Monday, May 16, 2011

Practice Tips: The First Interview With a New Client

by

Jill Paperno
Second Assistant Monroe County Public Defender

The first meeting with a client can set the tone for the rest of the relationship. Like a first date, you want to make a good impression, let the client know that you are smart, caring, and the person they want be with for the forseeable future. And like a first date, you should prepare.

1. Appearances do matter

I am a public defender, so I have a bias to overcome with many clients. I believe my clients are entitled to feel that they are being represented by a professional, so when I meet clients, I try to appear..well…professional. Even if it’s a week-end, if it’s the first time I’m meeting with a client I will wear appropriate “lawyer clothes”. I think it helps instill confidence in the client. I think this is even more important for the young attorney, who may appear too inexperienced to the client. The suit, or jacket and whatever, convey a degree of professionalism that may help to overcome clients’ concerns. Sure, I know that we all want to be liked for who we are, but let’s face it, we live in a superficial world, and that’s not going to change tomorrow.

2. Prepare

Before you meet with a client, make sure you’ve reviewed the accusatory instruments and any other documents you may have, the applicable statutes defining the offenses the client is charged with, and the relevant sentencing statutes. Try to find out if the client is on probation or parole, and what impact that will have on your client’s custodial status and future sentence, if any. If you have a copy of the client’s statement, and it makes out a possible defense, read the statute or law relating to the defense.
Bring a legal pad, business cards and a pen, as well as the file and other relevant documents.

3. The meeting

Make sure you are meeting in a location that is private enough that your conversation cannot be heard. In the jail, this may be a challenge, but you can request private rooms during business hours.

I always shake a client’s hand when I meet them for the first time (and every time afterwards). I think it conveys a professional and respectful relationship. I also refer to clients by their last names – Mr. or Ms. X or Y. If they ask me to call them by their first names I will. This is simply a style choice, but I think it sets the tone for the relationship.
At the first meeting you may wish to have a checklist of topics to cover. Consider the following questions (which you may not reach completely in the first meeting, but make sure you hit the first two):

1. Where were you born (not “Are you a Citizen?”) – People do not always know their citizenship status, but they know where they were born. If they were not born in the U.S. contact an immigration expert before resolving the case with any plea or disposition. Note the client’s citizenship or lack of citizenship on your file and do not take any plea unless you know that you have made this inquiry.

2. Are you on probation, post release supervision or parole? It is important to obtain this information because any plea, even with a conditional discharge, may result in a sentence in prison or jail if the plea establishes a violation of probation or parole. (Make sure you know the difference between probation and parole – probation is community supervision in lieu of jail, and parole or post release supervision is supervision following a prison sentence.) Mark on your file whether the defendant is on probation or parole, and never take a plea if your file does not reflect that you have that information, know the consequences, and have informed your client. If the client has federal charges pending, contact the Federal Defender's Office to coordinate representation.

3. Make sure you ask about other pending state and federal charges (Do you have any charges pending in any other court?) If the client does, you will want to coordinate representation with the other attorneys handling that client's cases, and make sure the client is represented on all of his or her charges. It does not benefit the client to settle your case with a great disposition if there are other charges pending that result in large sentences, especially if your disposition has reduced or eliminated the jail time credit. (Jail time credit will be discussed in some future post - but for now, consult with others if you are not familiar with the impact of the resolution of your charges on charges pending in other courts, and take a look at Penal Law Sections 70.30. Actually, take several looks at it - it's a very difficult statute to understand.)

4. Have you ever been convicted of a crime? If so, what was the crime, when was the conviction, where was it, and what was the sentence? (This question comes later in the discussion.) Prior convictions may elevate misdemeanors to felonies, or may cause a client to be facing a mandatory prison sentence or a higher sentence. Check out the crimetime website to get some guidance on sentences, but make sure you confirm by reviewing the statutes yourself.

5. Family and friend names and contact information – get a list of names, phone numbers and addresses. Find out if any are charged in the current offense (you can’t talk to them). If your client is in jail, are there any your client can stay with if s/he is released? Who can be contacted if you can’t reach the client?

6. Confirm the client’s contact information and get alternative contact information.

7. Are there family members the client wants you to discuss the case with? Are there family members the client does not want you to discuss the case with? (Although a client may want you to speak with certain friends or family, you should decide whether this could potentially harm the case. Discussing a plea with parents of a young client may be a good idea; discussing a client’s cooperation with police with anyone is a really bad idea.)

8. Did the client have a cell phone at the time of arrest? Where is it now? If the client had a phone, were there photographs or texts on it? What were they? (Important in sex offense, porn, drug and weapons cases especially, and possibly alibi cases, and cases in which the client may have communicated with other suspects prior to the offense.

