DVSJA Intake & Case Assessment Guide Issued
A new guide for defense teams accepting cases under the Domestic Violence Survivors Justice Act (DVSJA), CPL 440.47, Intake & Case Assessment for DVSJA Resentencing, is now available. Prepared and distributed by the DVSJA Statewide Defender Task Force, the detailed Guide gives an overview of initial steps. Along with basic information on the statutory requirements and application process, the Guide covers record collection, the initial client interview, caselaw and practice tips on corroboration and temporal nexus requirements, and the last-resort step of withdrawing from a case that appears truly non-viable. An appendix includes templates for letters and draft orders, and more. This Guide has been added to the resources available on NYSDA’s DVSJA webpage.
Defenders seeking particular assistance or resources about DVSJA are encouraged to reach out to NYSDA’s DVSJA Attorney Support Project by contacting Senior Staff Attorney Stephanie Batcheller at SJBatcheller@nysda.org or (518) 465-3524 x 41.
New Edition of CPL 30.30 Manual Now Available
The Summer 2024 Edition of Criminal Procedure Law Section 30.30 (1) Manual is now available. Prepared by Drew R. DuBrin, Special Assistant Public Defender, Appeals Bureau, Monroe County Public Defender’s Office, the 30.30 Manual is a vital resource for any lawyer practicing criminal law in New York State. As always, NYSDA thanks Drew and the Monroe County Public Defender’s Office for sharing this resource! It can be accessed here or from NYSDA’s Discovery Reform Implementation webpage. (And also many thanks to Drew for his CLE presentation at the Annual Conference!)
The new edition of the 30.30 Manual includes cases as recent as People v Mitchell (2024 NY Slip Op 03256 [4th Dept 6/14/2024]). In Mitchell, the majority agreed that the prosecution “failed to show that they had exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their initial certificate of compliance (COC);” therefore, “the initial COC was not proper when filed and the … declaration of readiness at that time was illusory.” Dissenting judges said that, on remittal, “the court should consider ‘the applicability and effect, if any, of defendant's obligation under CPL 245.50 (4) (b).’” Mitchell is just one example of information provided in the new Manual that can assist lawyers in developing arguments. It provides support for defense assertions of COC invalidity and also, as a split Appellate Division decision, reminds lawyers to check for later developments.
CAL’s Latest Court of Appeals Update Available
The Center for Appellate Litigation (CAL) shares with the defense community a Court of Appeals update done every two months; the latest is the July 15th version. The update lists significant criminal cases pending in the high court, including cases scheduled for argument in September, cases waiting to be scheduled, and new leave grants. Prior updates are available on CAL’s website along with other resources for the legal community. Thank you, CAL!
Study Finds That People Facing Violent Felony Offenses Are Least Likely To Miss Court
In July, the Data Collaborative for Justice published a report examining failures to appear across New York State for people released at arraignment. Over the course of 2022, the study finds that the failure to appear rate was lowest for people facing violent felony charges (13%, as opposed to 16% for misdemeanors and 20% for nonviolent felonies). In terms of predictive power, the type of charge matters a lot - people facing petit larceny, misdemeanor drug possession, and burglary charges had the highest probability of missing court, while people facing DWI charges had the lowest probability. For public defenders, this may not come as a surprise - people charged with crimes of poverty are less able to get to court than those who can afford to have a vehicle.
The report also finds that having a pending case, and having prior misdemeanor convictions, are correlated to a greater risk of failing to appear. However, being on parole or probation, or having prior felony convictions, had no substantial effect. Finally, the study finds that no demographic attribute had a clear effect on failures to appear - even though judges are more likely to set bail or remand Black or Hispanic system-involved people.
In terms of policy recommendations, the report concludes that “the data suggest New York’s judges could release more people.” And while “upstate” judges set more bail and remanded more often than judges in New York City or its suburbs, the region also has the highest rates of failure to appear. Speaking to The Buffalo News, one of the authors of the study, Stephen Koppel, put it as “[upstate] is not seeing much benefit of doing that in the way of reducing FTA risk as you would expect.”
