Saturday, October 25, 2008

What Must Be Shown For A Defendant To Be Entitled To Specific Performance Of A Plea Agreement?

In People v Jenkins (2008 NY Slip Op 07992 [10/23/08]) the Court of Appeals considered who has to prove what in order for a defendant to be entitled to specific compliance of a plea agreement. Specifically who has has the burden of proof of compliance or non-compliance and what does that burden entail? Under what circumstances can a court add additional terms to a plea agreement? By a 6-1 vote, the Court upheld the addition of a term to the plea agreement in a case in which dissenting Judge Pigott writes that
the People did not contest defendant's claim that he was entitled to have the charges dismissed, let alone establish that he was not, nor did the court make such a finding. Indeed, the People never even argued in Supreme Court, the Appellate Division or to this Court that, as of October 2001, defendant had not complied with the terms and conditions of the plea agreement. Rather, the People have consistently argued that Supreme Court properly exercised its discretion in requiring defendant to participate in further services.

Mr. Jenkins pleaded guilty to a drug charge pursuant to a plea agreement permitting him to avoid incarceration upon (1) completing an 18- to 24-month residential drug treatment program at Veritas Therapeutic Community, a Drug Treatment Alternative to Prison (DTAP) program, and completing its aftercare or live-out treatment; (2) completing vocational training including obtaining a General Equivalency Diploma (GED); (3) securing full-time employment and (4) finding "suitable" housing. The plea agreement additionally required defendant to make every court appearance and not be rearrested. The agremtn was that the prosecutor would join in an application for dismissal of the charge upon Jenkins' complettion of these conditions.
Veritas provided regular updates to the court, culminating in letter, two years after the plea, in which Veritas wrote to the court that defendant has completed the two drug treatments programs, has obtained employment. But Vertias also wrote that Jenkins has "unresolved family issues" that would create further problems, if not addressed.
Jenkins moved for dismissal of the charges, alleging compliance with the conditions. The People did not join in, saying that they had not received documentary proof regarding the educational and employment conditions and requested an adjournment to provide the defendant time to submit documentation. The dissent points out that
the court conducted no inquiry and, presumably, made no determination as to whether defendant had, in fact, met all of the conditions of the plea agreement. Significantly, the People made no claim that defendant had not successfully completed the program. Rather, the People requested two to three weeks to respond and sought defendant's cooperation in providing certain documents. The court held an off-the-record discussion at the bench. What exactly was said during this discussion is unknown, but it caused defense counsel to withdraw the motion. What is known is that the parties talked about the "unresolved family issues" identified in the October 11th Veritas letter and that the court adjourned the matter to look into getting defendant "some other support services." Defendant voiced his objection stating, among other things, that he "completed everything there is to complete in this program.

The majority of the Court holds that having withdrawn the motion
Under these circumstances, where defendant had failed to provide satisfactory proof that he completed all of the conditions of his agreement, the People were entitled to an adjournment and not required to join in the motion to dismiss. Neither was Supreme Court compelled to "turn a blind eye" and dismiss this case in the furtherance of justice. To be sure, Supreme Court could not pass favorably on defendant's Clayton motion without evidentiary support demonstrating that he had complied with the terms of the agreement as CPL 210.40 requires the court to articulate on which factors it relies in dismissing an indictment. Affording the trial court this discretion does not, as the dissent maintains, improperly shift the burden of proof from the People to defendant.

By contrast, Judge Pigott, in dissent writes that
Clearly, it was Supreme Court's duty to make sufficient inquiry, at the time of the motion, as to whether defendant had complied with the terms of the plea agreement. I disagree with the majority that defendant's failure to provide documentation regarding the successful completion of the program excused such inquiry by the court; to so hold improperly shifts the burden of proof from the People to the defendant to prove his compliance with the plea agreement- something we have never done. But even assuming the burden was on the defendant, the facts found in this record seem to support his claim. The Court had in its possession monthly progress reports from Veritas, as well as the October 11th letter, indicating that defendant had successfully completed the program: a determination that Veritas was to make under the plea agreement. What remained for the court to determine was whether OSN had approved of his housing and whether defendant had committed any new crimes. The October 11th Veritas letter confirmed that defendant had been residing with his family. OSN never objected to defendant's housing nor his compliance with any of the other terms of the plea agreement during his ]treatment. Indeed, OSN only objected to his housing on October 23, 2001, two weeks after the return date, and the objection was conditional, i.e. defendant had to find another residence if his girlfriend did not attend treatment meetings.
Further, in my view, while well intentioned, Supreme Court erred in adjourning the matter to determine whether family counseling was needed for defendant, and also erred in imposing family counseling as a condition.

