Tuesday, October 20, 2015

Unless a defendant is advised of post-release supervision before pleading guilty, the conviction cannot later be counted as a predicate felony.

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

Friday, June 12, 2015

Another successful challenge to denial of Parole Release.

        We've discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board's imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent's release in the Matter of Caufield v. NYS Division of Parole. In our representation of the respondent, our petition noted he was sentenced in July 2013 to an indeterminate term of 1 1/3 - 4 years on his plea to a Class D felony of DWI. At his appearance before the Parole Board in July 2014, he had already been awarded Merit Time pursuant to Corrections Law Section 805 and a Certificate of Earned Eligibility. He had completed the DWI program, received a favorable COMPAS Risk and Needs Assessment and provided the Board with favorable letters of support, a personal recovery statement and an offer of prospective employment. The respondent appeared via video conference with the Board, who denied his release and ordered a 24 month hold. Their determination recited the usual boiler plate"there is a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law and his release at this time is incompatible with the welfare and safety of the community." 
         Our petition noted among other things that the Board's decision failed to consider his exemlary prison disciplinary record, positive programming, contributions to the prison community and support available upon release. It also failed to consider the sentencing Court's specific recommendation to the Board, encouraging the respondent's early release if he did complete all the available programs. 
          We argued the denial of release was irrational, arbitrary and capricious. The Supreme Court Decision determined the "twenty four month hold to be excessive and an abuse of discretion. Accordingly, the parole Board will vacate its imposition of a twenty four month hold, and instead impose a twelve month term."
           Keep fighting.


Saturday, May 9, 2015

Random Musings on Trying a Child Sex Abuse Case

by Jill Paperno, Esq., 

A while back, after I completed a child sex trial, I wrote a post on this site as to Tactics to Consider in Trying a Child Sex Case. After a few years more experience, including a child sex trial this past week, there are some additional tactics and strategies I would like to share.
There are certain things we can expect in a child sex abuse case.  Particular types of arguments and proof seem to consistently make their way into these cases.  The best way to handle these issues is to anticipate them and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling them:
Before trial
1.  The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  So if you have this inflammatory information in your client’s interrogation, move in limine to keep it out.  If it’s deemed relevant, request a Frye hearing, arguing that if the science does not support this, the evidence should not come in.  And even if it does, it’s probative value is outweighed by its prejudicial effect.  (Thanks Roger Brazill for the GAO article and suggestion for my motion.)
2.  The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given anecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance (again pointed out to me by Roger Brazill).  http://www.economica.ca/ew12_2p1.htm.  So again, move to preclude the use of any testimony of declining performance by the child, or ask for a Frye hearing.
There are numerous other motions in limine to make prior to trial.  I still move to preclude the CSAAS witness (you can’t make me call him “expert”).   Amusing anecdote – this fellow always testifies he is on the faculty of an upstate medical school.  I’ve looked into it.  I asked him if he said he was on the faculty there.  He said yes.  Did he have an office?  No.  Does he get paid a salary?  No – he does not get paid.  Is he on their website?  No.  (I’d called the school previously and they’d said that he was not on their faculty.)  He apparently takes interns and apparently gives a lecture or few lectures in which he teaches students to be sensitive to how children disclose.  I’m not quite sure.  I didn’t say it at the time, but where I come from, if you working for free, I think you’re called a volunteer. 
Many motions in limine you may make depend on the facts of your case.  If your client has had many youthful indiscretions, pay attention to whether the prosecution will try to highlight his many children with many mothers, and try to limit that citing People v. Presha  83 AD3d 1406. 
Jury selection
 I’ve written before about some of the issues I raise in jury selection.  I’ve added one to the collection.  At trial, prosecutors in our county almost always try to create the impression that the child must be testifying truthfully by eliciting details – colors of clothing or furniture or other things that, realistically, I doubt any child recalls.  So I ask a juror in voir dire, “If I said that you came into my garage and stole my bicycle last year, would that  be true?”  They almost always say no.  (This week was a funny exception.)  I then ask, “If I said that you came into my garage and stole my bicycle last year.  The garage is in our house, which is tan.  The bicycle is blue, and it was leaning against a green shelf.  You were wearing a red shirt that day.  Would that be true?”  Then I talk about details not making something true.  In the case I just tried, when the complainant said she remembered that during an incident alleged to have occurred two years ago she was wearing clothing with a certain cartoon character in a certain color, it seemed like it was so scripted. 
Prosecutors have started asking, if it’s a one witness case, whether a juror can convict on the testimony of one witness.  We’ve got to make sure we get right back at those jurors reminding them that of course they can convict if the witness’s testimony amounts to PBRD, but can they acquit if it doesn’t?  Will they?  Even if the witness is a child?
I do some voir dire on the CSAAS witness.  I talk about whether they can assess whether an opinion is scientific and what they will base it on.  I also talk about how they will hear that he does not know anything about the evidence in the case, and will come in and say every type of behavior is consistent with a child having been abused.  But he will also say every type of behavior is consistent with a child not having been abused. 
I talk about how our local specialist doctor in this area will come in and say that all normal findings are consistent with child sexual abuse if a complaint has been made, and that will be her conclusion in this case.  Not inconclusive or non-specific, but consistent with.  Can they promise to judge whether her testimony is unbiased and whether she adds anything to the information they have? 
Open
I talk to the jurors about how they will hear that there will be two witnesses offered as experts.  And that the doctor will claim that the findings are consistent, even if they are normal.  So the child of any person in the building, if a complaint was made , would have findings consistent with the child having been abused.  And the CSAAS witness testifies regardless of what the claims are.  So in every case where there is a complaint,  any person, guilty or not, will start out with two so-called expert witnesses testifying against him.
 Summation
I think all the CSAAS testimony is designed to reduce the burden of proof.  (And if you have a CSAAS witness coming to trial, please contact me.  There is so much to talk about!)  So I think we have to take the case out of the realm of child sex abuse and remind jurors they are not social workers, they are jurors in a criminal court.  This was my effort in my most recent case, in which there were numerous inconsistencies, and the complainant said she kept returning to the house to see the other kids who lived there (she did not live with the defendant) , she could have been picked up in the evening, but she decided to spend nights because she wanted to spend nights with the kids, even though the alleged abuse and attempted abuse happened nearly every time when she was sleeping there.  From my sum:
You heard Jane Doe’s testimony.  You know it is inconsistent and you know it doesn’t make sense.  And I’m guessing in another context, after hearing such testimony you would not hesitate to acquit.
So let’s think about how you would perceive a claim of your next door neighbor saying he was assaulted by another neighbor.  And the neighbor says, this guy came to my house while I was barbecuing and punched me.  He called me to the backyard and punched me.  He did it on three separate days.               
Then the neighbor says, well, yes, I told someone else the first time was when I was sleeping in a chair on the front porch.    Yes, I told a third person it was four times, and I told a cop it was once. 
I hated it when he punched me.  It was awful.
And every week I go to this guy’s house for dinner.  I like the company. 
You get the picture.  You would clearly discount the testimony. 
But we all recognize that claims of child sexual abuse are different.  They are the stuff that secrets are made of.  So yes, a secret may be kept.  And that is why Roland Summit wrote his article suggesting clinicians be open minded.  And his second article, cautioning about the use of this theory in court.
You are not clinicians, trying to provide treatment to a child who has made a claim.  You know this.  You are jurors here to assess whether there is proof beyond a reasonable doubt of each element. 
So whether or not you accept Summit’s theory, as Summit said, it was not intended to guide what happens in the courtroom.  In the courtroom there is a set of rules.  And those rules require proof beyond a reasonable doubt.
Unreliable testimony of a child, cannot be the basis for PBRD.  You’ve promised not to decide this case based on sympathy.  You agreed to make a determination – whether all of the elements of each charge have been proven beyond a reasonable doubt.
I also think it’s important to acknowledge the difficulty in dealing with a child sex abuse case to the jury.  So I’ll say something like this:
We have now, ended the testimony in this case.  But although that may have been a difficult process, the real challenges lie ahead for you.  Because nobody comes into a courtroom hearing allegations about sexual abuse and seeing a young child testify, and thinks “I can’t wait to acquit this guy.”
But you must.
Because the prosecution has failed to meet its burden of proof beyond a reasonable doubt with respect to each count of the indictment.

