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Clarence Darrow performancePace Law School and the Pace Criminal Justice Society present Clarence Darrow starring Professor Bennett Gershman. Please join us for this once in a lifetime event and note that there will be only two performances! Suggested donation is $15 and all proceeds will benefit the Equal Justice Initiative. Don’t miss it and come and join us!

WHEN:
FRIDAY April 24, 2015 at 7:30 pm
SATURDAY April 25, 2015 at 2:00 pm

WHERE:
The Moot Court Room at Pace University School of Law, 78 North Broadway, White Plains, NY

Clarence Darrow (April 18, 1857 – March 13, 1938) was born in Ohio and attended the Allegheny College and University of Michigan Law School. He began his career as a corporate lawyer, moved on to labor law, and at the end of his legal career he was a criminal attorney defending, among others, Leopold and Loeb in Chicago presenting a defense that the two accused boys were mentally disabled and should not be sentenced to death, John T. Scopes in Tennessee who was accused of teaching evolution theory in violation of the Butler Act, Ossian Sweet in Michigan, articulating and highlighting racial prejudice throughout the trial of Mr. Ossian Sweet who was charged with murdering a white male while defending his home, or the Massie Trial in Hawaii presenting an honor killing defense in a case where two defendants were charged with murdering Joseph Kahahawai – a man who was accused of raping and beating Ms. Thalia Massie but who was believed to have escaped justice because of hung jury.

Related Readings:

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On Monday, April 13, 2015 Pace Law School hosted a Symposium entitled Foundations of International Criminal Law, which was well attended by faculty, students, and staff. The symposium offered three thought-provoking discussion panels:

In addition, as part of this symposium, Prof. Jens David Ohlin delivered the 27th annual Blaine Sloan Lecture entitled The Assault on International Law based on his book of the same title. The following are two students’ reflections summarizing this riveting lecture.

 

Defection Isn’t Working Guys: Cooperation as the (First) Best Choice  

REFLECTION WRITTEN BY: Cassandra Castorino (’17), Pace Law School

Why should nation-states cooperate with one another, what role does international law play in multinational cooperation, and why is it significant? This three-part question was the fulcrum of Prof. Ohlin’s annual Blaine Sloan lecture.

Ohlin’s lecture presented an outline of his latest book, The Assault on International Law, in which he argues that international law must be complied with because the incentives to do so are present and persuasive and the benefits to be accrued are manifold and far-reaching. He avers that while it may be tempting for states to defect to gain seeming advantage (truly only a myopic one), it is international cooperation that offers the advantage for states. Abiding by international law  not only creates less risk, but it also provides for a greater reward  both in the short and long term. International institutions, conventions, and multilateral treaties, such as GATT and WTO, have already incentivized cooperation among states by reducing both the monetary and opportunity costs of cooperating, eliminating potential barriers to cooperation, and encouraging reciprocity of cooperation between competing states.

It is the United States withdrawal from international cooperation after 9/11 that triggered the need for a reevaluation of how our nation responds to its self-interests, Ohlin argues. The war against al-Qaeda brought about U.S. noncompliance with international law, particularly the torture policies and the drifting away from compliance with the Geneva Conventions, International Criminal Court, and United Nations. Ohlin urges the United States to follow his plan in order to awaken a shift from a self-motivated, minimally-gaining society, to one that willingly recognizes the value of abiding by international law. Profitability with respect to compliance of international law knows no bounds, Ohlin maintains.

Ohlin’s plan to revive U.S. compliance with international law is his own unique modification to the New Realists’ rational actors’ model that already exists in international relations theory. The New Realists’ model posits that states are sovereign and adopt their own mode of rational decision-making but that such decisions are guided only by national interests defined in terms of state power. This model is a self-motivated one – it urges states to act only pursuant to their own personal gain. Ohlin takes this plan of rationality and turns it against them. He strikes down the New Realists’ notions that states only act as rational actors when pursuing their own self-interest by redefining the ‘actor’ in the model. Ohlin suggests that states should act, not as states, but as humans, in assessing and carrying out their goals. Humans, unlike states under Realist theories, exhibit the propensity to remain faithful to the goals they devise because they know how salutary the effects will be once fully consummated. Seldom do humans reassess their main goal at each intermittent step to see whether or not defecting from their overall plan would provide for a higher return. Instead, even when humans veer off the set-out path to accomplish their goals, they only think of the end long-term goal and the high yield it will bring once carried out. In effect, the end goal exemplifies the true self-interest of the human actor.

