Summer 2012 | Volume 24 | Number 2 Publication of the New York State Association of ATTICUS Criminal Defense Lawyers INSIDE this ISSUE 5 Join The Call For Discovery Reform! 8 Legislative Report by Andy Kossover 18 Orders of Protection and The Disappearance of Due Process by Shailly Agnihotri and Nicolas Schumann 25 Pop*Star in Brooklyn The Emergence of Federal Drug Treatment Courts CRIME LAB SCIENCE by Jeffrey Pittell A Look Behind The Curtain 29 Handling Rat Testimony III By Benjamin Ostrer , Page 10 by Ray Kelly, Esq. and Donald G. Rehkopf, Jr., Esq. 34 Book Review: Taking Liberties Quantifying Evil: reviewed by Malvina Nathanson The Depravity Scale 37 NYSACDL’s Annual Syracuse Spring Seminar 2012 as Junk Science by Robert G. Wells by Robert Wilbur , Page 15 38 Second Thoughts by JaneAnne Murray New York State Association [email protected] 2 Wall Street Phone: 212-532-4434 of Criminal Defense Lawyers www.nysacdl.org New York, New York 10005 Fax: 888-239-4665 Publication of the New York State Association of ATTICUS Criminal Defense Lawyers PRESIDENT Richard Willstatter Message from the President PRESIDENT-ELECT Benjamin Ostrer FIRST VICE-PRESIDENT Aaron Mysliwiec Discovery Reform: VICE PRESIDENTS THE TIME HAS COME Wayne C. Bodden, Andrew G. Patel Michael Shapiro, Andre Vitale This Association has dedicated itself to making a difference on legislative SECRETARY John S. Wallenstein issues in New York State and nationally. We are proud to be a state affiliate of the National Association of Criminal Defense Lawyers, and active in TREASURER Jane Fisher Byrialsen its efforts to support enactment of S. 2197, the Fairness in Disclosure of Evidence Act of 2012, co-sponsored by Sen. Linda Murkowski (R-Alaska) EXECUTIVE DIRECTOR and Senator Daniel Inouye (D-Hawaii). NACDL leads a coalition supporting Margaret E. Alverson this bill, which includes the ACLU and the U.S. Chamber of Commerce. The BOARD OF DIRECTORS bill would require federal prosecutors to disclose information and materials James A. Baker Michael T. Baker that reasonably appear to be favorable to defendants. It would mandate Bruce A. Barket disclosure of this information without delay and as soon as reasonably Deborah Colson practical after the government learns of it. You should write your Senators Mitchell J. Dinnerstein Michael G. Dowd and Representatives to urge them to support discovery reform. Danielle Eaddy Marc Fernich Here in New York State, NYSACDL had been active in lobbying legislators David Goldstein and the Governor for discovery reform by way of amending Criminal James W. Grable, Jr. Timothy Hoover Procedure Law Article 240. We know all too well that state law is entirely Andrew Kossover inadequate to provide counsel with information necessary to defend a Arnold Levine criminal case. A variety of proposals are being suggested, and a coalition Marshall Mintz JaneAnne Murray has been forming to urge the passage of discovery reform this year. Since Lisa Peebles the public is learning that innocent people are sometimes convicted because Donald G. Rehkopf, Jr. favorable evidence has been withheld by prosecutors, people are becoming Mark J. Sacco Robert G. Wells aware that steps must be taken to protect the process of criminal prosecution from prosecutorial zeal and to prevent trial by ambush. Members are urged PAST PRESIDENTS to speak to their senators and assembly members to explain why discovery Lawrence S. Goldman Paul J. Cambria, Jr. reform is critical. Each of you can probably tell a story of how the D.A. Jack T. Litman withheld favorable evidence from you, sometimes until it was too late for Mark J. Mahoney you to use it to secure an acquittal, sometimes until after the client pleaded David L. Lewis William I. Aronwald guilty under pressure and fear of a longer sentence. Thomas F. Liotti Ira D. London ACCESS IN ALBANY Jeanne E. Mettler It has been a real privilege for me to travel to Albany to lobby the legislature Murray Richman Gerard M. Damiani and the Governor’s office on criminal justice issues. With the invaluable Marvin E. Schechter assistance of our able lobbyist, Sandra D. Rivera, counsel at Manatt, Phelps Kathryn M. Kase & Phillips, LLP, Steven L. Kessler met in March with a variety of legislative Russell M. Gioiella James P. Harrington leaders and staff counsel concerning our opposition to the Governor’s Richard J. Barbuto ill-conceived proposal to mandate criminal forfeiture in every criminal case. Martin B. Adelman Mr. Kessler, who worked on the original state statute on civil forfeiture Joshua L. Dratel Ray Kelly (CPLR Article 13-A) while he was in the Bronx District Attorney’s Office, Daniel N. Arshack spent many hours writing and speaking to people in Albany to express our Lisa Schreibersdorf Craig Schlanger concerns. The original proposal was to enact criminal forfeiture as part of George R. Goltzer the Governor’s budget. We–and our allies– succeeded in defeating that effort, Kevin D. O’Connell 