Five Borough Defense

by Cynthia H. Conti-Cook
Associate, Stoll, Glickman & Bellina, LLP

The NY Times today reported that “actual innocence” is squeezing in next to “harmless error” and “ineffective assistance” as something for judges to consider when considering a conviction on appeal.

“I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence,” the judge wrote.

After developing our justice system for 200 plus years, this is a new idea? We have systems of justice that we all agree are human systems and therefore fallible. The system does its best, at least in theory, through rules of evidence and procedure, and even constitutional rights, to ensure that the right evidence is allowed in and weak evidence is kept out, that jurors with no predisposition will hear and decide. But every decision maker involved is a human and therefore we can all acknowledge that juries will make mistakes. But when we’re staring “actual innocence” in the face, we are just now coming to a place where judges can legally dismiss their convictions?

This seems odd.

Click Here To Read Decision 

Good decision on Pringle and the two hour rule. In this case, the license was not suspended at arraignments, and the Court rules that a license cannot be suspended if the test is administered after two hours. The question may be different if the license was suspended at arraignments. But the decision is good incentive to fight the automatic suspensions we are all accustomed to.

People litigating a civil claim in New York State, such as a debt or a contract dispute, have the opportunity through discovery to learn almost everything about the other side’s case. So, too, do criminal defendants in many other states, since their criminal discovery rules allow broad, early, and automatic access to the prosecution’s evidence. But under New York’s antiquated criminal discovery statute, defendants are denied vitally important information, essential to make rational decisions about their pending cases. The limited information they receive is also turned over so late that it is often impossible to intelligently investigate, to secure and use any potentially exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy.

Overhaul of New York’s criminal discovery rules will accomplish two key things: it will help innocent or over-charged defendants fairly prepare for trial, and it will encourage guilty defendants to plead guilty without needless and costly delays……

Public Defender Calls Venues Unconstitutional
Defendants in So-Called Problem-Solving Courts Denied Due Process, Official Says
 
By Henri E. Cauvin
Washington Post Staff Writer
Friday, April 3, 2009; Page B03
 
Drug courts, a forum designed to give addicted offenders a second chance, are under attack in Maryland — and not by prosecutors.
The state’s public defender says Maryland’s drug courts give judges too much power and defendants too little protection, and yesterday she argued to the state’s high court that the tribunals are not constitutional.
 
Public Defender Nancy S. Forster told the Court of Appeals that judges should not shed impartiality by sitting down with prosecutors, social workers and defense attorneys to try to help a defendant. She argued that judges should not be permitted to send a defendant to jail again and again without a full hearing each time, as she said judges in the drug courts do.
 
“There is no due process in drug treatment court,” she said.
 
The case is the first legal challenge to the state’s drug courts, and the arguments spurred a lively exchange about so-called problem-solving courts, which have become common in Maryland and across the country, with 41 in Maryland and more than 2,000 nationwide.
 
The state attorney general’s office, which represents the courts, says they do not infringe on drug court defendants’ individual rights.
 
Started in Florida two decades ago and rooted in the idea that providing treatment to some defendants may be better for them and for the community, drug courts have spawned similar courts for everything from truancy to mental illness.
 
Where ordinary criminal courts are adversarial, proceedings in problem-solving courts are supposed to be collaborative. Judges, prosecutors, social workers and defense lawyers work together to determine what’s best for the defendant and the community. Defendants volunteer to have their cases handled in such courts rather than in ordinary courts; the charges that make a defendant eligible vary from jurisdiction to jurisdiction.
 
Maryland’s first drug court was established in Baltimore in 1994. Calvert, Charles, Montgomery, Prince George’s and St. Mary’s counties have juvenile drug courts, and Montgomery and Prince George’s have drug courts for adults as well.
 
In the appeals case, Robert Calvin Brown III pleaded guilty in a Baltimore drug court to heroin charges and was sentenced to 20 years in prison, almost all of which was suspended. The judge placed Brown on probation for three years and ordered him into drug treatment as a condition of probation.
 
