Wednesday, March 31, 2010
As detailed at New York Criminal Law and Procedure the United States Supreme Court in a decision authored by Justice Stevens held that as a matter of federal constitutional law, attorneys have a professional duty to advise their clients of immigration consequences, at least when those consequences are clear. Even when federal law is not so clear, an attorney still has a duty to advise the client that deportation "may" result from a guilty plea. This, of course, is a very different holding and standard than the New York Court of Appeals had set forth in People v Ford (86 NY2d 397) in which the Court held that while it is ineffective assistance to affirmatively give bad advice on the immigration consequences, attorneys need not say anything.
As detailed at New York Criminal Law and Procedure the United States Supreme Court in a decision authored by Justice Stevens held that as a matter of federal constitutional law, attorneys have a professional duty to advise their clients of immigration consequences, at least when those consequences are clear. Even when federal law is not so clear, an attorney still has a duty to advise the client that deportation "may" result from a guilty plea. This, of course, is a very different holding and standard than the New York Court of Appeals had set forth in People v Ford (86 NY2d 397) in which the Court held that while it is ineffective assistance to affirmatively give bad advice on the immigration consequences, attorneys need not say anything.
A discussion of an important decision regarding the constitutionality of New York’s persistent felony statute requires focus on persistence. For years, Andrew C. Fine of the Appeals Bureau of the Legal Aid Society of New York had urged that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact which increased the penalty a defendant faced to be submitted to a jury and proved beyond a reasonable doubt. In part, Mr. Fine twice challenged the statute at the New York Court of Appeals (People v Rosen, 96 NY2d 329 [2001] and People v Daniels, 5 NY3d 738 [2005]), and at the Second Circuit (Brown v Greiner, 409 F3d 523 (2d Cir 2003]). He also kept advising defense attorneys at numerous CLE presentations and in written practices guides that, despite the holdings of the New York Court of Appeals rejecting these arguments, the issue was still unsettled and should still be raised so that eventually the clients would be eligible for relief when federal appellate courts finally decided the issue.
Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”
Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”
A discussion of an important decision regarding the constitutionality of New York’s persistent felony statute requires focus on persistence. For years, Andrew C. Fine of the Appeals Bureau of the Legal Aid Society of New York had urged that the New York persistent felony statute unconstitutionally deprives a defendant of the right to have each fact which increased the penalty a defendant faced to be submitted to a jury and proved beyond a reasonable doubt. In part, Mr. Fine twice challenged the statute at the New York Court of Appeals (People v Rosen, 96 NY2d 329 [2001] and People v Daniels, 5 NY3d 738 [2005]), and at the Second Circuit (Brown v Greiner, 409 F3d 523 (2d Cir 2003]). He also kept advising defense attorneys at numerous CLE presentations and in written practices guides that, despite the holdings of the New York Court of Appeals rejecting these arguments, the issue was still unsettled and should still be raised so that eventually the clients would be eligible for relief when federal appellate courts finally decided the issue.
Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”
Mr. Fine’s persistence paid off. He was one of the winning attorneys in the consolidated decisions in Besser v Walsh, _F3d_ [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”
Tuesday, March 30, 2010
Trial Tips For Drug Cases with Undercover Officers
More tips from an experienced and successful attorney who wishes to be unnamed:
In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.
Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.
If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.
If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.
In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.
Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.
If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.
If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.
Trial Tips For Drug Cases with Undercover Officers
More tips from an experienced and successful attorney who wishes to be unnamed:
In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.
Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.
If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.
If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.
In an undercover cop case, it's helpful to know their procedures. With hand to hand sales, usually the undercover is dropped at or near a location by other members of the team. Sometimes they drive by and make a purchase from the car. They wear electronic recording devices called Kel Kits which are monitored by the back-up team. The undercover walks up to someone, makes a transaction, and then when the are out of earshot call out to the team "done deal". They have a code word to use during the transaction if they get in trouble. The team will then send in uniforms or perhaps other undercovers to grab the suspects. The undercover will drive by in an unmarked car with another officer (who will probably radio the uniforms that they're coming so the undercover's voice isn't recognized). The ID is done while moving - driving by, as the suspect(s) are on the sidewalk, perhaps with a grass median between the sidewalk and the street. Although the undercover team will claim there was nothing obstructing the view of the undercover officer, the uniforms or other undercovers will most likely pull up to the address where the buy took place (instead of down the street, giving notice to the suspects and an opportunity to run). A uniformed cop may testify to this. The undercovers won't. Although the
officers may have a description of the seller, they may grab everyone in the area whether or not they match the description, and put them in the show up.
