Sunday, June 14, 2020

Prosecutors and Judges Who Pretend To Credit Police Perjury are Complicit in the Police Misconduct

In 1982, in his book “The Best Defense,” Alan Dershowitz listed what he called the Rules of the Justice Game. Among these were the following:

Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution. 
Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV. 
Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule VII: All judges are aware of Rule VI. 
Rule VIII: Most trial judges pretend to believe police officers who they know are lying.   

That prosecutors encourage and judges credit police perjury to allow unlawfully obtained evidence to be admitted is not merely a theory. The New York Times has reported that the prevalence of police perjury to justify stops and seizures is so great that the police themselves for it – testilying. Indeed, in a three part series, the New York Times found that there is a “ culture of dishonesty” and that officers who lie to justify illegal police conduct are more likely to be promoted than punished. (Parts one, two, and three of the reporting on police perjury).

This encouragement and acceptance of police lies regarding illegal police behavior explains why police believe that they can get away with writing false reports about their actions. The videos of the past month have demonstrated that the police version of events, such as the murder of George Floyd, are often lies to justify their illegal behavior.  Only because of the videos, we know that the police lied when they claimed that Floyd resisted
arrest or that, in Buffalo, Martin Gugino, tripped. Otherwise the police lies would have been accepted.

We won’t have justice until prosecutors and judges stop pretending to believe lying police officers. If after seeing proof of police lies, prosecutors and judges still pretend to credit them, they are complicit in the misconduct.

Tuesday, February 4, 2020

New York’s bail reform statute, while only in existence for just over a month, has generated numerous news stories, opinion pieces, and critical articles. Already, there have been calls for the law’s repeal (In the words of one state senator’s call for repeal: “This is only a partial list of offenses that allow criminals to leave prison without bail. These ‘reforms’ are now giving a free pass to many individuals who commit serious crimes that place our communities at risk” [ reform]). These criticisms often equate having been charged with a crime with committing it. They stoke fear that a person charged with a crime will commit other crimes while released, reinforcing this bias by reporting arrests of people during their release on other charges. Seldom do these criticisms mention that an accused person is presumed innocent. 

The tenor of popular discourse on this issue evidences a dark reality that looms in the depths of our criminal justice system. That is, most jurors probably don’t presume the innocence of the accused. Yet, that presumption lies at the foundation of our criminal justice system, requiring trial courts to instruct juries about the presumption without minimizing its importance (see CPL § 300.10[2]; People v Hall, 155 AD2d 344, 346-347 [1st Dept 1989]). 

The problem is that potential jurors often hide their true feelings on the presumption of innocence. They’ll tell the court they can presume innocence, while wondering what crime the defendant committed. And who can blame a juror for hiding this opinion? In a courtroom full of strangers, who would want to be seen as unfair, biased, or unjust? 

To unmask a potential jurors true feelings on the presumption of innocence, we should ask them to share their opinion on bail reform. In the answer, a potential juror might equate criminal charges with commission of a crime, just like many of the critics. And because these criticisms are veiled in terms of justice and/or fairness, a potential juror may be more willing to share an opinion. An answer could even spark a helpful debate amongst the panel. There is no downside in asking.

We should expect this line of questioning to be met with resistance from the trial court, which has broad discretion in limiting questioning during jury selection (see People v Boulware, 29 NY2d 135[1971]; People v Corbett, 68 AD2d 7762 [4th Dept 1979]). We should respond that these questions address the ability of a potential juror to be fair and impartial, an area of inquiry in which a trial court is more apt to commit error (see CPL § 270.20[1][b]; People v Arnold, 96 NY2d 358 [2001]; People v Johnson, 94 NY2d 600 [2000]; People v Lewis, 71 AD3d 1582 [4th Dept 2010]; People v Habte, 35 AD3d 1199 [4th  Dept 2006]). 

Thus, for example, if a potential juror favors pretrial incarceration, we should be able to determine if the juror favors such incarceration because he assumes someone has committed a crime when charged with a crime. It should also be determined if a juror favors pretrial incarceration to prevent a defendant from committing more crimes. If that’s the case, it’s unlikely the juror would follow a Sandoval or Molineux instruction. 

We should move to strike these jurors for cause. Before rejecting such a challenge, the trial court must have some basis in finding that the juror will render a verdict based on evidence and free of these biases. Unfortunately, these biases are reinforced in the daily news cycle. 

