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MaMPlease join the Pace Criminal Justice Institute on Wednesday, March 2, 2016 at 6:00-9:00 PM in the Pace Law School Moot Court Room for an event: Legal, Ethical and Practical Issues: A Panel Discussion on the Netflix Documentary Series ‘Making A Murderer’. Join us as panelists including Professors Carol Barry, David Dorfman, and Lissa Griffin, and alumnus Chris McNerney (’06), Chief of Greenburgh Police, discuss the legal and ethical issues raised by this documentary. Attendees can earn up to 3.5 CLE credits (1.5 ethics and 2.0 professional practice).

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The Houston Chronicle reports that in Texas

thousands of cases are being reviewed for testimony about DNA odds that may have been given using outdated guidelines that inflated the likelihood a defendant had touched a murder weapon or another piece of evidence.

Developments in DNA technology had revolutionized the use of DNA evidence in criminal trials and had played a major role in the efforts to uncover wrongful convictions.

Although those involved in innocence litigation know that Texas has a very bad record in wrongful convictions, particularly based on DNA,  in the words of Barry Scheck (a co-founder of the Innocence Project), “Texas is the only place that’s systematically trying to correct it.”

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“Making a Murderer,” the Netflix series about Steven Avery, who may or may not have murdered Theresa Halbach in a rural Wisconsin town, has created a healthy controversy. Everybody is asking: “Did he do it? Or was he framed by the police?” Avery served eighteen years in jail for a crime he did not commit until he was exonerated by DNA evidence in 1999. His multi-million dollar lawsuit against the county, he alleges, is the motive for the police charging him with murder. Avery, along with his nephew Brendan Dassey, a mentally-challenged teenager, were convicted in separate trials.

The 10-part series is controversial. The documentarians are accused of biased reporting intended to prove the defendants are innocent. But that’s unfair;  ultimately, the series  demonstrates something true and more important: that despite the guilty verdicts we really do not know who killed Halbach, how, or why. The prosecution presented a strong circumstantial case, but this evidence is carefully dissected, and a viewer can readily believe that what little there was had been planted by the police. Moreover, Dassey’s “confession” in which he “guessed” at what the police wanted to hear, and later repeatedly recanted, is utterly uncorroborated by anything the police could find and appears to be the unreliable product of well-known unsavory police interrogation tactics.

We should broaden the debate beyond guilty or not guilty,  because “Making a Murderer” raises several fundamental questions about the criminal justice system.

First, what is the goal of our system? Is the goal to yield results that society is willing to accept? To be sure, we hope the adversary system and the use of juries lead to reliable results. But we know that, as the documentary shows, tragic mistajes are made, eyewitnesses are mistaken, and that the most we can ever hope for is uncertainty.  Is that enough?

Does the criminal adversary system really produce a fair fight? Avery’s retained lawyers worked incredibly hard, were unstintingly loyal, and were highly effective. Dassey was indigent and was assigned an attorney who, from the beginning, believed and announced that his client was guilty despite Dassey’s protests of innocence, and in fact,  handed the prosecution evidence to use against him. After this attorney was removed, new counsel was appointed and did the best he could. But once again we revisit the age-old maxim that the quality of justice depends on how much money you have.

Did the prosecutors perform their constitutional duty to be “ministers of justice”? Whether one buys the claim that Avery was framed, it’s clear that the prosecutor accepted whatever came from the police without any independent reflection. Even after the court ordered the local police to stay out of the investigation, they stayed deeply involved and produced the only “evidence” of guilt. The prosecutors believed Dassey’s fantastic tale of bloodthirsty sexual assault even though not a drop of blood or any other forensic evidence could be found to support it. Moreover, disregarding his ethical obligations, the prosecutor repeatedly made highly prejudicial statements to the media revealing extensive inflammatory details about the crime.

A few other thoughts. The absence of any racial issues – everyone involved is Whites – simplifies the legal and policy questions raised by the film. This is an excellent opportunity. But in their place we see issues of class and culture at play in a small rural community in middle America, a culture we really can’t penetrate. How do rumor, personal history, kinships, friendships, and resentments impact the quality of justice here?