These are tough cases, and of course, you have to do what’s comfortable for you.  But I think these cases present a unique challenge, and it’s helpful to consult with others who have handled them.  And in fact, if you have any experts coming in at trial, it’s not only helpful, it’s required.  Good luck!
(Editor's note: Jill is too modest to mention that, once again, she obtained a complete acquittal for her client).

Monday, May 4, 2015

Federal Venue: Keeping it Close to Home

By William T. Easton

As criminal defense attorneys, we are inclined to think of venue as something we want to change. Thus, we occasionally make a motion for a change of venue based on prejudicial pre-trial publicity. To preserve our client’s right to due process, we want to get out of Dodge– preferably as far away as possible–to avoid the pervasive publicity generally concentrated in the locale where the crime occurred.  As a result, as defense attorneys we may undervalue the inverse motion, bringing the case back closer to the defendant or where the crime was committed.  These instances are usually conspiracy offenses, where our client is far away from the other conspirators, or a fraud case–where the purported financial victim is headquartered in a distant city. Despite legislative and prosecutorial hostility to any interference with prosecutorial convenience, this type of motion has stronger constitutional rooting than a pure due process motion to remove a case to a different district. 

The Sixth Amendment provides that the accused shall have the right to “an impartial jury of the State and district wherein the crime shall had been committed,” U.S. Const. amend. VI.  Additionally, the Constitution provides that provides that trials “shall be held in the State where the....Crimes shall have been committed,” U.S. Const. art III § 2, cl. 3. Statutorily, Fed.R.Crim.P. 18 provides that venue lies in the district where the crime was committed with due regard for the convenience of the “defendant, any victim, and the witnesses, and the prompt administration of justice.”

Venue should be distinguished from jurisdiction.  The principles of federal jurisdiction are entirely separate from the constitutional basis of venue–which is the location of the trial itself.  Regarding venue, or “vicinage” as it was called, the founding fathers were intensely concerned with the plight of people being removed far from their homes to stand trial in distant locales.  This was a grievance specifically cited in the Declaration of Independence and was expressly inserted–twice–in the Constitution at the passionate insistence of the anti-federalists.

In the modern era, as prosecutorial authorities–especially federal prosecutors–became more powerful and sophisticated, they have pursued multi-jurisdictional crimes with zeal, choosing  the venue of these prosecutions according to their own preferences.  At the same time, Congress passed statutes  allowing  the prosecution almost unfettered discretion regarding where to bring the prosecution.  These statutes focused on “continuing offenses” such as conspiracy, or on offenses involving the mail/wire transmissions, and allow venue just about anywhere.  See 18 USC  § 3237(a) allowing prosecution of continuing offenses in any district where “ ....such offense was begun, continued, or completed.”   Regarding mail offenses, 18 USC § 3237(a) goes on to state that:
Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.
18 USC § 3237(a)

Such expansive statutes stand in tension to the express constitutional limitations–a tension that both the Second Circuit and the United States Supreme Court have recognized.