Wednesday, October 22, 2008

Challenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea

In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in the second degree to a murder in the first degree. In Lucas the defendant argued that under Cahill the same killing during an abduction could not be the basis of a kidnapping in the first degree charge and a murder in the first charge based on a murder in furtherance of in the course of a kidnapping in the first degree. The Court rejected this argument, holding that
The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a defendant eligible for the death penalty — the Legislature required murder and "[a]n additional aggravating factor — murder 'plus'" (id. at 64). But where "the very same mens rea — the intent to kill" was used to define both the murder and the aggravating factor, the legislative goal of "narrowing rather than expanding the class of defendants eligible for the death penalty" had not been achieved (id. at 64-65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crime has not been "aggravated" to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents — the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder — "murder plus." It is of no moment that a factual circumstance other than defendant's intent — in this case, the victim's death — is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

Perhaps of more general interest, and certainly of greater help to defendants, is that the Court reaffirmed that an attack of the facial sufficiency of an accusatory instrument survives a guilty plea. Here, Mr. Lucas argued that the facts stated in the indictment do not constitute the crime of first degree murder. The Court held that
This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v Taylor, 65 NY2d 1, 5 [1985])...

Friday, October 17, 2008

Important Decision Regarding Subpoenas and Privilege in Criminal Cases

In a lengthy opinion, the Court of Appeals in People v Kozlowski, 2008 NY Slip Op 07759 [10/16/08], upheld the larceny (and related) convictions of the former CEO Kozlowski and CFO Swartz of Tyco and the fines of $35 and $70 million imposed on Swartz and Kozlowski, respectively. Although this decision rejected the defendants' arguments for a reversal and/or vacateur of the fines, it is likely to be cited more frequently by defendants than by prosecutors.

First, the decision contains a very helpful analysis of the standard for enforcing a third-party subpoena duces tecum which was set forth nearly 30 years ago in People v Gissendanner (48 NY2d 543, 550 [1979]). Under Gissendanner, defendants must proffer a good-faith factual predicate sufficient for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory.

What constitutes a sufficient showing under Gissendanner is often in dispute. In this case, the Court made clear that the standard is not to be set too high. In Kozlowski the the People's case centered on the charge that defendants' bonuses were not approved by Tyco's Compensation Committee or the Board of Directors. Defendants maintained that the bonuses were properly approved through the efforts of either of two directors. Among other things, their subpoena seeks specifically identified statements made by the director-witnesses regarding key issues in this case, including, most notably, "Compensation Events."

The Court held that "Although defendants have certainly not made a robust showing under Gissendanner, we disagree with the People's contention that defendants were simply fishing for "general credibility" evidence." The Court's anaylsis, set forth here, is worth keeping in hand, when a prosecutor claims that the defendant has failed to prove what a requested document actually states:

In meeting the burden for production, defendants need not — and indeed could not — show that director-witness statements are "actually" relevant and exculpatory (see Gissendanner, 48 NY2d at 550. Gissendanner does mandate, however, that they point to specific facts demonstrating a reasonable likelihood that such material may be disclosed and that they are not engaged in a fishing expedition. In applying this standard, we must give due regard to the accused's right to a fair trial (Ritchie, 480 US at 56; Nixon, 418 US at 711).
Here, defendants were not engaged in "general discovery," regarding the director-witness statements. Instead, they identified the specific director-interview notes and memorandum that they sought by referring Supreme Court to Tyco's privilege log. Defendants pointed to undisputed facts, arguing that after the directors were made aware of at least some of defendants' questionable activities through the Boies Schiller investigation, they continued to permit Swartz to exercise substantial authority as the CFO of Tyco until September 11, 2002 — the day before he was indicted — and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. On the basis of these facts, defendants asserted that the "director witnesses . . . did not believe Swartz had engaged in any wrongful conduct and only 'changed their tune' after the District Attorney obtained an indictment."

