Sunday, September 28, 2014

Consulting With An Expert in a Child Sex Case Is More Than A Good Idea

In child sex cases in which these is no corroboration for the child's allegations, prosecutors frequently call a doctor to testify that the absence of any physical corroboration, even when the allegations are of years of anal or vaginal intercourse, is consistent with the allegations and do not undermine the complainant’s credibility.

Without consulting with an expert defense counsel is unable to effectively cross-examine and/or respond to the testimony of the People’s medical expert. Without such consultation, counsel cannot effectively establish, either through cross-examination of the prosecutor's expert or by presentation of a defense expert, what evidence of trauma doctor look for and was not present,  Nor can counsel effectively challenge the research supporting the prosecution expert's testimony or present the actual research findings.

 Thus, in granting federal habeas petitions in New York child sex cases in which the defense counsel neither consulted nor called a medical expert, the Court of Appeals for the Second Circuit has held that “because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.” (Gersten v Senkowski, 426 F3d 588,  607 [2d Cir 2005] [citing Eze v. Senkowski, 321 F.3d 110, 127-28 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191, 210 (2d Cir. 2001)]).

The Second Circuit explained in Eze, in the context of a sexual assault case, that “[a] lesson to be learned from Lindstadt and Pavel is that when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation.” Eze, 321 F3d at 128 (internal citations omitted).

As the Second Circuit has explained “[d]efense counsel may not fail to conduct an investigation and then rely on the resulting ignorance to excuse his failure to explore a strategy that would likely have yielded exculpatory evidence.” Gersten at 611.Thus, where counsel failed to make a reasonable  investigation that is reasonably necessary to the defense, a court will usually conclude that the decision not to consult with and/or call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland’s prejudice prong. (Gersten v. Senkowski, 426 F.3d at 611 [2d Cir. 2005]; Pavel v. Hollins, 261 F.3d at 223 [2d Cir. 2001]; Lindstadt v. Keane, 239 F.3d at 201 [2d Cir. 2001]).

Wednesday, September 17, 2014

The Parole Board can’t follow their own guidelines what’s the remedy?

Your client is an inmate serving a 3-9 sentence for Grand Larceny Third starting on November 2, 2011.  During his incarceration he is awarded Merit Time pursuant to Corrections Law § 805 on July 31, 2012 which qualifies him for release after serving 5/6 of his minimum. He was also awarded a Certificate of Earned Eligibility on two occasions July 31, 2012 and again on February 6, 2013. His parole eligibility date is June 5, 2013. Prior to his initial appearance before the Parole Board on February 26, 2013 the following were submitted; a personal statement, letters of support, a Parole Board Summary evidencing a clean disciplinary record, a proposed residence upon release, and a guideline release range of 18 - 30 months; a COMPAS Risk and needs Assessment Report evidencing a low risk to re-offend, abscond or for violence; and a letter from prospective employers offering full time employment.

On February 26, 2013, the three panel Board denied release and ordered a hold for an additional 24 months. The Board’s determination recited the boilerplate “there is a reasonable probability that you would not live and remain at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community”. The reasons offered by the Board to support this conclusion include the facts of the underlying offenses – Petitioner’s theft of large amounts of money from people who trusted him; the fact that Petitioner had some misdemeanor larceny convictions from the early 1980’s; and the fact that restitution and child support were owed by Petitioner. The decision of the Board failed to weigh, or even acknowledge, Petitioner’s exemplary prison disciplinary record, his positive programming, positive contributions to the prison community, and the support his family and friends would provide upon release. 

Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County  relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding; 
[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).
Challenging the denial of release couldn't be more straight forward. 

Monday, September 15, 2014

ETKS Partner Lawrence L. Kasperek to receive the 2014 Jeffrey A. Jacobs Memorial Award

Congratulations to our partner Larry Kasperek, the 2014 Jeffery A. Jacobs Memorial Award recipient.  The award is to be presented on September 20, 2014 at the Defense Community Dinner at the Rochester Institute of Technology, sponsored by the Monroe County Public Defender’s Office and the New York State Defender’s Association.  

