Friday, December 31, 2010

Spelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.

David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]).

The primary substantive issue on the appeal from the burglary conviction was whether the money seized from his pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. First, the Court found that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. However, the three judge majority found that

The officers who conducted the traffic stop, however, "went beyond merely ordering defendant from his car. [They] took the additional protective measures' of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2d at 626; see People v Brnja, 50 NY2d 366, 372). At the time of the stop and arrest of defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] although the police had reports of possibly suspicious behavior, they had no knowledge [that] a burglary had even been committed" (People v Randall, 85 AD2d 754, 754-755; cf. People v Hicks, 68 NY2d 234, 241). The officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., "until evidence establishing probable cause could be found" (People v Battaglia, 82 AD2d 389, 396 [Hancock, J., dissenting], revd on dissent of Hancock, J. 56 NY2d 558; see People v Nicodemus, 247 AD2d 833, 836, lv denied 92 [*2]NY2d 858).
Because the arrest of defendant was illegal, the money seized from his pocket must be suppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the money found on defendant . . . [was] the product of a source independent of the defendant's detention or that the illegal activity was attenuated by a significant intervening event which justified the conclusion that [such] evidence was not the product of the illegal activity" (Battaglia, 82 AD2d at 397 [internal quotation marks omitted]).

A fourth Justice agreed with this holding, but disagreed with the majority's conclusion that the error in refusing to suppress the evidence was not harmless beyond a reasonable doubt. Presiding Justice Scudder would have held that this was a a legitimate stop pursuant to People v Hicks, 68 NY2d 234.

But this Fourth Amendment holding is not the real subject of this post. Rather, I am writing to highlight both the ground for the reversal of the weapons conviction and to implore trial court attorneys to learn an important lesson from this reversal.

The Appellate Division's reversal on the weapons conviction was because that plea was induced by the promise that the sentence would run concurrently with the sentence imposed upon the prior conviction in the Burglary case. As the Court explained

Because we are reversing that prior judgment of conviction, the judgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to Supreme Court for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862).

The Fuggazzatto rule is a simple one - if a defendant is convicted on one indictment and then enters a plea on a second indictment with a promise that he will receive concurrent time, a defendant who obtains reversal of the first conviction is also entitled to reversal of the second conviction. However, and this is the lesson for trial attorneys, in order for your client to obtain the benefit of the the holding in Fuggazzatto one must file notices of appeal from both convictions. There is no excuse or strategy that can justify the attorney filing the notice of appeal from the trial conviction and, absent a waiver of the right to appeal, failing to file the notice of appeal from the subsequent plea conviction.

Having been the appellate attorney in cases in which a winning issue was raised from the trial conviction, resulting in reversal, but in which the plea conviction remained solely due to the failure to file a notice of appeal, I can report that client's will not be very appreciative of such a reversal. Instead, they will want to know what can be done about the failure to file a notice of appeal. You don't want to be the attorney who failed to file the required second notice of appeal.

Saturday, December 18, 2010

Tactics to Consider in Trying a Child Sex Case

By Jill Paperno, Second Assistant Monroe County Public Defender

I just finished a child sex offense trial, and I thought I'd share some thoughts. I tried a few different things this trial that you may want to consider (or not):

1. Voir dire:

In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like - the door will open, a young child will walk in escorted, but then walk up alone. The room is too big, the child is too small, you may not hear the child's voice when they're sworn, the chair is too big, their feet may dangle. You may get a sick feeling in the pit of your stomachs. Because whether or not this happened, children don't belong here. More people decided they couldn't be fair after that.

I also addressed the topic of a supposed expert on "Child Sexual Abuse Accommodation Syndrome" in voir dire - what is science, how to determine if someone is an expert, are they comfortable making the assessment, is anecdotal information scientific, etc.

2. Opening Statement

When I opened I talked about how doctors from the local Child Abuse Advocacy Center often determine that findings are normal in children, but then opine that this determination was consistent with the child having been abused. I talked about how any child - even one of their own, could be seen by such a doctor, and come away with a description of findings consistent with abuse. I also talked about the CSAAS expert would likely conclude that all behavior, anything a child does, is consistent with CSAAS. So no matter whether the child is abused or not, he will conclude the behavior is consistent with CSAAS. I then noted that any defendant starts any case with two witnesses against him, the doctor from the child abuse advocacy center and the CSAAS "expert", whether or not he's guilty.

3. Cross-Examination

As usual, the photos are critical. In my recent case what they showed about the height of the bed and the number of particular toys was of great help in examining the People's witnesses. Always examine the photos. Look for the details. Also, I rarely address the actual act in my cross -just all the circumstances around. Happy to share if you have any questions.

I questioned the kids a lot about the trial preparation they had with the District Attorney and others. Listen to how the prosecutor questions the kids and reinforces the testimony and consider whether you can use that to support a claim that the children were led and reinforced in their version of events.

4. Summation

I began the sum by saying that no juror comes into the courthouse on a child sex offense case saying "I can't wait to acquit." I then told them they must. There are different approaches to summations. I often mention reasonable doubt. In fact, for many of my cases, if I never mentioned reasonable doubt in a summation, I'd have very little to say. It's my chorus.

I again talked about the sadness of a child being in the courtroom - whether or not the events occurred. I acknowledged what it looked like for a kid to be testifying and what it may have felt like for them.