So how did the defendants lose if they met their burden under Gissendanner? The Court held that there was another hurdle which was not met -- the documents were privileged as trial preparation materials (which may be disclosed "only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means") (CPLR 3101 [c], [d] [2]). The Court held that

Although we agree with defendants that the director-witness statements are trial preparation materials and not absolutely privileged, enforcement of their subpoena was directed to the trial court's discretion (citations omitted). In making its discretionary determination that defendants did not establish an inability to "obtain the substantial equivalent" of the facts contained in the director witness interview notes without "undue hardship" (see CPLR 3101 [d] [2], Weinstein-Korn-Miller, NY Civ Prac § 3101.55), Supreme Court relied upon defendants' failure to "explain[] why the defense could not have sought to conduct its own interviews of these witnesses at an earlier time." We cannot say that this conclusion represents an abuse of the trial court's discretion. Defendants made no effort to show any "undue hardship" that would have prevented them from securing their own "substantial[ly] equivalent" interviews with the director-witnesses (see CPLR 3101 [d] [2]). As Tyco pointed out in its reply submission on its motion to quash, defendants "have access to the same witnesses as Tyco does."...(see Hickman v Taylor, 329 US 495, 513 [1947] [production of attorney's account of witness statements is justified only in "rare" cases and is not appropriate when potential for "direct interviews with witnesses themselves" is possible]

The Court also rejected the argument that the privilege of specific requested documents covering trial preparation materials had been waived by the disclosure of other historical privileged documents created earlier.

The Court did not address whether and when the constitutional right to a fair trial limits a trial court’s discretion to apply a statutory privilege so as to preclude a defendant from receiving otherwise subpoenable materials (see, e.g. Davis v Alaska, 415 US 308 [1974]; People v Davis, 86 AD2d 856 [1982]).

Although this decision hurt Swartz and Kozlowski, it is likely to be helpful to more defendants than prosecutors, since it is more common for defense attorneys to attempt to assert the privilege, than prosecutors.

Friday, October 10, 2008

Rochester Curfew Ordinance Invalid

By a 3-2 vote , the Fourth Department in Anonymous v City of Rochester (2008 NY Slip Op 07724 [10/1008]) held that the Rochester Ordinance which imposed a curfew on persons under seventeen and subjected them to arrest for violation of the curfew conflicted with both New York statutes and the constitution and is, thus, invalid. (Great job by Michael Burger and David Ahl working pro bono).

Attorneys representing person who were stopped pursuant to the curfew ordinance and then charged with other crimes, have a basis to challenge the arrests and the acquisition of evidence regarding the other crimes.

Child Sexual Abuse Accomodation Syndrome Testimony Admissible Without Frye Hearing

In People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the Fourth Department held that there was no error in allowing the People to present the testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS) without first conducting a Frye hearing.
With respect to the merits of defendant's contention that a Frye hearing was required, it is well settled that expert testimony concerning CSAAS is admissible to assist the jury in understanding the unusual conduct of victims of child sexual abuse provided that, as here, the testimony is general in nature and does "not attempt to impermissibly prove that the charged crimes occurred" (People v Carroll, 95 NY2d 375, 387; see People v Gillard, 7 AD3d 540, lv denied 3 NY3d 659; People v Doherty, 305 AD2d 867, 868, lv denied 100 NY2d 580; People v Miles, 294 AD2d 930, lv denied 98 NY2d 678), and a "Frye hearing was unnecessary [in this case] because the expert's testimony did not involve novel scientific evidence" (People v Middlebrooks, 300 AD2d 1142, 1143, lv denied 99 NY2d 630).

Perhaps a reader can inform us how CSAAS became so clearly established that admissibility of testimony about is beyond question. Where are the peer reviewed studies?
The Court also rejected defendant's contention that defense counsel was ineffective in failing to conduct an adequate cross-examination of the People's expert witness and to challenge his qualifications or familiarity with CSAAS.

What Constitutes an Unequivocal Assertion of the Right to Counsel?

In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is a Sheriff's Deputy advised him not to speak to the police. When the police responded that those people were not attorneys, Mr. Edwards replied that he did not have an attorney and could not afford one. Was that his way of saying that he wanted an attorney and was relying on his friends who most knew the law solely because he could not afford one? The trial court said no, and the Fourth Department held that the record supports the court's determination (the Court wrote that on this issue one should see generally People v Glover, 87 NY2d 838; People v Fridman, 71 NY2d 845; People v Hicks, 69 NY2d 969, rearg denied 70 NY2d 796; People v Dehmler, 188 AD2d 1056, lv denied 81 NY2d 1013).
The Court did not cite People v Porter (9 NY3d 966 [2007]), in which the Court of Appeals, last year, overturned the Appellate Division, Fourth Department's decision, on whether the circumstances established an unequivocal invocation of the defendant's right to counsel. The Court in Porter emphasized that in deciding on whether request is unequivocal, the court should look at the clear meaning of the statement and held that the defendant's words "I think I need an attorney", coupled with an interviewing officer's notation that defendant was "asking for an attorney" demonstrated an unequivocal invocation of defendant's right to counsel.
The Edwards decision does not explain why the statments of Mr. Edwards fell short of the standard applied in Porter.