Undercover officers have access at RPD to surveillance equipment, and do use it in a variety of circumstances (which they will claim don't apply in your hand to hand sale case). They have unmarked cars and vans outfitted to look like civilian vehicles, from which audio or video can be used to record what's going on. They have mini video recorders which look like buttons that they can wear on their clothing. These can be things you can use to argue that there was a lack of evidence in your case.
If the officer claims he was in danger, and that's why he didn't observe the discrepancies in clothing or appearance between what he called out and what your client looks like, consider whether the recording reflects a fearful tone, whether the code word was used (it wasn't or the team would have come in) and whether, since the officer knew his fellow officers would be responding and wouldn't want to endanger them, the undercover officer called out on the recording used to ensure the safety of officers (remember, that's the reason they use it - at least that's what they say to explain why details of descriptions aren't important) to other officers
about the particular menace or danger of this individual.
If yours is an ID case - they grabbed and identified the wrong guy when the back up team came in - consider the time between when the sale occurred and when the arrests happened. If the recording indicates a particular time that the detail commenced, the cop may claim that they paused the tape. Listen for any pauses, and be aware that they may come up with this. And listen for the DA's direct, "directing your attention to (date) at (time), what were you doing? Which time did the DA open and question on? Consider when the back up team was asked to be in the area.
These suggestions were passed on to me by an excellent, experienced attorney who wishes to remain anonymous:
1. In jury selection you will be engaging in several efforts at once -picking the jurors who are best for your case, educating the jury, developing your challenges for cause, figuring out who these people are, and letting the jury know you are way cooler than the DA. On challenges for cause, when you develop them the judge may swoop in and try to rehabilitate the juror by asking, "You will follow my instructions, won't you?" in some menacing fashion from on high, black robe billowing. If this happens during your voir dire, you can may still be able to ask the juror afterwards about his or her original concerns, and revive the challenge. If a juror says "I think I can be fair" or answers the judge's questions (or yours or the DA's) in an equivocal way that's not enough to avoid the challenge for cause. (People v Arnold [96 NY2d 358, 363]). Make sure that your challenge is on the record - in case the judge incorrectly denies the challenge.
If a judge tries to rehabilitate the jurors as a group with general questions after you're done, you should object or oppose this, and ask for the judge to do individual voir dire as to the individual issues. If the judge refuses to do that, you may have an issue to preserve. More on that below. You should also ask for an opportunity to question the jurors again if the judge rehabilitates them. Yes, t.This may irritate the judge, but that's not the goal. If the judge doesn't let you question after the judges' questions, in the next pass (if there is one) ask the jurors, if they have expressed a concern that presents a challenge for cause, to remember that concern if the judge asks them at the end of your questions whether they can follow his/her instructions.
If you have a challenge for cause issue you want to preserve for appeal (meaning that you believe that the court incorrectly denied a challenge),
YOU MUST EXHAUST YOUR PEREMPTORY CHALLENGES.
Be aware, this can be scary stuff. You have to use all your perempts, but you don't want to have lots of jurors left to select when you do this (unless it's a case you are unlikely to win and this is your best issue). You may wind up where the DA has challenges left and you don't. So you'll have to weigh how important preservation of this issue is against what your jury pool is looking like and your feelings
about the case.
2. Jury instructions: As you try more cases, you will learn about the different kinds of jury instructions you may request. It's worth taking a look at the CJI and scanning the charges of general applicability. (http://www.nycourts.gov/cji/index.htm). You can weave some of the language and issues into your cases.
Among the charges you should check out: (I'm not sure if these are the
exact titles in the CJI)
1. Credibility - this will almost always be read to the jury. It helps to know what the jury will be hearing
2. Expanded identification - one witness identification case - you should request this instruction in a one witness ID case.