In situations like the above, a trial court will ask if the potential juror can still be “fair and impartial” despite prior statements suggesting otherwise. Most jurors respond that they can be fair and impartial. 

But it is not enough for a trial court simply to hear a potential juror agree that he could be fair and impartial; when a doubt remains about a potential juror’s ability to be fair, the juror should be discharged for cause (People v Bludson, 97 NY2d 644 [2001]). This means that even after a potential juror assured that he can be fair and impartial, we should ask if the juror has changed his opinion about bail reform.

We could also direct their attention to the trial court’s earlier instruction that the charges in the indictment and the indictment itself are not evidence of guilt. 

If a juror maintains his criticism of bail reform after this questioning, the juror likely will maintain his or her assumptions underlying the criticism. In this case, no instruction will rid the juror of this assumption, and a doubt remains of the juror’s ability to be fair and impartial. When a doubt like this exists, a juror must be discharged for cause. A trial court that fails to do so risks reversal.

By Paul Meabon

Wednesday, December 4, 2019

Fighting Local Ordinances Which Purport to Outlaw Conduct Deemed Abusive by Police

In October of this year, two Monroe County legislators introduced a law purporting to protect police and first responders.  The law was tabled, but then passed along party lines by the Republican majority in the county legislature.  The bill was signed into law by the County Executive on December 2, 2019, despite protests from the community and concerns about its constitutionality as expressed by local attorneys, including those from this firm.

On December 4th, the Rochester  Police Chief issued a memo indicating that Rochester Police Department members would not be arresting citizens pursuant to this law.   Subsequently, the Monroe County Sheriff and other law enforcement agencies in Monroe County stated that they too would not arrest people pursuant to this law.

We have heard that these laws are being introduced around the state, and perhaps the country.  We are including links to the letter sent by the attorneys, as well as a letter sent by the National Press Photographers Association, addressing the legal issues presented by the law that was passed here.

Friday, June 7, 2019

Lesser Included Offenses

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Lesser included offenses may come into play at various stages of a case, such as a court's inspection of grand jury minutes and possible reduction of charges, pleas, TODs, the defense theory of the case, and as addressed below, the jury charge at the end of a case. 

There are times that you may wish to request that the jury be charged on a lesser included offense.  This means that if the jury concludes the defendant is not guilty of the top count, they may consider a lesser count.  Although it seems like you'd want to stop with the acquittal on the top count and not get a lesser charge (and sometimes that is a strategic decision to make) we also often recognize a jury may be reluctant to completely acquit, and since they hear the instructions on the lesser before they deliberate they know there's an option other than a complete acquittal in a case where they might not want to see the client walk. 

In CPL 1.20 (the definitions section - a good place to start with many issues) the term "lesser included offense" is defined.  The definition, in subdivision 37, states, "'Lesser included offense.' When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.' In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto."   

(In some cases attempts are not possible - those tend to be strict liability crimes - another discussion for another day.  Not all strict liability crimes fall within this category and you must do case research.) 

CPL 300.50  relates to submission of lesser included offenses to the jury when the case is charged by indictment.  CPL 360.50(2) relates to the submission when the case is charged by information.   

Pursuant to CPL 300.50(1), the court may in its discretion submit the lesser if "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." If the court is authorized to submit a lesser (it meets the reasonable view test) and either party requests the lesser, it must submit it.  "This reasonable view" test was addressed in a blog piece by one of our former colleagues in appeals, Jim Eckert.  I've attached the blog piece below.  There are several other subdivisions in this statute worth a read, including subdivision 6 relating to Rape 3 being a possible lesser given to the jury in Rape 1 cases.   

The Court of Appeals has articulated the lesser test as follows: 

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder (see People v Tai, 39 NY2d 894, 352 NE2d 582, 386 NYS2d 395 [1976] [reckless manslaughter is a lesser included offense of intentional murder]). Second, the party making the request for a charge-down "must then show that there is a reasonable view of the evidence in the [**450]  [***452]  particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater" (People v Glover, 57 NY2d 61, 63, 439 NE2d 376, 453 NYS2d 660 [1982]; CPL 300.50 [1]). In assessing whether there is a  "reasonable view of the evidence," the proof must be  looked at "in the light most favorable to [the] defendant" (People v Martin, 59 NY2d 704, 705, 450 NE2d 225, 463 NYS2d 419 [1983]), which requires awareness of "the jury's right to accept some part of the evidence presented  [****15] by either side and reject other parts of that proof" (People v Green, 56 NY2d 427, 434, 437 NE2d 1146, 452 NYS2d 389 [1982]). We have never, however, "countenance[d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor" (People v Scarborough, 49 NY2d 364, 373, 402 NE2d 1127, 426 NYS2d 224 [1980]; see also People v Negron, 91 NY2d 788, 792, 699 NE2d 32, 676 NYS2d 520 [1998]).