After being bounced from several treatment programs and being sanctioned with jail stays of 14 and 35 days, the judge decided that Brown wasn’t complying with the drug court agreement. He revoked Brown’s probation and sentenced him to eight years in prison.
 
The issue of the rights of individual defendants in drug courts drew more pointed questions from several of the judges. Judge Joseph F. Murphy Jr. noted that a judge’s talking to one party without the other party being present, which might happen in a drug court case, has raised due-process concerns in other sorts of criminal proceedings. “Can you do that without violating the defendant’s rights?” he asked Assistant Attorney General Michelle W. Cole.

Upon viewing the video footage taken of police arresting New School University students on Friday, April 10^th, the Commissioner of the NYPD sent the following email to all the NYPD patrol officers and detectives. An anonymous source provided The Five Borough Defense Blog with a copy of this stirring email, and we post an excerpt below. Commissioner Kelly is referring to this article and this video.

 I am deeply disappointed in the actions of the officers seen in the video. However, the words of our former spokesman Paul Browne trouble me even more. In an interview with the New York Times, Mr. Browne made several statements that were blatantly contradicted by videotape. Despite Mr. Brownes denial that pepper spray or mace were used in effectuating the arrests, the video shows officers spraying the students. Mr. Browne went on totell the New York Times that the students locked themselves in the building and therefore it was their own fault if they couldnt leave. Again, the video contradicts him, by showing students opening a door and sticking their heads outside, while police officers push the door shut, preventing the students from leaving.

The NYPD will not tolerate lying to the public. For that reason Mr. Browne has been fired. How can we expect juries and judges to find our testimony credible, when high-ranking members of our department are contradicted by videos? Did we learn nothing from the Critical Mass video? From now on any officer caught lying either in a sworn statement, on the stand, or even to a civilian on the street will be suspended immediately. We will no longer ignore judges who find police officer testimony incredible, rather those officers will no longer have a place on our force.

The problems of this department do not end at perjury. The behavior of several of the officers on the video was unprofessional, and they have since been sent to the mandatory courtesy trainings that will soon be required of all of you. On the video, some scrawny, white, college kid shouts “shame on you” to a uniformed officer. The kid has no weapon, and doesn’t even use profanity. The officer, in uniform and apparently standing around with nothing better to do, saunters over to the kid, pushes him down, and walks away. Three officers swarm in and cuff the kid.

I dont know how to say this any more clearly: sticks and stones may break your bones, but words will not hurt you. You shouldve learned this on the playground, folks. It may not be the most fun part of our job, but unfortunately, we have to deal with people shouting at us, asking us why were arresting their friends, and calling us names. There is such a thing as freedom of speech and were sworn to uphold that. There will be no more inflation of arrest totals by charging obnoxious kids with resisting arrest just for exercising their freedom of speech.

To those of you who have read this far, let me quote from the banner the New School students hung out the window of the building they occupied, April Fools, Motherfucker! Yall can go ahead and keep lying and arrest whoever the hell you want. Just make sure you keep it deep in the outer boroughs and dont let the college kids see you acting like that. After all, theyre the ones who sit on the juries.

http://www.nytimes.com/2009/04/06/nyregion/06defenders.html?_r=1&ref=nyregion

The number of criminal cases that court-appointed lawyers in New York City handle will be capped for the first time under a new law tucked in the $131 billion state budget bill passed last week. The measure addresses longstanding pleas from low-paid public defenders, who sometimes juggle more than 100 cases at a time.

Public defenders across the country have complained that large caseloads impede their ability to provide the best advocacy and damage their clients’ chances of getting a fair hearing in court.

Each criminal defense lawyer at the Legal Aid Society, which represents most of the city’s indigent defendants, handles an average of 592 cases a year, or about 103 at a time, said Steven Banks, the society’s attorney in chief. Heavy caseloads make it difficult for his lawyers to properly investigate cases and pursue leads, Mr. Banks said.