3. Circumstantial evidence - moral certainty - read this one.
4. Drug trafficking expert - for when the cop testifies as an expert, this instruction reminds the jurors a cop is still just another witness who can be believed or not
5. Consciousness of guilt
6. Failure to promptly complain
7. Justification - regular and use of deadly physical force.
8. Missing witness
Many charges have legal requirements you must meet in order to get the charge. Sometimes judges mix them up. If you are basing your case on a charge, or part of your defense on a charge, such as missing witness, justification, failure to promptly complain, identification, make sure you read the case law about when you're entitled to that charge (or ask one of the more experienced attorneys to give you the cases or point you in the right direction). Please be aware, with respect to justification, that if the court concludes that you're not entitled to the charge based on the body of law on justification (and courts will reach this conclusion at
times) you won't get the charge. With missing witness, even if the judge doesn't give the charge, you can still argue it. Also with missing witness - careful what you wish for - you have to ask for it at an early enough point in the case that the DA can have the opportunity to bring the witness in. And they might. (For specific phrasing on the timing requirements, check the case law.)
Please also be aware that if you put on a case, the DA may seek a missing witness charge against you if there's a witness you didn't call, who was not cumulative, who would be expected to testify for you, and who was available.
1. In jury selection you will be engaging in several efforts at once -picking the jurors who are best for your case, educating the jury, developing your challenges for cause, figuring out who these people are, and letting the jury know you are way cooler than the DA. On challenges for cause, when you develop them the judge may swoop in and try to rehabilitate the juror by asking, "You will follow my instructions, won't you?" in some menacing fashion from on high, black robe billowing. If this happens during your voir dire, you can may still be able to ask the juror afterwards about his or her original concerns, and revive the challenge. If a juror says "I think I can be fair" or answers the judge's questions (or yours or the DA's) in an equivocal way that's not enough to avoid the challenge for cause. (People v Arnold [96 NY2d 358, 363]). Make sure that your challenge is on the record - in case the judge incorrectly denies the challenge.
If a judge tries to rehabilitate the jurors as a group with general questions after you're done, you should object or oppose this, and ask for the judge to do individual voir dire as to the individual issues. If the judge refuses to do that, you may have an issue to preserve. More on that below. You should also ask for an opportunity to question the jurors again if the judge rehabilitates them. Yes, t.This may irritate the judge, but that's not the goal. If the judge doesn't let you question after the judges' questions, in the next pass (if there is one) ask the jurors, if they have expressed a concern that presents a challenge for cause, to remember that concern if the judge asks them at the end of your questions whether they can follow his/her instructions.
If you have a challenge for cause issue you want to preserve for appeal (meaning that you believe that the court incorrectly denied a challenge),
YOU MUST EXHAUST YOUR PEREMPTORY CHALLENGES.
Be aware, this can be scary stuff. You have to use all your perempts, but you don't want to have lots of jurors left to select when you do this (unless it's a case you are unlikely to win and this is your best issue). You may wind up where the DA has challenges left and you don't. So you'll have to weigh how important preservation of this issue is against what your jury pool is looking like and your feelings
about the case.
2. Jury instructions: As you try more cases, you will learn about the different kinds of jury instructions you may request. It's worth taking a look at the CJI and scanning the charges of general applicability. (http://www.nycourts.gov/cji/index.htm). You can weave some of the language and issues into your cases.
Among the charges you should check out: (I'm not sure if these are the
exact titles in the CJI)
1. Credibility - this will almost always be read to the jury. It helps to know what the jury will be hearing
2. Expanded identification - one witness identification case - you should request this instruction in a one witness ID case.
3. Circumstantial evidence - moral certainty - read this one.
4. Drug trafficking expert - for when the cop testifies as an expert, this instruction reminds the jurors a cop is still just another witness who can be believed or not
5. Consciousness of guilt
6. Failure to promptly complain
7. Justification - regular and use of deadly physical force.
8. Missing witness
Many charges have legal requirements you must meet in order to get the charge. Sometimes judges mix them up. If you are basing your case on a charge, or part of your defense on a charge, such as missing witness, justification, failure to promptly complain, identification, make sure you read the case law about when you're entitled to that charge (or ask one of the more experienced attorneys to give you the cases or point you in the right direction). Please be aware, with respect to justification, that if the court concludes that you're not entitled to the charge based on the body of law on justification (and courts will reach this conclusion at
times) you won't get the charge. With missing witness, even if the judge doesn't give the charge, you can still argue it. Also with missing witness - careful what you wish for - you have to ask for it at an early enough point in the case that the DA can have the opportunity to bring the witness in. And they might. (For specific phrasing on the timing requirements, check the case law.)
Please also be aware that if you put on a case, the DA may seek a missing witness charge against you if there's a witness you didn't call, who was not cumulative, who would be expected to testify for you, and who was available.
Subscribe to:
Posts (Atom)
Posts
