Pace Criminal Justice Center Blog

On May 1, 2009, Jonathan Lippman, Chief Judge of the State of New York, announced the creation of the New York State Justice Task Force—one of the first permanent task forces on wrongful convictions in the United States. The Justice Task Force was formed to study wrongful convictions, learn the causes of wrongful conviction, and propose recommendations to make wrongful convictions less likely to occur

Information about the Task Force, its mission and members, as well as its recommendations, can be found here.

Among other criminal justice proposals, the Task Force is unanimously recommending electronic recording of police interrogation because

recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation. Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement’s voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers.

Over 800 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come. www.innocenceproject.org

Certainly recording of interrogation could have prevented the wrongful conviction of Jabbar Washington, whose case is discussed once again in the New York Times this morning.

But legislation to require recording of police interrogation is being blocked in New York by the recalcitrance of the NYC District Attorneys. Why don’t our district attorneys join collective efforts to improve the criminal justice system? Why shouldn’t New York be in the forefront of criminal justice reform? Why are we lagging behind?

Tags: confession, false confession, justice task force, new york criminal justice reform

On June 6, 2013, the New York Court of Appeals affirmed the Appellate Division, First Department order vacating George Oliveras’s murder conviction.  In 1999, Mr. Oliveras voluntarily went to a police station when he heard police were looking for him in connection with a murder.  Even though Mr. Oliveras’s mother informed police prior to the interrogation that he suffered from mental illness, detectives interrogated Oliveras for six and a half hours – eliciting statements that were the only direct evidence connecting him to the crime. The description provided by a 911 caller did not match Oliveras and bullets found at the scene did not connect him to the crime.

Defense counsel moved to suppress Oliveras’ in-custody statements as false and coerced.  But, counsel failed to conduct the investigation and analysis necessary to succeed in his strategy. Trial counsel failed to subpoena his client’s mental health records, and did not hire an expert. Oliveras was convicted.

Post-conviction, the Office of the Appellate Defender brought a C.P.L. 440.10 motion to vacate, arguing trial counsel was ineffective.  After a hearing, the trial court dismissed the motion, but the Appellate Division First Department reversed and ordered a new trial. The Court of Appeals affirmed, explaining that counsel failed to pursue the minimal investigation required under the circumstances.

The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the fact and law, which required review of the records.

New York Courts are finally looking beyond the record on appeal and requiring counsel to undertake investigation demanded by the facts of the case.

To read the decision, click here.

Tags: counsel investigation, CPL 440.10, criminal defense, ineffective representation, mental illness, police practices

Of particular interest to criminal practitioners handling assigned cases, the Court of Appeals decided a case from Onondaga County where an assigned counsel lawyer challenged  the County’s interpretation of County Law 18-b, arguing that the rules hurt clients and served no purpose other than controlling costs. Roulan v. County of Onondaga, No. 62, NYLJ 1202598140845, at *1 (Ct. of App., Decided April 30, 2013).

NYCLU senior staff attorney Corey Stoughton, who is heading the Hurrell-Haring litigation brought to force reforms to New York’s indigent defense system, described the significance of the Roulan case in an Op Ed piece in last week’s New York Law Journal.

The assigned counsel challenged three rules. The first rule denied counsel to persons under 21 who cannot produce evidence of their parents’ indigence. The second rule prohibited persons who become indigent in the course of a criminal proceeding from requesting that the court pay their current counsel through the 18-b system. The third rule prohibited representation of a non-incarcerated client prior to a final determination by plan administrators of the client’s financial eligibility.

En route to the Court of Appeals, the Appellate Division, Fourth Department struck down the third of the challenged rules as unconstitutional, agreeing that it “requires attorneys to violate the indelible right to counsel that attaches at arraignment.” As to the first two rules, however, the Fourth Department found no constitutional violation.

The Court of Appeals decided that the Fourth Department should not have passed judgment on the constitutionality of the first two rules as counsel had no standing to raise the issues, and, significantly, left undisturbed the Fourth Department’s order declaring the delayed representation rule unconstitutional, noting that the respondents had failed to cross-appeal from that part of the order.