“The goal all along has been to ensure that if a New Yorker is charged with a crime, that New Yorker will be represented by a lawyer with an appropriate caseload who can provide the highest quality of representation to protect against wrongful convictions,” Mr. Banks said.

While the law applies only to lawyers who represent indigent defendants in New York City, supporters say they hope the guidelines will be expanded.

The move to address the caseloads in New York City comes amid a national uprising of sorts by public defenders. In at least seven states, government-appointed lawyers either have refused to take new cases or have filed lawsuits to limit them.

“People do look to New York to establish different policies,” said David Carroll, research director for the National Legal Aid and Defender Association. “We do hope that this becomes a model both for reform for the rest of the state and, hopefully, a model for other large urban centers.”

Under the law, New York State’s chief administrative judge would be required to establish new caseload standards for public defenders by April 1, 2010. The judiciary would then have four years to phase in the limits and ensure proper funding. Despite the state’s grim economic condition, the judiciary’s budget for the current fiscal year remained stable at $2.57 billion.

Public defenders have been pleading for help since 1963, when the United States Supreme Court, in its decision in Gideon v. Wainwright, mandated the right to counsel for defendants who cannot afford to hire a lawyer. The Legal Aid Society has long fought the city, which provides most of its financing, over money. Tensions peaked during Mayor Rudolph W. Giuliani’s administration when the society’s lawyers went on strike.

Jonathan Lippman, the chief judge of the New York Court of Appeals and the head of the state’s judicial system, said that allowing four years to phase in the caseload limits would give the judiciary time to plan its budget accordingly.

“This is so important to all of us in the justice system,” said Judge Lippman, who was instrumental in ensuring the legislation’s passage. “This affects what judges do in the courtroom every day. We can’t do our jobs unless you have the two key players — the prosecution and the defense — on a level playing field.”

Judge Lippman did not speculate what the caseload limits would be. But in 1995, the Appellate Division in Manhattan adopted caseload guidelines that would amount to public defenders handling roughly 70 cases at a time, Mr. Banks said.

But those guidelines were not binding, and Legal Aid has been too understaffed to meet them, Mr. Banks said. Last year, the agency had 435 criminal defense lawyers who were responsible for 227,000 new cases, up from 210,000 in 2005, Mr. Banks said. The society’s criminal defense division is expecting an $11.3 million shortfall for the fiscal year that starts in July, he said.

Although easing the caseload for public defenders is a prudent step, said John Feinblatt, the mayor’s criminal justice coordinator, it is more important to invest in technology and other resources that help lawyers work more efficiently. The city has already invested millions of dollars to modernize methods of data entry and systems for looking up a client’s bail status or the details of a case, Mr. Feinblatt said.

“We need to bring this paperbound system into the 21st century,” he said. “In the long run, those kinds of investments in technology will be far more important than just counting cases.”

Prof. Norman Lefstein of the Indiana University School of Law said blanket case limits could cause problems because they could create expectations that some lawyers might not be able to meet. Any standard should take into account a lawyer’s ability, the resources available to him or her and the complexity of a case, said Professor Lefstein, who studies indigent defense.

“You can’t be bound in kind of a robotic fashion by a set of numbers,” he said.

But Laura Pitter, who worked for Legal Aid in the Bronx from 2003 to 2008, said caseload caps were “great and very necessary.”

When she started at Legal Aid, she said, she handled 70 to 80 cases at a time. Eventually, that number climbed to between 110 and 115 cases, meaning that she sometimes had to make 5 to 10 court appearances a day, she said. Cases were delayed for months or years, she said, while her clients sat in jail or rearranged their lives around court appearances.

She said she left Legal Aid for private practice because she was overburdened and because she needed to make more money to pay off student loans.

“It was becoming impossible to do that job,” she said. “Clients suffered enormously.”

