Monday, July 21, 2014

Custodial Interviews By Child Protective Workers and Miranda

    A common practice after the arrest after an arrest for child sex crimes is for a Child Protective Services (CPS) Investigator to go the jail to interview the suspect regarding a CPS investigation of the same incident underlying the suspect’s arrest. In many cases the  CPS Investigator does not read the suspect Miranda warnings or obtain a Miranda waiver before conducting these custodial interrogations. The ostensible rationale is that the CPS Investigators are not law enforcement officers and they are not conducting these custodial interrogations with regard to the criminal charges, but rather with respect to a possible civil proceeding arising out of the same alleged conduct. And after incriminating statements are obtained, the CPS Investigator shares them with police and prosecutor, as required by Social Services Law §§411, 413, 424.
    Regardless of whether the police invited this type of interrogation, the statements thereby obtained should be inadmissible under Miranda.
    First, there can be no dispute that the incarcerated suspect was in custody. The focus of the suppression court will be whether the questioning constitutes interrogation by a “public servant engaged in law enforcement activity or by a person then acting under [their] direction or in cooperation with [them]” (CPL § 60.45[2][b]) under Miranda.
    Typically, these CPS workers are members of a county-wide, multidisciplinary team comprised of members of the District Attorney's office, police and social service agencies and cooperate with the District Attorney’s office by providing information when requested.
    It is irrelevant that the police and District Attorney might not have expressly requested that the CPS Investigator interview defendant, since such a request is unnecessary in light of the statutory provisions both that the interview be performed and that the CPS caseworkers cooperate with the District Attorney's office regarding the case.
    As the Appellate Division, Third Department, held in People v Wilhelm (34 AD3d 40 [3d Dept 2006]):
    we are satisfied that the CPS caseworkers involved here had a "cooperative working arrangement" with and were acting as agents of the police and prosecutor in interviewing defendant and relaying her incriminating statements (People v Greene, 306 AD2d 639, 641).   Moreover, contrary to the People's assertion that the CPS investigation  remained separate from that performed by the District Attorney's office,"the subject of the interrogation and the subject of the criminal charges [were] so inextricably interwoven in terms of both their temporal proximity and factual interrelationship as to render unavoidable the conclusion that any interrogation concerning the [allegations in the hotline report] would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself" (People v Townes, 41 NY2d 97, 104 [1976]). It is therefore immaterial that the CPS caseworkers considered their investigation separate from that of the police and that they did not characterize the police as being in charge of the multidisciplinary team....  As we have stated: “The regulatory mandate that a CPS caseworker conduct face-to-face interviews with subjects of child abuse reports (18 NYCRR 432.2[b][3][ii][a] ) cannot overcome a subject's constitutional right if the CPS caseworker is an agent for the police at the time of the interview. That mandate can be complied with either by arranging an interview with the subject and counsel or merely completing the information gathering by the CPS caseworker without the ability to use the statement in any criminal proceeding” (People v Greene, supra at 641).
(People v Wilhelm, 34 AD3d 40, 45–50 [3d Dept 2006].)
    Further, two holdings of the United States Supreme Court on the need for Miranda warnings for custodial interrogations conducted by government officials who are not law enforcement officers are both instructive and controlling.
    In Mathis v United States (391 US 1 [1968]), the Court considered the applicability of Miranda to questioning of Mathis, a state prisoner, by an IRS agent regarding discrepancies in two of his federal tax returns, during which Mathis made incriminating statements that were later introduced at his criminal trial on charges of tax fraud. The Government argued  that Miranda did not apply since the questioning had been part of a routine tax investigation, civil in nature, unrelated to the reason Mathis was in custody(Id. at 2). The Supreme Court rejected this fact as dispositive, noting that “tax investigations frequently lead to criminal prosecutions, just as the one here did,” and that any tax investigation could lead to a criminal prosecution (Mathis, 391 US at 4). In dismissing the Government's argument that Miranda did not apply because the questions asked of Mathis were part of a routine civil tax investigation, the Supreme Court noted that "[t]hese differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody."  (Mathis, 391 US at 4).
    In Estelle v Smith (451 US 454 [1981]) the United States Supreme Court considered when the questioning by a person who is not a law enforcement officer is subject to the requirements of Miranda. The issue in Estelle was whether the statements  made to a psychiatrist at a court ordered competence examination, in which Miranda warnings had not been administered, could be used at the penalty phase of the defendant’s court proceedings. The Supreme Court, in holding that the defendant’s Miranda and Fifth Amendment rights had been violated, explained that
    When [the doctor] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was “faced with a phase of the adversary system” and was “not in the presence of [a] perso[n] acting solely in his interest.” (citation omitted). Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
Estelle v Smith, 451 US 454, 467 (1981).
    Thus, statements obtained by  CPS workers during custodial questioning of suspects, without Miranda warnings and waivers should be inadmissible as violative of Miranda.

Tuesday, July 15, 2014

New York State’s Affirmative Defenses: Legitimate Tools for the Defense or Traps for the Unwary?

Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4th Dept June 20, 2014]).  The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that the Court can never charge an affirmative defense without the defendant’s consent (see People v Ciborowski, 302 AD2d 620, 622 [3rd Dept 2003]).  Nonetheless, the Brewer Court declined to adopt such a bright line rule and ruled in dicta that there may be “limited circumstances” when an affirmative defense is the only viable defense and can thus be charged over objection.
This case provides an opportunity to examine New York’s affirmative defenses and also provides an interesting “control” regarding the efficacy of such defenses. 
Brewer was charged with murder in the second degree as both a principal and an accomplice.  In his written statement, Brewer, who was only eighteen years old at the time, admitted that he agreed to kill the victim for $10,000 and was driven from Elmira to Rochester for that purpose.  When it came time to actually pull the trigger however, Brewer stated that the victim locked eyes with him and told him not to do it.  Brewer froze, unable to shoot.  In a rage, Brewer’s co-defendant (who had agreed to hire Brewer) grabbed the gun from Brewer, chased the victim down and shot and killed him.
Brewer went to trial twice on the prosecutor’s theory that he was an accomplice to murder.  At the first trial, renunciation was not charged as an affirmative defense.  The jury deadlocked 10 to 2 for acquittal on the murder count.  At the second trial, after two days of deliberation, the jury sent back a note that they were deadlocked but asked if there were anything in the law about “changing your mind at the last minute.”  The trial court charged them with the renunciation defense, over objection, and the jury convicted Brewer within two hours.
This "experiment” suggests what trial attorneys have always suspected: that if there is any way to advance your theory of defense without an affirmative defense, do it.  New York’s affirmative defenses do two things very well.  First, they act as burden-shifting machines, making the prosecutor’s job much less onerous.  Second, they impose almost unattainable standards on the defendant, in an apparent effort to limit the application of the defense to “deserving” defendants and close the door to the rest of us.
Burden Shift
The difference between an affirmative defense and an ordinary defense is the burden of proof.  An ordinary defense, such as justification or alibi, must be disproved beyond a reasonable doubt by the prosecutor, and the jury must be specifically instructed on this.  In contrast, an affirmative defense imposes the burden of proof (usually by a preponderance of the evidence) on the defendant.  Recognizing this burden, and the unfairness of foisting it on an unwilling defendant, the Court of Appeals has repeatedly reversed cases where an affirmative defense was imposed on an unwilling defendant (see e.g., People v Bradley, 88 NY2d 901, 902 [1996] [extreme emotional disturbance]; People v DeGina, 72 NY2d 768, 776-777 [1988] [entrapment]).
New York Affirmative Defenses
New York Penal Law Article 40 groups the general affirmative defenses that apply to all criminal offenses.
1.       Duress (PL § 40.00) (Defendant must be coerced by the use or threatened “imminent” use of force which a person “of reasonable firmness” would be unable to resist.  This defense is not available if a person intentionally or recklessly placed himself in the position where he or she may be subjected to duress.)
2.         Entrapment (PL § 40.50) (Defendant was actively “induced or encouraged” to engage in crime by a public servant or agent attempting to obtain evidence against him.  Methods used by the public servant or agent must be such to create substantial risk that a person “not otherwise disposed to commit the offense” would commit it.  This defense opens the door to “predisposition” evidence.)
3.     Renunciation (PL § 40.10) (Under circumstances showing “voluntary and complete” renunciation, defendant withdrew from participation and made a “substantial effort” to prevent the crime from happening.  Renunciation is not “voluntary or complete” if it is motivated in whole or in part by a fear of getting caught or a decision to postpone the crime to a later date.)
4.        Mental Disease or Defect (PL § 40.15) (At the time of the crime, as a result of mental disease or defect, defendant lacked substantial capacity to know or appreciate either the nature and consequences of such conduct or that such conduct was wrong. This defense, if successfully asserted, triggers psychiatric examinations to determine whether defendant is mentally ill or dangerously mentally ill pursuant to CPL 330.20.)
To these defenses are added offense-specific affirmative defenses, such as extreme emotional disturbance to intentional murder in the second degree (PL § 125.25 [1] [a]) and “not having any reasonable ground to know a co-defendant was armed with a weapon” to felony murder (PL 125.25 [3][c]).
It is a rare defendant who would be able to surmount the burden of proof necessary to show that he or she is “deserving” of an affirmative defense (as is evident by merely listing their elements).  Indeed, it seems that if the elements of these affirmative defenses were met, the defendant would not face prosecution at all.  Or even if prosecuted, the defendant would not need the actual instructions of these affirmative defenses to be charged to the jury; the jury would likely simply refuse to convict on either a generalized “lack of intent” theory or under its traditional mercy-dispensing authority.
Of course, there are times when you must assert an affirmative defense on behalf of your client.  (Note: Because affirmative defenses impose a burden of proof on a defendant, it is your client, not you as the attorney, who ultimately decides whether to assert the defense, as opposed to the decision to submit a lesser included offense which resides with the attorney [see People v Colville, 20 NY3d 20, 32 (2012)]). 

