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

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

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

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

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

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

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

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

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

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

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

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

Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County  relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding; 

[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).

Challenging the denial of release couldn't be more straight forward. 

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

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

Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County  relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for any inmate who, like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding; 

[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).

Challenging the denial of release couldn't be more straight forward. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HT: Donald Rehkopf