April 6, 2009
Editorial

The New Debtors’ Prisons

Here is a tale that sounds like it comes right from the pages of “Little Dorrit,” Charles Dickens’s scathing indictment of Victorian England’s debtors’ prisons. Unfortunately, it is happening in 21st-century America.

Edwina Nowlin, a poor Michigan resident, was ordered to reimburse a juvenile detention center $104 a month for holding her 16-year-old son. When she explained to the court that she could not afford to pay, Ms. Nowlin was sent to prison. The American Civil Liberties Union of Michigan, which helped get her out last week after she spent 28 days behind bars, says it is seeing more people being sent to jail because they cannot make various court-ordered payments. That is both barbaric and unconstitutional.

In 1970, the Supreme Court ruled that it violates equal protection to keep inmates in prison extra time because they are too poor to pay a fine or court costs. More recently, the court ruled that a state generally cannot revoke a defendant’s probation and imprison him for failing to pay a fine if he is unable to do so.

That has not stopped the practice. In Georgia, poor people who cannot pay off fines — plus a monthly fee to the private company that collects the payments — are often sent to jail for nonpayment, according to Stephen Bright, president of the Southern Center for Human Rights. In 2006, the center sued on behalf of a woman who was locked up in Atlanta for eight months past her original sentence because she could not pay a $705 fine.

Until a few years ago, the police in Gulfport, Miss., regularly did sweeps of the city’s predominantly African-American neighborhoods, identified people with unpaid fines, and put them in jail. Defendants who could not pay were forced to remain there until they “sat off” their fines. The city ended the practice after it was sued.

Prisoners’ rights advocates worry that in these hard times, when government budgets are under pressure, courts and prisons will get even tougher about forcing indigent defendants to pay costs and fees, and will imprison more of them if they cannot come up with the money. The government should be helping people on society’s margins build productive lives. Throwing them in jail for being poor makes that much more difficult.

http://www.nytimes.com/2009/03/27/us/27juvenile.html?pagewanted=2&_r=1&emc=eta1

From: New York TImes

March 26, 2009

ST. LOUIS, Mo. — VonErrick celebrated his 14th birthday last year by committing a daylight carjacking, beating the driver to the ground. With a long record of truancy, assault, and breaking and entering, he was sent to a state group home — the same home that his two older brothers passed through after their own scrapes with the law.

Both of those brothers are out now. Tory, 16, has A grades and plans to attend college. Terry, 20, has a job and has had a clean record for four years. VonErrick was recently released and immediately started high school.

The brothers say they benefited from confinement in the Missouri juvenile system, which emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force.

Juvenile justice experts across the nation say that the approach, known as the Missouri Model, is one of several promising reform movements that strapped states are trying to reduce the costly confinement of youths. California, which spends more than $200,000 a year on each incarcerated juvenile, reallocated $93 million in prison expenses by reducing state confinement.

There is no barbed wire around facilities like Missouri Hills, on the outskirts of St. Louis. No more than 10 youths and 2 adults called facilitators live in cottage-style dormitories in a wooded setting, a far cry from the quasi penitentiaries in other states. When someone becomes unruly, the other youths are trained to talk him down. Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country.

Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning.

Some states have worked at the county level to avoid confinement altogether, keeping youths in their communities while they receive rehabilitative services, which advocates say is a cheaper alternative to residential care.

The two largest state systems, Texas and California, cut long-term youth confinement by requiring counties to house low-level offenders in detention halls. Texas cut its 5,000-youth population by half within two years, while California reduced its population to 2,500, from more than 10,000 in 1997. But critics say that city and county detention programs are uneven and point out that states often do a poor job of monitoring them.

Missouri and other states are using new approaches in the juvenile justice system to try to stem the flow of adults behind bars. Missouri managed to cut its adult population from 2005 through the first half of 2007 by applying techniques from the Missouri Model.

The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.

Most of the decline during that period was in state confinements, although some of the decrease is attributed to a 28 percent decline in youth arrests, which reform advocates say proves that there is no detriment associated with fewer incarcerated juveniles.