People v Rivera, 23 N.Y.3d 112, 120-121 

Although it seems like it should be easy to figure out if a lesser meets the test set forth in CPL 1.20 (legally impossible to commit the top count without committing the lesser) and the reasonable view of the evidence test, there are many cases interpreting whether lessers are actually lessers based on the elements of the charge and the specific facts of the case under review.  So when you are prepping for trial, either take a look at the NYSDA lesser included chart, linked below, or do some research, or both. 

 Make sure you consider the mens rea of the greater and potential lesser.  In sex offenses this is a bit more complicated.  For some sex offenses, the definition of the offense includes the phrase "sexual contact," while others contain the phrase "sexual conduct.."  While many Penal Law definitions are found in Article 10 of the Penal Law, some are found in the articles addressing the particular offenses.  "Sexual contact" and "sexual conduct" are defined in the definitions section of Article 130.  Some sex offense crimes contain neither phrase but the definition of the offense sets forth the elements.   

Sexual Abuse in the First Degree involves "sexual contact."  Sexual contact requires the contact be for the "purpose of gratifying sexual desire of either party." (PL 130.00(3).  The definition is more extensive.  But rape, sodomy and course of sexual conduct, for example, do not require that purpose. So it is possible to commit the lesser without committing the greater offense.  And if that can happen, the charge is not a lesser.  For cases addressing this specific issue in sex offenses, see People v. Wheeler  67 NY2d 960 and  People v. Baker 123 AD3d 1378 (Third Dept. 20146).

Thursday, October 4, 2018

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

A judge must respond to a jury's questions in a way that meaningfully answers the question and does not add new principles of law to those they originally received.  (Some practice tips at the end.) 
In People v. Wood, 163 AD3d 14852018 Slip Op 05422, (4th Dept July 25, 2018),  the Fourth Department considered whether the trial court adequately responded to the jury's questions about intent and knowledge.  Defendant was accused of brandishing a weapon in a restaurant.  He was arrested shortly after the incident and found in possession of a loaded firearm.  (Interestingly, and unfortunately, defendant's testimony and defense seem to have made out all of the elements of one of the charges in the indictment - CPW2 possession of a loaded firearm under Penal Law 265.03[3] But I digress...). 

During deliberations the jury sent the court a note requesting clarification of the terms "intent" and "unlawfully," and asked whether they applied to when the defendant emerged from the vehicle, when he pulled the weapon from his pants, or at any time he was in possession of the gun.  They also asked for a readback about the interaction in the restaurant.  The prosecutor then asked, for the first time, for an instruction on the presumption (or as Bradley would remind us, permissive inference) that one in unlawful possession of a loaded firearm is presumed to intend to use it unlawfully against another.  The defense objected, noting that the prosecutor had never previously requested the instruction, the Court should not be instructing on principles of law for the first time during deliberations, and that counsel did not have an opportunity to respond to the new instruction.  The Court overruled the objections and read the additional instruction.  Within two minutes the jury had a verdict. 

The Appellate Division in Wood wrote: 
The Criminal Procedure Law allows the jury to ask the court to clarify an instruction "[a]t any time during its deliberation" (CPL 310.30). Upon receiving such a request, the court must " perform the delicate operation of fashioning a response which meaningfully answer[s] the jury's inquiry while at the same time working no prejudice to the defendant' " (People v Brewer, 118 AD3d 1409, 1413 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see People v Miller, 288 AD2d 698, 700 [3d Dept 2001]). "[T]he court has significant discretion in determining the proper scope and nature of the response" (People v Taylor, 26 NY3d 217, 224 [2015]). In determining whether the court's response constituted an abuse of discretion, " [t]he factors to be evaluated are the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the [information] actually given and the presence or absence of prejudice to the defendant' " (id., quoting People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]).We conclude that the court failed in its duty to fashion a response that meaningfully answered the jury's question and to avoid prejudicing defendant. The jury notes demonstrate that the jury had thoughtful questions about intent and was carefully weighing the conflicting testimony of the witnesses to determine whether and when defendant in fact formed the intent to use the gun unlawfully against another. The court, however, instructed the jury that defendant's possession of the gun was presumptive evidence of intent to use it unlawfully, and that the jury may not need or want to consider additional evidence in light of that presumption. That answer was not responsive to either note. Moreover, the court's response prejudiced defendant by introducing new principles of law after summations, when defense counsel no longer had the opportunity to argue that, despite the presumption, the evidence established that defendant lacked the requisite intent (see Brewer, 118 AD3d at 1413; see generally People v Sierra, 231 AD2d 907, 908 [4th Dept 1996]).

