Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any timeto make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

Failure to State The Obvious Might Constitute Ineffective Assistance of Counsel

by
James Eckert, Assistant Monroe County Public Defender 

When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result.  The problem is that appellate courts look for counsel to conclude the hearing by saying "the fact that the police didn't have a description and didn't have a report of a crime and didn't have any reason to arrest the defendant except that they wanted to 'see what's up' failed to preserve the arguments made on appeal."  It doesn't matter that everyone in the room knows what the issue is.  

You have to say the magic words.

Also, if you start a suppression hearing by claiming that you're overwhelmed with work and cannot competently represent your client, don't be too surprised if people believe you.  The Court of Appeals, in People v Clermont (2013 NY Slip Op 06806 [10/22/13]) the defense suppression motion said defendant had been stopped in a car when no car was involved.  More importantly (because it's far more common), defense counsel did not argue the suppression facts following the hearing:

"At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument.  This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression.  Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant's attorney made no motion to reargue or otherwise correct the court's apparent factual error.  Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer's uncontradicted testimony."

Defense counsel's failure at any time to make the key arguments is the reason counsel was ultimately found to be ineffective.  So a motion which lays out the facts and legal argument arising from those facts could be critical in some cases.  If you know what the hearing will be about, and there's no strategic reason not to lay it out in your papers, this is something to keep in mind.  Further, defense counsel erred in not taking exception to the court's misstatement of facts.  The burden to ascertain whether the court is mistaken or sloppy could be an uncomfortable one, but if you cite People v Clermont, I'm sure your judge will be very understanding and accept your criticism with grace and wit.  

The Court of Appeals relied on defense counsel's claim to be unable to provide effective assistance, but noted that counsel's representation was inadequate "before, during and after the proceeding".  In rejecting the prosecution's harmlessness argument, the Court of Appeals reaffirmed the importance of post-hearing argument and correcting a judge who messes up the facts, "In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined."  Thus, the common practice of relying on the suppression court to know what the rules are and what the defendant's arguments would be (presumably given the questions asked by defense counsel) is risky.  Make a post-hearing argument either orally or in writing, laying out the facts and your legal argument arising from those facts.  Apparently you also have an obligation to take exception to the decision if it contains factual errors or is unsupported by the record.

Judges Rivera and Lippman dissented, giving a lengthy rendition of the facts saying that the gun should be suppressed.

by

Jill Paperno, 
Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).   

by

Jill Paperno, 
Special Assistant Monroe County Public Defender

Although it has been twenty years since the New York Court of Appeals in People v. Mendoza (82 NY2d 415 [1993])  held that a defendant does not have to sign an affidavit in support of a suppression motion, some local judges still believe they must.  Hopefully, the Fourth Department's recent decision in People v. Starlet Battle, decided on 9/27/13, will help put this issue to rest.  In Battle, the Fourth Department affirmed defendant's conviction based on factual insufficiency of the allegations contained in the motion.  However, the Court stated

We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion.  As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person' " (People v. Mendoza, 82 NY2d 415, 421, quoting CPL 710.60[1].  A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60[1]).  The court also erred in suggesting that defendant was required to deny participation in the crime.  It is well settled that a defendant must 'deny participating in the transaction or suggest some other grounds for suppression' in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).   

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. Finally, as detailed below, the Appellate Division, Fourth Department, in People v Brumfield (2013 NY Slip Op 06120 [4th Dept  9/27/13]), held that the District Attorney cannot validly refuse to permit a defendant to testify at the grand jury where the defendant has complied with the statutory requirements, but refused to agree to the additional waivers sought by the District Attorney.

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 wrong 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 statue 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 Brumfield with the Monroe County District Attorney's waiver of immunity form containing three parapgraph not required by statute, Brumfield deleted six paragraphs from that form and then signed the form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the The District Attorney refused to permit Brumfield to testify before the grand jury. 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 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...

There is nothing in this decision which precludes the District Attorney from continuing to use the form. Hopefully, however, attorneys  will  no longer agree to sign this waiver form and defendants who refuse to sign the form will no longer be penalized.

Great work by David Juergens on the appeal.

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. Finally, as detailed below, the Appellate Division, Fourth Department, in People v Brumfield (2013 NY Slip Op 06120 [4th Dept  9/27/13]), held that the District Attorney cannot validly refuse to permit a defendant to testify at the grand jury where the defendant has complied with the statutory requirements, but refused to agree to the additional waivers sought by the District Attorney.