If your client decides he or she wants to assert an affirmative defense, you should be prepared to accentuate the facts of your case instead of the language of the affirmative defense–which, as was demonstrated in Brewer, will only lead the jury to a conviction where they would otherwise not be so disposed.

Tuesday, July 1, 2014

The People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.

by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP

Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses.
Mark Garrett was convicted after a trial by jury of two counts of murder in the second degree.  In addition to circumstantial evidence connecting Garrett to the crime, the People presented evidence of his confession.  Garrett maintained that his confession was false and coerced by the interrogating detectives.
In a CPL 440.10 motion to vacate his judgment of conviction, Garrett claimed the People committed a Brady violation by failing to disclose to him the federal civil rights action that had been filed against one of the interrogating detectives.  The complaint alleged that the detective had coerced a confession in an unrelated arson case.  The Court of Appeals disagreed.
In an opinion written by Judge Abdus-Salaam, the majority determined that, although the civil allegations were favorable to Garrett, given his own allegations that the detective coerced his confession, Garrett had not met his burden of proving the remaining elements of a Brady claim—i.e. that the People suppressed the information or that he was prejudiced by their non-disclosure.
First, the majority held the People had not suppressed the information because they had neither actual nor constructive knowledge of the civil allegations against the detective until after their Brady obligations had ceased.
Although the civil complaint was filed and answered more than a month before Garrett’s arrest, the files related to the civil case were sealed until after Garrett’s trial and sentencing had concluded.  Given that, the majority concluded that the People adequately proved they had no knowledge of the allegations until after sentencing, at which time they were not obligated under Brady to disclose the information.
Yesterday’s decision therefore does not foreclose a defendant from arguing the People have an obligation to disclose civil allegations against a police witness if those allegations were unsealed prior to the defendant’s trial or sentencing.
(The majority did, however, explicitly reject Garrett’s argument that a prosecutor has a duty to ask his police witnesses whether any allegations were pending and a duty to conduct a cursory search through court dockets for any such allegations.)
When considering whether the People were imputed with constructive knowledge, the majority addressed several case-specific factors before holding they were not.
First, the civil allegations against the detective did not arise out of the detective’s investigation of Garrett’s case but instead arose out of the detective’s alleged misconduct in an unrelated case.  The majority made clear the People may be imputed with knowledge of any “bad acts” engaged in by a police officer during the course of his investigation of a defendant’s case. 
Second, according to the majority, the allegations were only collateral to Garrett’s case, at best, to the extent they may have provided him with impeachment material. 
Third, the majority emphasized that Garrett only argued that the detective’s knowledge of the allegations against him were attributable to the prosecutor; he never alleged that imputation derived from the knowledge of any other police officer or member of the prosecution team.  This suggests that the holding may have been different if Garrett offered proof showing that a government agent other than the detective against whom the allegations were filed knew of the allegations.
Notwithstanding the suppression prong, the majority held that the undisclosed evidence did not meet the materiality standard required under Brady because Garrett previously tried and failed to admit similar impeachment evidence against the detective at both the suppression hearing and at trial—i.e. evidence that another interrogating detective had participated in case involving a false confession.  Both the suppression court and the trial court sustained objections to the line of questioning based on relevance grounds.  It seemed unlikely to the majority that Garrett would have had greater success with admitting the evidence at issue.
Again, this leaves open the possibility that a defendant may be successful in establishing prejudice and materiality if the suppression court or the trial court, in its discretion, allows similar impeachment evidence to be admitted.
Moreover, the majority admitted that the Court has never squarely addressed whether inadmissible evidence may be considered material under Brady if it could lead to admissible evidence, recognizing that some federal courts have held that it may.  Since Garrett failed to show what, if any, admissible evidence disclosure of the allegations against the detective would have led to, the majority again avoided addressing the issue.
Admissibility aside, the majority noted that the impeachment value of the undisclosed civil allegations was minimal at best because another interrogating detective gave corroborating testimony as to the voluntariness of and circumstances surrounding Garrett’s confession.
In the absence of such corroborating testimony, a defendant may be able to demonstrate the requisite prejudice and materiality to satisfy the third prong of a Brady claim.
Chief Judge Lippman wrote a concurring opinion, joined by Judges Smith and Rivera, agreeing with the majority that the civil allegations against the detective were not material under Brady.  However, they disagreed with the majority’s suppression analysis and would have held that the detective’s knowledge of the allegations pending against him should be imputed to the People because, as a member of the prosecution team, he had an independent obligation to disclose impeachment evidence.  Further, they believed that the majority erred in considering the materiality of the evidence in their suppression analysis.
Judge Smith also wrote a separate concurring opinion, joined by Judge Pigott, questioning whether the Court was even able to consider the materiality prong of the Brady claim given that the County Court did not consider it when it denied Garrett’s CPL 440.10 motion.