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Prof. Bennett L. Gershman of Elisabeth Haub School of Law at Pace University, in his most recent Huffington Post blog titled Judge Drops Ball in “Grid Kid Slaying” Casecomments on yet another instance of blatant prosecutorial misconduct. This one involves a Brooklyn prosecutor who failed to reveal information about circumstances surrounding the testimony of the prosecution’s star witness.  As Prof. Gershman suggests, it appears that there was in fact a quit pro quo between the prosecutors office and Avitto, which the Judge chose to ignore.

This was the defendant John Giuca’s second try at a new trial.  Prof. Gershman focuses on the court’s misplaced acceptance of the testimony of a career criminal, John Avitto (Giuca’s cell-mate), who claimed Giuca had confessed to him and who also claimed he had not received anything in return for his testimony.   Prof. Gershman articulates the test that should be applied and concludes that the court failed to engage in the appropriate analysis.

But Judge Chun missed the point. The test is not whether there was any formal agreement; the test – and the law is very clear on this – is whether there is any reasonable basis in fact for the informant to believe that he is gaining special treatment from the prosecution because of his cooperation, and whether that special treatment might reasonably have motivated him to falsify his testimony.

Prof. Gershman asks:

… Is this a tactic that a prosecutor – the most powerful official in government and sworn to serve justice – should be allowed to embrace when there is the chance that revealing these facts to the jury might destroy the credibility of her star witness?

 

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

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The New York State Assembly will soon vote on Assembly Bill No. 9939, which would establish independent oversight of NY’s prisons.  Prof. Michael B. Mushlin drafted a letter in support of the Bill, which he sent to the Speaker Heastie on June 7, 2016.

The purpose of the 2015 Assembly Bill No. 9939 is summarized as follows:

[This Bill] creates the office of the correctional ombudsman to achieve transparency, fairness, impartiality, and accountability in New York state correctional facilities; relates to reports by coroners; designates investigators of the office of the correctional ombudsman as peace officers; authorizes the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community supervision in connection with his or her official duties; relates to the confidentiality of certain records; and includes the office of the correctional ombudsman records within the definition of public safety agency records; makes related provisions.

Prof. Mushlin concludes his letter with a quote from the U.S. Supreme Court Justice Anthony Kennedy from his 2003 speech to the American Bar Association:

It is no defense if our current prison syste is more the product of neglect than of purpose. Out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.

This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.

The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?

In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?

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On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors

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Interestingly, the federal court has postponed Sheldon Silver’s surrender date pending the Supreme Court’s decision in United States v. McDonnell. Read a recent post by Prof. Bennett L. Gershman on the pending appeal titled Corrupt Acts, Political Favors, and the McDonnell Case. Virginia Ex-Governor McDonnell appealed his bribery conviction after jury found him guilty of receiving frequent and multiple gifts from Jonnie Williams, head of a dietary supplement company. The statute requires that a public official “corruptly received anything of value personally in return for being influenced in the performance of any official act.”

McDonnell appealed the conviction citing routine political conduct, being accessible to its constituents, lending a friendly ear, and even arguing that “political favors were political speech protected by the First Amendments.” Prof. Gershman comments on the Justices’ behavior during the arguments pointing out that although Justice Breyer appeared “troubled by the statutory term ‘influence’”, its definition, meaning and application, Justice Kennedy, on the other hand, appeared to “buy McDonnell’s arguments.”

How will the Court’s decision in McDonnell, a decision watched by many across the country, affect the results of Sheldon Silver’s pending appeal?

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Earlier this month, the New York Court of Appeals issued its decision in People v. Elliot Parrilla, in which the defendant was convicted of possession of a gravity knife under NY Penal Law § 265.02(1). That provision states that a person is guilty of criminal possession of a weapon in the third degree when

…[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one…of section 265.01 and has been previously convicted of any crime.

NY Penal Law § 265.01 defines Criminal Possession of a Weapon in the Fourth Degree as follows:

A person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; …

Both sides agreed that, to be convicted, the defendant had to knowingly possess a knife. The defense argued that the defendant also had to know that the knife he possessed was capable of being a “gravity knife.” The Court of Appeals held that he did not, and affirmed the conviction.

Interestingly, when the defendant was arrested he possessed a knife that he had bought at a large retail store in the Bronx  for use in his work as a contractor/ carpenter to cut sheet rock. He testified that on the day of his arrest, he had used the knife to cut tiles, but that he opened it with two hands and had never opened it with one hand by flicking his wrist, which is what makes a knife a gravity knife. The court charged the jury that it could convict the defendant if it found he knowingly possessed a knife, did not have to find that he knew it fit the “legal description of a gravity knife,” but had to find that it did in fact fit that description. Under NY Penal Law § 265.01(5) a gravity knife is

any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.

The Court did not engage in any extended analysis: it relied on the plain language of the statute to find an intent to criminalize possession of weapons that are per se particularly dangerous. It supported this holding by pointing out that knowledge of a firearm’s operability is not an element of criminal possession of a weapon.