In the final analysis, nobody really knows why or how Theresa Halbach died. Avery may be innocent, a degenerate, or a predator; Dassey may be no more than an immature, mentally-deficient teenager. They may have killed her, or maybe they did not. The title alone raises the provocative question: did the police “make” a murderer by framing a case against Avery? Or did society “make” a murderer by wrongly imprisoning a young man for eighteen years on the basis of a single mistaken identification? One can always fault the messengers, but the series raises important questions.

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event neuroscienceThe Fordham Law Review in co-sponsorship with the Fordham Neuroscience and Law Center present an all day Symposium entitled Criminal Behavior and the Brain: When Law and Neuroscience Collide on Friday, February 26, 2016. The line-up of speakers is impressive; see the brochure

This symposium examines a variety of cutting-edge, at times controversial, linkages between law and neuroscience, ranging from social and environmental influences on the brain and behavior to the interpretations of neuroimaging to the prediction of criminality and predispositions towards mental illnesses and addictions.

The registration is open and those interested can earn up to 4 professional practice and 2 ethics CLE credits.  Students should consider attending and learning more about this fascinating subject.

The U.S. Supreme Court recently agreed to hear a challenge to President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and an expanded version of the Deferred Action for Childhood Arrivals program (DACA). Texas and twenty-five other states sued the administration to prevent DAPA’s implementation on three grounds.

Here are some initial thoughts from Vanessa H. Merton, Professor of Law and Director of the Immigration Justice Clinic at Pace Law School, about the relevance of this ruling to the criminal justice community. She notes:

If the plaintiff states were to prevail in this case, it should mean that a citizen could  sue a local district attorney for 1) failing to take care to faithfully execute the law because s/he has not rounded up and prosecuted to the maximum extent of the law every single litterer whose lawless littering may have diminished the value of my property, or 2) failing to enforce  to the maximum – no plea-bargaining – every single inspection sticker violation, noncompliant equipment violation, or moving violation that might conceivably cause excess traffic and the risk of unsafe vehicles.  As much as prosecutorial discretion can be abused, a world without this kind of prosecutorial discretion would be absurd and dysfunctional.

Ironically, the temporary suspension of deportation available in these Presidential executive-order programs would not be available to most people who have any significant involvement with the criminal justice system.  No one with either a felony conviction or a conviction for many misdemeanors can qualify.

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WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

Right on the heels of the highly publicized conviction of former New York Assembly Speaker, Sheldon Silver, former New York State Senate Majority Leader, Dean Skelos, and his son, Adam Skelos, were found guilty on federal corruption charges, including bribery, extortion, and conspiracy.

Dean Skelos used his position of power and authority to secure his son, Adam, consulting work and “no show” jobs at a real estate firm, environmental technology company, and a medical malpractice insurer. Adam netted approximately $300,000 from his father promising employers, among other favors, “preferential legislative treatment,” as one of the “three men in the room” that determine the state budget. Despite the easy monetary windfall he received from his father’s connections, Adam was indifferent, and oftentimes downright belligerent, at the suggestion that he should actually work at these jobs. Christopher Curcio, Adam’s supervisor at the medical insurance company, recalled Adam’s response to Curcio’s request that he log in some hours in the office. “He said, ‘Guys like you couldn’t shine my shoes…If you talk to me like that again, I’ll smash your f–kin’ head in.” After a slew of overwhelming evidence, including cooperating witnesses, emails, and wiretaps between the father and son duo, a jury found both men guilty of all eight counts after a total of eight hours of deliberation.

The conviction was a huge victory for the Southern District of New York’s United States Attorney, Preet Bharara, who tweeted, “How many prosecutions will it take before Albany gives the people of New York the honest government they deserve?” Bharara’s question is one that many New Yorkers have asked over the years and optimistically, it looks like it may be answered soon.

While there have been missteps during the prosecution of corrupt political figures in Albany – the Skelos investigation was commenced by Governor Andrew Cuomo’s anticorruption panel, the Moreland Commission, which was created in July 2013 but subsequently disbanded nine months later – the trial and conviction of the Skeloses, and its temporal overlapping with Sheldon Silver’s trial, suggest a strong change in the tides for the United States Attorney’s Office. While drug offenses remain the most frequently prosecuted crimes in the United States federal courts, accounting for 31% of all defendant filings in 2014, there is also a steady decrease in the prosecution of these crimes. Drug offense prosecutions have dropped approximately 14% last year, while immigration offenses, the second most frequently prosecuted crime in federal court, declined by 8%. The Southern District of New York also boasts a shockingly high conviction rate across the board – over 95% of all criminal cases result in a plea of guilty. In light of their conviction rates and the steady decline of the two more frequently prosecuted federal crimes, it is fair to assume that the Southern District not only has the resources to take on Albany corruption, but also plays to win.