Self-interested motivations run our world. Thus, applying Ohlin’s theory, if the effectuation of a long-term beneficial goal is motivated by self-interest, his plan works and promises gains both in the short- and long-term. If the State is kept as the actor in the rational model, however, self-interest can only be viewed through myopic, temporary gains that are sure to fall short in the long-run. If States were to adopt beneficial, long-term plans and complete the plan, as humans do, respect for and adherence to international law would likely not find itself in the precarious position it assumes today.

After hearing Ohlin’s plan of ‘human’ rationality for states, game theory notions, particularly that of the prisoner’s dilemma, immediately came to mind. By the end of his lecture, however, Ohlin successfully challenged the application of prisoner’s dilemma theory to international cooperation – now, it no longer holds in that context. The theory of prisoner’s dilemma says that although it is less risky and more gainful to always cooperate, rational actors acting in their own self-interest are still dissuaded from cooperating because there is a chance, albeit slim, that defecting provides the highest return. Prisoner’s dilemma relates to a scenario of 2 prisoners being interrogated: if both prisoners decide to cooperate and both either confess or stay silent, their time in prison will be shortened appreciably and they will likely receive the same sentencing. Conversely, if the two prisoners fail to cooperate and one confesses while the other one remains silent, the one who confesses may walk away free while the other one has to serve longer jail-time. Thus, the incentive to defect, if you think you’ll be successful, is high – one can potentially be absolved of all wrongdoing and spend no time in jail.

However, this theory only holds true if the theory of rationality is viewed through the lens of the New Realist framework. Ohlin has refashioned the self-interested rational actor model to make prisoner’s dilemma not applicable to cooperation with international law. If we apply Ohlin’s human plan of rationality to States we are dissuaded by the chance of ‘walking away free’ because, both in the short- and long-run, the defection is not as incentivized as cooperation is under international law. The natural instinct when complying with international law is to act like the human and follow through with the end goal. International law already incorporates mechanisms to discourage States from viewing defecting as beneficial. International law should be respected for all the benefits it bestows on States who choose to comply with it and the U.S. needs to give it another chance. Ironically, defecting has proven not to bring about a higher yield for our nation, bar none. It has led us astray from beneficial foreign policy goals and has  threatened our position at the apex of world influence. Defection from international law, very plainly, is not working for the United States.

My hope is that Ohlin’s cogently argued and laudably innovative thesis receives the attention, praise, and actual implementation it so merits because the potential effect it could have on our nation’s choice of which lens to view its foreign policy may bring our nation back to its heyday of exceptionalism – yet this time around, provide for a lasting exceptionalism, achieved by different, more globally salutary means.


A Look Into the Assault on International Law

REFLECTION WRITTEN BY: Joseph Moravec (’17), Pace Law School

Professor Ohlin focused on three points. First, following the attacks of 9/11, the Bush Administration (namely its various legal counsels) sought to discredit international law in order to circumvent certain obligations under international law and pursue courses of intelligence gathering, drone use in extra-judicial killing and surveillance, and the institution of torture. Second, the theoretical disillusionment with international law in academia by New Realist thinkers furthered skepticism of international law in deciding whether the United States should adhere to its international legal obligations. Professor Ohlin argues that in theory and application the Bush Administration found ways to re-write the interpretation of U.S. obligations so as to do “all that was necessary” to fight the War on Terror. Finally, Prof. Ohlin countered this thinking with the argument that, had the United States worked to adhere to international law and pursued multilateral courses of action during the initial stages of the War on Terror, we may have seen significantly greater success in both defeating Al-Qaeda, as well as preventing the rise of other terror groups such as Al-Shabab in Somalia, Boko Haram in West Africa, or more recently the Islamic State in Iraq and Syria.

While Professor Ohlin’s rebuttal of New Realist thinking is cogent, I find his argument incomplete. His argument rests on an interpretation of Rational Choice Theory, stating that the United States in the past 15 years has moved to a short-run view of rational decision making. By pursuing courses of action in short-term self-interest, the U.S. is both not winning the War on Terror, but also not obtaining the best future outcome. If the U.S. were to pursue a long-term strategy of national security, Prof. Ohlin argues, it would naturally include adherence to international law and would result in greater long-run prosperity and security.