In United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181 (2d Cir. 1989) defendants were charged under the Federal Food, Drug, and Cosmetic Act with “[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated or misbranded.” 21 U.S.C. § 331(a).  Although they were prosecuted in the Eastern District of New York, their only connections with that venue were that they had placed telephone orders for adulterated apple juice concentrate to suppliers there and had mailed the suppliers confirmations of these orders. Beech-Nut, 871 F.2d at 1190. In Beech-Nut, the Second Circuit  held that “these communications were not part of the offense of introducing the offending juice into commerce but were merely prior and preparatory to that offense.”  The Beechnut Court further noted that “Whether the crime be continuing or noncontinuing, venue is not proper in a district in which the only acts performed by the defendant were preparatory to the offense and not part of the offense.”

Years later, the United States Supreme Court validated Beech-Nut in United States v. Cabrales, 524 U.S. 1, 6-7 (1998), holding that venue for a money laundering offense that physically took place in Florida did not lie in Missouri, where the money originated as direct proceeds of a drug conspiracy that occurred there despite the government’s efforts to characterize the crime as “continuing.”

Re-asserting the  importance of venue after Cabrales, the Second Circuit has emphasized the constitutional and historical anchors of the requirement that a trial be held where the crime occurred rather than a distant locale. “Our constitutional rule–based on its history–requires that venue be linked to the nature of the crime charged and where the acts constituting it took place, and that the accused not be subject to the hardship of being tried in a district remote from where the crime was committed.” United States v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000).  To that end, the Circuit has suggested a four part “substantial contacts test” test for venue that is relatively favorable to the defendant and much more restrictive than the federal venue statutes. The “substantial contacts” test takes into account four main factors: (1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for accurate factfinding.” United States v. Reed,773 F.2d 477, 481 (2d Cir. 1985).

So if you have a client who is roped into a federal prosecution in a distant jurisdiction, in addition to retaining counsel in that jurisdiction, you should certainly explore a motion to bring the case back to where your client’s alleged crime occurred.  Sometimes, there’s no place like home. 

Monday, April 20, 2015

NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review

(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner.
"The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI Examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed."
"These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. "While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts."
Norman L. Reimer, Executor Director of NACDL added, "It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions."       
The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed. The Innocence Project and NACDL, with its partners David Koropp, Partner at Winston & Strawn LLP, and his colleagues, and Michael R. Bromwich, Managing Principal of The Bromwich Group, who served as the Inspector General of DOJ from 1994-1999, worked with the FBI and DOJ in determining the scope and protocols for the review. The review encompasses cases where FBI microscopic hair comparison was used to link a defendant to a crime and covers cases in both federal and state court systems. It does not, however, cover cases where hair comparison was conducted by state and local crime labs, whose examiners may have been trained by the FBI. The FBI has trained hundreds of state hair examiners in annual two-week training courses. 
The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 - 96% of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change. 
All but two of 28 FBI examiners provided testimony that contained erroneous statements or authored lab reports with such statements. The review has shown that the FBI Examiners testified in cases in 41 states.  
In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps:      
  • Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long.
  • Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements.
  • Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI.
The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press. 
The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.  
Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.  Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence.
Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.   

Wednesday, April 8, 2015

Selective Silence of Defendant Cannot Be Used in Prosecution's Case In Chief

by James Eckert, Monroe County Assistant Public Defender

The Court of Appeals, Fahey, J. writing for the court, held: "as a matter of state evidentiary law, that evidence of a defendant's selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant's admission of guilt or to impeach the credibility of the defendant's version of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15])  Thus, if a defendant waives Miranda, speaks to police about rape accusations, but refused to answer whether he had sex with the complainant, his refusal to answer could not be used to imply consciousness of guilt (the prosecution said the defendant "did not deny" having sex with the complainant) or to cast doubt on his other statements about the incident.  "A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all."  The defendant's DNA was found in the complainant, he testified at the Grand Jury that sex was consensual, but did not testify at trial.

While this is merely an extension of the general rule that a defendant's silence cannot be used against him, it is important to have it clarified. The court noted that there are unusual circumstances in which silence will be admissible (People v Rothschild, 35 NY2d 355 [1974] [defendant police officer had a duty to report to his supervisors if he was taking the bribe money as part of a "sting"]; People v Savage, 50 NY2d 673 [1980] [defendant told police he shot victim during an altercation, properly cross-examined on his failure to make claim that victim was trying to rob him, as he testified at trial]).  

The primary difference was that those two cases involved cross-examination, not introduction of the defendant's silence as part of the prosecution's case in chief, "In those cases, the People used conspicuous omissions from the defendants' statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant's failure to tell the detective during custodial interrogation that he and the victim had consensual sex."  The prosecution claimed that they were, effectively, cross-examining the defendant's grand jury testimony. However, as the court pointed out, the prosecution chose to introduce this testimony itself. "The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant's silence." The court also noted that they introduced the selective silence before the grand jury testimony.

Therefore, the rule in New York is that "Evidence of a defendant's selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as 'a device for impeachment' of a defendant's trial testimony in limited and unusual circumstances".  

Two judges would have held the error harmless.

