Friday, December 20, 2013

Jill Paperno, Second Assistant Monroe County Public Defender 
and author of  Representing the Accused: A Practical Guide to Criminal Defense

As described in an earlier post, the law provides guidance as to which decisions are made by a client and which are made by the defense attorney.  Decisions that are considered fundamental - generally those that are granted to a defendant by the Constitution, or cases interpreting the Constitution - are to be made by the client.  Ideally (and we should be striving for the ideal) those decisions are made after thoughtful, informed and considered review with counsel.  Decisions that are strategic are to be made by the defense attorney.  Ideally (yes, striving again) those decisions are made after thoughtful, informed and considered review with the client.

So which type of decision is the right to testify before the grand jury?  If it is a fundamental right we have to discuss it with our clients and they have to waive the right.  But day after day I see defendants appearing in court whose attorneys have never discussed grand jury testimony with them.  How do I know?  In some cases they are meeting counsel for the first time on a preliminary hearing date even though counsel was assigned before the grand jury date.  In the holding area they ask me, a lawyer they don't know, who their lawyer is.  When their case is called the prosecutor presents a grand jury certification to the court, so we know the case went to the grand jury without the client having been advised of grand jury rights.

The right to be prosecuted on an indictment is contained in the state constitution.  (The U.S. Constitution has been interpreted as not requiring indictment for prosecution on all felonies, so different states handle this issue in various ways - see And the New York state Constitution does not include the right of a defendant to testify - that is contained in the Criminal Procedure Law, section 190.50.  So this right looks different than some of the other rights we know are fundamental and are protected by the Constitution, and which only a client can waive.  And grand jury decision-making happens behind the scenes.  There is no judge asking for the client's decision or whether the client is aware of the right.  (But remember - the decision of whether to appeal is not in the Constitution and happens behind the scenes, and it is fundamental.)

There is a split among the attorneys I know about whether the right to testify before the grand jury is a fundamental right.  I believe it is for the reasons that follow.

The Court of Appeals has stated that it is not per se ineffective assistance for defense counsel to fail to facilitate a client's appearance before the grand jury.

This case is indistinguishable from People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 (1996), where defense counsel arrived at the grand jury after the indictment had been voted. Indeed, until the indictment was handed down there was no felony charged. Here, defense counsel also failed to secure defendant's appearance before the grand jury In Wiggins, we held that failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to the denial of effective assistance of counsel. In this case, defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury. Significantly, there is no claim that had he testified in the grand jury, the outcome would have been different.

People v. Simmons, 10 NY3d 946

But there are cases that reverse convictions when defense counsel has failed to effectuate a client's desire to testify before the grand jury.  In a Kings County Court 2002 decision Judge  Reichbach noted the lack of clarity and guidance from the courts on this issue:

The initial question presented is whether, as a matter of constitutional right, the decision to testify before the Grand Jury is one that can only be made or waived by the defendant. This requires a determination as to whether or not a defendant's right to testify in the Grand Jury is a fundamental or constitutional one. Both the United States Supreme Court and New York's Court of Appeals have enumerated these decisions that are so fundamental that they can only be made by the defendant, not his attorney. The United States Supreme Court in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), noted that decisions such as whether to waive a jury, whether to testify at trial and whether to take an appeal are so fundamental that they can only be made by the defendant (citing ABA Standards on Criminal Justice, On Defense Functions, Standard 4–5.2 [Second Edition] ). In People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 (1989), New York's Court of Appeals likewise found that fundamental decisions include whether to plead guilty, whether to waive a jury trial, whether to testify on one's behalf and whether to take an appeal. The Court of Appeals in People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986) indicated that this list was not exhaustive. The Court of Appeals has made it plain that the right to testify before a Grand Jury is not one of constitutional dimension, but rather a right provided by statute.   People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996). While not of constitutional dimension, nevertheless the Court of Appeals has determined it to be a “valued” right, a “significant and substantial” right which must be “scrupulously protected”. People v. Evans, 79 N.Y.2d 407, 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 (1992); People v. Smith, 87 N.Y.2d 715, 720, 721, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996); People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723 (1992). While clearly, an attorney has the right to make day-to-day decisions governing a case, and those decisions will be binding on a client, People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2nd Dept., 1983) there is apparently no New York authority indicating whether this significant statutory right to testify before the Grand Jury, once invoked, may be waived without the defendant's permission.