Just as immigration and drug offenses have been the crux of the Southern District’s prosecution strategy for decades, it seems as though the Skelos and Silver trials are ushering in a new era where political corruption is at the forefront of concern. Hopefully, the Southern District (and by extension, all federal district courts) can use these convictions as encouragement for a task that is well within its powers – in the words of Bharara, to give the people of New York an honest government.

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A recent investigation by The New York Times into the death of a prisoner, Leonard Strickland, at Clinton Correctional Facility reveals a savage beating by correction officers, horrifying indifference to the prisoner’s condition by medical personnel, lying by the corrections officers involved, and a total absence of any sanctions or systemic response. The biggest shock comes from the claim that a handcuffed and viciously beaten prisoner was a continuing threat or presented a potential for escape that justified the physical abuse and indifference that led to his death. Could a group of correction officers actually be “afraid” of a handcuffed and unresponsive inmate or “fear” that such a prisoner would try to escape? One can only ask if this is the same “fear” that is used to justify recent police shootings of unarmed and sometimes fleeing individuals.

Read the full article An Inmate Dies, and No One Is Punished by Michael Winerip & Michael . 

Warning:  this link contains a disturbing, and potentially upsetting, videotape.

New York State Agrees to Overhaul Solitary Confinement in Prisons by Michael Schwartz & Michael Winerip in today’s New York Times.

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

After a three-week highly publicized federal trial in the Southern District of New York, former New York Assembly Speaker, Sheldon Silver, was convicted on all seven counts against him. Silver received nearly $4 million in corrupt payments from two different law firms and earned over $700,000 in referral fees from real estate firm, Goldberg & Iryami, by inducing real estate developers to retain the firm. Silver also received over $3 million in case referrals sent to Weitz & Luxenberg. Silver secured the asbestos case referrals from a doctor, and in exchange, directed New York State funds to the doctor’s research center. Silver was automatically expelled from his assembly seat after his conviction.

The conviction of Silver signifies many turning points for New York and presents a broad array of subject matter. The end of a powerful politician’s decades-long run. A vacant seat in the assembly. A recently honed focus by the federal government to end rampant political corruption. But another less obvious topic of discussion amidst Silver’s trial is the role the jury played in his conviction. On several occasions during the deliberation process, jurors vocalized their concerns and requested to be relieved. Though Silver was ultimately convicted by a unanimous decision, it is worth noting the issues expressed by these jurors and what exactly they signify.

Shortly after the jury began deliberations, one juror sent a note to Judge Valerie E. Caproni requesting to be dismissed. “I have a different opinion/view so far in this case and it is making me feel very, very uncomfortable,” the juror wrote. “I am so stressed out right now that I can’t even write normally. I don’t feel like I can be myself right now! I need to leave!” The judge denied the juror’s request. Furthermore, the juror had also requested a private meeting with the judge. Judge Caproni denied such a meeting, stating that, “the secrecy of jury deliberations is a cornerstone of our jury system.” Shortly after the request, the judge received another note stating that one of the jurors was “having difficulty distinguishing whether or not exchanging New York State funds for something in return is illegal” – the ultimate trial issue – and requested information on a code of conduct. Another juror, a cab driver, later asked to be excused based on a conflict of interest – his medallion owner allegedly was friends with Silver. The juror was kept on the case. After three days of deliberation, a guilty verdict was rendered.

Jury deliberations are secretive by nature. It is very rare to catch a real-time glimpse of the inner workings of such a system. But in Silver’s case, perhaps one of the most highly publicized trials New York has seen in recent history, the mindsets of some jurors were exposed for all to see – and for all onlookers to analyze. So what does it mean when there is such discord in the juror room – enough to warrant letters to the judge and requests for dismissal?