The Anne E. Casey Foundation of Baltimore has been a leading advocate for ending the confinement of low-risk offenders and placing them in community programs. Since trying the foundation’s approach in 2003, five counties in New Jersey have reduced juvenile detention by 42 percent, to 288 youths from 499.

Three years ago in California, Scott MacDonald, who is in charge of probation in Santa Cruz County, began asking courts to use Casey Foundation methods. Instead of confining every gang member accused of a crime, or every juvenile who failed a drug test, judges now look at a youth’s record and risk to determine whether he should remain free. A youth who fails a drug test, for example, might be ordered to attend substance abuse classes.

“Even if a kid doesn’t follow all of the rules — particularly rules that have nothing to do with crime — we won’t necessarily detain him,” Mr. MacDonald said.

In the 1990s, the Santa Cruz juvenile hall averaged 50 to 60 youths. Now it averages about 20 detainees, most of them under community supervision. More than 90 percent of those in the community programs have not committed new crimes within three years, Mr. McDonald said.

“The question we’re always starting with is, How do we keep them home?” he said.

Isela Gutierrez, a juvenile justice expert with the Texas Criminal Justice Coalition, a nonprofit group, said one drawback to the Missouri state system was that too many low-level offenders there were being confined, while serious juvenile felons were being sent to adult prisons, where conditions are harsher.

Tim Decker, director of the Missouri Division of Youth Services, said judges preferred to send youths to state facilities — Missouri Hills or the Hogan Street Regional Youth Center, with dorms that have wooden beds, male health and wellness classes, group counseling and game rooms — rather than dismal county lockups or to backlogged community programs.

“Judges have more faith in us,” Mr. Decker said. “So far we’re O.K., but you can’t do what we do with 25 kids in a group.”

Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent.

In a typical juvenile corrections environment, Mr. Decker said, if a youth becomes aggressive “you would have guards drag him into isolation” for three days.

“But,” he added, “the problem is that a young person doesn’t learn how to avoid that aggressive behavior and it will get worse.”

In Missouri Hills, isolation rooms were used only about a dozen times last year, Mr. Decker said, and never for more than a few hours. Pepper spray is banned, and youths are taught to de-escalate fights or apply grappling holds, a form of restraint.

Victoria, 16, who stole her grandmother’s car, her second offense, explained how her housing unit does a “circle-up,” or ad hoc counseling session, several times a day, whenever there is a conflict, like cursing.

“There’s drama all the time,” she said. “It’s like having a bunch of sisters.”

The Missouri system provided triage for an imploding system in Washington, where the juvenile corrections agency was plagued by vermin-infested buildings, overcrowding and chronic violence.

“The kids were stuffing their shirts with paper before they went to sleep to keep the roaches and rats from biting them,” said Vincent Schiraldi, head of the city’s Division of Rehabilitative Services.

With advice from experts in Missouri, Mr. Schiraldi divided platoons of youths into small groups. By October, the number of juveniles reconvicted within a year of release dropped to 25 percent, from 31 percent four years earlier. However, as conditions improved, confinements have risen, even as juvenile crime has declined.

Mr. Decker said that upgrading facilities and training new staff cost more initially, but that the reforms would reduce recidivism, which would result in long-term savings.

VonErrick has been home for a few weeks, and his 18-year-old sister said he seemed calmer and less interested in running with the wrong crowd. Their mother, Rosie Williams, said all three of her sons seemed more focused, and she attributed the changes to the counselors at the state group home.

Ms. Williams, whose husband is in prison, occasionally attended family counseling sessions where she said she learned important lessons as a parent. “Instead of just hollering at them and trying to keep them out of trouble,” she said, “I try to do things with them one on one, to get to know what’s on their mind and what’s going on in their lives.”

Associated Press

March 20, 2009

So, this is how it works in Idaho.

http://www.2news.tv/news/40850762.html