Check the Certificate of Conviction -- It is Often Wrong

Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant's convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases.
In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status.
In People v Switzer (2008 NY Slip Op 07452 [10/3/08]) the certificate of conviction provided
that a term of imprisonment of 1½ to 4½ years was imposed on that count, which is a legal sentence, but the sentencing minutes establish that the court imposed a term of imprisonment of 1½ to 4 years, which is an illegal sentence.
The certificate also incorrectly stated that the conviction followed a jury trial. The case was remanded for re-sentencing.
In People v Sweney (2008 NY Slip Op 07393 [4th Dept]) the certificate named the wrong judge.
In People v Mosley (2008 NY Slip Op 07423 [10/3/08]) the certificate incorrectly listed the consecutive sentences imposed.
In both People v Martin (2008 NY Slip Op 07281 [10/3/08]) and People v Dickerson(2008 NY Slip Op 07310 [10/3/08]) the certificate inaccurately reflected the length of the sentence imposed.
Finally, in People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the certificate listed a higher level offense than that for which the defendant had been convicted.
It is clear that the Court pays attention to certificates of conviction. Counsel should do no less.

An Issue Likely to Result in Appellate Relief, Even When Unpreserved

One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that
[W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time credit to which she is entitled (see People v Clinkscales, 35 AD3d 1266, 1267; People v Hare, 27 AD3d 1171, 1172, lv denied 6 NY3d 892, 894, 898). Although defendant failed to preserve that contention for our review, we exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Fomby, 42 AD3d 894, 895; People v Valdez, 41 AD3d 1255, lv denied 9 NY3d 882).

Last week, in People v Cambridge (2008 NY Slip Op 07435 [10/3/08]) the Court went a step further and corrected such an unpreserved error, in the interest of justice, depsite there being a valid waiver of appeal.

Monday, October 6, 2008

Permissible To HaveTestimony That Jailhouse Informant's Cooperation Agreement Required Truthful Testimony

In People v Santana (2008 NY Slip Op 07377 [4th Dept 10/308]), the Court held that there was no error in permitting the attorney for a jailhouse informant to testify that pursuant to to the his cooperation agreement, the informant was required "to provide truthful cooperation" at defendant's trial in order to receive a downward departure of his federal sentence. The Court explained that since the informant had not yet testified, his attorney could not and, indeed, did not offer any opinion whether the informant had provided such truthful cooperation. Thus,
the attorney did not implicitly testify concerning the informant's credibility in violation of the Confrontation Clause or the advocate-witness rule (cf. United States v Roberts, 618 F2d 530), nor did her testimony usurp the jury's function to assess the informant's credibility (see People v Hayes, 226 AD2d 1055, 1056 lv denied 88 NY2d 936).

Further, the Court held that since defendant raised the issue of the informant's motive for testifying and his credibility, "the People were properly permitted to elicit the bolstering aspect of the cooperation agreement, i.e., the promise by the [informant] to testify truthfully" (Hayes, 226 AD2d at 1055; see People v Poppo, 292 AD2d 859, 860, lv denied 98 NY2d 679).

When it Comes to Instructions on the Right Not To Testify, Timing Is Everything

In People v Mcknight (2008 NY Slip Op 07355 [4th Dept 10/3/08]) the Court rejected the contention that reversal was warranted because the court failed to instruct the jury at the outset of the trial that defendant had a constitutional right not to testify.

Although defense counsel requested that instruction (see CPL 300.10 [2]), he did so after the People's opening statement and thus the request was untimely (see CPL 270.40). In denying the request, the court stated that it would give the instruction at the conclusion of the case, if requested to do so, and we conclude that "the court's decision to wait until after summations to deliver the instruction was not erroneous" (People v Rescigno, 152 AD2d 853, 854, lv denied 74 NY2d 851; see also People v La Mountain, 155 AD2d 717, 720, lv denied 75 NY2d 814; cf. People v Jeffries, 129 AD2d 962).