In the case of the first reluctant juror, defense lawyer, John Meringolo, believed it could perhaps be due to the juror’s unwillingness to convict. “When there’s chaos in the jury room, it’s always good for the defendant. Statistically, the conviction rate is so high in the federal system, when you have someone who’s willing to take a stand, it means that maybe he has a shot.” Meringolo proved correct. After a deliberation was reached, the juror identified herself and stated she was the only juror who doubted Silver’s guilt. “There were people who did not want to listen to anything I had to say — not many, a few,” Arleen Phillips said. “It was tense and I just wanted to get out of there.”

A juror’s pressure to ‘get out’ of deliberations (and oftentimes, jury duty itself) is a problem that has long plagued the justice system. As is one of the many ways in which a juror’s fairness is unable to be gauged, lawyers and judges alike cannot predict which jurors vote due to factually and legally cognizable reasoning and which vote simply to “get out of there.” But in Silver’s case, it was vocalized on three separate occasions that there were issues amongst the jurors that influenced their decisions in perhaps an inappropriate way. As evident in Phillips’ statement, unanimity was not reached due to her actual beliefs and interpretations of the facts and law, but rather, it seems that she was broken down by others.

It is no surprise that a juror majority will always try to influence the lone wolf in an effort to reach a verdict. But what happens if debate and discussion turns into pressure and coercion? At what point is a jury considered no longer able to render a truly unanimous verdict? Silver’s case is a prime example of such an issue, and just as it brings forth many questions as to the propriety of New York’s politicians, it is also an excellent vehicle in which to examine the practical difficulties of juror unanimity.

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POST WRITTEN BY:  Erica Danielsen (’16), J.D. Pace Law School

On Wednesday, December 2, 2015 the NY Assembly Standing Committee on Correction held a hearing in Albany to discuss “Oversight and Investigations of the Department of Corrections and Community Supervision (DOCCS).” The Assembly held this hearing in the aftermath of the June 2015 Clinton Correctional Facility escape. The Assembly invited experts, academics, attorneys, and family members of inmates to testify. The Committee also invited Pace Law School Professor Michael B. Mushlin to testify.

Prof. Mushlin has extensive experience in the area of prisoners’ rights and brought his knowledge of prison oversight to the attention of the Committee. He expressed the importance of adequate oversight and noted key issues with New York’s current failure to provide adequate oversight of its correctional facilities. He stated that

oversight is needed because prisons are dark places where horrible things will happen unless there is oversight. Without oversight prisons cannot be humane despite the best of intentions and ‘inhumane prisons are not safe.’

Prof. Mushlin presented the Committee recommendations on how to improve its lacking system. He suggested critical components of oversight such as independence, an open door policy for physical access, an effective monitoring and regulatory system, the duty to report, and a legal requirement for correctional facilities to respond to investigation reports.

Professor Mushlin embraced organizations that New York already has in place such as the Correctional Association and Prisoners Legal Services of New York whose Executive Director, Karen Murtagh, also testified, and he pointed out that these organizations can only do so much, which is why legislative action is needed.  Professor Mushlin critiqued the NYS Commission of Correction which currently has legislative authority to investigate and report on prisons but fails to live up to its legislative powers.

The Assembly further heard testimony from Charlene Burkett, Corrections Ombudsman of State of Indiana, and Kate Eves, Independent Oversight Consultant of United Kingdom and Wales. Ms. Burkett and Ms. Eves aided the discussion by offering insights about an overview, guidelines, and recommendations of how various oversight bodies work in other states and countries. Moreover, Jonathan Moore, Esq. – the lead counsel for New York’s stop and frisk case, attorney for the Eric Garner case, and counsel for the family of Samuel Harrell who tragically lost his life to guards at Fishkill – testified about the importance of civil rights issues. And last but certainly not least, came the emotional cries from two mothers whose son’s were abused in prisons bringing their own human realities to the attention of the Committee.

Neither the Inspector General nor the Commissioner of Corrections testified on Wednesday since the Clinton escape investigations are still pending. However, Daniel O’Donnell, the chair of the Committee on Correction, adjourned the hearing for a future date in order for those organizations to offer testimony about their findings. Mr. O’Donnell stated that he would subpoena them to testify if necessary.

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