Arguably, under the Model Penal Law, the result would be different. Since no mens rea is specified in the statute, the MPC would require that a conviction be based on evidence that the defendant intentionally, knowingly, or recklessly possessed a gravity knife, and it would apply not only to the possession element but to the attendant circumstance that what is possessed is a gravity knife.

Interestingly, again, this was one of the cases argued at Elisabeth Haub School of Law, when the Court of Appeals heard cases at the Judicial Institute. It was a fascinating argument, partly because of the fact that the knives had been legally sold by a major store chain until that chain agreed with the office of the NY County District Attorney to stop selling that item; partly because the defendant apparently did use the knife in his work, and partly because he was only arrested and charged with the weapon after he caused a ruckus with the police. Of course, those are the kinds of facts that you can learn from an oral argument or a trial, but that rarely make it into a written decision on a question of law.

Related Readings:

Prof. Bennett L. Gershman of the Elisabeth Haub School of Law at Pace University has reviewed a new book, The Midnight Assassin by Skip Hollandsworth.  In his review, The Midnight Assassin: Panic, Scandal, and the Hunt for America’s First Serial Killer. Prof. Gershman lends his prosecutorial eye to Hollandsworth’s written account of an unsolved series of murders – believed it to be the America’s first serial killer case. Prof. Gershman writes

Set in Austin, Texas—the capitol of the newly minted Lone Star state— The Midnight Assassin recounts a series of eight ghastly murders that were committed during the years 1884 and 1885. More like annihilations, these butcheries incited panic and paranoia in this frontier town of 17,000 people, and undermined municipal efforts to make Austin a mecca of prosperity and modernism.

The killer was never caught, although tantalizing clues point to several potential  suspects. Some observers believe that the killer fled Texas, traveled to London, and recreated himself into the legendary Whitechapel killer famously known as “Jack the Ripper.”

Prof. Gershman mentions a PBS TV documentary that identified the killer as 19-year old Nathan Elgin, who was allegedly apprehended at a crime scene, whose involvement was supported by additional circumstantial evidence, and after whose death these killings stopped. Yet, Hollandsworth discounts this possibility in his book leaving readers with a well-written dramatic story of one of the oldest (and almost forgotten) murder mysteries in the history of America.

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Prof. Michael B. Mushlin, of Pace University’s Elisabeth Haub School of Law, is a nationally renown expert on the prison system in the United States. He has authored a four volume treatise titled Rights of Prisoners, written numerous articles on the issues of prisoners’ rights and prison oversight, and testified in the NYS Assembly Standing Committee on Correction in support of a comprehensive prison reform in New York State.

Most recently he spoke with NowThis News about the state of affairs in US prisons in a clip titled In Some Prisons, Guard Break the Law Instead of Upholding, commenting on solitary confinement, brutality, physical abuse, contraband and corruption in U.S. prisons. To find out more about the life behind bars tune in on Thursdays at 10/9 central to A&E for a rel-life series titled 60 Days In.

We are proud to announce that Pace Law School has been renamed the Elisabeth Haub School of Law at Pace University in honor of the late German philanthropist and environmental advocate, who has had a long partnership with our law school. See Press Release, below. Pace will become the first law school to be named after an environmentalist, and the second to be named after a woman (after the Sandra Day O’Connor College of Law, Arizona State).

This is wonderful news for the entire Pace community. As for the PCJI, we look forward to expanding our role in ensuring environmental justice.

 

PACE UNIVERSITY RENAMES LAW SCHOOL IN HONOR OF RENOWNED ENVIRONMENTAL CONSERVATIONIST

Record Gift Will Create Endowment, Expand Distinguished Environmental Law Program and Fund Research and Teaching Initiatives

NEW YORK – Pace University announced today that its law school has been renamed the Elisabeth Haub School of Law in recognition of its long-standing partnership with the family of the late Elisabeth Haub, a tireless environmental advocate and philanthropist, and a generous donation from the Haub family. The gift, the largest that Pace University has received in its history, will establish an endowment for the Law School, strengthen the school’s renowned environmental law program and fund innovative teaching initiatives.

“Pace University is thrilled to deepen and broaden its partnership with the Haub family, bolster our environmental curriculum and continue leading the progress of environmental law and regulation,” said Pace University President Stephen J. Friedman. “An extraordinary gift of this kind occurs when donors and institutions come together in support of a shared vision. We are deeply grateful to the Haub family and look forward to building on Elisabeth Haub’s admirable legacy at Pace University.”

“The Haubs’ very generous gift to the Pace University Law School underscores the family’s twin passions for environmental sustainability and education,” Pace University Board of Trustees Chairman Mark Besca said. “We are deeply honored to have the name Haub associated with our law school and will remain fervent educators and advocates for the issues they hold close to their hearts.”