When Waiver of Appeal Does Not Encompass Sentencing Issue

Generally, the valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737). There is an exception to this general rule. In People v Tolliver (2008 NY Slip Op 07341 [4th Dept 10/3/08]), the Court reaffirmed that even a valid waiver of the right to appeal does not encompass defendant's challenge to the severity of the sentence where the defendant waived his right to appeal before Supreme Court advised him of the maximum sentence that could be imposed (see People v Mingo, 38 AD3d 1270, 1271; see generally People v Lococo, 92 NY2d 825, 827).

Hearing Ordered on Claim of Ineffective Assistance of Counsel

In People v Wosu (2008 NY Slip Op 07292 [4th Dept 10/3/08],by a 3-2 vote, the Fourth Department held that it was error for a court to deny a 440.10 motion based on a claim of ineffective assistance of counsel (IAC). Since counsel framed the claim exclusively in therms of the United States Constitution that Copurt applied the federal test for IAC set forth in Strickland v Washington (466 US 668); see People v McDonald, 1 NY3d 109, 114-115).

On appeal Ms. Wosu relied on the decision of the Second Circuit with respect to a codefendant's application for a writ of habeas corpus based on ineffective assistance of counsel (Eze v Senkowski, 321 F3d 110). According to defendant, she and her two codefendants presented a unified defense at trial, and thus the same deficiencies in the representation of the attorney for the codefendant who sought a writ of habeas corpus were also present in the representation of defendant's trial attorney.

The dissent rejected the relevance of the holding in the co-defendant's case because Ms. Wosu's attorney presented an alibi defense. Thus, the dissenting justices reason, the deficiencies int he co-defendant's attack on the credibility of the complainant was less relevant.

Crawford Motions: Damned If You and Damned If You Don't

Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). In federal court this is known as an Anders brief (Anders v California, 386 US 738). However counsel must be very careful to file such a motion only if there are, in fact no frivolous issues. And even if there are such issues there are difficult issues that can arise in the decsion to file or not file such a motion.

First, the filing of such a motion, if warranted, may not only result in the attorney being relieved of the assignment, but also in the client's conviction being affirmed (see, e.g., People v Hill, 2008 NY Slip Op 07546 [4th Dept 10/3/08]). Thus, such a motion, in which defense counsel details why there are no issues to be raised on appeal from the conviction or sentence is the functional equivalent of a prosecutor's appellant's brief.

If that doesn't dissuade a defense attorney form filing such a motion, there is always the potential embarrassment of the court granting the motion, but then reassigning the appeal to another attorney because the first attorney failed to recognize that there non-frivolous issues that could be raised in the case. That happened in three cases in the most recent packet of Fourth Department decisions (People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07552 [4th Dept 10/3/08]; People v Spencer, 2008 NY Slip Op 07553 [4th Dept 10/3/08]).

Thus, for example, in People v Shampine (2008 NY Slip Op 07551 [4th Dept 10/3/08], the Court wrote

Upon a review of the record, we conclude that a nonfrivolous issue exists as to whether County Court erred in denying defendant's request for a downward departure from his presumptive risk level. Therefore, we relieve counsel of her assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

It is clear that these motions are filed at your peril and your client's peril.

But what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging the sentence as unlawful? (See, People v Ammons (41 AD3d 1325)).

What if the client entered a plea to a lesser offense and already served the entire sentence and you see a possible issue regarding the plea? If you raise the issue regarding the plea and win your client faces the potential of a more serious conviction and more time. What if you are unable to get a response from your client as to what to do?

The Second Circuit provides one answer. In United States v. Ibrahim (62 F.3d 72 [2d Cir. 1995]) the Court held that where the defendant has not requested that appellate counsel challenge the validity of a plea and has not made such a challenge in a pro se brief, cousnel can file an Anders brief which should either state that counsel believes that defendant would run unacceptable risk of adverse consequences in challenging the validity of the plea or discuss why there are no non-frivolous issues regarding the validity of the plea.

The Fourth Department has no clear holding guiding counsel. But the Spencer decisions cited above suggest that in the Fourth Department counsel canot file an Anders or Crawford motion is such a circumstance. In both of those cases the defendant has pled to a lesser offense and served his sentence of imprisonment. So counsel filed a Crawford motion rather than risking the client getting convicted of a more serious offense and receiving more time. In both cases the Court held that
The record establishes that defendant moved prior to sentencing to withdraw his plea. The facts raise the issue of whether the court abused its discretion in denying defendant's motion. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue

Thus, unlike the Second Circuit, it appears that the Fourth Department wants assigned counsel to raise such an issue.