According to Stoughton’s Op Ed piece:

By leaving in place the Fourth Department’s rejection of the delayed-representation rule, the Court of Appeals preserved Roulan’s victory for indigent, presumptively innocent people who find themselves stranded and alone when facing a prosecutor’s accusation of crime. And, by reversing the Fourth Department’s endorsement of Onondaga County’s restrictions on eligibility and continuity of counsel, the court neutralized what otherwise would have been a defeat for the right to counsel for the poor.

Assigned counsel plan rules can impact the quality of representation provided to the poor in criminal cases. Are there assigned counsel rules in the county where you practice that adversely impact the representation you can provide your clients?  Are there changes you would suggest that might improve your assigned counsel plan? Let us know.

Related Readings

• N.Y. County Law §722 (McKinney 2013)
• Roulan v. County of Onondaga, No. 62, NYLJ 1202598140845, at *1 (Ct. of App., Decided April 30, 2013)
• Corey Stoughton, Indigent Defense Reform Benefits Defendants, Counties, N.Y.L.J. (May 30, 2013)

Tags: arraignment, assigned counsel practice, constitutional rights, right to counsel

In a 5-4 decision, the U.S. Supreme Court upheld a Maryland statute that permits the police to take DNA samples from anyone arrested for a serious crime. Writing for the majority, Justice Anthony Kennedy said the cheek swab was a legitimate identification procedure, like  fingerprinting and photographing. The dissent, written by Justice Antonin Scalia and joined by Justices Ginsburg, Sotomayor and Kagan, accused the majority of being disingenuous in pretending the purpose of the DNA testing is identification rather than its real purpose - solving cold cases.

The case, Maryland v. King,  challenged a Maryland statute that permitted DNA testing of arrestees for serious crimes. Alonzo Jay King, Jr., had been arrested on assault charges and his DNA was taken. His profile matched evidence from an unsolved rape.  He was charged with that rape and convicted.

See the following readings:

• Maryland v. King, 509 U.S. ____ (2013).
• SCOTUSBlog Coverage of Maryland v. King including links to the Docket, lower court’s opinion, U.S. Supreme Court opinion, transcripts and audio of the arguments, and related news coverage.

Tags: cold cases, DNA evidence, DNA testing, legislation, Maryland, Maryland v. King, U.S. Supreme Court, unsolved cases

Another unfortunate fatality resulted last week in New Rochelle, when the police attempted to deal with a man who was clearly mentally disturbed. These complicated and dangerous situations continue to generate controversy, particularly in these economic times when police departments may not have the resources to secure the immediate help of mental health professionals.

Pace Professor Bennett Gershman addresses the issues raised by these incidents in a recent editorial.

Tags: anti-psychotic medication, emotionally disturbed, fatality, mentally disturbed, New Rochelle, police practices, shooting, stun gun

In the Arias murder trial, the jury deadlocked eight to four in favor of the death penalty. Arizona is just one of two states that permit a retrial where a jury deadlocks on punishment in a death penalty case. The other states provide that a post-deadlock sentence be one of life imprisonment.

The U.S. Supreme Court has long held that a hung jury in a typical criminal case does not prohibit retrial. Briefly, the theory behind that holding is that the first, initial jeopardy does not terminate with a hung jury, so the prosecution can simply continue. Presumably, although the situation is a bit ghoulish, the same theory would likely apply to permit the Arias prosecutor to retry the penalty phase of the trial.

Still, does it make sense to retry the death penalty case? Aside from the time, expense, and anguish associated with a retrial, a new jury would have to be selected and some of the evidence the original jury heard during the guilt phase of the first trial would have to be presented to the second sentencing jury, which would never have heard it. The judge has the option of sentencing Arias to life without parole or 25 years to life in place of a retrial.

For further information about the jury’s deliberations, read here.