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 wrong 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 statue 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 Brumfield with the Monroe County District Attorney's waiver of immunity form containing three parapgraph not required by statute, Brumfield deleted six paragraphs from that form and then signed the form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the The District Attorney refused to permit Brumfield to testify before the grand jury. 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 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...

There is nothing in this decision which precludes the District Attorney from continuing to use the form. Hopefully, however, attorneys  will  no longer agree to sign this waiver form and defendants who refuse to sign the form will no longer be penalized.

Great work by David Juergens on the appeal.

Crime and Punishment, Part 2; Where you end up usually depends on where you start

The other catalyst was Steve Earle’s “Ellis Unit One,” written from the perspective of a regular-Joe, death row prison guard who’s not handling the stress of his job real well:

. . .Last night I dreamed that I woke up with straps across my chest,
And something cold and black running through my lungs,
And even Jesus couldn’t save me, though I know he did his best,
But he don’t live on Ellis Unit One.

So he sees elements of his condemned charges in himself, and visa versa.  But the juries who condemned the same men did not experience this same level of commonality.  Instead, those juries saw not shared traits, but “otherness” sufficient to warrant exterminating the menace.  But what is the capacity of juries asked to weigh mitigation evidence to truly appreciate and consider another’s circumstances? According to David Eagleman, PhD, a neuroscientist at the Baylor College of Medicine and director of the Laboratory for Perception and Action (http://EaglemanLab.net) and the Initiative on Neuroscience and Law (http://NeuLaw.org), it’s pretty limited.  In his thought-provoking 2012 article for The Atlantic titled “Brain on Trial,” (http://www.theatlantic.com/magazine/print/2011/07/the-brain-on-trial/308520/) he addresses the precepts of accountability, responsibility, and the punishments that flow from what science is revealing to be the flawed assumptions upon which the criminal justice is grounded:

Many of us like to believe that all adults possesses the same capacity to make sound choices. It’s a charitable idea but demonstrably wrong.  People’s brains are vastly different. 

Every mitigation jury needs to hear this, if not verbatim, than in sum and substance.  What follows is the best two-page summary of how biologically-imposed impediments to free will compel consideration of mitigation evidence in criminal justice sentencing that I have seen.  This section concludes with the following:

It is problematic to imagine yourself in the shoes of someone breaking the law and conclude “Well, I wouldn’t have done that” – because if you weren’t exposed to in utero cocaine, lead poisoning, and physical abuse, and he was, then you and he are not directly comparable.  You cannot walk a mile in his shoes. 

Of course you wouldn’t have done that.  Who would? And why? Eagleman’s article and his research included on the above websites provides science-based answers to these questions that juries asked to evaluate mitigation evidence wrestle with.

He examines not only the concept of free will, but just as importantly, “free won’t” – whether one has the ability not to act, and the concept of “choice” as affected by the spectrum of an individual’s neurobiology, and how those limitations butt up against the mostly one-size-fits-all approach to accountability based on a defendant’s “choices.”

I read in the article a challenge for criminal defense practitioners to do a better job of educating jurors concerning the reasons why the criminally accused acted as he or she did, which not infrequently, as Eagleman notes, are based on “the unique pattern of neurobiology inside each of our heads [that] cannot qualify as choices; these are the cards we’re dealt.”  So are the defendant's deficiencies a product of nature or nurture?  It doesn't matter, as Eagleman notes when consdering accountability, since the defendant had no choice in either one.

Maybe even more important is the idea of helping jurors understand why they are particularly poorly-equipped to accurately weigh the extent and effect of a defendant’s limitations.  I think we generally do a sub-par job of this, perhaps because many of our assumptions and stuff we think we know (assumptions shared by, and taken for granted by jurors as true) are proven, as science advances, to be just plain wrong (think factors in reliability of eye-witness identification: mind like a video camera/never forget a face/better powers of observation under stress ).

David Eagleman’s research provides a empirical basis to address the “pull yourself up by your own bootstraps/self-determinism/wholly independent actor” arguments that, while appealing to juries, are misleading and just plain wrong.  Next time you have to think about mitigation, you could do worse than spending an afternoon on the websites listed above.