Practitioners are encouraged to use this sort of data in their bail applications, especially for clients facing violent felony charges. If you need assistance with arraignment issues, bail reviews, or writs of habeas corpus, please feel free to reach out to NYSDA Staff Attorney Max Kampfner at mkampfner@nysda.org.
WNY RIAC July Newsletter: Mitigation Preparation, Resources, and More
The Western New York Regional Immigration Center (WNY RIAC) has issued its July newsletter for those representing noncitizen clients in criminal or family matters. It includes an article by a Legal Aid Bureau of Buffalo Social Worker on how to interview immigrant and refugee clients to gain information about past persecution, resulting PTSD, and other mitigation information that can help lawyers establish a good relationship; engage in appropriate plea or sentence negotiation; and provide mitigation. Recent Biden Administration immigration policies are also covered, as are links to an Immigrant Defense Project and CUNY Immigrant & Non-Citizen Rights Clinic resource for noncitizen clients facing criminal charges and a National Immigration Project guide on immigration bond hearings for seeking release from ICE custody.
WNY RIAC’s Sophie Feal presented at NYSDA’s Annual Conference; contact NYSDA about materials. Meanwhile, WNY RIAC has provided guides from past CLE events, including one about communicating with people for whom English is a foreign language, and another about communicating with children.
Writing About a Concluded Case? Take Care as to Confidential Information
Publishing an article about legal issues that arose during representation of a client may laudably provide information helpful to other lawyers and their clients. But what if the client whose case presented those issues fears that publicity could damage their reputation? An attorney asked the New York State Bar Association’s Committee on Professional Ethics about this situation. The Committee concluded that after termination of representation, a lawyer may discuss legal issues from the case in a publication, as long as they do not reveal confidential information without the client’s consent. Such information “does not include a lawyer’s ‘legal knowledge or legal research’ or information that is ‘generally known’ in the local community or in the trade, field or profession” the case arose in. The Committee stressed in the conclusion to Ethics Opinion 1268 that “information is not generally known merely because it is available in court files.”
U.S. Supreme Court Defers to States to Amend Post-conviction Statutes for Convictions Based on Junk Science: McCrory v. Alabama
Earlier this month, the U.S. Supreme Court denied petitioner McCrory certiorari. McCrory was convicted of murder in 1985 based on bitemark testimony. Bitemark methodology has since been debunked in the world of forensic science and McCrory petitioned the Supreme Court, citing a Due Process Clause violation, particularly noting that the expert who testified at his trial retracted his stance on bitemarks in a published interview. He previously raised this issue in his first petition for state post-conviction relief in 2002, citing that alleged expert’s statement: “You cannot make a positive ID from a bitemark.” This former forensic odontologist fully recanted his testimony and provided an affidavit prior to a more recent evidentiary hearing in McCrory’s post-conviction relief path. However, the lower state courts upheld McCrory’s conviction, holding that this new evidence was impeachment evidence only and the other evidence of guilt was overwhelming.
Justice Sotomayor authored the instant opinion, explaining her rationale; several states have addressed the issues of defunct forensic methods via postconviction legislation and that is what should be done here as McCrory “faces many procedural hurdles that could delay or even preclude relief based on existing state and federal postconviction statutes.” Many post-conviction statutes hinge on introducing “[n]ewly discovered material facts” (e.g., Ala Rule Crim Pro 32.1[e]) that clients and their attorneys could have known at trial but did not know. Debunked forensic analysis does not fall within that category per Justice Sotomayor. Further, McCrory has yet to pursue federal habeas review. For further reading, see the articles cited in Justice Sotomayor’s decision (some are available for free online or through legal research platforms or by emailing Staff Attorney Ashley Hart at ahart@nysda.org).