So there are  several takeaways from this case.  First, don't have your client admit to all of the elements of one of the charges in an indictment if the charges are all at the same level of severity and relate to the same incident.  It may be a defense to admit to lower level charges, or charges relating to one non-transactional incident, but to admit to a C violent while fighting another subdivision of the charge may lead you to win the battle but lose the war, as happened here.
Second, if the jury asks a question, make sure you have the opportunity to read the note or have the entire note read to you.  Ask the Court to mark it and make it part of the record if the Court is not doing that.  Consider whether the Court's proposed response adequately addresses the question.  If it does not, object.  If the question involves readback, make sure the cross is included, and that all of the readback addressing the topic is provided to the jury - I have had many trials where the Court believed some of the testimony was responsive and was not intending to read the rest, or only asked the stenographer to read part.  Sometimes judges rely entirely on the stenographer's interpretation of what testimony is responsive.  Object if the cross or a part of the readback is left out (unless that part hurts you, in which case perhaps you rely on the Court's recollection and selection).  If there are new instructions or legal principles included in the Court's response, and they are harmful to your case, object, citing this case, and noting that the defense did not have an opportunity to respond to or address those instructions during the trial, and this deprives your client of the rights to due process and a fair trial as protected by the New York State and United States constitutions.  
As an aside - you do not have to assume that the Criminal Jury Instructions must be read verbatim.  They are suggestions, and you should consider offering your own instructions when your case warrants it.  If you do, and the Court rejects your  instruction, have it marked and made part of the record so it can be reviewed on appeal.  Or at least make sure your verbal request is on the record.
Jury instructions are an important part of the case, and much as we would like to take that time for a well deserved nap, we have to be vigilant and precise as we listen, object, consider whether proposed responses are accurate and complete, and make additional requests.  

Monday, October 1, 2018

by Brian Shiffrin

    It is important understand the differences between actual bias and implied bias of prospective jurors. CPL§ 270(1)(b), deals with a prospective juror  who has evinced an actual bias, defined as  “a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” If a juror’s statements during voir dire raise a doubt about his impartiality, such as statements that he has a pre-formed opinion about the case, that juror cannot be permitted to sit unless he states unequivocally that he can be fair and decide the case solely on the evidence adduced at trial (People v Johnson, 17 NY3d 752, 753 [2011]; People v Chambers, 97 NY2d 417, 419 [2002]; People v Arnold, 96 NY2d 358, 362-363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). Thus, actual bias can be cured by an expurgatory oath.
Another subdivision, CPL § 270(1)(c), permits challenges for cause stemming from the implied bias of a prospective juror’s relationship with either party, witness, or counsel.
Specifically, this subdivision, very broadly permits challenges for cause where a prospective juror
is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;. . . .  that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict
(CPL§ 270.20[1][c].)