I actually talked about acquitting on a technicality- I think you have to be careful as to how you phrase it, but I talked about the uncertain dates given by the kids perhaps being what some might think of as technicalities, but they go to the reliability of the testimony. So even if the dates weren't proven BRD, they had to acquit.

I told them not to compromise. There were some weaker witnesses and one stronger one. I told them that if they felt there wasn't PBRD with respect to the other kids, but John Doe was a strong witness, they shouldn't say, well he's the strongest, so let's convict on his counts. I suggested that if each case were tried separately, they wouldn't find the evidence in his case to be PBRD, so they shouldn't compare and compromise. (Be careful of this argument - you don't want them to refuse to compromise and convict on the top count. But I thought I had nothing to lose with that argument in this case.)

I also talked about how some of my questions which might be thought of as stupid lawyer tricks weren't intended to trick the kids, but instead show that when they were off the script, they couldn't keep things straight.

At each stage of the case, I talked about how young children may not tell the truth, but may not be intentionally lying, because their perceptions and recollections can be shaped by people they've spoken with, reactions, questions that have been asked, etc. (got a little help from the People's doctor on that one). I also told them I expected the DA might argue that in order to acquit they'd have to find the kids were lying. Then talked about how if the kids weren't intentionally lying, but their memories or testimony were shaped over time by the various factors, their testimony was not reliable, and not the basis for PBRD.

So in this case I talked more directly about the elephants in the room.

5. Miscellaneous

Object to really inflammatory language. Anticipate that the prosecutor will argue "why would they lie" or "what's their motive to lie" and when you lose your motion to preclude on burden shifting answer it in your summation.

(Editors note- Jill (who recently received the Jeffrey A. Jacobs Memorial award for her outstanding work as criminal defense attorney) is too modest to mention that she obtained a complete acquittal on charges involving four children. Brian Shiffrin)

Thursday, December 16, 2010

Prudent Counsel Will Continue to Challenge the Constitutionality of New York's Persistent Felony Offender Sentencing Statutes

Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).

Monday, December 13, 2010

Can a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?

In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. On this issue the Appellate Division, Fourth Department, in People v Taylor (2 AD3d 1306 [4th Dept 2003]) held that "defendant was not denied his right to make a “fundamental decision[ ]” (internal citation omitted) when the court considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant.”

What about the related issue of whether defense counsel may validly concede guilt to one of more counts over the defendant’s objection? One might think that such a concession is effectively no different than a guilty plea, and the decision whether to plead guilty is fundamental one for the defendant and not counsel (Jones v Barnes, 463 U.S. 745 [1983]; People v White, 73 NY2d 468 [1989]). Under such reasoning it would seem clear that counsel cannot make such a concession over the objection of the defendant. That position was recently rejected by the Court in Washington v Poole (_F Supp_, 2010 WL 3910176 (WDNY 10/6/10), in denying a petition for a writ of habeas corpus in which Mr. Washington urged that he was denied effective assistance of counsel when his counsel, over Mr. Washington’s objection, conceded Washington was involved in the robbery but disputed whether the handguns used during the robbery were “loaded and operable” so as to make Washington guilty of robbery in the first degree. The Court explained that

In Florida v Nixon, 543 US 175 (2004), the Supreme Court indicated that while defense counsel has an obligation to explain to the defendant a proposed strategy of conceding guilt at the guilt phase of a capital trial, counsel has no further obligation to obtain the defendant's express consent to this strategy. Id. at 189. In Nixon, during the guilt phase of a capital trial, the defense attorney conceded that his client had committed the murder. The strategy there was to establish credibility with the jury by conceding the murder, and then to seek leniency at the sentencing phase. However, the defendant was convicted of the murder and sentenced to death. The state appellate court in Nixon reversed the defendant's conviction and held that trial counsel's concession of guilt, without defendant's express consent, deprived the defendant of his right to the effective assistance of counsel guaranteed by the Sixth Amendment....The United States Supreme Court reversed. First, the Nixon court expressly rejected the proposition-also urged by petitioner here-that a concession of guilt is the functional equivalent of a guilty plea requiring the consent of the accused on the record. ...
Here, Washington has rested his ineffective assistance argument on counsel's failure to obtain his expression consent to the concession-of-guilt strategy, and has argued that prejudice must be presumed in these circumstances. The Supreme Court rejected this proposition in Nixon, holding that defendant must show both that the strategic decision to concede guilt was objectively unreasonable and that the defendant was actually prejudiced by the decision. See, e.g., Sondey v White, No. 05-71831, 2009 WL 4800413, at *24-25 (E.D.Mich. Dec.9, 2009) (“The lesson of Nixon, as reflected in cases decided both before and after that decision, is ‘that counsel's concession of a client's guilt does not automatically constitute deficient performance.’ Young v Catoe, 205 F3d 750, 759 (4th Cir.2000). More specifically, ‘conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.’ United States v Holman, 314 F.3d 837, 840 (7th Cir.2002).”).

The court's reliance on the Supreme Court's decision in Nixon, a capital case, would be more persuasive if capital case jurisprudence always applies in the non-capital context. But that is not the case. For example, in Beck v Alabama (447 US 625, 638 [1980]) the Supreme Court held that although it would have been constitutional in a non-capital context, a state statute precluding consideration of an appropriate lesser included offense violated due process in a capital case.

Wednesday, December 1, 2010

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that
A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.
This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:
It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].