2 Atticus | Volume 24 Number 2 | Summer 2012 | New York State Association of Criminal Defense Lawyers and yet we expect to have to resist further efforts from the prosecutors to enact EDITORS this legislation which is designed, in part, to enrich District Attorney’s Offices. Benjamin Ostrer John Wallenstein Recently, Legislative Committee Chair Andrew Kossover, NYSACDL Past Andy Patel President Lisa Schreibersdorf and I traveled to Albany to meet with members of the state senate, the state assembly and the Governor’s counsel on a variety PUBLISHER of criminal justice issues, discovery reform among them. We also promoted Niki Jones Agency legislation to provide for discretionary sealing of non-violent felonies and 39 Front Street misdemeanors. We supported Chief Judge Lippman’s proposal to raise the age Port Jervis, New York 12771 of criminal responsibility. We received a warm reception from both sides of the Phone: 845-856-1266 aisle. The leaders with whom we met were interested to hear from us and wanted Fax: 845-856-1268 to understand our point of view. Credit for the access we now have goes to those [email protected] who have worked on the Legislative Committee these last several years, and to NYSACDL’s lobbyist. We cannot promise the members that we will always stop Publication of the repressive legislation, or that we will succeed in enacting positive criminal justice New York State Association of reforms, but we can say that our voice is heard in Albany. Criminal Defense Lawyers JOIN US ©2012 NYSACDL The Association has a terrific new set of Board members, who volunteer their time to work on this magazine, create CLE programs, work on amicus curiae cases, 2 Wall Street defend members through the Strike Force, and hear complaints about misconduct New York, New York 10005 in our Prosecutorial and Judicial Complaint Center. It is an honor to represent Phone: 212-532-4434 this Association on our Board of Directors and I remind you that you should Fax: 888-239-4665 consider volunteering to join. If you are elected, you will have an opportunity www.nysacdl.org to help your colleagues and serve the cause of justice right here at home in a [email protected] larger sense than just the individual cases on which you are already working. Any member can volunteer to become a member of one of our committees. You [email protected] will find that effort to be well worth your time, because you will meet a new community of like-minded attorneys with whom you will be proud to work. Richard D. Willstatter, NYSACDL President Continuing Legal Education “SERVE YOUR CLIENTS; PROTECT BINGHAMTON TRAINER WEAPONS FOR THE FIREFIGHT YOURSELF”, PLEA BARGAINING Binghamton, NY Fall 2012 AFTER MISSOURI V. FRYE & September 2012 LAFLER V. COOPER Visit our website www.nysacdl.org Jointly with Suffolk County Bar Assn FEDERAL PRACTICE SEMINAR for registration information or contact: October 16, 2012 & November 1, 2012 Margaret Alverson, Executive Director October 30, 2012 SDNY Courthouse [email protected] 500 Pearl Street 212-532-4434 SYRACUSE TRAINER NYC Syracuse, NY October 2012 Atticus | Volume 24 Number 2 | Summer 2012CLE | New York State Association of Criminal Defense Lawyers 3 Editor’s Page Events The variety of articles and viewpoints expressed in this issue of ATTICUS NYSACDL 2012 highlights the involvement of NYSACDL in matters of importance to the Board Meetings criminal defense community. Support for NYSACDL’s ongoing efforts to impact legislation under consideration in Albany is best demonstrated by the growing September 22, 2012 membership of this organization. We encourage all of our readers to pass on Albany a link to ATTICUS, www.nysacdl.org/atticus, to your contacts and others you December 1, 2012 believe would be interested in the work of NYSACDL. We also ask that when the New York City opportunity arises, you remind your colleagues to join the effort by becoming a Kindly check www.nysacdl.org member of this organization, which remains the largest independent criminal bar for dates and locations of future association in New York State. We hope you enjoy this issue, and welcome your Board Meetings. submissions for future publication. It is a practice to schedule board Thank you for your continued support of ATTICUS, meetings throughout the state. Co-Editors John S. Wallenstein Ben Ostrer Andy Patel LIKE US! [email protected] [email protected] [email protected] NYSACDL IS ON FACEBOOK Printed and published in New York. ADVERTISE inATTICUS Statewide print & electronic distribution Enamored readership Contact us for details & rates! Affordable rates 845.856.1266 [email protected] 4 Atticus | Volume 24 Number 2 | Summer 2012 | New York State Association of Criminal Defense Lawyers Items of Interest Join the Call for Discovery Reform! I used to say that, New York’s current criminal discovery scheme has contributed to a justice system that leads the Nation not in fairness but in wrongful convictions.