However, the argument rests on two assumptions concerning the nature of rationality that were not fully addressed during his lecture. First, Prof. Ohlin’s argument that all international actors would follow international law because it is in their long-term rational self-interest presupposes that all international actors are interested in the same long-term ends, namely the “good of their people.” During the lecture, Prof. Ohlin examined the Netherlands and North Korea. The Netherlands have done quite well adhering to international law while North Korea is one of the poorest States in the world. Leaving aside alternative historical, geographical, and political explanations for the failures of North Korea and the success of the Netherlands, it cannot be said that the political players in the Netherlands and North Korea have the same rational framework. In the Netherlands, democracy in itself dictates the “good of the people” as the ultimate goal of political power. At least in theory, democratic elections ensure that a democratic government will act rationally toward this future interest. However, the situation in North Korea is quite different – a military oligarchy and hereditary dictatorship where elites personally choose a successor. Whatever we may think about political philosophy, we must consider the rationality of North Korean actions from the perspective of those who hold the power to make foreign policy and political decisions. From that perspective, North Korea has done quite well not adhering to international laws, which would long ago have undermined the dynasty of elites in political and military leadership, making it rational not to follow international law. It cannot be said that all international actors (States) are rationally interested in the same ends, and thus it is unlikely that all actors would pursue the same course to achieve those ends.

Second, Prof. Ohlin’s argument assumes that all international actors have the same capacity and ability for rational decision-making. A metaphor of two chess players is illustrative. When I play chess, I plan a strategy four or five moves ahead. However, Grandmaster players often calculate fifteen to twenty moves in advance. If I were to play against a Grandmaster, we would both be thinking and moving in our own long-term self-interest towards the same goal (winning), but I would likely lose because I lack the capacity to calculate far enough into the future. Thus, the capacity for rational decision making is not always equal among all actors. Rational Choice Theory presumes that both actors are capable of understanding the problem in order to reach the best possible outcome. However, as with chess players, States are unequal in their capacities for rational decision making. In the U.S., we have thousands of universities, think tanks, government institutions, free press, one of the strongest military and economy, a greater control of many vital natural resources, and the third largest population – we are, in a way, one of a few “Grandmasters” of international political actors, making us capable to rationally plan long-term. On the other hand, a State such as North Korea has limited economic and social power and thus significantly lower capacity for long-term planning. Thus, North Korea is less likely to rationally plan on the same scale as the U.S. Even if we assume that adherence to international law were the most rational course of action, North Korea may still pursue a course of action which ignores international law because North Korea may lack the resources and institutional capacity to accurately forecast the best long-term policies. In fact, it does not follow that either actor will ultimately succeed in reaching a “best” strategy. Both States have different resources and capabilities, and even the strongest State may lack the capacity to plan and execute the “right” plan.

Even if international actors are not equal, it is at least established that the U.S. is the State capable of pursuing a truly rational best strategy. If a complete adherence to international legal obligation is the most rational choice for such a strategy, as Prof. Ohlin argues, then the diversion of U.S. foreign policy from international law during the War on Terror has been a diversion from truly rational thinking. Perhaps even the U.S. with all of its resources has lost some of its capacity for long-term strategy. While the debate continues, it is a difficult task to scrutinize 15 years of U.S. foreign policy in hindsight. However, the very fact that we have an academic debate on this topic is itself a testament to the freedom to think rationally and the institutional capacity to do so that we all enjoy in the United States. We should not waste either one.

POST WRITTEN BY: Alexander Zugaro (’15), Pace Law School

The story of the 6-year-old boy, Etan Patz, who had gone missing in SOHO Manhattan in 1979, is one that stretches over several decades. Now, after a ruling on November 24, 2014 by Judge Maxwell Wiley and almost a three month long trial, the story is reaching a conclusion. In 2012, after police re-opened the investigation, Pedro Hernandez confessed to law enforcement that he was responsible for the disappearance and murder of Etan Patz. He told law enforcement that he strangled Etan and disposed of his body. Mr. Hernandez was an 18-year-old man working in a neighborhood convenience store at the time of Patz’s disappearance.