The decision briefly discussed various landmark reports in forensic science, such as the National Academy of Science Report of 2006 and President's Council of Advisors on Science and Technology Report published one decade later, which critiqued the accuracy of methods and reliability of conclusions made within the pattern matching genre (i.e., bitemarks, shoeprint comparisons, toolmarks, firearms, handwriting, and hair analysis). These and other disciplines—including formerly regarded “gold standard” DNA analysis—continue to be questioned by scientists, statisticians, and the defense bar. This was recently evident with media coverage of a Nashville, Tennessee man, Russell Maze, who was wrongfully convicted of murdering his son. He continues his post-conviction fight against his conviction, which was based on alleged evidence of shaken baby syndrome where the medical personnel failed to reserve judgment until all blood test results were completed. His story was the subject of The New York Times Magazine and ProPublica collaboration. In a recent post-conviction evidentiary hearing, the judge gave no weight to the experts who testified, ignored written and voiced support from the prosecution to clear Maze’s name, and—remarkably—found that since there was no adversarial voice heard at the hearing he was not swayed by seemingly unchallenged new evidence. If nothing else the Supreme Court’s petition denial in McCrory and this Nashville court’s holding underscore the importance of educating the bench on forensic issues early and often. For assistance with forensic evidence queries and guidance on educating your bench, please contact the Discovery and Forensic Support Unit at NYSDA at forensics@nysda.org.
In Substitute Expert Case, U.S. Supreme Court Finds Confrontation Clause Violation: Smith v Arizona
The U.S. Supreme Court published its opinion on a substitute forensic expert witness case, Smith v Arizona, late last month. Justice Kagan authored the opinion and was joined by Justices Sotomayor, Kavanaugh, Barrett, and Jackson. Justices Thomas and Gorsuch filed opinions concurring in part. Justice Alito also filed a concurring opinion, in which Justice Roberts joined. The NACDL co-authored an amicus curiae brief with the ACLU and ACLU Foundation of Arizona, which can be read here.
Building off several decades of precedent from addressing Confrontation Clause violations to circumstances in which an expert can testify to the findings of another expert, the Court in Smith ultimately held that his Confrontation Clause rights were violated; the expert opinion testimony was being introduced for the truth of the matter when the testifying expert reached his conclusions about the evidence by relying solely on the out-of-court statements of another non-testifying analyst from the same lab. Citing Melendez-Diaz v Massachusetts, 557 US 305 (2009), Justice Kagan noted, “a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-of-court statements to prove the results of forensic testing.”
The New York Court of Appeals previously addressed a similar confrontation issue pertaining to DNA testing late last year in People v Jordan, 40 NY3d 396 (2023). There, the Court of Appeals reversed and mandated a new trial when there was inadequate testimony as to what work the testifying analyst performed when he merely stated that he “‘review[ed] the data and reports’ and conducted his ‘independent interpretation of the testing data contained in’ the paper file he received.”
Smith was convicted of various drug and paraphernalia possession charges after methamphetamine, marijuana, and cannabis were allegedly found upon execution of a search warrant of his father’s residence. The seized items were sent to the Arizona Department of Public Safety (DPS) for analysis. DPS Analyst Rast conferred with the prosecution about what items were to be tested, and she recorded in her notes and report that she ran them. Rast was, however, no longer employed by DPS at the time of Smith’s trial so the prosecution substituted another analyst in the lab, Mr. Longoni. Analyst Longoni ultimately used Rast’s notes and/or reports and testified that he came to the same conclusion Rast did. Longoni also explained how the testing was completed—at least how Rast recorded that she completed it—when he testified. He did not conduct independent testing on the substances Rast tested or author an independent report.