9. Where was the client arrested? Questions related to this topic will assist you in beginning to explore Fourth Amendment issues.

10. Was the client questioned by police? If so, where and when did each officer speak with the client. Learn in as much detail as possible who said what and in what sequence. (Don’t ask if the client made a statement – the client may think if it’s not in writing it doesn’t count.) Try to find out if a discussion took place in a room which appeared to have a camera. If so, there may be a video-recorded statement. Take your time and seek as much information as possible about any questioning by the police.

11. Were there any witnesses to the event? If so, where do they live, what are their names, how do you reach them?

12. Does the client have any history of medical treatment? Is s/he on medication? Does s/he have any history of mental health treatment? Any history of head injury? Does the client receive SSI? Does the client have any history of alcohol or drug abuse? Treatment? If I think the client may be developmentally or learning disabled I may ask the client to read something to me – such as a form part of the accusatories – and tell me what it says. I try to do it in a supportive and non-threatening way, explaining it helps me understand what they understand. Bear in mind that if a client says s/he can’t read because his glasses are no good or s/he doesn’t have his or her glasses, it may mean the client is illiterate.

13. Where did the client go to school? What grade did s/he reach? Was s/he in regular classes or special education classes?

14. If you are considering a bail application, the client’s history of employment, ties to the area, criminal history, history of bench warrants, and any other information that reflects a likelihood the client will return to court. Do not rely exclusively on the client’s representations about criminal history and bench warrants as this is checked by the court and if the client is inaccurate (either intentionally or accidentally) you’ve got some ‘splainin’ to do.

15. Find out if the client has any social networking sites. Consider having them made “private”.

16. In addition to all of the above, you may wish to get a detailed account of everything that happened leading up to the arrest. If you do not do it at this point, you will want to do it as soon as possible, so that the details are fresh in your client’s mind. There are times I may choose not to get details, but it depends on the individual case.

I always advise a client not to speak on the phone at the jail about his or her case at the first meeting (and usually all subsequent meetings). In appropriate cases, I advise them not to discuss their cases on their phones from any other location. Make sure that your client knows and understands that phone calls at the jail are monitored, recorded and provided to prosecutors.

I also advise the client that s/he should not discuss the case with anybody – ANYBODY- else. I explain confidentiality, and that it doesn’t work if the client tells another person about the incident. I explain that other inmates can’t wait to get information from a defendant that they can turn over to prosecutors to improve their sentences.

I also advise clients that if they are on parole, they should not waive their preliminary hearings. I write out a note for the client to give to the parole officer which states, “I do not wish to waive my preliminary hearing. I want to have my preliminary hearing.” I also write a note to the parole officer or probation officer “I do not wish to discuss my case with you based on the advice of my lawyer.” I tell the client to read the note or hand the note to the probation officer. I remind them that they should not even admit curfew violations, as those will support a finding that the client has violated probation or parole.

Clients sometimes ask for copies of their records. I caution them – especially clients with high publicity cases, homicides or sex offenses, that if other inmates gain access to their documents it could affect their safety (in sex cases) and other inmates may choose to cooperate against them, claiming they have information from the client, when in reality they obtained it from the records.

I explain to a client:

1. The upcoming court proceedings, including explanations in felonies of preliminary hearing, grand jury and indictment;
2. The possibility there may be a plea offer, and the steps we should take if we want to try to obtain one (and the fact that it is my job to relate to the client a plea offer)
3. The client’s right to testify before the grand jury (and usually my advice that it is not a good idea at that stage of the case, but that I have to know if they want to in order to advise the prosecutor in time);
4. The client’s right to a jury trial, and the likelihood that the case will either be resolved by plea or trial (and lesser possibilities of grand jury dismissal or dismissal based on motions);
5. Perhaps legal issues that seem to be presented by this early view of the case (with a reminder that we do not have discovery and will not get it until later in the case).

Perhaps more important than the advice you give is the manner you use, and the way in which you listen. Make sure that you do not appear judgmental, even if speaking with a client charged with the most heinous of cases. Make good eye contact, and listen as the client speaks. In fact, you may want to follow the rules you give your kids about how they’re supposed to interact. Generally, don’t interrupt unless you have to focus the client. Even if you think you know the answer or the right decision for the client, don’t rush the client or cut them off – you’re much more likely to get them on board if they feel like they’ve been heard. And don’t rule out a ridiculous story until you’ve investigated. There are many times the strangest stories may actually be true.