Jeff Jacobs is remembered as an outstanding attorney and person who was a fierce advocate for his clients and proud of having tried more than 100 felony cases in his career.  Many of his trials were complex cases requiring familiarity with novel scientific theories and the development of effective trial strategies.  In addition, Jacobs was a role model and mentor for younger assistant public defenders, generously giving his time and encouragement.

The award recognizes a criminal defense attorney from the Monroe County area who has demonstrated these qualities, including in particular, zealous client advocacy in complex criminal defense litigation, which may include the effective use of experts and litigating forensic or scientific issues, fearless advocacy on behalf of the client, and creativity in the presentation of the client’s defense.

Past award recipients include Second Assistant Monroe County Public Defender Jill L. Paperno (2010), ETKS partner William T. Easton (2011), Assistant Federal Public Defender Anne M. Burger (2012), and Assistant Monroe County Public Defenders Elizabeth A. Riley and Emily L. Rosmus (2013).

Wednesday, September 10, 2014

Prosecutors' ethical obligations to comply with Brady; Managerial and Supervisory Obligations of Prosecutors under ABA Model Rules of Professional Conduct 5.1 and 5.3

On September 8, 2014 the ABA released Formal Ethics Opinion #467 dealing with the Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3. The opinion begins by noting that prosecutors “must ‘make timely disclosure to the defense’ of exculpatory and mitigating evidence” [emphasis added], contrary to the familiar prosecutorial mantra that “impeachment material is not Brady.”  

The opinion makes clear that “supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations,” noting that “reports, court opinions, and other authorities have drawn attention to prosecutorial misconduct . . . [that] suggest a need for more guidance.”  The opinion goes on to recommend the establishment of office-wide policies, training, supervision, and the creation of a “culture of compliance.”  

The opinion is relatively short, worthy of a careful read and perhaps inclusion as an exhibit in your motions for disclosure of Brady material.  

HT: Donald Rehkopf

Tuesday, September 9, 2014

And speaking of Brady violations . . .

This article by Ernie Lewis, Executive Director, National Association for Public Defense:

It’s time for another list.  This time the focus is on prosecutors. Admit it, you have things you want to say about prosecutors.  Please join in with your own.   Of course, prosecutors come in all shapes and stripes.  There are plenty of good ones and plenty of, well, not so good ones.  But they all know, if they’re honest with themselves, the following ten things that apply to many if not most of their colleagues: 

10.  They don’t believe the cop either.  How could they?  Michelle Alexander recently wrote an article in the NY Times, concluding with this:  “The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, ‘get tough’ mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.”  Prosecutors and judges both know this, and tolerate it at best, encourage it at worst. 

9.  They can control their caseloads much easier than we can.  Sometimes when I advocated for lower caseloads in the Kentucky legislature, prosecutors would testify that they had far higher caseloads than we did.  County attorneys in particular would cite the tens of thousands of traffic “cases” they handled, compared to “only 495 cases for public defenders”, knowing full well they did little or nothing on those cases, most of which were prepaid.  Where prosecutors really control their caseloads occurs when they decide to dismiss cases, or to offer sweet-heart deals, knowing that their case is weak.  Prosecutors can force us to try cases we don’t want to try, and to plead cases we want to try. 

8.  They are helping to destroy the jury trial.  The fact that the prevalence of the jury trial is shrinking is well known.  One cause known by all of us is that the laws that have been advocated successfully by prosecutors, laws such as 3-Strikes, mandatory minimums, and such, have made it unwise in many cases to throw the dice and let a jury decide.  When the offer on a 5-30 is 1 year on a reduced charge, what’s a client going to do?  Many if not most states over the last 30 years have rewritten their sentencing laws so that the thumb is firmly on the side of forcing pleas.  And prosecutors are complicit in that. 

7.  Innocent people confess.  Just this week, it was revealed that two half-brothers had pled guilty over 30 years ago to a rape-murder of an 11 year old that they did not commit.  There were both intellectually disabled.  Yet, confess they did, and despite their recantations, they were convicted.  One of them lived for 30 years on death row for a crime he did not commit, the other was serving a life sentence.  They were only released when DNA proved their innocence.  The Innocence Project reports that in 30% of cases resulting in exoneration through DNA, the defendants confessed or pled guilty where they were innocent. 