Tags: Arias murder trial, death penalty, jury selection, life imprisonment, punishment, retrial

Professor Bennett Gershman has posted a provocative essay on the adaptation of military weapons by domestic police for home searches. What we use abroad will eventually return home. Do you agree with Professor Gershman’s analysis?  Read it here at the Huffington Post. http://www.huffingtonpost.com/bennett-l-gershman/flashbang-searches_b_3313408.html

Tags: military weapons, police practices, search and seizure

The Brooklyn District Attorney has promised to review 50 convictions that relied on the work of police detective Louis Scarcella – linked to “troubling aspects” of one case that was recently overturned.

The newly established Conviction Integrity Unit will review all of the cases where Scarcella was the lead detective and where the police investigation culminated in a conviction after trial.  

The New York Times reported that Scarcella relied on a single eyewitness to make at least a dozen cases.  The witness was known to be a drug-addicted prostitute who claimed to have seen multiple different murders happen before her eyes.

We applaud DA Hynes for establishing a Conviction Integrity Unity, and for focusing on the work of Scarcella. However, we believe that broader interpretation of the Brady rule would have prevented these convictions and could prevent other miscarriages of justice going forward.  Any time a police informant takes the stand, the prosecution should be required to discover and disclose not just a witness’s prior record and the benefit expected in exchange for testimony (that information is required to be disclosed now – pursuant to the current conservative interpretation of Brady), but also information about all the other cases where the informant has testified in the past.  If defense counsel had been told that Scarcella’s informant had traveled around Brooklyn spotting murders, counsel might have argued to the jury that the informant’s testimony was simply not credible. The prosecution might have reached that same conclusion on its own. But, since Scarcella was not required to enlighten the prosecution regarding the informant’s special history, the prosecution could turn a blind eye and keep defense counsel in the dark too.  A broader reading of the Brady obligation would put a stop to such willful ignorance.  

Read the New York Times May 19, 2013 editorial on Brady here:  

Related Readings

• Conviction Integrity Unit by the Innocence Project (Mar. 26, 2013)
• Brooklyn district attorney’s Conviction Integrity Unit reviews possible wrong verdicts to make sure they got it right by Denis Hamill (Daily News, Mar. 25, 2013)
• Brooklyn Prosecutor Says 50 Convictions Under New Scrutiny by Pervaiz Shallvani (Wall Street Journal, May 12. 2013)

Tags: Brady v. Maryland, Brady violation, Brooklyn DA, Conviction Integrity Unit, eyewitness, police investigation, police misconduct, police practices, willful blindness, willful ignorance

A new controversy has arisen from the already controversial authority of government prosecutors to promise or confer immunity. Recently, a defendant raised a defense that the government had authorized or permitted him to commit the charged offenses. Click here to read Prof. Bennett L. Gershman’s take on Licensing Crimes.

Tags: authorization to commit crime, Boston, defendant, immunity, MA, prosecutorial misconduct

Brooklyn District Attorney Charles Hynes has announced that his office will review convictions that involved evidence secured by a specific police detective.  This is welcome news.   Similar action is being called for in Chicago.

One wonders, however, whether having acknowledged the need for review, the district attorneys should request a state commission look into these prior convictions.  While it is possible that prosecutors were duped by false evidence given to them by the police, it is also possible that prosecutorial misconduct or at least willful blindness helped lead to wrongful convictions in these cases.  Conviction Integrity Units could serve a useful purpose as one of several avenues for identifying potential wrongful convictions for review.  But if the purpose of maintaining or restoring confidence in the criminal justice system is to be achieved or real reform enacted, New York State’s Commission on Wrongful Convictions should consider appointing an independent body to take over.

Related Readings

http://www.nytimes.com/2013/05/12/nyregion/doubts-about-detective-haunt-50-murder-cases.html?_r=2&

http://www.suntimes.com/opinions/20084502-474/editorial-check-out-all-abuse-claims-against-one-cop.html

Tags: evidence, New York State Commission on Wrongful Convictions, prosecutorial misconduct, review, willful blindness, wrongful conviction