Friday, May 13, 2011

Incredible Testimony Renders Searches Lawful

by

Andrew D. Correia,
First Assistant Wayne County Public Defender


The Court of Appeals recently issued a decision on two consolidated cases (People v Brannon and People v Fernandez (2011 NY Slip Op 03676, _ NY3d _ [5/11/11) which set forth the level of knowledge a police officer must possess before, consistent with DeBour, he or she has reasonable suspicion to believe an individual possesses a gravity knife as opposed to a legal pocketknife.
In People v Brannon , the officer testified that the defendant’s behavior was “somewhat suspicious” in not wanting to walk near the officers. The officer observed a hinged top of a knife in a back pocket. He asked the defendant to stop twice before he complied. The officer saw the outline of what he believed to be a knife. When asked, Defendant admitted he had a knife. The offficer frisked defendant and took the knife. It turned out to be a gravity knife. Officer claimed 4 ½ years experience and 24 previous arrests for the same crime. However he stated that the knife had appeared to him to be a “typical pocketknife.”

In People v Fernandez, the officer stopped the defendant for walking at 12:30 AM with a partially visible knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. The officer approached and “retrieved the weapon” asking defendant if he had any other weapons. Defendant stated he had another knife in his left jacket pocket. Both knives were opened and confirmed to be gravity knives. The officer claimed 4 ½ years experience and 300 arrests involving gravity knives. He described the difference between a knife and a gravity knife. He said that gravity knives are often clipped to a pocket with the ‘head” sticking up outside the pocket.

The issue in these cases was whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

The Court held that the search in Brannon was bad, but not for the reason you might think, such as: no one can know if a pocket knife is a gravity knife until it is seized and opened. Instead, the Court reasoned that since the police officer was “unable to testify that he suspected or believed it to be gravity knife”, it was a bad search and the indictment was dismissed. Although, Mr. Brannon was, thus, able to win, this decision potentially provides a path to conviction for every other person searched by a police officer, who unlike the officer in Brannon, who is more willing and able to testify that the knife appeared to be a gravity knife. Especially since, when the police guess wrong, and it’s just a regular pocketknife, that police action will likely never see judicial review.
In Fernandez, the officer testified that, based on his remarkable weapon-gathering experience [averaging about one gravity knife every 5.4 days for his entire career at the time of his testimony] that gravity knives are commonly carried clipped and sticking out of the pocket. Despite the fact that, as pointed out by Judge Jones in dissent, a gravity knife can only be confirmed by its operation, this speculative information, couched in terms of the officer’s experience, was enough to persuade the other judges on the Court that this was a lawful search. Thus, the boastful and imaginative officer is rewarded.

Sunday, May 8, 2011

Guilty Pleas and the Mentally Ill Defendant

Courts needs to be particularly careful in accepting a guilty plea from a defendant known to be mentally ill. There are twin dangers in such cases. First, the plea may not be knowing, intelligent, and voluntary. Second, the mental illness might negate the crime charges.

Thus, in People v DeWolf (155 AD2d 995 [4th Dept 1989]), the Appellate Division, Fourth Department held that where the court was aware when guilty plea was entered that defendant pleading guilty to manslaughter was under medication for treatment of schizophrenia and had frequently suffered hallucinations and paranoid delusions, and further evidence of defendant's lengthy history of mental illness was submitted in support of defendant's motion to withdraw his plea, defendant should have been permitted to withdraw plea.

Without citing DeWolf,the Fourth Department, in People v Mox (2011 NY Slip Op 03759 [4th Dept 5/6/11]) has again held that a court erred in denying a motion to withdraw a guilty plea from a mentally ill defendant. The Court explained that

"Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the ground[] now raised" (People v VanDeViver, 56 AD3d 1118, 1118, lv denied 11 NY3d 931, 12 NY3d 788; see People v McKeon, 78 AD3d 1617, 1618; People v Johnson, 60 AD3d 1496, lv denied 12 NY3d 926). We agree with defendant, however, that this is one of those rare cases in which preservation is not required because "the defendant's recitation of the facts underlying the crime pleaded to clearly cast[] significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666). County Court therefore had a "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" (id.), and we conclude that the court failed to fulfill that duty. "[A]t a minimum the record of the . . . plea proceedings must reflect . . . that defendant's responses to the court's subsequent questions removed the doubt about defendant's guilt" (People v Ocasio, 265 AD2d 675, 678). Here, defendant's plea allocution did not remove such doubt with respect to the intent element of manslaughter in the first degree (§ 125.20 [2]; see People v McCollum, 23 AD3d 199). Indeed, defendant's plea allocution suggested that his underlying schizoaffective disorder, for which he was unmedicated, caused him to be in a "psychotic state" at the time of the crime. Thus, defendant's plea allocution in fact negated the element of intent, and the court should not have "accept[ed] the plea without making further inquiry to ensure that defendant [understood] the nature of the charge and that the plea [was] intelligently entered" (Lopez, 71 NY2d at 666).