Monday, April 6, 2015

Police Officers May Not Testify That They They Believe the Defendant is Guilty

Evidence as to what was said by an interrogating police officer during the interrogation, including testimony that officer told the suspect/defendant that he thought he was lying in denying committing the crime is arguably admissible as it tended to explain to the jury the circumstances of the alleged statements, thereby countering a claim that the statement was not voluntarily obtained (People v Walden, 148 AD2d 971 [4th Dept 1989]). However, in People v Pabon (--- AD3d ----, 2015 WL 1380113 [4th Dept 3/27/15]), the Appellate Division, Fourth Department, citing People v Kozlowski (11 NY3d 223 [2008]) has recently held that it is error for the prosecutor to elicit that, in fact, it was the officer’s opinion that the defendant lied during the interrogation when he denied committing the charged crimes or to explain why he believed that the defendant way lying.

In  Kozlowski, the Court of Appeals explained what a witness may and may not say with respect to an opinion as to whether the defendant’s version of events is credible. (People v Kozlowski, 11 NY3d 223 [2008]). Witnesses are permitted to testify about facts, but not as to their opinion as to whether the defendant’s version of events was believable:
The line is crossed not when a witness relates facts that may be prejudicial, but when he or she conveys-either directly or indirectly-a personal opinion regarding the defendant's criminal guilt (citations omitted).... What was impermissible about the testimony was that its sole purpose was to bolster the testimony of another witness by explaining that his version of the events was more “believable” (citation omitted). It was thus the equivalent of an opinion that the defendant was guilty, which is impermissible.
(People v Kozlowski, 11 NY3d 223, 240 [2008].)

Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s  “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)

In People v Glover (195 AD2d 999 [4th Dept 1993]), the Court held that it was not improper for a police officer to describe what he had told the suspect prior to the suspect making a statement. The Court held that the officer’s statement to the suspect of the evidence of guilt “. . . was not hearsay because the testimony was not offered for its truth, but to establish the circumstances in which the statement was obtained, and to rebut defendant’s argument that the officer coerced or fabricated defendant’s statement.” People v Glover, 195 AD2d 999 (4th Dept 1993). By contrast, what is prohibited is for a prosecutor to elicit from the officer the officer’s opinion that the defendant was lying when he denied responsibility. That is the very type of testimony which this Court implied in Glover would be improper and should be precluded as it tends to usurp the factfinder’s function (People v Jennings, 33 AD3d 378 [1st Dept 2006]).

This rule parallels the rule which prohibits a prosecutor from expressing her personal belief to the jury that the defendant is a liar. (People v Grice, 100 AD2d 419, 421 [4th Dept. 1984] [prosecutor’s remarks improperly placed before the jury the prosecutor's personal belief that the defendant was lying]; People v Shanis, 36 NY2d 697, 699 [1975]).

Just as a  prosecutor exceeds the bounds of legitimate advocacy by expressing, as the prosecutor did in this case, a personal opinion on a defendant’s truthfulness (see People v Wlasiuk, 32 AD3d 674 [2006], lv dismissed 7 NY3d 871[2006]), she may not elicit the police officer’s opinions on a defendant’s truthfulness or guilt.

Sunday, March 29, 2015

One Apparently Wrongful Conviction Results in Two Important Decisions from the Second Circuit

In 1993, Hector Rivas was convicted of the 1987 murder of  his former girlfriend.  The prosecution defeated Mr.Rivas’s alibi by relying on the testimony of the medical examiner which placed the time of death as occuring on the day prior to that for which Mr. Rivas had an alibi. What was noteworthy about this testimony was that for the six years prior to trial the medical examiner had placed the time of death on the date for which Rivas had an alibi and only switched at trial. Defense counsel failed to investigate the purported basis of this switch.

Six years later Mr. Rivas brought a 440 motion claiming ineffective assistance of counsel. In support of his motion Rivas presented essentially unchallenged expert testimony from a pathologist persuasively showing that woman died on the day of his alibi and not on the date the medical examiner testified she did.  Further, the motion  presented compelling evidence that the medical examiner had perjuriously purported to base his time-of-death opinion in part on “brain slides” that, Rivas later learned, were nonexistent. Rivas also introduced evidence that, at the time of Rivas's trial, the medical examiner was under investigation by state and local agencies (including possibly the office of the prosecutor who charged Rivas) for various forms of misconduct. At trial, Rivas’s counsel failed to challenge the medical examiner’s reliance on the non-existent “brain slides,” or to cross-examine him regarding the investigations into his alleged misconduct that were pending at the very time of the prosecution of Rivas.

The 440 motion was denied and Riva’s habeas corpus petition was dismissed by the District Court as time barred.

But in 2012, in Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012), nearly 20 years after Rivas’s conviction, ,the Second Circuit re-instated the habeas petition. The Court held, for the first time, that a gateway showing of actual innocence can equitably toll the statute of limitations for the filing of petition for a writ of habeas corpus and that Rivas had made such a showing:

    Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence. His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when he had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent. However, on the record before us, we “cannot have confidence in the outcome of [Rivas’s] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.”   
        [W]e now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA’s limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision of the [district court] dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims.
        Although this hugely important decision prompted numerous inmates to file habeas corpus petitions premised on claims of actual innocence, it did not immediately help Mr. Rivas. On remand the District Court denied the petition, holding that the state court's rejection of the 440 motion  “was comprised of both reasonable factual determinations and a reasonable application of Strickland.”
   