As quoted above, CPL§ 270.20(1)(c) is not limited to familial relationships. The Court of Appeals has explained that this subdivision was written to provide for wider listing of relationships subject to challenge for cause than the Code of Criminal Procedure had previously allowed which is why it included the catchall last sentence,  not in the Code,  authorizing for cause challenges to a prospective juror who bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict (People v Culhane, 33 NY2d 90, 104-05, n2 [1973]).  These relationships have been held to include a wide variety of professional and personal relationships (see, e.g., People v Rentz, 67 NY2d 829, 830–831 [1986] [juror with professional relationship with two witnesses and personal one with one witness should have been disqualified]; People v. Branch, 46 N.Y.2d at 650–651 [looked at “direct contact” with the District Attorney and that juror had “worked directly” with trial prosecutor, in addition to having a personal relationship with trial prosecutor]; People v. Littebrant, 55 AD3d 1151, 1154, [2008] [juror with professional and long-term personal relationship with key defense witness properly excused for cause]; People v Bedard, 132 AD3d 1070 [3d Dept 2015] [friendship with District Attorney required granting of a for cause challenge]; People v. Clark, 125 A.D.2d 868 [friendship with District Attorney required granting of for cause challenge]; People v Meyer, 78 AD2d 662, 664 [2d Dept 1980] [limited social acquaintance and a business relationship with the prosecution witness created implied bias requiring exclusion]; People v Wlasiuk, 90 AD3d 1405, 1412 [3d Dept 2011] [juror failed to disclosprofessional relationship as coworker to victim]). 
Critically, in contrast to challenges for cause based on actual bias pursuant to CPL § 270(1)(b), the implied bias of a prospective juror’s relationship with either a party, witness, or counsel, cannot be cured with an expurgatory oath (People v Furey, 18 NY3d 284, 287-88 [2011]; People v Branch, 46 NY2d 645, 649-52 [1979] [“the risk of prejudice arising out of the close relationship ... [is] so great that recital of an oath of impartiality could not convincingly dispel the taint”]).
Thus, the Court of Appeals has explained that a challenge for cause for a person who has a relationship covered by  CPL § 270(1)(c)
requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias . . .creates the perception that the accused might not receive a fair trial before an impartial finder of fact.  For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality” (People v Branch, 46 NY2d 645, 651.)
(People v Furey, 18 NY3d 284, 287-88 [2011].)
This past week, citing and applying Furey, the Fourth Department, in People v Farley (2018 NY Slip Op 06380 [4th Dept]), reversed a conviction where the the juror acknowledged that the medical witness was the surgeon who save her life, despite the juror's insistence that she could be fair. Remember, reversal only occurs if  the defendant exercised a peremptory challenged and and exhausted his peremptory challenges (see CPL 270.20 [2]).

Thursday, September 20, 2018

by Jill Paperno,

There is a body of law that bars discriminatory use of challenges to jurors based on a Supreme Court decision, Batson v. Kentucky 476 U.S. 79.  When you are challenging a prosecutor's discriminatory  use of jury challenges, it is called "making a Batson challenge."   

In People v. Herrod, the Fourth Department reminds us of the process and standards to be applied in Batson challenges.  One way prosecutors often oppose our Batsonchallenges is by claiming that there has been no "pattern" of discrimination established during our challenge.  But that is not the standard, and it's really important that we not allow the prosecutor or court to rely on that erroneous belief in denying our challenges.   In People v. Herrod , 2018 NY Slip Op 05110 [163  AD3d 1462 [4th Dept July 6, 2018],  the Fourth Department stated, 

Defendant contends that County Court misstated his burden under the first step of the three-step Batson test. We agree. In order for the moving party to satisfy its burden at step one, it must " show[ ] that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason'" (People v Baxter, 108 AD3d 1158, 1159, 969 N.Y.S.2d 678 [4th Dept 2013], quoting People v Smocum, 99 NY2d 418, 421, 786 N.E.2d 1275, 757 N.Y.S.2d 239 [2003]). "A defendant need not show [either] a pattern of discrimination'" (People v Anthony, 152 AD3d 1048, 1050, 61 N.Y.S.3d 151 [3d Dept 2017]) or, as the court stated here, "a systematic approach by the prosecution." (Emphasis added.)  Rather, a defendant may satisfy his or her burden under the first step by demonstrating that "members of the cognizable group were excluded while others with the same relevant characteristics were not" or that the People excluded members of the cognizable group "who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution" (People v Childress, 81 NY2d 263, 267, 614 N.E.2d 709, 598 N.Y.S.2d 146 [1993]).

We conclude that defendant met his burden under step one by establishing that there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner. Here, defense counsel explained to the court that the relevant prospective juror was the first African-American male "that's been available without a [for]-cause" challenge and that the prospective juror provided answers during voir dire that were favorable to the prosecution, i.e., that the prospective juror had a number of family members in law enforcement, had a college degree and had at one time been  robbed. Defense counsel thus implied that he could not ascertain from the prospective juror's answers a reason for the peremptory challenge other than racial bias. The court did not provide defense counsel with any further opportunity to develop that argument and, instead, interrupted defense counsel and concluded that a pattern of discrimination had not been established.
Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, we conclude that "the burden shifted to the People to articulate a non-discriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual" (People v Davis, 153 AD3d 1631, 1632, 62 N.Y.S.3d 641 [4th Dept 2017]; see generally People v James, 99 NY2d 264, 270-271, 784 N.E.2d 1152, 755 N.Y.S.2d 43 [2002]). We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose (see Davis, 153 AD3d at 1632).