However, this past fall a hearing was held regarding the admissibility of Mr. Hernandez’s confession. Hernandez’s defense attorney, Harvey Fishbein, argued that Hernandez was schizophrenic and bipolar at the time he made his confession. As such, Mr. Hernandez did not understand he could reassert his right against self-incrimination even after he waived his Miranda warnings. Yet, Judge Maxwell Wiley ruled on November 24, 2014 that the confession was admissible, stating that Hernandez waived his Miranda rights and that such waiver was done knowingly and intelligently.

To date the prosecution has not been able to find any evidence corroborating Hernandez’s confession, except a statement made by Hernandez’s brother who told police that Hernandez had confessed to him two years prior to his arrest and a statement made to members of his prayer group in the summer of 1979, none of whom came forward to testify until after Mr. Hernandez was arrested. The body of Etan Patz was never found, and prosecutors have not presented any physical evidence tying Mr. Hernandez to the boy’s disappearance.

The significance of Judge Wiley’s ruling is that the jury was able to hear Hernandez’s confession and will decide on whether they believe his confession is reliable. Defense attorney Frishbein stated that “Mr. Hernandez is extremely suggestible because of his low I.Q. and other mental handicaps. Anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he killed Etan Patz, but that doesn’t mean that he did.” On the other hand, however, the lead prosecutor stated that Mr. Hernandez’s statements contain little-known details about the crime that would be hard for someone to invent. Because Judge Wiley ruled that Hernandez’ confession is admissible, the prosecution was able to present this confession as evidence to the jury, leading to the inevitable back and forth between Mr. Fishbein and the prosecutors about the reliability and weight of the confession.

Generally, if a defendant makes a videotaped confession coupled with voluntary admission to at least one other person, such evidence would be nearly impossible for the defense attorney to overcome. However, since in this case there is no tangible evidence corroborating the confession, will the jury doubt the accuracy of Mr. Hernandez’ confession? Time will soon tell.

Since the beginning of the trial on January 30, 2015, the defense has continued to undermine the reliability of Hernandez’s confession. Not only has the defense argued that the confession was a fantasy invented under police pressure by a man with a weak and malleable mind, plagued by a personality disorder, Mr. Fishbein has presented evidence of an alternative suspect who might have been responsible of Etan Patz’ disappearance. Witnesses place Jose A. Ramos, a man convicted of child molestation in an unrelated case, near Etan Patz’s home around the time of the murder. Ramos was dating Ms. Susan Harrington, who was hired to walk Etan Patz to and from school. The defense witnesses further testified that Ramos met Etan Patz and that he had been in the Patz’s apartment. Although Etan Patz’s mother denied Ramos was ever in their apartment, by presenting this evidence, the defense further undermined Hernandez’s confession.

The confession of Mr. Hernandez has become the focal point of the entire trial. As the attorneys are delivering their closing arguments, many people following the case and trial, I’m sure, have developed their opinions. For me, it was important to realize and understand that an innocent defendant and a defendant being not guilty are two very different things. The defense attorney has to create a reasonable doubt in the jurors’ minds that Hernandez has possibly not committed the alleged crime in order to succeed. Mr. Fishbein’s efforts to cast this doubt by introducing an alternative suspect theory, by undermining the reliability of the original confession, and by pointing to the lack of physical evidence have been clear. However, it is difficult to tell what the outcome of this case will be. As the jury is about to retire to deliberate, the long anticipated verdict will soon be revealed bringing this case to a close after decades of waiting.

Related Readings:

Clarence Darrow performancePace Law School and the Pace Criminal Justice Society present Clarence Darrow starring Professor Bennett Gershman. Please join us for this once in a lifetime event and note that there will be only two performances! Suggested donation is $15 and all proceeds will benefit the Equal Justice Initiative. Don’t miss it and come and join us!