    On March 11, 2015, the Second Circuit reversed and granted the petition. The Court held that the no reasonable argument could be made that the petitioner’s defense counsel satisfied his duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Moreover, the Court found that no reasonable argument can be made that defense counsel’s deficient performance did not prejudice the defense. Consequently, as a result, the state court’s conclusion to the contrary, in denying the 440 motion, involved an “unreasonable application” of  Strickland. The Second Circuit then directed the district court to issue a writ of habeas corpus in 60 days unless the state has taken concrete and substantial steps to expeditiously retry the petitioner.

    Critically, the Court held that trial counsel failed to satisfy his
    constitutional “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Considering all the circumstances, no “fairminded jurist[ ]” could agree that the quantum of evidence known to [counsel] at the time justified his decision to forego further investigation and rely instead on a critically deficient alibi and two perfunctory items of impeachment evidence that only scratched the surface of [the medical examiner’s] revised findings. Harrington, 562 U.S. at 101 (“Strickland does not establish that a cursory investigation automatically justifies a tactical decision....”).
    Thus, the Court strongly held that counsel has a constitutional obligation to investigate that may include a duty to consult with an expert.

Thursday, March 26, 2015

A wrinkle in the Penal Law; prosecutions for Manslaughter in the First Degree where the defendant did NOT intend to cause serious physical injury, but death results.

A person is guilty of Manslaughter in the First Degree when, with intent to cause serious physical injury to another person, he causes the death of such person (CJI2d [NY] Penal Law § 125.20[1]).  Penal Law § 10(10) defines “serious  physical  injury” as physical injury which creates a substantial risk of death, or which causes death or serious and protracted  disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

But what about the case where the defendant acts intentionally to cause the victim physical injury (but NOT serious physical injury) and death results?  Not only does this fact pattern not satisfy the elements of Manslaughter in the First Degree, there is no other applicable homicide offense in the Penal Law. The classic example is a leg-shooting or leg-stabbing case where defendant’s acts support a claim that he did NOT intend to cause a grave risk of death, but where he nonetheless severs the femoral artery, causing death.  

In some cases, a defendant’s “intent can be inferred from the act itself” (People v Bracey, 41 NY2d 296, 301 [1977] [possession of weapon during a robbery satisfied element of intent to use the weapon unlawfully against another]).  Likewise, the circumstances of some shootings, by their nature, can establish the defendant’s intent to cause serious physical injury (see, People v Vigliotti, 270 AD2d 904 [4th Dept 2000] [victim shot in chest from two feet or less during argument with defendant; proof sufficient to establish intent to cause serious physical injury]; People v Ramirez, 182 AD2d 569 [1st Dept 1992] [same]; People v Dukes, 30 AD3d 682 [3rd Dept 2006] [victim shot in back during argument over defendant’s girlfriend; proof sufficient to establish intent to cause serious physical injury]; People v Almonte, 135 AD2d 824 [2nd Dept 1987] [victim shot at point blank range]). 

The use of a weapon, depending on the manner in which it is used, may also be indicative of the intent to inflict serious physical injury (People v Haynes, 39 AD3d 562 [2nd Dept 2007] [defendant killed the victim by driving a car straight at him]); People v Lewis, 300 AD2d 827 [3rd Dept 2002] [defendant killed victim by stabbing victim causing a deep penetrating wound through the back to the heart]; People v Owens, 251 AD2d 898 [3rd Dept 1998] [defendant shot victim once and attempted to fire again]; People v Andrews, 78 AD3d 1229 [3rd Dept 2010] [intent to cause serious physical injury found where defendant repeatedly swung hammer at victim’s head in violent vertical strikes]).

The nature of the wound or mechanism of injury does not necessarily establish, without more, the element of serious physical injury.  Not every gunshot ineluctably results in serious physical injury (see, People v Gray, 30 AD3d 771 [3rd Dept 2006] [victim shot with shotgun from 20 feet away, evidence insufficient to establish serious physical injury]; see also, People v Rojas, 61 NY2d 726 [1984] [gunshot injury does not by itself establish substantial pain as required for physical injury]; People v Francis, 112 AD2d 167 [2nd Dept 1985] [same]; People v Horton, 9 AD3d 503 [3rd Dept 2004] [gunshot wound to neck insufficient to establish serious physical injury]; see also, People v Daniels, 97 AD3d 845, [3rd Dept 2012] [single stab wound to the head was insufficient to establish serious physical injury]; People v Sleasman, 24 AD3d 1041 [3rd Dept 2005] [throat slashing did not establish serious physical injury]).

On the other hand, shooting a victim in the extremities may, depending on the circumstances, evince an intent to cause serious physical injury (see, People v Grier, 261 AD2d 555 [2nd Dept 1999] [proof that defendant aimed gun at victim’s genitals and fired sufficient to establish defendant’s intent to cause serious physical injury]; People v Davis, 300 AD2d 78 [1st Dept 2002] [Victim shot in arm, proof of intent to cause serious physical injury was sufficient where defendant pointed gun at victim’s chest and she pushed it away before shot was fired]; see also, People v Linton, 21 AD3d 909 [2nd Dept 2005] [multiple shots to hip, back, and hands]; People v Garcia, 202 AD2d 189 [1st Dept 1994] [shot to kneecap]).  While not every shooting where the target is the victim’s extremities will evince an intent to cause serious physical injury, some leg-shooting cases could support a finding of an intent to cause serious physical injury or protracted loss of use of a bodily function or organ – shooting the victim point blank in the kneecap, as in Garcia, for example.