6.  Private lawyers often get better deals than public defenders do.  This used to occur with regularity in my practice.  Private paid lawyers would get a sweetheart deal for their client, while the public defender client would be offered a much harsher sentence.  The only difference between the two cases, as far as I could tell, was the poverty of the latter.  Perhaps poverty wasn’t the governing factor.  Perhaps the relationship between the prosecutor and the private lawyer governed the plea offer.  But it still stunk. 

5.  Their office is the farm team for the judiciary.  The progression always seems to be assistant prosecutor to prosecutor to judge.  At the federal level, 45% of President Obama’s nominees for the federal judiciary have been former prosecutors.  40% of President Reagan’s had a similar background.  Only 15% of President Obama’s nominees had been public defenders.  And perhaps it goes both ways.  When Texas Judge Elizabeth Coker was caught sending helpful texts to a prosecutor during trial, she resigned her office and then followed that by announcing that she was running for district attorney.  Isn’t it time for balance on the bench? 

4.  Even if they don’t believe the death penalty is a deterrent, they continue to support it so they can get better pleas or a death-qualified jury.  In Kentucky, we have 60-90 death eligible cases each year, and in many of those the death penalty is noticed until a plea is entered.  We have only 2 or so death penalty verdicts per year, with 5-10 trials.  More recently, we have had only one death verdict in several years.  This is a pattern that is common throughout the nation in death penalty states.  Why?  Because states have aggravating circumstances that apply to a high percentage of homicides, allowing prosecutors to notice death in order to force a plea.  

3.  They could do something about over-incarceration.  A growing consensus is that we have become the “incarceration nation.”  We have grown our prison population from a little over 200,000 in 1970 to over 2.2 million today.  We incarcerate at a higher rate than any other nation in the world.  (And don’t get me started on Louisiana).  Yet, a voice largely missing at the table encouraging reform of our nation’s laws, from long prison sentences to 3-Strikes laws to mandatory minimums, is that of the prosecutors.  They are a powerful voice in most State houses.  Why don’t they step up and use those powerful voices to do something about over-incarceration? 

2.  There is not parity with public defender offices.  I often use the analogy of the Harlem Globetrotters and the Washington Generals when describing what many prosecutors want in their adversary.  Many prosecutors have and want to preserve a systemic advantage.  They want their budgets to be two and three times the public defender’s budget, despite the public defender representing 70-90% of the cases.  They want higher salaries.  They want loan forgiveness.  They don’t want to include law enforcement in their budgets, but count investigators in public defender budget comparisons.  They don’t want to include their forfeitures and federal grants in comparing their budgets with defender budgets.  And while the ABA Ten Principles call for parity between the prosecution and defense functions, prosecutors do not for the most part advocate actively for parity. 

1.  Brady violations are rampant and they know they can get away with it.  Rodney Balko recently wrote a piece for the Huffington Post, entitled “The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them.”  Need I say more? 

Thursday, September 4, 2014

"The People are fully aware of their Brady obligations" - revisited

A recent Stanford Law Review article, "The Brady Colloquy" (, by visiting assistant professor Jason Kreag, “offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record.”  This procedure is proposed as a means to ameliorate the “distinctly vexing problem for the criminal justice system” of “wrongful convictions caused by prosecutorial misconduct,” in this case, prosecutorial failure to recognize or comply with Brady obligations. The suggested Brady colloquy includes 5 questions (four pretrial questions, the fifth at the conclusion of the prosecution’s case):   
1. Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense? 
2. Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense? 
3. Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material? 
4. Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard? 
5. Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?
As the article suggests, a Brady colloquy is “at a minimum . . . an idea worth testing – test that could be implemented today by any judge who wants to . . . actively protect the rule of law by ensuring that prosecutors meet their due process and ethical obligations.”  While the article notes that some judges may see this suggestion as too pro-defense, or overly as judicial meddling in the prosecution’s case, given the undeniable recurrence of wrongful convictions resulting from prosecutorial misconduct in this area, some meddling would seem to be warranted and salutary for the criminal justice system as a whole.

HT: Jill Paperno