“Our family has enjoyed a longstanding and successful relationship with Pace Law School, working with its world-renowned environmental law programs. We have come to admire the high-impact environmental work done around the globe by graduates of this law school, as well as the school’s deep commitment to innovation in teaching and its strong record of delivering value to its students,” Christian Haub, grandson of Elisabeth Haub, said. “We want to continue the legacy of my grandmother, Elisabeth Haub, who was a pioneer in environmental protection, and endowing this Law School in her name ensures her vision will continue to impact future generations.”

“We are enormously thankful for the Haub family’s support of our distinctive ‘path to practice’ model of legal education,” said David Yassky, Dean of the Elisabeth Haub School of Law. “At a time when many law schools are retrenching, this gift allows us to strengthen our program, especially the in-the-field learning that we believe is so crucial for students’ success in practice.”

In addition to providing an endowment, the gift will fund specific initiatives in the school’s Environmental Law program, which is ranked third in the nation: it will create the Haub Scholars program, providing reduced tuition to a select group of the most highly-qualified and promising environmental law students. The program will enable these students to study or attend conferences abroad, ensuring that the Haub Scholars have a truly global experience.

The gift also endows a Chair in Environmental Law, a Chair in Public International Law and an annual Visiting Scholar in a related field, in recognition that environmental science, informatics and other technology and other allied fields are now an essential element in formulating environmental policy.

The gift also includes funding for innovative teaching initiatives such as online courses and apprenticeships with law firms and nonprofits. “This is a pivotal moment for the legal profession and for law schools,” Yassky said. “We aim to create Law School 2.0 by connecting the classroom more directly to the courtroom and the boardroom, and this funding will help us get there.”

The Haub gift comes amid numerous calls for change in legal education. President Obama has suggested that law school be a two-year program instead of the current three-year requirement, and regulators including the American Bar Association and the New York State Court of Appeals have encouraged more apprenticeship training to supplement traditional classroom instruction.  The Haub School of Law already offers a Semester-in-Practice option for third-year students, and an accelerated “Spring-Start” program enabling students to graduate in two-and-a-half years.

The gift continues Pace University’s longstanding collaboration with the Haub family, building on Elisabeth Haub’s extraordinary legacy of promoting the progress of environmental law, with particular emphasis on activities that impact policy, promote a balanced approach to sustainable growth and reflect the global nature of environmental issues. Haub devoted much of her life to the stewardship of sustainability, forming the first foundation dedicated to establishing laws for nature conservation and environmental protection.

Since her death in 1977, Elisabeth Haub’s children and grandchildren have continued her environmental work through the family business – the Tengelmann Group, a German retail holding company – and by founding the Elisabeth Haub Foundations for Environmental Law and Policy. Elisabeth’s daughter-in-law, Helga Haub, shared her vision and continued her work by expanding the Haub Foundations to the United States and Canada. Elisabeth’s son, Erivan Haub, embraced his mother’s commitment to the environment in the family business, establishing sustainable management practices within Tengelmann long before corporate social responsibility became a professional standard. Liliane Haub, the third generation of the Haub family to focus on sustainability, has now assumed responsibility for continuing her mother-in-law’s work and has been instrumental in deepening the family’s relationship with Pace Law.

In 1997, Pace University and the International Council of Environmental Law, in collaboration with the Haub family, created the Elisabeth Haub Award for Environment Diplomacy. Given annually, the prestigious award recognizes the innovation, skill and accomplishments of diplomats, international civil servants and other negotiators who work to shape the world environmental order.

Pace University also shares Elisabeth Haub’s commitment to empowering women. The earliest Pace Law School classes were selected based in part on gender parity at a time when many law schools reserved very few places for female law students. Years later, the School launched the Pace Women’s Justice Center, a leading provider of civil legal services and training focused specifically on domestic violence. The Elisabeth Haub School of Law will become just the second law school in the United States named solely for a woman. (The Sandra Day O’Connor School of Law at Arizona State University is the other.)

About Elisabeth Haub School of Law

The Elisabeth Haub School of Law, the law school at Pace University, offers J.D. and Masters of Law degrees in both Environmental and International Law, as well as a series of joint degree programs including a Doctor of Juridical Science (SJD) in Environmental Law. The school, housed on the University’s campus in White Plains, NY, opened its doors in 1976 and has over 9,000 alumni around the world. The Haub School is led by Dean David Yassky, who has served in a variety of public, political, academic and private sector positions over a legal career that spans four decades. The school maintains a unique philosophy and approach to legal education that strikes an important balance between practice and theory.

About Pace University

Since 1906, Pace University has produced thinking professionals by providing high-quality education for the professions with a firm base in liberal learning amid the advantages of the New York Metropolitan Area. A private university, Pace has campuses in New York City and Westchester County, enrolling almost 13,000 students in bachelor’s, master’s, and doctoral programs in its College of Health Professions, Dyson College of Arts and Sciences, Lubin School of Business, School of Education, Elisabeth Haub School of Law and Seidenberg School of Computer Science and Information Systems.

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