Where a defendant acts in manner specifically calculated not to cause death and with the intent to injure but not to cause serious physical injury (as in a leg-shooting or leg-stabbing case), and death results, the elements of Manslaughter in the First Degree are not satisfied, since Manslaughter in the First Degree requires a finding that the injury that defendant inflicted or intended to inflict presented a grave risk of death – i.e.,  death was a reasonably foreseeable consequence and the step from serious physical injury (posing a grave risk of death) and death itself is a relatively small one.

In such a case, the defendant’s conduct may also not be reckless as required to support a conviction for Manslaughter in the Second Degree under Penal Law § 125.15(1) where there is no evidence that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of death from shooting someone in the legs (Allstate Ins. Co. v Zuk, 78 NY2d 41 [1991]; People v Licitra, 47 NY2d 554 [1979]), absent any proof that the defendant had any medical training or knowledge of anatomy or physiology regarding the risks of a leg wound involving the femoral artery, and that such involvement could likely be fatal.
  
Even if the proof at trial establishes that the defendant was aware of the dangers of severing the femoral artery, a victim shot in the leg more often does not die or suffer serious physical injury; one whose intention is to cause injury that brings the victim a hair’s breadth away from death would not intentionally shoot the victim in the leg, since even a trained marksman could not expect to strike the femoral artery if firing at a moving target, from a distance, i the dark, etc., and while a shooter might reasonably expect to hit the victim in the leg, he could not have any reasonable expectation of causing a grave risk of death, which would require an unattainable level of precision.  Because the risk of death from shooting a victim in the leg is not of a nature and degree that disregarding such risk could constitute a gross deviation from the standard of care a reasonable person would observe, these facts would also fail to support a conviction for Manslaughter in the Second Degree (see, Penal Law 15.05[3]). 

Thus, where the shot (or stab) pattern demonstrates the absence of any intent to cause death or serious physical injury and instead reflects an extremely unlucky shot (or stab) resulting in a plainly unintentional and unpredictable death, this proof fails to satisfy the elements of Manslaughter in the First Degree or any lesser, related homicide offense. 

Friday, March 13, 2015

Arrested for a crime in NYS before age 19, am I a JD, JO,YO or an adult?

Generally those less than 16 years old are not criminally responsible for conduct (PL§ 30.00(1). Except for Juvenile Offenders (JO) all youths under the age of 16 are adjudicated exclusively in Family Court where they are prosecuted as Juvenile Delinquents. Fam Ct Act art 3. There are exceptions to every rule of course, this is NYS. JOs can be charged with committing serious felonies as young as age 13. See, PL § 70.05.
First some definitions. Juvenile Delinquent (JD): persons over 7 less than 16 alleged to have committed a crime if an adult, are not criminally responsible by reason of infancy (Family Court Act § 301.2(1). Juvenile Offender (JO): persons 13, 14, or 15 are criminally responsible for acts constituting Murder 2d (intentional not felony murder); persons 14 or 15 are criminally responsible for a listing of serious felonies (PL§ 10.00(18) and CPL§ 1.20(42). Youthful Offender (YO): persons 16, 17, or 18 (less than 19 birth dates are important) or a youth charged as a JO whose conviction of the crime based upon a determination of the court is vacated and replaced with YO finding (CPL§ 720.10 (1) and (2), 720.35(3)).
The age at the time of commission is controlling for each determination. Family Court Act §302(1), CPL §1.20(42), 720.10(1).
Proceedings for JO are governed by CPL §180.75 et al., and mirror those for an adult CPL §180.10., 180.60, 180.80, but allow for possible Removal to Family Court under CPL §175.4 &5. With certain exceptions, a local court SHALL at the request of the DA order removal to Family Court. CPL §175.4. The defendant child, may while the matter is pending in local court, move in superior court to remove the case. Procedures for such a determination by the superior court are governed pursuant to CPL §180.75(6)(a)&(b). If transferred, the case is thereafter treated as a juvenile delinquency matter. If not transferred the JO is tried in adult criminal court, convictions result in adult penalties and an adult criminal record, unless granted YO status.  
Proceedings for YO are governed by CPL §720.10 - 720.35. The YO determination is mandatory for first offense misdemeanor charges for 16, 17 or 18 (less than 19) with NO prior convictions and No prior YO determination. YO determinations are discretionary by the court for 16, 17 or 18 (less than 19) with NO prior felony, NO prior felony YO, NO prior JD plus a finding in the interest of justice. CPL §720.20(1)(a). Some youths are not eligible if convicted for A-I or A-II felonies, or an armed felony under PL §1.20(41), or Rape 1st, CSA 1st, Agg. SA, or any youth previously convicted and sentenced for a felony, any youth with a prior YO adjudication for a felony. CPL §720.10(2)
A YO adjudication is comprised of a YO Finding (CPL §720.10(4) and a YO sentence (CPL §720.10(5) and is completed by the imposition and entry of the YO sentence. CPL §720.10(6). Absent statutory elimination, all eligible defendants are entitled to an independent determination of whether to grant youthful offender status which lies in the discretion that must be made by of the sentencing court. CPL§ 720.20 [1] [a]. See, People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497]. Such a determination is independent and cannot to be sacrificed in plea bargaining extended or limited by the DA.
YO privacy of proceedings is governed by CPL§ 720.15(2) providing arraignment and all proceedings in the discretion of the court and with the defendant’s consent must be conducted in private. Such privacy only applies to misdemeanors not felony offenses or complaints. CPL §720.15(3). 
Currently, New York and North Carolina are the only two states that prosecute youths over age 16 as adults. The way 16 and 17 year-olds are treated in the state court system could be overhauled if the state Legislature adopts changes to the juvenile justice system proposed by Gov. Andrew M. Cuomo. Under Gov. Cuomo’s proposed legislation, the age of criminal responsibility will rise to 18, with most criminal cases involving 16- and 17-year-olds being referred to Family Court for adjudication rather than adult courts. One effect of this change is that youths under the age of 18 no longer will be held at county jails while awaiting disposition of their cases and in most circumstances, absent a violent felony, will not face jail or a prison sentence, and not suffer a criminal conviction. A report prepared at the Governor’s request by the Commission on Youth, Public Safety and Justice states that, although state law requires 16 and 17 year olds to be housed apart from adult inmates, youths still come in contact with older inmates in common areas, placing them at risk of physical injury or sexual abuse. Raise the Age/NY (see, http://raisetheageny.com) lists the consequences of NYS’s obsession with continuing to prosecute children in adult courts. A reform group called Correctional Association claims more than eight hundred 16 & 17 year olds are being held in adult jails and prisons across NY. They report these youths suffer increased sexual and physical abuse and higher risks of suicide compared with teens in juvenile facilities. 
Importing this information within an application for independent determination by the sentencing court under People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497] may yield more favorable dispositions from independent courts, blunting the injurious impact on our young clients, and changing a plea bargaining system governed solely by the discretion of the prosecution.  
Good Hunting. 