WHEN:
FRIDAY April 24, 2015 at 7:30 pm
SATURDAY April 25, 2015 at 2:00 pm

WHERE:
The Moot Court Room at Pace University School of Law, 78 North Broadway, White Plains, NY

Clarence Darrow (April 18, 1857 – March 13, 1938) was born in Ohio and attended the Allegheny College and University of Michigan Law School. He began his career as a corporate lawyer, moved on to labor law, and at the end of his legal career he was a criminal attorney defending, among others, Leopold and Loeb in Chicago presenting a defense that the two accused boys were mentally disabled and should not be sentenced to death, John T. Scopes in Tennessee who was accused of teaching evolution theory in violation of the Butler Act, Ossian Sweet in Michigan, articulating and highlighting racial prejudice throughout the trial of Mr. Ossian Sweet who was charged with murdering a white male while defending his home, or the Massie Trial in Hawaii presenting an honor killing defense in a case where two defendants were charged with murdering Joseph Kahahawai – a man who was accused of raping and beating Ms. Thalia Massie but who was believed to have escaped justice because of hung jury.

Related Readings:

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

To follow up on an earlier post, on April 1, 2015 at a ceremony at The Hague the representatives of the International Criminal Court (ICC) welcomed Palestine as the 123rd Party to the ICC’s Rome Statute. The ICC representatives expressed hope that Palestine’s acceptance of the Rome Statute will contribute to the Statute’s goal of ending impunity for grave crimes of an international dimension.

Mindful of hotly contested issues relating to the Palestinian territory of Gaza, from which Hamas has launched attacks against Israel and in which Israel has launched attacks against Hamas, Judge Kuniko Ozaki, delivering Welcoming Ceremony remarks in the capacity of Acting President of the ICC, reminded Palestine that by becoming a State Party, it accepted the obligations (set out in Part 9 of the Rome Statute) requiring a State Party to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The ICC Office of the Prosecutor (OTP) recently addressed issues relating to Gaza. In May 2013, the OTP opened a preliminary examination into an incident on May 31, 2010 relating to Israel’s naval blockade of Gaza. At issue was whether the OTP had sufficient basis to open a formal investigation regarding war crimes allegedly committed by members of the Israeli Defense Force (IDF) when they boarded registered vessels of ICC State Parties that were attempting to defy the blockade. After conducting a preliminary examination for approximately 17 months, on November 6, 2014 the OTP issued a report pursuant to Article 53(1) of the Rome Statute, in which it thoroughly reviewed the matter and decided not to open a formal investigation.

The OTP’s report concludes that Israel’s stated purpose for the blockade was to interdict arms shipments that it considered would be used by Hamas for attacks against Israel. In May 2010, groups opposing the blockade organized a flotilla to bring humanitarian aid to the Palestinians and also to protest and to encourage international condemnation of the blockade. Israel had offered to allow the humanitarian aid to be delivered to Palestine by other means. On May 31, 2010, IDF personnel boarded some of the vessels after providing a warning. Several passengers on board one of the vessels violently resisted the IDF, but this resistance was not of such a degree as to disqualify the resisting passengers’ status as protected persons under the Geneva Conventions. While the information available did not support several potential charges, there was a reasonable basis to believe that the IDF willfully killed ten of the 500+ passengers, caused serious injury to several others, and committed outrages upon personal dignity of others. Nevertheless, the scale of the crimes involved, given the surrounding circumstances, did not meet the gravity requirement of Articles 17(1)(d) and 53(1)(d) of the Rome Statute.

Further, Rome Statute Article 8, defining war crimes, provides somewhat different rules depending on whether the acts in question were committed in the context of an international or non-international armed conflict. Addressing this issue, the OTP report concluded that “the prevalent view within the international community is that Israel remains an occupying power in Gaza” because of several controlling measures taken by Israel – despite Israel’s withdrawal of its forces from Gaza and the dismantling of Israeli settlements there in 2005. Citing basic principles of the international law of occupation, the OTP concluded that because Israel retains the capability of exercising effective control over Gaza, hostilities between Israel and Hamas implicated an international armed conflict.

Thus, if Israel is in fact in effective control of Gaza, ICC investigation of Gaza-related violence will likely be hampered because Israel, not being a Party to the ICC Statute, has no obligation to comply with ICC investigations. On the other hand, Palestine can find support in the international law of occupation, referenced by the OTP, stating that occupation of a State over part of the territory of another State does not displace the sovereignty of the latter over the occupied territory.