People v. Edwards, 192 Misc.2d 473, 475-76, 747 N.Y.S.2d 688, 690 (N.Y.Sup.,2002)

In a great summary of the law and conclusions to be drawn about whether a client gets to make his decision, Judge Reichbach, citing numerous cases, wrote:

Many cases hold that a failure by defense counsel to secure a client's right to  testify before the Grand Jury by failing to file a cross Grand Jury notice is not, by itself, ineffective assistance of counsel. People v. Sturgis, 199 A.D.2d 549, 606 N.Y.S.2d 241 (2nd Dept., 1993); People v. Bundy, 186 A.D.2d 357, 588 N.Y.S.2d 167 (1st Dept., 1992); People v. Otis, 186 A.D.2d 828, 589 N.Y.S.2d 816 (2nd Dept., 1992) .... On the other hand, appellate courts have found that subsequent to the filing of a cross Grand Jury Notice, errors by counsel which have the effect of precluding the defendant from testifying constitute ineffective assistance requiring dismissal of the indictment. People v. Jimenez, 180 A.D.2d 757, 580 N.Y.S.2d 393 (2nd Dept., 1992); People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782 (2nd Dept., 1981); People v. Moskowicz, 192 A.D.2d 317, 595 N.Y.S.2d 464 (1st Dept., 1993).

Judge Reichbach continued by setting forth his interpretation for the basis for these two seemingly inconsistent lines of cases, and reconciling them.  He found that the distinction was between cases in which a defendant's desire to testify had already been communicated to the prosecution, in which failure of counsel to act was clearly in conflict with a client's stated interest, in contrast with those where no such notice had been filed.  (But he also noted another court's seemingly accurate but differing conclusion that this rationale wold find it was worse to do half the job - serving notice but not following through - than no job at all.  And that makes no sense, right?) (For a review of factors leading a different court to conclude the decision is strategic, see People v. Cox, 2007 WL 5160499 (N.Y.Sup.), 4 (N.Y.Sup.,2007.))

So if failing to inform a client is not per se ineffectiveness, are we off the hook?  I don't think so, for a few reasons.

First, if the client has this right and we are striving to provide client centered representation, honoring our clients' rights to be involved in charting their course, it seems completely inconsistent to fail to advise them of this process and their right to participate in it.

Second, the statute clearly protects a client's right to testify before the grand jury. The decisions that fail to find ineffectiveness when a client claims the attorney did not enable him or her to testify before the grand jury seem to reflect that the issue was not preserved, or raised on the record below.  Of course it wasn’t – the client was not aware it was an issue or had to be raised.  Perhaps the client didn’t even know s/he had the right to testify. 

And in the recent Fourth Department decision, People v. Brumfield (Fourth Dept., Sept. 27 2013), the Court emphasized the importance of a defendant's right to testify before the grand jury, stating,

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.

Additionally, if we are required to discuss the grand jury right with a client, how can we then decide the client does not get to exercise that right.

Given this emphasis on the importance of a defendant's right to testify before the grand jury, we should be at least as vigilant in protecting it as the Fourth Department, right?’

And if the failure of the prosecution to allow a defendant to testify is a violation of a client’s rights so substantial that an indictment gets dismissed when the defendant is deprived of that right, how is it less of a violation if we cause the deprivation?

Finally – sometimes we get it wrong.  In a case I handled recently, I begged and pleaded with a client not to testify.  The client went in (after we prepared for the testimony I so feared) and the case was no billed.  What if I had decided not to let him testify?

The alternative view raises the concern that if we let our clients testify in ways that damage their cases, then we may be held ineffective.  But if we write those CYA letters to the file and client, then how is this different from any other circumstance when our client has made a fundamental decision that we disagree with –such as taking a case to trial when we believe the evidence against them is rock solid and they should be pleading.

So although the right is not usually described as a fundamental right, I believe that it is – and that at some point the Court of Appeals will recognize the obligation of defense counsel to honor a client’s decision to testify even if defense counsel disagrees.

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