Saturday, February 28, 2015

A Rose By Any Other Name

by William T. Easton, a/k/a "Bill", a/k/a "Billy"

In recent years our firm has noted the prosecution’s increased use of monikers or “a/k/a”s in the captions of indictments, especially for those defendants charged federally with gang-associated offenses such as Racketeer Influenced and Corrupt Organization (RICO) crimes, CCE (Continued Criminal Enterprise) crimes, and defendants charged state-side with gang-related offenses.       

Oddly, this firm has not detected a similar increase in our white collar practice, even in conspiracy cases involving multiple defendants.  Thus, a defendant in a white collar case who is widely known as “Chip,” “the Chipster” or “Biff” will usually be indicted under his or her own proper name, while a “blue collar” defendant who has a nickname of “Money,” “Killer” or “Smooth” will usually be indicted with his moniker included prominently in the caption of the indictment.

This misuse of a nickname should be resisted by motion. As a threshold, you should draw the distinction between an alias and a “street name” (or a nickname). The former is an official use of an assumed name often to evade detection or escape responsibility. The reference to the use of an alias should be viewed as a prior “bad act” under either People v. Sandoval, 34 NY 2d 371 (1974), or People v. Molineux ,168 NY 264 (1901) and subjected to the usual procedural and substantive  protections of these doctrines. New York Law is surprisingly good in this area. See People v. Walker, 83 2d 455 (1994); People v. Butler, 138 A.D.2d 615 (2d Dept. 1988). As such, the prosecution should not be permitted to short cut the process by simply appending the alias to the indictment. See People v. Klukofsky, 201 Misc 457 (1951).

Just as pernicious, however, is the use of the “street name”--an unofficial moniker--which you should also move to strike. The motion should be in two parts. First, you should move to strike the nickname or alias from the indictment as surplusage, or alternatively request the Court  not to read it to the jury. There is no reason to read the caption of the indictment including the moniker to the jury.  Most trial courts will agree with you on this, especially when accompanied by a modest concession that you will not assert a defense that a person other than the defendant who has the “street name” of your client committed the offense, not your client. See People v. Bellamy, 26 AD 3d 638 (3rd Dept. 2006).

Second, you should bar reference to the moniker itself, and relatedly the prosecution’s misuse of it either during cross examination or summation.  The prosecution almost always tries to make the street name an indicator of your client’s character or community reputation (usually for violence, dishonesty or criminality). In United States v. Farmer, 583 F.3d 131 (2d Cir 2009), the Second Circuit reversed a federal attempted murder conviction and roundly condemned this practice. In Farmer, the prosecutor indicted the homicide defendant and included the moniker “Murder” in the indictment and copiously referred to the street name in summation. The Second Circuit ruled:
 a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that “[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed....In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment. This abuse of Farmer's nickname entitles Farmer to a new trial...
Thus, in almost all cases, you should move to strike a “street name” from the caption of the indictment and take steps to further ensure that the prosecution does not attempt to use the street name for purposes of showing reputation or propensity.  Farmer is strong support for such motion.

Wednesday, February 18, 2015

Once Again: Statutory Language Cannot Be Simply Ignored By Prosecutors

The New York Court of Appeals, in People v Brumfield (2015 NY Slip Op 01377 [2/17/15]), affirmed the holding of the Appellate Division, Fourth Department (109 AD3d 1105 [4th Dept 9/27/13]), that the District Attorney cannot condition a defendant' right to testify at the grand jury on the defendant's willingness to sign a waiver form that waives more rights than required by CPL 190.45 and 190.50.

As discussed in a post after the Appellate Division's decision, one would think that the proposition that District Attorney cannot ignore or flaunt unambiguous statutory language is not a remarkable proposition. Indeed, as attorneys who prosecute others for acting as though adherence to the the strict requirements of law is only optional, one would think that prosecutors would be sticklers for compliance with statutory language. As detailed below, however, the Monroe County District Attorney's office apparently believed that it could ignore the statutory provisions regarding a defendant's right to testify at the grand jury and instead, unilaterally impose its own set of requirements and conditions for a defendant's right to testify. Even worse, trial judges, and many defense attorneys in Monroe County acquiesced in this lawless deprivation of defendants' rights. 

