Sunday, December 20, 2009

Melendez-Diaz revisited, in a hurry

The Supreme Court will hear argument in Briscoe v. Virginia on January 11, 2010, a case revisiting the need for live testimony when introducing lab reports established by Melendez-Diaz. Prof. Richard Friedman, who writes the Confrontation Blog will argue for the defense. The National Association of Criminal Defense Lawyer's amicus brief was co-authored by a Washington PDS lawyer and Jeffrey Fisher, who argued Melendez-Diaz and Crawford v. Washington and in the "our rock stars are different than your rock stars" vein, is probably the Mick Jagger of appellate advocacy.

So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.

Wednesday, December 16, 2009

Can you hear me now?

On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court's inherent powers under Judiciary Law § 2-b, absent any specific statutory authority for such procedure.

The majority elides over the substantial impairment to the defendant's rights under the Confrontation Clause that must necessarily result from attempting to cross-examine a witness who is watching the process on T.V.; roughly equivalent to trying to hit a marshmallow out of the new Yankee Stadium (even over the short wall). By contrast, Judge Smith in dissent, while not using that analogy exactly, gets the point across:

"The right of confrontation includes -- indeed, is, at its core -- the right to meet one's accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is "face to face" in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to "confront" her accuser in the constitutional sense . . ."

Judge Jones, also in dissent, notes that absent any legislative authority that would explicitly provide for the procedure used here, the majority essentially manufactures some extra trial court authority out of whole cloth, noting that "the majority's view of the courts' inherent powers presents a number of problems . . . there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court's authority to allow the admission of an absent witness's televised testimony as long as it is 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' . . . what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the state's public policy? . . . it appears that the majority's ruling effectively circumscribes the Legislature's role by allowing trial courts to . . . create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law)."

Another case of bad facts making bad law. The 85 year old complainant in this case was in ill health and unable to travel to the trial. Judge Jones proposed the remedy of a pretrial deposition, a solution that either didn't occur to the trial court, or couldn't be swallowed (who wants be known as the judge who let an attorney cross-examine a witness to death?) So the appellate result is an amorphous, undefinable, boundry-less "I'll know it when I see it"-like legal standard.

Ten Years After - DNA and delayed prosecution

Extending the ability to belatedly prosecute cases where defendants are identifiable by DNA only, in People v. Ramon Ramos (12/15/09) the Court of Appeals held that "The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [4][a][ii]; see also Executive Law §§ 995 [7], 995-c [3]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, __ NY3d __, 2009 Slip Op 08475 [2009]).

Defendant's belated claim that the extension of the statute of limitation violated ex post facto considerations was not preserved below. Personally, I'm a little jealous of anyone who can put together a 10-year unbroken stretch with their whereabouts "continuously unknown and continuously unascertainable." That's a lot of time in the wind.

Sunday, December 6, 2009

"The People are fully aware of their Brady obligations and will comply with the same."

Don't bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.

The problem many be one of semantics. "Brady material" has become a shorthand reference for "those materials required to be disclosed under Brady and its progeny." If "Brady material" refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if "Brady material" is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those "progeny" cases. The ability to sing the song ("Here's a story, of a man named . . . ") does not an awareness of Brady make.

For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).

In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).

The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).

Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.

When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant's requests would result in unfairness to the People - "it's not a level playing field." Of course, it was never meant to be.

For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).

Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).

To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:

"If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary" (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).

Brady and pre-trial disclosure

Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).

Friday, December 4, 2009

Objection Not Required Where Prosecution Switches Theories

In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.