not intentional is irrelevant to the test for suggestiveness (United States v Wade, 388 US 218 at 228, 229, 235 [1967]). 

Finally, characterization of voice a identification as“confirmatory” is not warranted absent some evidentiary basis for the witness’s familiarity with the defendant’s voice (People v Deleon, 273 AD2d 27, 28 [1st Dept 2000]; see also, Hibel, New York Identification Law, § 1.02[7][c] [2006]).