POST WRITTEN BY: Brad Landau (‘16), Pace Law School & Natalie Felsenfeld (’16), Pace Law School

Women in New York State prisons face many challenges. Women’s rights to reproductive health care and obstetrics and gynecology (OBGYN) treatment are often not protected and even violated. The Correctional Association of New York (CA), an independent, non-profit criminal justice advocacy organization, aims to create fair and humane criminal justice system in New York, and as such a safer and more just society for all. Created in 1991, the CA’s Women in Prison Project (WIPP) works to reduce the overuse of incarceration for women, ensures that prison conditions for women are as humane as possible, and aims to create a criminal justice system that treats all people and their families with fairness and dignity.

On April 1, 2015, we attended the Pace CJI event on the Rights of Incarcerated Women in New York State Prisons, which focused on the recently published report by the WIPP of the CA titled Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons. This report focuses on the New York State Department of Corrections and Community Supervision (DOCCS) that oversees the operation of all state prisons in New York. The report highlights and outlines the challenges incarcerated women face as a result of mistreatment by medical personnel and correctional officials as well as the inadequacy of policy-making in New York State. The report concludes that incarcerated women receive substandard OBGYN care, including the fact that pregnant women are still being shackled pre-, during and post- labor, even though the N.Y. Correc. Law § 611 (McKinney 2015) (also known as the NYS 2009 Anti-Shackling Law) prohibits the use of restrains of any kind when a “woman is in labor, admitted to a hospital, institution or clinic for delivery, or recovering after giving birth.”

WIPP is currently working to amend the 2009 Anti-Shackling Law to incorporate mechanisms that would ensure compliance with the laws by correctional officers. Among these mechanisms are:

  • Continually publishing information about the law;
  • Publicly reporting shackling practices and other violations;
  • Offering regular and effective training of all correction officers and medical personnel about the relevant statutory and regulatory provisions; and
  • Ensuring that incarcerated pregnant women are informed about their rights under the law.

One of the panelists shared a story about a woman who gave birth in a correctional facility:  the woman was in pain for 25 hours before the correctional officers believed that she was in labor.   She also described her personal experience of giving birth while incarcerated. During her childbirth, she was told to “shut up” by correctional officers on the way to the hospital while her contractions were 2 minutes apart.  Additionally, most incarcerated mothers are separated from their newborns immediately after birth unless they are fortunate enough to get into the nursery program.

Moreover, many women in prison have been victims of sexual abuse or assault; thus, being subjected to substandard OBGYN care often re-traumatizes them.  One of the panelists described how she was a victim of sexual abuse, and how having male correctional officers present during her OBGYN visits made her feel re-victimized. The CA’s report confirms that DOCCS does not provide medical care that is “trauma informed,” meaning that medical personnel in prisons are not trained in how to recognize and understand the impact of trauma on incarcerated women and how to provide care without re-traumatizing their patients. This is an issue that should be addressed in the future because incarcerated women should not have to re-live their psychological and physical harms of their past.

Another panelist also shared her experience with NYS’s unequal approach to offering plea bargains at arraignments to men compared to women.  According to her,  men are more likely to receive plea bargains at arraignment than are women: in fact,  she had never met a woman who was offered a plea during the arraignment stage.  Her personal experience, if proven true, raises the question of inequality and gender bias during the criminal process, which should be addressed.

Although a difficult topic to talk about, the CA panel was a great success in making all attendees think critically about the disparate treatment of incarcerated women in NYS prisons. The CA panel raised two key issues that need to be addressed:

  1. Whether the criminal justice system treats women the same as men in terms of opportunities for early dispositions?
  2. Whether women in prison receive competent and trauma-sensitive OBGYN care while incarcerated? If not, what can be done so incarcerated women are not re-living the psychological and physical harms of their past.

The CA panel was important because it appeared that some attendees were made aware of these issues for the first time. Holding panels such was this one is an integral and valuable part of a law school education because continuous discussion and education about such issues is the first step to effecting change.