The Court reasoned that the only way the substitute analyst (Longoni) could opine on the identity of the substances was because he accepted the truth of the identity of the substances as asserted in the testing analyst’s (Rast’s) notes and/or report. Longoni also had to take the reports and/or notes at face value and assume that Rast performed the tests as described and that she conducted those tests and reported the results according to applicable protocols and standards set by the lab. The crux of the testimony was the identity of the tested substances as the drugs alleged in the charges. “So the State’s basis evidence—more precisely, the truth of the statements on which its expert relied—propped up its whole case. But the maker of those statements was not in the courtroom, and Smith could not ask her any questions.”
Testimony from Longoni that Justice Kagan listed as permissible and not in violation of Smith’s Confrontation Clause rights would have included: (1) specific lab practices and protocols for handling and testing seized substances; (2) chain of custody within the lab; and (3) generally about forensic techniques and accreditation. The Court did not address whether the out-of-court statements in the notes and/or lab report were testimonial since that fact was assumed in Smith’s petition. The Court vacated the underlying decision and remanded the issue to the state court with its thoughts on this outstanding and potentially waived issue. Among other places, further thoughtful discussion on these issues may be found at The Confrontation Blog.
Training and Resources for Representing Clients Facing Allegations of Domestic Violence
John Hamel, PhD, LCSW, Director of John Hamel & Associates, recently announced a series of online training programs and access to resources on evidence-based treatment and intervention for individuals charged with interpersonal violence. Understanding the nature of domestic violence and evidence-based treatment options are critical to developing strong and effective defenses to criminal charges. Dr. Hamel previously partnered with criminal defense attorney Charles Dresow in a virtual training for NYSDA on Research Informed Domestic Violence Defense in May 2023. Materials and access to the video from that program are available to NYSDA members on-demand or upon request to Training@nysda.org.
More evidence-based treatment resources can be found through the Association of Domestic Violence Intervention Providers (ADVIP), members of which include batterer intervention providers, anger management counselors, mental health professionals, and research scholars dedicated to evidence-based practice worldwide.
For additional assistance in this area, contact the Backup Center at info@nysda.org.
BIPOC Mental Health Month Observed in July
An update from the Mental Health Association of New York State (MHANYS) on June 24th contained a reminder that July is BIPOC Mental Health Month. The announcement includes a link for Mental Health America’s website, where a toolkit with information is available, including a Spanish version. Check for an improved online BIPOC Mental Health Resource Center coming soon. NYSDA has added the toolkit to the Racism and Health (Physical & Mental) section of its Racial Justice and Equity webpage. If you know of other resources that should be included, please contact the Backup Center.
Association News
Three Defenders Recognized at NYSDA Conference
NYSDA presented three awards at its 57th Annual Conference, recognizing defenders for high-quality legal work and client-centered representation. As described in a media release, attorneys from Cortland, Ontario, and Steuben counties received honors. Kayla Hardesty of the Cortland County Public Defender's Office received the Jonathan E. Gradess Service of Justice Award; her skill and perseverance in demanding compliance with discovery reform resulted in the Court of Appeals decision in People v Bay, which benefitted her client and many others. Casey E. Rogers, First Assistant Public Defender, Steuben County Public Defender's Office, and Mollie A. Dapolito, Assistant Public Defender, Ontario County Public Defender's Office, each received a Kevin M. Andersen Memorial Award. Their distinctive styles and dedication to justice and fairness for clients, on view at the awards celebration on July 22nd, provided inspiration to all who heard them. NYSDA thanks the awardees, those who supported their recognition, and all who attended.
Upcoming Training
Friday, September 27, 2024: All the Way Up: How to Take Your Digital Evidence Litigation to the Next Level, Albany Law School
This one-day in-person training will feature some of the most experienced, brilliant litigators in the digital evidence space. The sessions will cover the most recent developments in geolocation data, device and account searches, and lessons from State v. Pickett to prepare you to utilize discovery litigation for optimal case outcomes and successfully litigate source code whether you are litigating DNA evidence or digital evidence. The program will finish with a panel where the topics of the day are tied together and audience questions from throughout the day will be answered in a conversational format. For more information and to register, click here.
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