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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association

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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association NYSBA WINTER 2013 | VOL. 11 | NO. 1 New York Criminal Law Newsletter A publication of the Criminal Justice Section of the New York State Bar Association TThehe UUnitednited SStatestates SSupremeupreme CCourtourt aass IItt BBeginsegins IItsts NNewew TTermerm ((SeeSee ffeatureeature aarticlerticle A PPersonalersonal LLookook aatt tthehe UUnitednited SStatestates SSupremeupreme CCourtourt oonn ppageage 115)5) The Collection of the Supreme Court of the United States From the NYSBA Book Store Section Members get 20% discount* with coupon code PUB1633N Foundation Evidence, Questions and Courtroom Protocols, Fourth Edition Foundation Evidence, Questions and Courtroom Protocols, Fourth Edition aids litigators in preparing appropriate foundation testimony for the introduction of evidence and the examination of witnesses. This manual contains a collection of forms and protocols that provide the necessary predicate or foundation questions for the introduction of common forms of evidence—such as business records, photos or contraband. It includes basic questions that should be answered AUTHORS before a document or item can be received in evidence or a witness Hon. Edward M. Davidowitz qualified as an expert. The questions can be modified or changed to Judicial Hearing Officer Bronx County Supreme Court fit specific problems, issues or an individual judge’s rulings. Robert L. Dreher, Esq. Contents Executive Assistant District Attorney Bronx County District Attorney’s Office Chapter 1 Examination of Chapter 6 Physical and PRODUCT INFO AND PRICES Defendants Who Want Demonstrative Evidence to Proceed to Trial 2012 / 294 pp., softbound Chapter 7 Lay Witness Testimony Pro Se PN: 41072 Chapter 8 Expert Witness Chapter 2 Courtroom Closure NYSBA Members $60 Testimony Chapter 3 Pre-Trial and Non-members $70 Chapter 9 Summations Suppression Hearings Order multiple titles to take advantage of our Chapter 10 Trial and Courtroom low fl at rate shipping charge of $5.95 per order, Chapter 4 Documentary Evidence Protocols regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders Chapter 5 Alternative Procedures shipped within the continental U.S. Shipping and handling charges for orders shipped outside the for Admission and continental U.S. will be based on destination and Preclusion of Evidence added to your total. *Offer expires February 1, 2013. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1633N Table of Contents Page Message from the Chair .................................................................................................................................................................4 (Marvin E. Schechter) Message from the Editor ................................................................................................................................................................5 (Spiros A. Tsimbinos) Feature Articles Newly Enacted Criminal Law Legislation ....................................................................................................................6 (Hon. Barry Kamins) Comparison Between Florida’s Stand Your Ground Law and New York’s Duty to Retreat and Their Application to the George Zimmerman Case............................................................................................10 (Spiros A. Tsimbinos) A Personal Look at the United States Supreme Court ...............................................................................................15 (Spiros A. Tsimbinos) A Tribute to the Honorable Carmen Beauchamp Ciparick .......................................................................................19 New York Court of Appeals Review ..........................................................................................................................20 Recent United States Supreme Court Decisions Dealing With Criminal Law and Recent Supreme Court News ........................................................................................................................21 Cases of Interest in the Appellate Divisions ............................................................................................................22 For Your Information Appellate Division, First Department, Criticized for Recent Stop and Frisk Decisions .......................................25 Bridget Brennan Interviewed by New York Law Journal .............................................................................................25 Law Revenue Declines ...................................................................................................................................................25 U.S. Middle Class Suffers Decline ................................................................................................................................25 U.S. Poverty Rate Stabilizes and Home Prices Begin to Rise ....................................................................................26 Federal Courts Report That Budget Cuts Threaten Civil Jury Trials .......................................................................26 Legislation Introduced to Restore Stolen Valor Act ...................................................................................................26 Justice Ariel Belen Resigns from Appellate Division—Governor Cuomo Makes New Appointments Including Randall Eng as Second Department Presiding Justice .....................................................................26 Rising College Costs and Student Debt .......................................................................................................................27 State Unemployment Rates ...........................................................................................................................................27 New York City Assigned Counsel Case Reaches New York Court of Appeals .....................................................27 United States Facing Obesity Disaster .........................................................................................................................27 Seniors Working More—Young Adults Working Less ..............................................................................................28 Large Law Firms Experience Increasing Expenses and Reduced Profi ts ...............................................................28 Chief Judge Lippman Provides Details for Mandatory Pro Bono Bar Admission Rule .......................................28 New York City Police Department Expands Use of Videotaping of Interrogations .............................................28 About Our Section and Members ...............................................................................................................................29 NYSBA New York Criminal Law Newsletter | Winter 2013 | Vol. 11 | No. 1 3 Message from the Chair False Confessions: Justice Whitmore’s confession in the “Career Girls Murder” Undone case was 61 pages long and highly detailed. Brooklyn Assemblyman Bertram L. Podell noted that Whitmore’s Guilty people only confess to confession was “manufactured and force-fed to this ac- crimes they have committed. This cused.” Fortunately for Whitmore, he was aided by Sel- bedrock principle of law enforce- wyn Raab, then a reporter for The New York World Telegram ment is wrong at least some of the and Sun (and in later years for the New York Times). Raab time. False confessions account for discovered dozens of witnesses who had seen Whitmore 25% of wrongful DNA exonera- in Wildwood, New Jersey on the day Wylie and Hoffert tions, according to the Innocence were murdered. They remembered him because it was the Project. The percentage of overall same day that Rev. Martin Luther King gave his “I Have A wrongful convictions caused by Dream” speech in Washington, D.C. (Raab would go on to false confessions is not known but the National Exonera- write a book about Whitmore’s case called “Justice in the tion registry currently lists 996 nationwide exonerations Backroom”). dating back to 1989. Just as the National Academy of Sci- ences Report “Strengthening Forensic Science in the Unit- In 1965 Governor Rockefeller signed a bill abolish- ed States: A Path Forward” concluded in February, 2009, ing capital punishment and in 1966, the United States that many so-called forensic disciplines, including fi nger- Supreme Court, in issuing its ruling in Miranda v. Arizona, prints and tool-mark analysis, had never been scientifi - called Whitmore’s case “the most conspicuous example cally validated and similarly the decision of the New Jer- of police coercion.” In the meantime, Whitmore was tried sey Supreme Court in New Jersey v. Henderson concluded several times for the Edmonds murder, each trial ending that decades of scientifi c research now revealed that the in a hung jury. Finally on April 10, 1973, nine years after possibility of mistaken identifi cation is real and requires his arrest for the Wylie-Hoffert murders, Brooklyn Dis- a complete reassessment of the criteria by which juries trict Attorney Eugene Gold dismissed the attempted rape should weigh eyewitness identifi cation evidence, so too charges after new evidence surfaced which exonerated is the criminal justice beginning to re-evaluate the role Whitmore. of police conduct, particularly trickery and deception, in obtaining confessions from suspects. Twenty-fi ve years after Whitmore’s arrest, in 1989, fi ve teenage suspects “confessed” to the brutal rape of a Cen- This is not a new problem suddenly
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