The American Bar Association has published its Fourth Edition of the ABA Criminal Justice Standards for the Prosecution and Defense Functions, adopted by a resolution 107D in February 2015. This edition supplants the Third Edition (1993) of the ABA Standards for Criminal Justice: Prosecution Function and Defense Function. Among the new provisions are the following:

For the Prosecution

  • Standard 3-1.3 – The Client of the Prosecutor – explicitly stating that a victim is not a prosecutor’s client.
  • Standard 3-3.6 – When Physical Evidence with Incriminating Implications is Disclosed by the Defense – stating that “[w]hen physical evidence is delivered to the prosecutor consistent with defense function standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client.”
  • Standard 3-4.3 – Minimum Requirements for Filing and Maintaining Criminal Charges – stating in subsection (d) that “[a] prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.”
  • Standard 3-5.c – The Decision to Recommend Release or Seek Detention – recommending that prosecutor should favor pretrial release over detention unless detention is necessary to protect individuals or the community. Additionally, prosecutor should remain open to reconsideration of pretrial detention.
  • Standard 3-5.8 – Waiver of Rights as Condition of Disposition Agreements – requiring a prosecutor not to condition a disposition agreement on a waiver of the right to appeal the terms of a sentence, on any waiver of post-conviction claims, or a complete waiver of the right to file habeas corpus petition, fully incorporating the DOJ policy banning waiver of ineffective counsel claim as a condition to guilty plea, as discussed here.
  • Standards in Part VIII Relating to Appeals and Other Conviction Challenges
    • Standard 3-8.1 – Duty to Defend Conviction Not Absolute – requiring prosecutor to exercise one’s own independent professional judgment and discretion and thus allowing the prosecutor to decline prosecution if she “believes the defendant is innocent or was wrongfully convicted, ….”
    • Standard 3-8.3 – Responses to New or Newly Discovered Evidence or Law – placing emphasis on seeking justice by requiring prosecutors offices to develop policies and procedures to address situations in which the prosecutor learned of credible evidence ‘creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, ….”
    • Standard 3-8.4 – Challenges to the Effectiveness of Defense Counsel – requiring the prosecutor to intervene if he observes that defense counsel may be ineffective.
    • Standard 3-8.5 – Collateral Attacks on Conviction

For Defense Counsel

  • Standard 4-2.3 – Right to Counsel at First and Subsequent Judicial Appearances – stating that “[a] defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”
  • Standard 4-5.4 – Consideration of Collateral Consequences – placing a requirement on the defense counsel to “identify and advise the client of collateral consequences that may arise from charge, plea or conviction.”
  • Standard 4-5.5 – Special Attention to Immigration Status and Consequences – taking standard 4-5.4 one step further by incorporating the decision of Padilla v. Kentucky, 559 U.S. 356 (2010) (slip opinion copy) (requiring defense counsel to advise his client of potential immigration consequences as a result of guilty plea).
  • Standard 4-9.4 – New or Newly-Discovered Law or Evidence of Innocence or Wrongful Conviction or Sentence – placing a duty on the defense counsel to act if she “becomes aware of credible and material evidence or law creating a reasonable likelihood that a client or former client was wrongfully convicted or sentenced or was actually innocent.”

municipalviolations

Revelations that Ferguson, Mo. subjected its most vulnerable citizens to criminal fines as a partial solution to its budget needs prompted comedian John Oliver to more fully explore the ramifications of such practices. Check it out!

RJ-Report-Cover-JPEG-231x300A recently published report by the Correctional Association of New York, Reproductive Injustice, addresses the reproductive health care for women in New York State prisons.  The Report was commented on here by Pace Prof. Michael Mushlin and  has sparked debates across the state. Please join PILSO (Public Interest Law Student Organization at Pace)and the CJS (Criminal Justice Society at Pace) on Wednesday, April 1, 2015 at 12:30 pm – 1:30 pm in Tudor Room of Preston Hall at Pace Law School for a panel discussion on the rights of women in NYS prisons.

The event features an exciting line-up of panelists including:

Join us for a thought-provoking discussion and learn how to get involved. Refreshments will be served!

Related Readings:

The Supreme Court, Kings County, has granted a post-conviction motion to vacate a conviction (CPL 440.10) where the defendant’s attorney accepted employment with the Kings County District Attorney’s Office after having been substantially involved in the preparation of the case for trial.  The attorney was assigned to the homicide bureau, became Chief of the Trial Division, and then an Executive in the office and there were no mechanisms put in place to avoid a breach of confidence or the appearance of a conflict of interest.

People v. Dennis, Indictment No.: 12843/1989 (N.Y. Kings Cnty, Mar. 16, 2015).

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