The Criminal Procedure Law provides that a defendant had a right to testify at a grand jury if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," the defendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the grand jury stipulates that he or she "waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding."

The Monroe County District Attorney has a waiver of immunity form that added six paragraphs of waiver of rights not set forth in the statute.  Included in this form are paragraphs in which the defendant states (1) that he understands "that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or area of conduct; (2) that he understands that by signing the form he gives "up all immunity and privilege to which [he] would otherwise have been entitled under the provisions of the United States Constitution, the Constitution of the State of New York, as well as any applicable statutory provisions"; and (3) he does "consent and agree tot he use of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution, or proceeding."

There is nothing illegal with the prosecutor seeking to have defendants waive additional rights. But it is difficult to understand why the defendant would want to sign that form when there is nothing offered to the defendant in exchange for giving up additional rights. Yet, most attorneys in Monroe County acquiesced to this request and had their clients sign the Monroe County District Attorney's form.

On attorney who resisted was Assistant Monroe County Public Defender John Bradley, who saw no reason for his client to waive more that the statute requires and who did not believe that the prosecutor could ignore that statute and unilaterally impose additional conditions before his client could testify. His client, Mr. Brumfield, agreed. So when the ADA presented  Mr. Brumfield with the Monroe County District Attorney's waiver of immunity form containing language not required by statute, Brumfield deleted that language from the form and then signed the amended form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the ADA refused to permit Mr. Brumfield to testify before the grand jury.  Mr. Brumfield then moved to dismiss the indictment obtained against him on the ground that his right to testify at the grand jury had been violated.Seems like a fairly easy motion pursuant to CPL 190.50 [5] [c]. Disappointingly, however, the trial court judge, denied the motion finding that  the signed waiver of Brumfield's privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40 was not a valid waiver.

This decision was first reversed on appeal by the Appellate Division, Fourth Department,  which held that
the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]). It is well settled that a defendant's statutory right to testify before the grand jury " must be scrupulously protected' " (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment...
 This week, the Court of Appeals affirmed thsi holding, writing that 
Defendant's statutory right to testify before the grand jury was violated. This right "'must be scrupulously protected'"(People v Smith , 87 NY2d 715, 721 [1996], quoting People v Corrigan , 80 NY2d 326, 332 [1992]). Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he [*3]would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.
It should be noted that there is nothing in this decision which precludes the District Attorney from continuing to use the form. seeking to have defendants waive more rights than required by statute.. Hopefully, however, attorneys  will  no longer agree to sign this waiver form now that defendants who refuse to sign the form will no longer be penalized.

Excellent work by both John Bradley and by Assistant Monroe County Public Defender David  Juergens, who represented Mr. Brumfield on appeal.

Monday, January 26, 2015

Don’t talk to federal agents. Ever.

Regent Law Professor James Duane’s lecture “Don’t Talk To The Police,” outlining why citizens should always exercise their 5th Amendment right to remain silent when questioned by government agents can found here. The proscription in the title or this post is slightly more limited (federal agents) and based not on the Constitution, but on a particular federal statute: 18 USC § 1001.

In New York, for example, the police are permitted to lie to you (“we got your fingerprints on the murder weapon,” “we've got a video of you leaving the 7-11,” “your codefendant is saying it was all you, he didn’t do anything,”) in order to get you to tell the truth, so long as the deception is not so fundamentally unfair as to violate due process by provoking an unreliable confession (People v Hall, 152 AD2d 948 [4th Dept 1989]; People v Tankleff, 199 AD2d 550 [2nd Dept 1993]). 

The fallacy that courts are able to reliably determine where that line is, as shown by the conviction of Mr. Tankleff and other defendants who were coerced into falsely confessing by police use of deception and later exonerated, will be examined in a future post.  

The irony aside, deceiving suspects has been shown to be an effective technique for obtaining both truthful and false confessions (and, as Mr. Tankleff’s case and other wrongful conviction cases demonstrate, juries often can’t tell the difference).  Thus, given the present state of the law, criminal investigators can and do regularly lie to suspects to obtain what are later argued to be truthful confessions or admissions. 

In the case of dealing with federal agents, however, what’s good for the goose will get the gander indicted.  Title 18 USC § 1001 provides, in relevant part, that: 

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . , imprisoned not more than 8 years, or both.

The act goes on to denote other “special” lies worthy of 8 rather than 5 years, which is just for garden-variety lies. What constitutes a “matter” under this section? A criminal investigation counts (see, United States v Rodgers, 466 US 475 [1984]).  While you might argue that a preliminary investigation is not a “matter,” (see, e.g., United States v Pickett, 353 F3d 62 [D.C. Cir 2004]), whether it was or wasn't a “matter” is probably an argument best avoided altogether.

In short, when a government agent questions a citizen, the citizen may decline to answer the question or answer it honestly but he cannot with impunity knowingly and willfully answer with a falsehood (Bryson v United States, 396 US 64 [1969]).  Who decides whether the citizen’s answer constituted a willful falsehood?  Initially, of course, the government agent that thinks he or she has been lied to and ultimately, maybe, a jury.  This offense is a separately prosecutable charge from the criminal matter being investigated, even if that investigation turns up no criminality.  So, when being questioned by federal law enforcement agents, one might wish to consider that: