Criminal Trial Advocacy Institute

t u t riminal r i a l d vo c a c y i C T A In s t i t u t e s t A Br i d g e t h e Ga p f o r La w y e r s n In t e re s t e d in Criminal La w Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for November 3 and 4, 2011.

P r o g r a m Co -Sp o n s o r : The New York Supreme Court, Appellate Division, First Judicial Department

P r o g r a m Ch ai r : Hon. Angela M. Mazzarelli, Associate Justice of the Appellate Division of the Supreme Court, First Department

F ac u lt y : Brian Crow, Legal Aid Society Hon. Fern A. Fisher, Dep. Administrative Judge for NYC Hon. Melissa C. Jackson, Supervising Judge NY Criminal Court Tom Klein, Legal Aid Society Jeff Leibo, Center for Community Alternatives Joanne Macri, Director Criminal Defence Immigration Project NYSDA Marika Meis, Bronx Defenders NYCLA-CLE I Patricia Warth, Center for Community Alternatives Ellen Yaroshefsky, Jacob Burns Center for Ethics in the Practice of Law, Cardozo Law School

16 Transitional and Non-transitional MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 16 Transitional and Non-Transitional credit hours: 3 Ethics; 6 Skills; 7 Professional Practice.

Information Regarding CLE Credits and Certification Criminal Trial Practice Institute November 3rd and November 4th 2011, 9:00AM to 5:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Criminal Trial Practice Institute

Thursday and Friday, November 3 & 4, 2011 9:00AM to 5:00PM

AGENDA – Thursday, November 3

9:00AM – 9:10AM Introductions

9:10AM – 9:25AM Introductory Remarks Hon. Angela M. Mazzarelli, Associate Justice of the Appellate Division of the Supreme Court, First Department Hon. Fern A. Fisher, Deputy Administrative Judge for New York City Hon. Melissa C. Jackson, Supervising Judge New York Criminal Court

9:25AM – 11:00AM Drug Law Reform Act: Judicial Diversion Program (including local practices) Patricia Warth and Jeff Leibo, Center for Community Alternatives

11:00AM – 11:10AM BREAK

11:10AM – 12:40PM Drug Reform Act: Conditional Sealing . Patricia Warth and Jeff Leibo, Center for Community Alternatives

12:40PM – 1:30PM LUNCH (On Your Own)

1:30PM – 3:00PM Drug Reform Act: Using it Effectively for Better Sentencing Outcomes Patricia Warth and Jeff Leibo, Center for Community Alternatives

3:00PM--3:10PM BREAK

3:10PM – 4:50PM Bail Marika Meis, Bronx Defenders and Brian Crow, Legal Aid

4:50PM – 5:00PM Questions and Answers

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Criminal Trial Practice Institute

Thursday and Friday, November 3 & 4, 2011 9:00AM to 5:00PM

AGENDA – Friday, November 4

9:00AM – 9:10AM Introductions

9:10AM – 10:50AM Challenging Ethical Dilemmas: Candor, Client Competency and Use of Social Networking Ellen Yaroshefsky, Jacob Burns Center for Ethics in the Practice of Law, Cardozo Law School 10:50AM – 11:00AM BREAK

11:00AM – 12:40PM After Padilla v Kentucky--What Defense Attorneys Need to Know Joanne Macri, Director, Criminal Defense Immigration Project New York State Defenders Association

12:40PM – 1:40PM LUNCH

1:40PM – 3:15PM TBD

3:15PM – 3:30PM BREAK

3:30PM – 4:45AM A Theory of Voir Dire Tom Klein, Legal Aid Society

4:45PM – 5:00PM Questions and Answers

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Criminal Trial Advocacy November 3rd and November 4th, 2011 9:00 AM – 5:00 PM

Table of Contents

Section

Knowing & Using the 2009 Drug Law Reform Act for More Effective 1 Sentencing Outcomes Patricia Warth, Center for Community Alternatives The 2009 DLRA: Steps to Effective Sentencing Advocacy 2009 Rockefeller Drug Law Reform Sentencing Chart Early Release and Other Prison-Based Programs 2009 Early Release Checklist: Determinate Sentences 2009 Early Release Checklist: Indeterminate Sentences Willard Eligibility: Understanding the Limitation “Subject to an Undischarged Term of Prison” Temporary Release Eligibility Further Restricted: Update on the Violent Felony Override Updated OCA Sentence and Commitment Form

The Nuts and Bolts of Conditional Sealing under Criminal Procedure Law § 160.58 Jeffrey Leibo, Center for Community Alternatives Conditional Sealing Article from NYSDA’s The Report OCA Conditional Sealing Order A Practical Approach to Conditional Sealing People v. Modesto, Supreme Court Bronx County

The Drug Law Reform Act--- Judicial Diversion: The Challenge of Full Implementation Jeffrey Leibo, Center for Community Alternatives Judicial Diversion Article from NYSDA’s The Report Judicial Diversion: Eligibility When Charged with an Eligible Offense and An Eligibility-Neutral Offense Memorandum from Michael Colodner, Counsel to the State of New York Unified Court System (July 7, 2009) Part 143 of the Rules of the Chief Administrator of the Courts People v. Jordan, 29 Misc.3d 619 (Westchester County Court)

Bail Advocacy in New York State 2 Marika Meis, Bronx Defenders

What to Do When a Judge Screws Your Client: Writs, Stays and 530.30 Motions Brian Crow, Legal Aid Society

Challenging Ethical Dilemmas: Candor, Client Competency and Use of 3 Social Networking Ellen Yaroshefsky, Cardozo Law School

After Padilla v Kentucky ---- What Defense Attorneys Need to Know 4 Joanne Macri, New York State Defenders Association Appendix A: The Facts about ICE ACCESS Appendix B: Newest ICE Form, I 247Detainer Appendix B: ICE 2010 I 247Detainer Form Appendix C: ICE Citizenship Claims Memo Appendix D: Prosecutorial Discretion Memo Appendix E: Bail Determination Chart Appendix F: NYSDA Padilla Advisory Appendix G: Immigration Consequences Chart Appendix H1: Sample Jail Letter Appendix H2: Form G28 Notice of Entry of Appearance as Attorney or Accredited Representative Appendix H3: Online Detainee Locator System (ODLS) English and Spanish Final Immigration Detainer Advisory

A Theory of Voir Dire 5 Tom Klein, Legal Aid Society Addressing the Ten Scariest Criminal Issues in Voir Dire Randy McGinn, 29 Champion 26 An Analysis of Closing Arguments to a Jury, Anthony G. Amsterdam and Randy Hertz, 37 N.Y.L. Sch. L. Rev. 55

Knowing and Using the 2009 Drug Law Reform Act for More Effective 1 Sentencing Outcomes Patricia Warth, Center for Community Alternatives The 2009 DLRA: Steps to Effective Sentencing Advocacy Early Release and Other Prison-Based Programs 2009 Early Release Checklist: Determinate Sentences 2009 Early Release Checklist: Indeterminate Sentences Willard Eligibility: Understanding the Limitation “Subject to an Undischarged Term of Prison” Temporary Release Eligibility Further Restricted: Update on the Violent Felony Override Updated OCA Sentence and Commitment Form

TheThe 20092009 DrugDrug LawLaw ReformReform ActAct

KnowingKnowing andand UsingUsing thethe 20092009 DLRADLRA forfor MoreMore EffectiveEffective SentencingSentencing OutcomesOutcomes

Patricia Warth Co-Directors, Justice Strategies Center for Community Alternatives www.communityalternatives.orgwww.communityalternatives.org StepsSteps toto EffectiveEffective SentencingSentencing AdvocacyAdvocacy 1)1) KnowKnow thethe legislativelegislative historyhistory andand intentintent ofof thethe 20092009 DLRADLRA toto effectivelyeffectively fendfend offoff attemptsattempts toto limitlimit eligibilityeligibility 2)2) KnowKnow thethe variousvarious sentencingsentencing optionsoptions available,available, asas wellwell asas thethe eligibilityeligibility andand exclusionexclusion criteriacriteria 3)3) DevelopDevelop aa clientclient--specific,specific, thematic,thematic, problemproblem--solvingsolving approachapproach thatthat effectivelyeffectively promotespromotes thethe bestbest dispositiondisposition forfor youryour clientclient FeaturesFeatures ofof thethe RockefellerRockefeller DrugDrug LawsLaws •• PunitivePunitive:: longlong prisonprison sentencessentences forfor possessionpossession andand salesale ofof eveneven smallsmall amountsamounts ofof drugsdrugs •• LimitsLimits toto judicialjudicial discretiondiscretion:: mandatorymandatory prisonprison sentencessentences forfor secondsecond offendersoffenders andand forfor moremore seriousserious classesclasses ofof drugdrug offenses;offenses; DADA gatekeepergatekeeper toto mostmost therapeutictherapeutic alternativesalternatives •• Impact:Impact: EscalatingEscalating prisonprison populationpopulation withwith nono discernablediscernable impactimpact onon ourour StateState’’ss drugdrug blbl LegislativeLegislative IntentIntent ofof 20092009 DLRADLRA 1)1) RecognitionRecognition thatthat punitivepunitive approachapproach hashas failedfailed

““InIn enactingenacting thethe statutestatute creatingcreating thethe judicialjudicial diversiondiversion program,program, thethe legislaturelegislature recognizedrecognized thatthat ““thethe policypolicy ofof incarcerationincarceration andand punishmentpunishment ofof nonnon-- violentviolent drugdrug usersusers hadhad failedfailed……”” People v. Jordan, 29 Misc.3d 619, 622 (Westchester Co. Ct. 2010) 20092009 DLRA,DLRA, cont.cont.

2)2) EnhancedEnhanced accountabilityaccountability throughthrough treatmenttreatment TheThe legislaturelegislature alsoalso recognizedrecognized thatthat ““[[e]xpandinge]xpanding thethe numbernumber ofof nonviolentnonviolent drugdrug offendersoffenders thatthat cancan bebe courtcourt orderedordered toto drugdrug abuseabuse treatmenttreatment willwill helphelp breakbreak thethe cyclecycle ofof drugdrug useuse andand crimecrime andand makemake ourour streets,streets, homeshomes andand communitiescommunities safersafer..”” People v. Jordan, 29 Misc.3d 619, 622 (Westchester Co. Ct. 2010). 20092009 DLRA,DLRA, cont.cont. 3)3) EnhancedEnhanced JudicialJudicial DiscretionDiscretion ““[[T]heT]he Legislature,Legislature, inin craftingcrafting thethe 20092009 DLRA,DLRA, wrotewrote aa detaileddetailed statutestatute whichwhich gavegave courtscourts thethe discretiondiscretion toto makemake reasonedreasoned judgmentsjudgments andand createdcreated anan adjudicatoryadjudicatory processprocess thethe LegislatureLegislature deemeddeemed fairfair toto bothboth prosecutorsprosecutors andand criminalcriminal defendants.defendants. GivenGiven thisthis carefullycarefully consideredconsidered legislativelegislative design,design, itit isis difficultdifficult toto understandunderstand whywhy thethe judiciaryjudiciary wouldwould imposeimpose categoricalcategorical limitationslimitations onon itsits ownown discretiondiscretion whichwhich thethe LegislatureLegislature diddid notnot createcreate”” UtilizingUtilizing thisthis LegislativeLegislative HistoryHistory

▪▪ DLRADLRA isis designeddesigned toto enhanceenhance publicpublic safetysafety -- punishmentpunishment diddid notnot work;work; treatmenttreatment holdsholds outout bestbest promisepromise forfor transformationtransformation fromfrom criminalcriminal toto lawlaw--abidingabiding behaviorbehavior ▪▪ toto fullyfully promotepromote thethe therapeutictherapeutic andand rehabilitativerehabilitative benefitsbenefits ofof thethe DLRA,DLRA, mustmust refrainrefrain fromfrom restrictiverestrictive interpretationinterpretation ofof eligibilityeligibility requirementsrequirements ▪▪ aa restrictiverestrictive interpretationinterpretation ofof eligibilityeligibility underminesundermines legislativelegislative intentintent toto enhanceenhance judicialjudicial discretiondiscretion ExpandedExpanded SentenceSentence OptionsOptions

•• ProbationaryProbationary sentencessentences •• DefiniteDefinite SentencesSentences •• WillardWillard •• JudicialJudicial ShockShock OrderOrder (2009(2009 DLRA)DLRA) •• JudicialJudicial CASATCASAT OrderOrder (2004(2004 DLRA)DLRA)

ProbationProbation SentencesSentences AA sentencesentence ofof 55 yearsyears probationprobation isis nownow aa sentencingsentencing optionoption forfor thethe followingfollowing offenses:offenses: •• ClassClass BB drugdrug offense,offense, firstfirst offenseoffense (exception,(exception, salesale toto child,child, PLPL 220.48);220.48); seesee PLPL 70.70(2)(b)70.70(2)(b) •• ClassClass C,C, D,D, andand EE drugdrug offense,offense, predicatepredicate offendersoffenders wherewhere priorprior waswas nonnon--violent;violent; seesee PLPL 70.70(3)(c)70.70(3)(c) (Formerly,(Formerly, 55 yearsyears probationprobation onlyonly availableavailable forfor CC DD andand EE firstfirst timetime offenders)offenders)

DefiniteDefinite SentencesSentences AA definitedefinite sentencesentence (including(including aa splitsplit sentence)sentence) isis nownow aa sentencingsentencing optionoption forfor thethe followingfollowing offenses:offenses: •• ClassClass BB drugdrug offense,offense, firstfirst offenseoffense (exception:(exception: PLPL 220.48);220.48); seesee PLPL 70.70(2)(c)70.70(2)(c) •• ClassClass C,C, D,D, andand EE drugdrug offense,offense, predicatepredicate offendersoffenders wherewhere priorprior waswas nonnon--violent;violent; seesee PLPL 70.70(3)(e)70.70(3)(e) (Formerly(Formerly definitedefinite sentencesentence onlyonly availableavailable forfor classclass CC DD andand EE firstfirst timetime felonyfelony

SentenceSentence ofof Parole:Parole: WillardWillard

CriminalCriminal ProcedureProcedure LawLaw 410.91410.91

Sentence to be executed as parole supervision, with the first 90 days at Willard, a boot-camp style substance abuse treatment program; joint program between Department of Correctional Services and Community Supervision (DOCCS) and OASAS. SentenceSentence ofof Parole:Parole: WillardWillard

Eligibility: – Second class D or E designated property offenses (listed in CPL 410.90(5)); see PL 70.06(7) – Second class C, D, and E drug offenses; see PL 70.70(3)(d) – First time class B drug offense (except for those convicted under PL 220.48); see PL 70.70(2)(d)

DA consent no longer required! Subsection (4) of CPL 410.91has been repealed. SentenceSentence ofof Parole:Parole: WillardWillard

Exclusions: – current conviction for non-specified offense – prior conviction for a violent felony offense – prior conviction for A felony – prior conviction for B felony other than B drug offense; – “subject to an undischarged term of prison” (What does this mean? See included memo on this issue) Alternative to Willard

• DOCCS is required to provide an alternative to Willard if the inmate is in need of medical or mental health care not available at the Drug Treatment Campus. • The inmate can object to the alternative program and opt to return to the sentencing judge for re-sentencing. See Correction Law 2(20) (updated May, 2010) JudicialJudicial ShockShock OrderOrder

PL 60.04(7); Correction Law 865-867

When the person is within 3 years of parole or conditional release, he or she is transferred to one of three Shock Incarceration facilities for a 6 month, boot- camp style program that focuses on discipline, substance abuse treatment and education (GED). JudicialJudicial ShockShock OrderOrder

Eligibility: – convicted of a drug offense – between the age of 16 and 50 at time of offense and not yet 50 at time of eligibility for participation in Shock – meet the eligibility requirements of Correction Law 865(1) JudicialJudicial ShockShock OrderOrder Exclusions under Correction Law 865: – current conviction is A-I felony, violent felony offense, sex, homicide, escape, or absconding offense – has previous conviction for a VFO for which he/she served a state prison sentence* If screening indicates medical or mental heath reasons, must be provided with Alternative-to- Shock program. * 2010 legislative change JudicialJudicial ShockShock OrderOrder

•• PotentialPotential IssuesIssues –– IssueIssue One:One: CanCan thethe ShockShock ScreeningScreening CommitteeCommittee ““screenscreen outout”” anan otherwiseotherwise eligibleeligible inmateinmate whowho hashas aa JudicialJudicial ShockShock Order?Order? TheThe ShockShock ScreeningScreening CommitteeCommittee hashas traditionallytraditionally ““screenedscreened outout”” eligibleeligible inmatesinmates wherewhere therethere areare indicationsindications ofof violence,violence, predatorypredatory behavior,behavior, oror crimescrimes ofof sophisticationsophistication (including(including crimescrimes involvinginvolving largelarge amountsamounts ofof moneymoney oror drugs).drugs). JudicialJudicial ShockShock OrderOrder

TheThe PenalPenal LawLaw andand thethe ShockShock statutestatute explicitlyexplicitly provideprovide thatthat thethe ShockShock ScreeningScreening CommitteeCommittee cancan notnot screenscreen outout statutorilystatutorily eligibleeligible inmatesinmates whowho havehave aa JudicialJudicial ShockShock order.order.

PenalPenal LawLaw 60.04(7)(b);60.04(7)(b); CorrectionCorrection LawLaw 867(2867(2--a).a). JudicialJudicial ShockShock OrderOrder

•• PracticePractice Tip:Tip: MakeMake suresure thethe SentenceSentence && CommitmentCommitment clearlyclearly indicatesindicates thatthat thethe judgejudge orderedordered ShockShock placementplacement pursuantpursuant toto PLPL 60.04(7).60.04(7). (Not(Not allall courtcourt clerkclerk officesoffices havehave updatedupdated theirtheir SentenceSentence && CommitmentCommitment formsforms toto reflectreflect thethe changeschanges inin thethe 20092009 DLRA.)DLRA.) JudicialJudicial ShockShock OrderOrder •• PotentialPotential IssuesIssues –– IssueIssue Two:Two: CanCan aa judgejudge orderorder ShockShock participationparticipation forfor aa defendantdefendant whosewhose sentencesentence rendersrenders him/herhim/her moremore thanthan 33 yearsyears fromfrom his/herhis/her conditionalconditional releaserelease date?date? -- SomeSome judgesjudges areare readingreading CorrectionCorrection LawLaw 865865 ’’ss language,language, ““willwill becomebecome eligibleeligible forfor conditionalconditional releaserelease withinwithin 33 yearsyears”” asas limitinglimiting theirtheir abilityability toto issueissue aa JudicialJudicial ShockShock OrderOrder forfor thosethose withwith aa longerlonger sentence.sentence. JudicialJudicial ShockShock OrderOrder

•• PotentialPotential IssuesIssues –– IssueIssue Two,Two, cont.cont. ButBut seesee CorrectionCorrection LawLaw 867(2867(2--a):a): ““[[A]nA]n inmateinmate sentencedsentenced toto shockshock incarcerationincarceration shallshall promptlypromptly commencecommence participationparticipation whenwhen suchsuch anan inmateinmate isis anan eligibleeligible inmateinmate pursuantpursuant toto”” CorrectionCorrection LawLaw 865(1).865(1). DOCCSDOCCS isis readingreading thisthis toto meanmean thatthat JudicialJudicial ShockShock OrdersOrders applyapply toto thosethose withwith longerlonger sentencessentences whowho areare notnot eligibleeligible forfor ShockShock rightright away.away. JudicialJudicial CASATCASAT OrderOrder

PL 60.04(6), Correction Law 851-861 A DOCCS “wrap-around” substance abuse treatment program with 3 phases: 1) a 6 month prison-based substance abuse treatment program in a DOCCS annex; 2) transition to work release with out-patient follow-up treatment; and 3) release to parole or PRS with after-care. JudicialJudicial CASATCASAT OrderOrder

Eligibility: – convicted of a drug offense – to get all three phases, must meet criteria for the Temporary Release program

Those who do not meet the Temporary Release program criteria will be admitted to phase 1 only (DOCCS CASAT annex) when 6 to 9 months from earliest release. JudicialJudicial CASATCASAT OrderOrder Temporary Release criteria: – Not convicted of a violent felony, sex offense, homicide, escape, absconding, or aggravated harassment of a DOCCS employee; – Violent Felony Override may be available where not armed with, did not use, or did not possess with intent to use, a deadly weapon or dangerous instrument and there is no serious physical injury. (Additional info. about violent felony override avail at www.communityalternatives.org )

JudicialJudicial CASATCASAT OrderOrder 2009 DLRA change to CASAT: – The 2004 DLRA included an often overlooked though fully-enforced provision requiring that second felony class B drug offenders must serve at least 18 months of their sentence before achieving CASAT eligibility. – The 2009 DLRA cut this 18 month mandate in half, so now second felony B drug offenders must serve at least nine months of their sentence before achieving CASAT eligibility. EffectiveEffective SentencingSentencing AdvocacyAdvocacy

KnowKnow youryour clientclient’’ss needs:needs: – A substance abuse history – A mental health history – Developmental issues KnowKnow youyou clientclient’’ss strengths:strengths: – work experience – family support – education – motivation for treatment

SourcesSources ofof InformationInformation

•• ClientClient •• ClientClient ’’ss significantsignificant othersothers •• LifeLife historyhistory recordsrecords (educational,(educational, treatment,treatment, medical,medical, employment)employment) •• ExpertExpert (consulting(consulting and/orand/or testifying)testifying) •• ResearchResearch

AdvocacyAdvocacy BeginsBegins atat ArrestArrest andand ContinuesContinues ThroughoutThroughout CaseCase

•• PretrialPretrial releaserelease oror detentiondetention •• PleaPlea negotiationsnegotiations (charge(charge ofof convictionconviction cancan havehave aa profoundprofound impactimpact onon sentencingsentencing options)options) •• SentencingSentencing

ReintegrationReintegration asas SentencingSentencing GoalGoal •• 20062006 amendmentamendment toto PenalPenal LawLaw 1.05(6)1.05(6) addsadds toto thethe fourfour traditionaltraditional goalsgoals ofof sentencingsentencing thethe following:following: ““thethe promotionpromotion ofof [the[the defendantdefendant’’s]s] successfulsuccessful andand productiveproductive reentryreentry andand reintegrationreintegration intointo societysociety”” •• ExplainExplain howhow youryour proposedproposed dispositiondisposition promotespromotes youryour clientclient’’ss successfulsuccessful reintegrationreintegration ReducedReduced RecidivismRecidivism == EnhancedEnhanced PublicPublic SafetySafety EmbraceEmbrace andand promotepromote thethe publicpublic safetysafety benefitsbenefits ofof youryour proposedproposed dispositiondisposition ConclusionConclusion

KnowingKnowing youryour clientclient andand allall ofof thethe sentencingsentencing optionsoptions availableavailable willwill helphelp youyou toto mostmost effectivelyeffectively advocateadvocate forfor aa dispositiondisposition thatthat isis bestbest suitedsuited toto youryour client.client. HelpHelp -- Website:Website: www.communityalternatives.orgwww.communityalternatives.org -- Blog:Blog: ““MakeMake DrugDrug LawLaw ReformReform aa RealityReality”” http://http://makingreformreality.blogspot.commakingreformreality.blogspot.com -- Monthly,Monthly, statestate--widewide phonephone callscalls -- AdviceAdvice :: AlanAlan Rosenthal,Rosenthal, (315)(315) 422422--5638,5638, 227,227, [email protected]@communityalternatives.org JeffJeff Leibo,Leibo, (315)(315) 422422--5638,5638, ext.ext. 260,260, [email protected]@communityalternatives.org PatriciaPatricia Warth,Warth, (315)(315) 422422--5638,5638, ext.ext. 229,229, [email protected]@communityalternatives.org Special Thanks

Our ability to provide this information is made possible by a grant from the Foundation to Promote Open Society The 2009 Drug Law Reform Act: Steps to Effective Sentencing Advocacy

Patricia Warth Co-Directors, Justice Strategies Center for Community Alternatives, Inc. ______

Three Basic Steps to Using the 2009 for Effective Sentencing Advocacy: 1) Know the legislative history and intent of the 2009 Drug Law Reform Act (DLRA) to effectively fend off attempts to limit eligibility. 2) Know the various sentencing options available, as well as the eligibility and exclusion criteria. 3) Develop a client-specific, thematic, problem-solving approach that effectively promotes the best disposition for your client.

Step One: Know the History and Intent of the 2009 DLRA

1) Features of the Rockefeller Drug Laws • Punitive: the Rockefeller Drug Laws provided for long prison sentences for possession and sale of even small amounts of drugs.

• Limits to judicial discretion: The Rockefeller Dug Laws mandated prison sentences for second felony offenders and for first time offenders convicted of more serious drug offenses; the District Attorney was the gatekeeper for the few therapeutic sentencing options that were available.

• Impact: The Rockefeller Drug Laws resulted in an escalating prison population with no discernible impact on our State’s drug problem.

2) The 2009 DLRA Was Intended to Address These Negative Features

1 The 2009 DLRA reflects a substantive shift away from an ineffective punitive approach that left judges with little discretion. Underlying this statute are two over-arching legislative goals:

• Recognition that punitive approach has failed: In enacting the statute creating the judicial diversion program, the legislature recognized that “the policy of incarceration and punishment of non-violent drug users had failed” and that “[e]xpanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer.” People v. Jordan, 29 Misc.3d 619, 622 (Westchester Co. Ct. 2010).

• Adoption of a therapeutic (rehabilitative) approach to drug-related offenses: “This legislation was designed to authorize a more lenient, more therapeutic judicial response to all but the most serious drug crimes.” People v. Danton, 27 Misc.3d 638, 644 (Sup. Ct. N.Y. Co. 2010).

• Enhanced judicial discretion: “[T]he Legislature, in crafting the 2009 DLRA, wrote a detailed statute which gave courts the discretion to make reasoned judgments and created an adjudicatory process the Legislature deemed fair to both the prosecutor and criminal defendants. Given this carefully considered legislative design, it is difficult to understand why the judiciary would impose categorical limitations on its own discretion which the Legislature did not create.” People v. Figueroa, 27 Misc.3d 751, 778 (Sup. Ct. N.Y. Co. 2010).

3) Utilize This Legislative History When Advocating for Your Client

This legislative history gives rise to three principles that underlie effective advocacy:

• The DLRA is designed to enhance public safety by more effectively treating the behavior that leads to crime; punishment did not work, but treatment holds out the best promise for transformation from criminal to law-abiding behavior.

• A restrictive interpretation of the 2009 DLRA and programmatic eligibility requirements undermines the Legislative intent to enhance judicial discretion.

• To fully promote the therapeutic and rehabilitative benefits of the 2009 DLRA, we must refrain from a restrictive interpretation of its eligibility requirements.

2 Step Two: Know the Available Sentencing Options

Overview of Expanded Sentence Options • Probation sentences • Definite sentences • Willard • Judicial Shock Order (2009 DLRA) • Judicial CASAT Order (2004 DLRA)

1) Probation Sentences A sentence of 5 years probation is now a sentencing option for the following offenses: • Class B drug offense, first offense (exception for sale to a child under Penal Law § 220.48) – see Penal Law (PL) § 70.70(2)(b)

• Class C, D, and E drug offense, predicate offenders where prior was non- violent – see § PL 70.70(3)(c) (Formerly, a 5 year probation sentence was only available for C, D, and E first time offenders.)

2) Definite Sentences A definite sentence (including a split sentence) is now a sentencing option for the following offenses: • Class B drug offense, first offense (exception for sale to a child under PL § 220.48) – see PL § 70.70(2)(c)

• Class C, D, and E dug offense, predicate offenders where prior was non- violent – see § PL 70.70(3)(e) (Formerly, a definite sentence was only available for C, D, and E fist time offenders.)

3) Sentence of Parole: Willard Criminal Procedure Law (CPL) § 410.91

What is a Willard sentence? It is a sentence that is to be executed as parole supervision, with the first 90 days at Willard, a boot-camp style substance abuse treatment program; joint program between the Department of Corrections and Community Supervision (DOCCS) and the Office of Alcohol and Substance Abuse Services (OASAS).

Who is eligible for a Willard sentence? Those convicted of a: • second class D or E designated property offenses (listed in CPL § 410.90(5)) - see § PL 70.06(7) • second class C, D, and E drug offenses - see PL § 70.70(3)(d)

3 • first time class B drug offense (except for those convicted under PL § 220.48) - see PL § 70.70(2)(d)

Note: District Attorney consent no longer required! Subsection (4) of CPL §410.91has been repealed.

Who is excluded from eligibility for a Willard sentence? Anyone with: • a current conviction for non-specified offense • a prior conviction for a violent felony offense • a prior conviction for A felony • a prior conviction for B felony other than B drug offense • who is “subject to an undischarged term of prison” (What does this mean? See attached memo on this issue.)

Is There an Alternative- to-Willard program? • DOCCS is required to provide an Alternative-to-Willard if the inmate is in need of medical or mental health care not available at the Drug Treatment Campus. • The inmate can object to the alternative program and opt to return to the sentencing judge for re-sentencing. See Correction Law § 2(20), which was updated May, 2010 to include this Alternative-to-Willard.

4) Judicial Shock Order PL § 60.04(7); Correction Law § 865-867

What is a Judicial Shock Order? When the person is within 3 years of parole or conditional release, he or she is transferred to one of three Shock Incarceration facilities for a 6 month, boot-camp style program that focuses on discipline, substance abuse treatment and education (GED).

Who is eligible for a Judicial Shock Order? Anyone who: • is convicted of a drug offense; • is between the ages of 16 and 50 at time of offense and not yet 50 at time of eligibility for participation in Shock; and • meets the eligibility requirements of Correction Law § 865(1)

Who is excluded from Shock eligibility under Correction Law §865(1)? Anyone: • whose current conviction is for an A-I felony, violent felony offense, sex, homicide, escape, or absconding offense • who has previous conviction for a violent felony offense for which he or she served a state prison sentence (this was a 2010 legislative change)

4 Is there an Alternative-to-Shock program for those with a Judicial Shock Order? If screening indicates medical or mental heath reasons, DOCCS must provide an Alternative-to-Shock program. See more below.

Are there potential issues that defense attorneys should be aware of? There are two potential issues:

Issue One: • The Shock Screening Committee has traditionally “screened out” eligible inmates for medical or mental health reasons or where there are indications of violence, predatory behavior, or crimes of sophistication (including crimes involving large amounts of money). • But the 2009 DLRA amended the Penal Law and Shock statute to explicitly provide that the Shock Screening Committee can not screen out statutorily eligible inmates who have Judicial Shock Orders. If there are medical or mental health limitations, the inmate must be provided with an Alternative-to-Shock program. Penal Law § 60.04(7)(b) states as follows: (i) In the event that an inmate designated by court order for enrollment in the shock incarceration program requires a degree of medical care or mental health care that cannot be provided at a shock incarceration facility, the department, in writing, shall notify the inmate, provide a proposal describing a proposed alternative- to-shock-incarceration program, and notify him or her that he or she may object in writing to placement in such alternative-to- shock-incarceration program. If the inmate objects in writing to placement in such alternative-to-shock-incarceration program, the department of corrections and community supervision shall notify the sentencing court, provide such proposal to the court, and arrange for the inmate's prompt appearance before the court. The court shall provide the proposal and notice of a court appearance to the people, the inmate and the appropriate defense attorney. After considering the proposal and any submissions by the parties, and after a reasonable opportunity for the people, the inmate and counsel to be heard, the court may modify its sentencing order accordingly, notwithstanding the provisions of section 430.10 of the criminal procedure law. (ii) An inmate who successfully completes an alternative-to-shock- incarceration program within the department of corrections and community alternatives shall be treated in the same manner as a person who has successfully completed the shock incarceration program, as set forth in subdivision four of section eight hundred and sixty-seven of the correction law.

Correction Law § 867(2-a) states as follows:

5 Subdivisions one and two of this section shall apply to a judicially sentenced shock incarceration inmate only to the extent that the screening committee may determine whether the inmate has a medical or mental health condition that will render the inmate unable to successfully complete the shock incarceration program, and the facility in which the inmate will participate in such program. Notwithstanding subdivision five of this section, an inmate sentenced to shock incarceration shall promptly commence participation in the program when such inmate is an eligible inmate pursuant to subdivision one of section eight hundred sixty-five of this article.

Practice Tip: Make sure the Sentence and Commitment clearly indicates that the judge ordered (and not merely recommended) placement in Shock pursuant to PL § 60.04(7). Not all courts are using the new Sentence and Commitment form OCA has issued that reflects the Judicial Shock Order. (See attached OCA Sentence and Commitment form).

Issue Two: • Some judges are reading Correction Law § 865’s language, “will become eligible for conditional release within 3 years” as limiting their ability to issue a Judicial Shock Order for those with a longer sentence. • In such cases, defense attorneys must point out Correction Law § 867 (2-a), which states: “[A]n inmate sentenced to shock incarceration shall promptly commence participation when such an inmate is an eligible inmate pursuant to” Correction Law § 865(1). • DOCCS is reading this to mean that Judicial Shock Orders apply to those with longer sentences who are not eligible for Shock right away. This is consistent with the 2009 DLRA amendments to Correction Law § 865(2) that allows for “rolling admissions” to Shock.

5) Judicial CASAT Order PL § 60.04(6); Correction Law § 851-861

What is CASAT? The Comprehensive Alcohol and Substance Abuse Treatment program (CASAT) is a DOCCS “wrap-around” substance abuse treatment program with 3 phases: 1) a 6 month prison-based substance abuse treatment program in a DOCCS annex; 2) transition to work release with out-patient follow-up treatment; and 3) release to parole or Post Release Supervision with after-care.

Who is Eligible for a Judicial CASAT Order? Anyone who is convicted of a drug offense But: To participate in all three phases, the inmate must meet the criteria for the Temporary Release Program. Those who do not meet the Temporary Release

6 Program criteria will be admitted to phase 1 only (DOCCS CASAT annex) when 6 to 9 months from their earliest release.

What is the Temporary Release Program criteria? • The inmate must not be convicted of a violent felony, sex offense, homicide, escape, absconding, or aggravated harassment of a DOCCS employee; however, a Violent Felony Override may be available for an inmate convicted of a violent felony offense if the individual was not armed with, did not use, or did not possess with intent to use, a deadly weapon or dangerous instrument and there is no serious physical injury. Additional information about violent felony override is attached. • In addition, the inmate must score the requisite number of points in the point system set forth in 9 NYCRR 1900.4 (often called the “Vera point system” because this point system was established by the Vera Institute of Justice in 1976).

Did the 2009 DLRA include any changes to CASAT? One small change: •The 2004 DLRA included an often-overlooked though fully-enforced provision requiring that second felony class B drug offenders must serve at least 18 months of their sentence before achieving CASAT eligibility. • the 2009 DLRA cut this 18 month mandate in half, so now second felony B drug offenders must serve at least 9 nine months of their sentence before achieving CASAT eligibility.

Step Three: Effective Sentencing Advocacy

1) Get to know your client Know your client’s needs – examples include: • a substance abuse history • a mental health history • developmental issues

Know your client’s strengths – examples include: • work experience • family support • education • motivation for change

2) Sources of Information • client • client’s significant others • life history records (educational, treatment, medical, employment, etc.) • use of experts (to consult and/or testify) • research

7 3) Advocacy begins at arrest and through…. • pretrial release or detention • plea negotiations (remember that the charge of conviction can have a profound impact on sentencing options) • sentencing

4) Reintegration as a Sentencing Goal • A 2006 amendment to Penal Law § 1.05(6) adds the following to the four traditional goals of sentencing:

“the promotion of [the defendant’s] successful and productive reentry and reintegration into society.”

• In advocating for your client, explain how your proposed disposition promotes your client’s successful reintegration into the community.

• Remember that reduced recidivism means enhances public safety – embrace and promote the public safety benefits of your proposed disposition.

5) Assistance available from the Center for Community Alternatives

• Webstite: www.communityalternatives.org.

• Blog: “Making Drug Reform a Reality” http://makingreformreality.blogspot.com/

• Updates and Brainstorming: monthly state-wide telephone calls

• People: Alan Rosenthal, (315) 422-5638, ext. 229 [email protected]

Jeff Leibo, (315) 422-5638, ext. 260 [email protected]

Patricia Warth, (315) 422-5638, ext. 229 [email protected]

8 2009 Rockefeller Drug Law Reform Sentencing Chart6 Determinate Alternative Parole Judicially CASAT Judicial Post-Release Probation Y.O. Shock 5, 8 Class Felony Sentence Definite Sentence Supervision 4 Ordered Sentence Diversion Supervision Permitted Permitted Permitted Term Permitted Sentence Shock Permitted A-I First Offense 8 - 20 5 No No No No No No Yes No

A-I Major Trafficker 15/25-Life9 59 No No No No No No Yes No

A-I Prior Non-Violent 12 - 24 5 No No No No No No Yes No

A-I Prior Violent 15 - 30 5 No No No No No No Yes No

A-II First Offense 3 - 10 5 Yes/life1 No No No Yes 3 YesYes No

A-II Prior Non-Violent 6 - 14 5 Yes/life1 No No No Yes Yes3 Yes No

A-II Prior Violent 8 - 17 5 No No No No Yes Yes3 Yes No

B First Offense 1 - 9 1 - 2 Yes/5 Yes 1 yr. or less Yes Yes2 Yes Yes3 Yes Yes5

B Sale Near School 2 - 9 1 - 2 Yes/5 Yes 1 yr. or less Yes Yes2 Yes Yes3 Yes Yes5

B Sale to a Child 2 - 9 1 - 2 Yes/251 No NA No Yes Yes3 Yes Yes5

B Prior Non-Violent 2 - 12 1 ½ - 3 Yes/life1 No No No Yes 3 YesYes7 Yes5

B Prior Violent 6 -15 1 ½ - 3 No No No No Yes10 Yes 3, 10 Yes7 No

C First Offense 1 - 5 ½ 1 - 2 Yes/5 Yes 1 yr. or less Yes No Yes Yes3 Yes Yes5

C Prior Non-Violent 1½ - 8 1 ½ - 3 Yes/5 Yes 1 yr. or less No Yes2 Yes Yes3 Yes Yes5

C Prior Violent 3 ½ - 9 1 ½ - 3 No No No No Yes Yes3 Yes No

D First Offense 1 - 2 ½ 1 Yes/5 Yes 1 yr. or less Yes No Yes Yes3 Yes Yes5

D Prior Non-Violent 1 ½ - 4 1 - 2 Yes/5 Yes 1 yr. or less No Yes2 Yes Yes3 Yes Yes5

D Prior Violent 2 ½ - 4 ½ 1 - 2 No No No No Yes Yes3 Yes No

E First Offense 1 - 1 ½ 1 Yes/5 Yes 1 yr. or less Yes No Yes Yes3 Yes Yes5

E Prior Non-Violent 1 ½ - 2 1 - 2 Yes/5 Yes 1 yr. or less No Yes2 Yes Yes3 Yes Yes5

E Prior Violent 2 - 2 ½ 1 - 2 No No No No Yes Yes3 Yes No ______1 Requires recommendation of DA, material assistance in prosecution of drug offense, and court approval. (Penal Law §65.00(1)(b)). 2 Excluded if convicted of another felony offense, prior violent felony, a class A or B non-drug or subject to an undischarged term. CPL §410.91 (2). 3 Eligible if served no state prison time on prior violent felony. (Effective 8/13/10). Less than 50 yrs old. Must be within 3 years to parole or conditional release. Excludes crimes listed in (Corr.L. §865(1)). 4For terms of more than 3 years must wait for rolling admissions. 4 Same as ft. note 3. For terms of more than 3 years must wait for rolling admission. (Corr.L.§865(2)). 5 See CPL §216.00(1)(a) for exclusions, but D.A. may consent to include exclusions. 6 Effective 4/7/09. 7 Must serve 9 months jail or prison time to be eligible. 8 Judicial Diversion effective 10/7/09. Applies to crimes committed prior to Act not yet sentenced. 9 Alternative determinate sentence possible (8-20). 10Effective 8/13/10. Center for Community Alternatives 115 E. Jefferson St., Suite 300 ● Syracuse, NY 13202 ● ph 315/422-5638 ● fax 315/471-4924 ● 39 W. 19th St., 10th Fl● New York, NY 10011 ● ph 212/691-1911 ● fax 212/675-0825 EARLY RELEASE AND OTHER PRISON-BASED PROGRAMS: RECENT CHANGES AS A RESULT OF 2009 DRUG LAW REFORM ACT AND 2010 LEGISLATIVE CHANGES TO SHOCK, WILLARD, AND LCTA PROGRAMS.

Together, the 2009 Drug Law Reform Act and 2010 legislative changes to the Willard Drug Treatment program Shock Incarceration program have resulted in several significant changes to various Department of Correctional Services and Division of Parole programs. Defense lawyers should be aware of these changes to advocate effectively so that their clients are eligible for potential early release possibilities. These changes are described below.

Willard Drug Treatment/Parole Supervision Sentence (CPL §410.91):

A joint program between the Division of Parole (Parole), Department of Correctional Services (DOCS), and the Office of Alcoholism and Substance Abuse Services (OASAS), Willard was originally established to target certain class D and E second felony offenders whose criminal conduct is related to a substance abuse problem. Willard is a sentence of parole supervision, with the first ninety days spent in an intensive drug treatment program. Since its inception in 1995, Willard has been available to second felony offenders convicted of a “specified offense” as defined by CPL § 410.91(5), upon a finding that the defendant has a substance abuse history that is “a significant contributing factor” to his or her criminal conduct, that this substance abuse problem can be addressed by a period of parole supervision, and that “imposition of such a sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system.” CPL § 410.91(3). For class D felony offenders, under prior law, Willard was not available absent consent of the prosecution.

The drug law reform legislation makes several significant changes to CPL § 410.91;

1) The list of “specified offenses” is expanded to include burglary in the third degree, class C drug offenses, and first-time class B drug offenses.

Under the reform legislation, the following are now the “specified offenses” listed in CPL § 410.91(5), with the new offenses in italics: • burglary 3rd, PL 140.20 • criminal mischief 3rd, PL 145.05 • criminal mischief 2nd, PL 145.10 • grand larceny 4th, PL 155.30 (excluding subdivisions 7 and 11) • grand larceny 3rd, PL 155.35 (excluding offenses involving firearms, rifles and

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 -2-

shotguns) • unauthorized use of a vehicle 2nd, PL 165.06 • criminal possession of stolen property 4th, PL 165.45 (excluding subdivisions 4 and 7) • criminal possession of stolen property 3rd, PL 165.50 (excluding offenses involving firearms, rifles and shotguns) • forgery 2nd, PL 170.10 • criminal possession of a forged instrument 2nd, PL 170.15 • unlawfully using slugs 1st, PL 170.60 • any attempt to commit any of the above-listed offenses • any class C, D or E felony drug offense • any class B first-time felony drug offense

2) Those who have been previously convicted of a Class B Article 220 offense are no longer excluded from Willard eligibility.

Old CPL § 410.91(2) excluded from Willard eligibility all defendants who had previously been convicted of a violent felony offense, a class A felony, and any class B felony. Under the 2009 amendments to this provision, those who have previously been convicted of a class B drug offense and sentenced pursuant PL § 70.70(2)(a) (first time felony offense) are no longer excluded from Willard eligibility.

3) District Attorney approval is no longer needed for class D felony offenders.

CPL § 410.91(4), which required District Attorney approval for class D felony offenders as a prerequisite for a Willard sentence, has been repealed. There is no longer any requirement that the prosecution consent to any Willard sentence.

4) Willard is now available to first time B felony drug offenders.

As explained above, Willard was originally established to target second felony offenders. Thus, subdivision 2 of CPL § 410.91, which generally defines Willard eligibility, formerly read as follows:

A defendant is an “eligible defendant” for purposes of a sentence of parole supervision when such defendant is a second felony offender convicted of a specified offense... (Emphasis added)

With the 2009 drug law reform, the Legislature sought to expand sentencing options available to class B first-time felony drug offenders, and as described above, did so by making a Willard sentence available to this group of defendants. Willard is not viewed as a necessary option for class C, D, and E first-time felony drug offenders because other non-incarcerative and less restrictive sentencing options are available to such defendants. Indeed, the centerpiece of the 2009 drug law reform is judicial authorization for diversion to treatment for felony drug

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 -3- offenders with an identified substance abuse problem.

In amending CPL § 410.91 to make Willard a sentencing option for class B first-time felony drug offenders, the Legislature added this category of offense to the list of “specified offenses” in subdivision 5 and then omitted the word “second” from subdivision 2, so that this provision now reads as follows:

A defendant is an “eligible defendant” for purposes of a sentence of parole supervision when such defendant is a felony offender convicted of a specified offense....

As a result, this provision could be misinterpreted as providing that class C, D and E first time felony offenders convicted of one of the “specified offenses” in subsection (5) are eligible for Willard. For first time felony drug offenders, Willard is reserved only the more serious class B offenses.

5) Alternative to Willard for Individuals with Medical or Mental Health Issues: Correction Law § 2(20).

In addition to the changes described above, in May 2010, the Legislature again modified Willard (via updates to Correction Law § 2(20)) to allow for alternative-to-Willard programs for defendants with significant medical or mental health problems. Like the alternative-to-Shock program discussed further below, if a defendant sentenced to Willard “requires a degree of medical care or mental health care that cannot be provided at a drug treatment campus,” DOCS must propose an alternative-to-Willard program. If the defendant agrees to participate in this program and successfully completes it, the defendant shall be treated the same as those who successfully complete the 90 day drug treatment program at Willard. If the defendant objects in writing to the proposed alternative-to-Willard program, DOCS must notify the sentencing judge of the proposed alternative, who shall then notify the prosecution and defense counsel. The defendant shall then appear before the sentencing judge, who shall consider any submission from the defendant, defense counsel, and prosecution and also provide the parties an opportunity to be heard on the issue. Ultimately, the sentencing judge may modify the sentence notwithstanding CPL § 430.10 (sentence may not be modified after the sentence has commenced).

Shock Incarceration Program (Correction Law §§ 865-867)

Started in 1987 as a Department of Correctional Services Program, Shock is a 6 month boot-camp-style program that provides intensive substance abuse treatment, education, and an opportunity for a significantly reduced prison sentences for those who successfully complete the program. Those who graduate from the Shock program are awarded an Earned Eligibility Certificate and immediately eligible for parole release (for those serving indeterminate sentences) or conditional release (for those serving determinate sentences). See generally Correction Law §§ 865-867. Until the 2009 and 2010 amendments, eligibility for Shock was determined only upon reception at a reception facility and inmates were eligible for Shock only if: within 3 years

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 -4- of parole eligibility or conditional release at time of reception; at least 16 years of age and not yet 40 at time of reception; not convicted of an A-I felony, violent felony offense, homicide, specified sex offense, or escape or absconding offense; and had no prior conviction for a felony upon which a determinate or indeterminate sentence was imposed. Unlike Willard, decisions regarding placement in Shock were solely the province of DOCS, and sentencing judges had no authority to order defendants placed into the Shock program.

The 2009 and 2010 legislation have resulted in the following significant changes to Shock:

1) Judicially Ordered Shock and Alternative to Shock Programs (PL § 60.04(7) and Correction Law § 867(2-a))

Sentencing judges are now authorized to order Shock placement for those defendants convicted of a controlled substance or marijuana offense which requires a prison sentence. Defendants must still meet the eligibility requirements of the program outlined in Correction Law § 865(1) – that is, be the requisite age and not also be convicted of an A-I felony, violent felony offense, homicide, specified sex offenses, or an escape or absconding offense, and have not previously been convicted of an violent felony offense for which a determinate or indeterminate sentence was imposed.

Defense counsel should note a couple of important points about judicial Shock orders. First, such an order can be issued only upon motion of the defense. Penal Law § 60.04(7)(a). Second, as discussed below, amendments to Correction Law § 865(2) establish a new concept of “rolling admissions” into Shock. According to the statutory interpretation of both the Office of Court Administration (OCA) and DOCS, the rolling admissions established by amendments to Correction Law § 865(2) is applicable to judicially ordered Shock as well as those selected by DOCS without a judicial order. For example, a defendant who receives a 6 year determinate sentence is eligible for a judicial order of Shock, but will have to wait to be placed into the program until after she is within 3 years of her conditional release date.

If a judicially ordered Shock defendant is found ineligible for the program because of a medical or mental health condition, DOCS must propose an alternative-to-shock program. If the defendant agrees to participate in this program and successfully completes it, the defendant shall be treated the same as those who successfully complete the Shock program – that is, he or she shall be awarded an Earned Eligibility Certificate and be immediately eligible for conditional release. If the defendant objects in writing to the proposed alternative-to-shock program, DOCS must notify the sentencing judge of the proposed alternative, who shall then notify the prosecution and defense counsel. The defendant shall then appear before the sentencing judge, who shall consider any submission from the defendant, defense counsel, and prosecution and also provide the parties an opportunity to be heard on the issue. Ultimately, the sentencing judge may modify the sentence notwithstanding CPL § 430.10 (sentence may not be modified after the sentence has commenced).

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2) Shock Eligibility Extended Beyond Reception: Rolling Admissions (Correction Law § 865(2))

The Budget Bill extends Shock eligibility beyond reception so that now inmates who were not eligible for Shock at reception because of the lengths of their sentences can become eligible for Shock once they are within three years of their parole eligibility (for those serving indeterminate sentences) or conditional release (for those serving determinate sentences). Thus, eligibility is now determined at reception facilities for new inmates and general confinement facilities for those who are approaching parole or conditional release.

3) Changes in Exclusions Based on Prior Criminal History (Correction Law § 865)

Prior to 2010, there were two types of exclusions based on prior criminal history. Specifically, individuals who had previously served a state sentence were excluded from Shock as were individuals convicted of a B felony drug offense who had previously been convicted of a violent felony offense. With the 2010 changes to Correction Law § 865, there is now only one exclusion based on prior criminal history – those who were previously convicted of a violent felony offense for which a determinate or indeterminate sentence was imposed (i.e., a state prison sentence), are not eligible for Shock. This change reflects the fact that with rolling admissions, Shock is no longer a program designed for those who are “new to prison.”

4) Shock Eligibility: 50 is the New 40 (Correction Law § 865)

The Budget Bill also amends Correction Law § 865 (1) to extend the upper age limit for Shock eligibility from 40 to 50 years of age, proving yet again that 50 is the new 40. Now inmates are eligible for Shock as long as they have not achieved their 50th birthday at the point of eligibility, whether it is reception or a general confinement facility.

Comprehensive Alcohol and Substance Abuse Treatment (Correction Law § 2(18)):

The CASAT program is a three-phased comprehensive substance abuse treatment program that includes prison-based substance abuse treatment, work-release with a community- based treatment component, and parole with substance abuse aftercare. Generally, inmates are eligible for CASAT if eligible for Temporary Release, which means the inmate must be within two years of his or her parole or conditional release date. The 2004 DLRA expedited CASAT eligibility by 6 months for those convicted of a Penal Law Article 220 or 221 offense. However, the 2004 DLRA also included an often-overlooked, though fully enforced, provision requiring that second felony class B drug offenders must serve at least 18 months of their sentence before achieving CASAT eligibility. This 18 month mandate has been halved so that now second felony class B drug offenders now must serve at least nine months of their sentence before achieving CASAT eligibility.

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 -6-

Limited Credit Time Allowance for Those Convicted of a Violent Felony Offense (Correction Law § 803-b)

For years advocates have called for the expansion of the merit time program so that people in prison serving non-drug determinate sentences could earn merit time in the same way as others serving indeterminate sentences and drug determinate sentences. It was also hoped that a person whose controlling sentence was a non-violent one would not be determined ineligible to earn merit time by a non-controlling sentence for a violent felony. The credit limited time allowance in the 2009 legislation, however, is nothing short of disappointing and will prove nearly impossible for inmates to achieve. This legislation amends the Correction Law by adding a new section 803-b, described below.

At the outset, section 803-b excludes individuals convicted of murder in the first degree, any sex offense, or any attempt or conspiracy to commit these offenses.

Otherwise, “eligible offenders” are defined as: 1) those subject to an indeterminate sentence for any class A-I felony other than criminal possession of a controlled substance in the first degree (PL § 220.21) or criminal sale of a controlled substance in the first degree (PL § 220.43), or any attempt or conspiracy to commit these offenses; 2) those subject to an indeterminate or determinate sentence imposed for a violent felony offense as listed in Penal Law § 70.02(1); and 3) those subject to an indeterminate or determinate sentence for any Penal Law Article 125 offense. A person is not eligible if he or she is returned to DOCS on a revocation of presumptive release, parole, conditional release, or post release supervision. Moreover, a person is eligible for only one limited credit time allowance, no matter how many sentences he or she is serving.

The effect of the limited credit time allowance differs depending on the type of sentence the individual is serving. Individuals serving an indeterminate life sentence are eligible for parole consideration 6 months prior to completion of their minimum term. All other individuals are eligible for conditional release 6 months prior to their regular conditional release date, provided of course, that DOCS determines that they have earned their full amount of good time. If this 6 month time allowance moves the individual’s conditional release date to before his or her parole eligibility date, the limited credit time will essentially move the parole eligibility date up so that it coincides with the advanced conditional release date.

Actually earning this limited credit time allowance is no small feat. A person must achieve an Earned Eligibility Certificate in accordance with Correction Law § 805 and achieve “significant programmatic accomplishment” which is defined in Correction Law 803-b as: participation in at least two years of college programming; obtaining a masters or professional studies degree; successful participation as an inmate program associate for no less than two years; receiving certification from the State Department of Labor for successful participation in an apprenticeship program; successfully working as an inmate hospice aid for a period of two years; successfully working in DOCS industries’ optical program for two years and receiving a certification from the American board of opticianry; receiving a Department of Labor asbestos

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 -7- handling certificate and then working in DOCS industries’ asbestos abatement program as a hazardous materials removal worker or group leader for 18 months; successfully completing the course requirements for and passing the minimum competency screening process performance examination for a sign language interpreter and then working as a sign language interpreter for one year; successfully working in the puppies behind bars program for two years. (Note: This list is current up until January 2011. It is worth reading the most recent version of Correction Law 803-b to determine if additional programs have been are added to this list).

As hard as it is to achieve the limited credit time allowance, it is very easy to lose. A person can be disqualified from eligibility for this time allowance by being deemed to have a “serious disciplinary infraction” or “overall poor institutional record”1 or by being deemed to have filed a “frivolous lawsuit” as defined in CPLR 8303 or Fed. R. Civil Procedure, Rule 11. In addition, the DOCS Commissioner can revoke this limited credit time allowance for any disciplinary infraction or failure to successfully participate in the assigned work and treatment program, and this revocation can occur even after the individual has been awarded an Earned Eligibility Certificate.

New Parole Release Factor for Those Serving Old Rockefeller Indeterminate Sentences:

Executive Law § 259-i(2)(c)(A) lists the factors that the Parole Board must consider in deciding whether or not an individual is to be released to parole supervision. These factors are:

(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated.

The 2009 legislation amends this provision by requiring the Parole Board to also consider the length of the determinate sentence individuals serving time for a drug offense would be serving if sentenced under the new provisions. Specifically, the Parole Board is now directed to also consider the following:

1 The legislation requires the DOCS Commissioner to define “serious disciplinary infraction” and “overall poor institutional record,” and states that these need not be defined the same as otherwise defined under regulations enacted pursuant to Correction Law § 803.

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(vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law.

Medical Parole (Executive Law § 259-r)

Medical parole was originally implemented in 1992 for terminally ill individuals in DOCS’s custody. See Executive Law § 259-r. Over the years, it has been primarily used by individuals over the age of 55, who are considered to have the lowest recidivism rates. As the prison population has aged, more and more imprisoned people are suffering from debilitating physical and cognitive impairments, increasing the costs associated with imprisonment.

The Legislature has sought to address these skyrocketing costs by expanding eligibility for medical parole and streamlining the application process. In general, the 2009 amendments to Executive Law § 259-r: authorize the release of individuals to parole supervision who suffer from significant and non-terminal conditions that render them so physically or cognitively debilitated that they do not present a danger to society; allows individuals who have been convicted of certain violent felonies to be eligible for medical parole consideration if they have served at least one-half of their sentence, except that inmates convicted of first-degree murder or an attempt or conspiracy to commit first-degree murder are not eligible; and allows individuals who are ambulatory, but who suffer from significant disabilities that limit their ability to perform significant normal activities of daily living to be eligible for consideration.

In deciding whether a client is eligible for medical parole, defense lawyers should read the amended provisions carefully.

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 EARLY RELEASE CHECKLIST: DETERMINATE SENTENCES

Program Eligibility Exclusions Impact Impact on Client

Willard CPL § 410.91; specified 2d D & E property Not currently convicted of non-specified offense; no prior Sentenced to parole offenses; 2d C, D, & E drug offenses; 1st B VFO, class A or B non-drug felony conviction; not under supervision, with first 90 drug offense (except CSCS to a Child) jurisdiction of or currently awaiting delivery to DOCS days spent at Willard

Shock Correction Law §§ 865-867; b/w 16 and 50 Not currently convicted of A-I felony, VFO, sex, homicide, Graduates of 6 month years old; within 3 years conditional release escape, or absconding. No prior VFO w/ state prison program earn Earned sentence. Must be screened by Shock screening committee Eligibility Certificate (see (which look for indications of violence, predatory Correction Law § 805) behavior, or crimes of sophistication; medical or mental and are immediately health problems) parole eligible

Judicial Shock PL§ 60.04(7); same as above, but must also be Same as above, but screened only for medical/mental health same as above convicted drug offense problems; if exist, alternative-to-Shock program must be made available.

Temporary Release Correction Law §§ 851-861; within 24 months Not currently convicted of VFO, sex offense, homicide, Release to community for (includes CASAT) of earliest release (30 months for drug escape, absconding, or aggravated harassment of DOCS extended periods of time offenses) and requisite time in (generally 6 employee. Violent felony override may be avail (see for work, education, etc. months; 9 months for second B felony drug www.communityalternatives.org/pdf/temporaryrelease.pdf offense)

Judicial CASAT PL § 60.04(6); conviction for drug offense For CASAT annex and work release, must not have any of If TR eligible, will enter above exclusions. If above exclusions apply, will only get CASAT annex for 6 CASAT annex 6-9 months prior to earliest release. months and then work release.

Presumptive Correction Law § 806; have achieved an EEC Not currently convicted of A-I felony, VFO, specified Released at earliest Release (§ 805) homicide, sex offense, incest, sex performance of child, release opportunity hate crime, terrorism, or aggravated harassment of employee; no serious disciplinary infraction or frivolous lawsuit

Merit Release Correction Law § 803; achieve EEC one of 4 Not currently convicted of A-I non-drug felony, VFO, 1/7 off minimum in program objectives. specified homicide, sex offense, incest, sex performance of addition to the 1/7 off for child, or aggravated harassment DOCS employee; no conditional release. serious disciplinary infraction or frivolous lawsuit

Conditional Release all determinate sentences poor institutional record 1/7 off determinate sentence

Post Release Supervision: 1-5 for non sex felonies (PL § 70.45(2)); 3 to 25 years for felony sex offenses (PL § 70.80). EARLY RELEASE CHECKLIST: INDETERMINATE SENTENCES

Program Eligibility Exclusions Impact Impact on Client

Willard CPL § 410.91; specified 2d D & E property Not currently convicted of non-specified offense; no prior Sentenced to parole offenses; 2d C, D, & E drug offenses; 1st B VFO, class A or B non-drug felony conviction; not under supervision, with first 90 drug offense (except CSCS to Child) jurisdiction of or currently awaiting delivery to DOCS days spent at Willard

Shock Correction Law §§ 865-867; b/w 16 and 50 Not currently convicted of A-I felony, VFO, sex, homicide, Graduates of 6 month years old; within 3 years parole eligibility escape, or absconding. No prior VFO w/ state prison program earn Earned sentence. Must be screened by Shock screening committee Eligibility Certificate (see (which look for indications of violence, predatory behavior, Correction Law § 805) or crimes of sophistication; medical or mental health and are immediately problems) parole eligible

Judicial Shock PL§ 60.04(7); same as above, but must be Same as above, but screened only for medical/ mental health same as above convicted drug offense problems; if exist, alternative-to-Shock program must be made available

Temporary Release Correction Law §§ 851-861; within 24 months Not currently convicted of VFO, sex offense, homicide, release to community for (includes CASAT) of earliest release (30 months for drug offenses) escape, absconding, or aggravated harassment of DOCS extended periods of time and requisite time in (generally 6 months; 9 employee. Violent felony override may be avail (see for work, education, etc. months for second B felony drug offense) www.communityalternatives.org/pdf/temporaryrelease.pdf)

Presumptive Correction Law § 806; have achieved an EEC Not currently convicted of A-I felony, VFO, specified Released at earliest Release (§ 805) homicide, sex offense, incest, sex performance of child, hate release opportunity crime, terrorism, or aggravated harassment of employee; no without having to appear serious disciplinary infraction or frivolous lawsuit before Parole Board.

Merit Release Correction Law § 803; achieve EEC one of 4 Not currently convicted of A-I non-drug felony, VFO, 1/6 off minimum sentence program objectives. specified homicide, sex offense, incest, sex performance of (1/3 for A-I drug felonies) child, or aggravated harassment DOCS employee; no serious disciplinary infraction or frivolous lawsuit

Supplemental Merit L. 2005, Ch. 736, § 30; drug offense conviction same as above, but A-I felony drug offenses excluded. an additional 1/6 off min. Release prior to 2004; same as above, but must complete 2 of 4 program objectives.

Conditional Release all indeterminate sentences poor institutional record 1/3 off maximum WILLARD ELIGIBILITY: UNDERSTANDING THE LIMITATION “SUBJECT TO AN UNDISCHARGED TERM OF PRISON”

Criminal Procedure Law (CPL) § 410.91(2), which defines those who are eligible for a sentence of Willard, excludes those who are “subject to an undischarged term of incarceration.” On its face, this limitation seems to apply to those who are under parole supervision when convicted of the Willard eligible offense. Yet, Willard has traditionally been imposed for parole violators, so if read in this manner, this limitation makes no sense.

In fact, this language was never intended to exclude from Willard eligibility those who were on parole at the time of commission of the Willard eligible offense. When he was Deputy Commissioner and Counsel for the Department of Correctional Services, Anthony Annucci reiterated this point in a letter to the Office of Court Administration, stating as follows: “The language in question was never intended to exclude from Willard the defendant who is on parole or conditional release from a prior term of imprisonment when the present crime is committed, and is otherwise eligible to receive a sentence of parole supervision.”

In enacting the 2004 Drug Law Reform Act (L. 2004, ch. 738), the Legislature sought to clarify this limitation as well by changing Penal Law § 70.06(7) to eliminate the language “subject to an undischarged term of imprisonment” and to substitute the clarifying language “is not under the jurisdiction of or awaiting delivery to the department of correctional services.” Thus, Penal Law § 70.06(7) now provides that only those who are in state prison or “awaiting delivery” to the Department of Correctional Services for another crime are excluded from Willard eligibility. It can only be assumed that the failure to similarly change this language in CPL § 410.91 was a legislative oversight. Nonetheless, the changes to Penal Law § 70.06(7) makes it clear that only those who commit a new crime while in state prison or who commit a new crime while having just been sentenced to state prison (and are awaiting delivery to the Department of Correctional Services) are ineligible for Willard.

TEMPORARY RELEASE ELIGIBLIITY FURTHER RESTRICTED: UPDATE ON VIOLENT FELONY OVERRIDE

Temporary release programs, which include work release and CASAT, have long been considered an effective means of transitioning individuals from prison to the community. At a time when policy-makers are becoming more aware of the importance of “reentry” one would think that the Department of Correctional Services (DOCS) would be using temporary release more often. Unfortunately, just the opposite is true, and over the past several years temporary release participation has declined dramatically because of increased restrictions on eligibility for the program. At its peak in 1994, 27,937 individuals participated in temporary release programs; by 2006, only 2,677 individuals participated – a decrease of 90%.

Recent changes to the temporary release program will result in even fewer individuals being eligible to participate. By virtue of a recent Executive Order, the temporary release program and the violent felony override have been further restricted – restrictions that defense attorneys need to consider when advising clients about the availability of programs while in prison.

To understand this change, it is important to understand the “violent felony override” in general and how it operated until these recent changes were implemented. The "violent felony override" (VFO) is the process by which a defendant convicted of a violent felony, who would otherwise be prohibited from eligibility for temporary release, can obtain an "override" from the Temporary Release Committee chairperson, so as to make the prisoner eligible for temporary release programs. The general regulations for temporary release are set forth in 7 NYCRR §1900.4. Until recently, subsection (ii) of §1900.4(c)(1), set forth the list of crimes for which a VFO is actually available, while subsection (iii) set forth the following procedure for obtaining a VFO:

An inmate who can provide the TRC chairperson with a court-generated document or document generated by the Office of the District Attorney which establishes that his/her current commitment is for a subdivision of one of the above listed crimes which did not involve either the use or threatened use of a deadly weapon or a dangerous instrument or the infliction of a serious physical injury as defined in the Penal Law, shall be otherwise for temporary release.1

1 The “court-generated” document is best sought from the Judge at the time of sentencing. It need be only a brief one paragraph certification. Attached is a sample of such a certification that takes into account the recent changes required by Executive Order #9. Submit it to the Judge at sentencing and have the Judge sign it. Make a copy for your file and give a copy to your client. That way it is ready to be produced at the appropriate time for the TRC chairperson. The Order of Commitment may serve this purpose if it is detailed enough to provide the subdivision under which the defendant was convicted so as to inform DOCS as to the exact crime for which he is currently committed.

Thus, diligent defense attorneys could review the list of crimes set forth in subsection (ii) to see if their clients were eligible for a VFO, and then follow the procedure outlined in subsection (iii) to obtain a VFO. This changed, however, in early 2007.

EXECUTIVE ORDER #9

On March 5, 2007, former Governor Spitzer signed Executive Order #9, which restricted individuals convicted of certain violent felonies from participating in temporary release programs. On June 18, 2008, Governor Paterson officially continued this Executive Order. Executive Order # 9 reads in relevant part as follows:

I, Eliot Spitzer ...do hereby order the Commissioner of the Department of Correctional Services to promulgate, modify, adopt, or rescind any rules, regulations, directives, policies or procedures as may be necessary to prevent the future transfer of any inmate to any program of temporary release, when the inmate is convicted of any of the following crimes, or is convicted of an attempt or a conspiracy to commit any of the following crimes:

(6) a violent felony offense that includes as an element: (i) being armed with, the use of, the threatened use of, or the possession with intent to use unlawfully against another of, a deadly weapon or a dangerous instrument; or (ii) the infliction of serious physical injury.

Based upon this Executive Order, DOCS rewrote subsection (ii) of 7 NYCRR §1900.4(c)(1), incorporating the order’s limiting language to further restrict the eligibility for temporary release for certain crimes. DOCS did not rewrite subsection (iii), which discusses the procedure for obtaining VFOs. However, after learning that DOCS was denying temporary release to individuals convicted of violent felony offenses described in Executive Order #9 despite the fact that they had procured the documents necessary for a VFO, the Center for Community Alternatives (CCA) contacted DOCS Counsel’s Office. We were advised that DOCS is interpreting Executive Order #9 as an absolute bar to participation in temporary release programs for individuals convicted of the types of crimes described in the order. This absolute bar means that even if an individual obtains the documentation described in §1900.4(c)(1)(iii), DOCS will not admit the individual to any temporary release program.

Defense attorneys who read only subsections (ii) and (iii) of 7 NYCRR §1900.4(c)(1), without reading the Executive Order, would reasonably conclude that VFOs are still available to individuals convicted of all the crimes described in subsection (ii). While seemingly conceding that subsection (iii) should have been amended to comply with Executive Order #9 – as subsection (ii) was – DOCS acts as though it has been and refuses to accept VFOs for the specific types of crimes described in the Executive Order. The fact that your client was convicted of a crime that has as an element "possession of a deadly weapon or dangerous instrument with intent to use unlawfully against another" makes him ineligible and the VFO contained in (iii) is deemed by DOCS to be inapplicable. This language excludes, for example, those individuals convicted of possessing a weapon with the intent to use it unlawfully against another (subsection (1) of Penal Law 265.03, Criminal Possession of a Weapon 2d) even if they produce VFO documentation. It is our understanding, however, based on our conversations with

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 3 DOCS Counsel’s Office, that those who merely possess a weapon without the intent to use it unlawfully against another (subsections (2) and (3) of Penal Law 265.03), may still qualify for a VFO. In this regard, DOCS makes a distinction between “being armed with” a weapon or dangerous instrument and one who merely “possesses” a weapon or dangerous instrument without the intent to use it unlawfully against another.

Defense counsel should now refer to Executive Order #9 and advise clients that they will not be eligible for temporary release, and will not be able to obtain a VFO, for any crime which has as an element any of the following: 1) being armed with a deadly weapon or a dangerous instrument; 2) using or threatening to use a deadly weapon or a dangerous instrument; 3) possession of a deadly weapon or a dangerous instrument with the intent to use it against another; or 4) the infliction of serious physical injury. In addition, if Executive Order #9 does not render a client ineligible for a VFO, counsel should ensure that the certification from the Judge indicates that the current commitment is based upon a conviction for a violation of a particular subdivision and section of the Penal Law which does not include as an element being armed with, the use of, the threatened use of, or the possession with intent to use unlawfully against another a deadly weapon or a dangerous instrument, or the infliction of serious physical injury. A sample certification is attached.

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011 4

SUPREME COURT COUNTY OF ONONDAGA STATE OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff, Indictment No. 2008-0000-1 vs. Index No. 08-0001

JOHN DOE,

Defendant. ______

It is hereby certified pursuant to 7 NYCRR §1900.4 (c)(1)(iii), (ii) to the New York State

Department of Correctional Services that the current commitment of John Doe is based upon a conviction for violation of subdivision ( ) of Penal Law §______, a crime listed in

7 NYCRR §1900.4 (c)(1)(ii) which is a subdivision of a violent felony offense that does not include as an element either being armed with, the use of, the threatened use of, or the possession with intent to use unlawfully against another of, a deadly weapon or a dangerous instrument, or the infliction of serious physical injury as defined in the Penal Law.

Dated: ______

Supreme Court Justice

CENTER FOR COMMUNITY ALTERNATIVES 115 East Jefferson Street, Syracuse, NY 13202 39 West 19th Street, New York, NY 10011

ConditionalConditional SealingSealing TheThe NutsNuts andand BoltsBolts ofof ConditionalConditional SealingSealing underunder CriminalCriminal ProcedureProcedure LawLaw §§ 160.58160.58

JeffreyJeffrey G.G. Leibo,Leibo, Esq.Esq. SeniorSenior ProjectProject Manager,Manager, DLRADLRA ImplementationImplementation CenterCenter forfor CommunityCommunity AlternativesAlternatives www.communityalternatives.orgwww.communityalternatives.org http://http://makingreformreality.blogspot.commakingreformreality.blogspot.com// ConditionalConditional Sealing:Sealing: NotNot aa NewNew ConceptConcept ForFor years,years, mechanismsmechanisms havehave existedexisted forfor sealingsealing thethe drugdrug--relatedrelated offensesoffenses forfor thosethose defendantsdefendants whowho completedcompleted aa judiciallyjudicially sanctionedsanctioned treatmenttreatment program.program. InIn manymany counties,counties, uponupon successfulsuccessful completioncompletion ofof DrugDrug CourtCourt andand DistrictDistrict AttorneyAttorney sponsoredsponsored programsprograms (DTAP)(DTAP),, thethe defendantdefendant’’ss drugdrug--relatedrelated offenseoffense isis eithereither dismisseddismissed (resulting(resulting inin CPLCPL §§160.50160.50)) oror disposeddisposed ofof byby aa violationviolation convictionconviction (resulting(resulting inin aa CPLCPL §§160.55160.55 sealing).sealing). WhyWhy SealingSealing HasHas LongLong BeenBeen RecognizedRecognized AsAs ImportantImportant TheThe soso--calledcalled ““collateralcollateral consequencesconsequences”” ofof aa criminalcriminal convictionconviction areare lifelife--longlong andand lifelife--altering:altering: TheThe legallegal disabilitiesdisabilities andand socialsocial exclusionsexclusions resultingresulting fromfrom adverseadverse encountersencounters withwith thethe criminalcriminal justicejustice systemsystem oftenoften erecterect formidableformidable barriersbarriers forfor criminalcriminal defendants,defendants, peoplepeople withwith criminalcriminal records,records, thosethose returningreturning toto theirtheir communitiescommunities afterafter incarceration,incarceration, andand theirtheir families.families. TheseThese consequencesconsequences areare farfar--reaching,reaching, oftenoften unforeseen,unforeseen, andand sometimessometimes counterproductive.counterproductive. NYSBA, Special Committee, “Re-Entry and Reintegration: TheTh Road R d tot Public P bli Safety S f t ” availableil bl at t www nysbab org WhyWhy SealingSealing HasHas LongLong BeenBeen RecognizedRecognized AsAs Important,Important, cont.cont. oo SustainedSustained sobrietysobriety isis onlyonly thethe firstfirst stepstep inin aa personperson’’ss recoveryrecovery andand reintegration;reintegration; oo TheThe nextnext (and(and necessary)necessary) stepstep isis accessaccess toto education,education, livingliving--wagewage andand fulfillingfulfilling employment,employment, andand stablestable housing.housing. ConditionalConditional Sealing:Sealing: WhatWhat isis NewNew inin CPLCPL §§ 160.58160.58 §§ 160.58160.58 differsdiffers fromfrom traditionaltraditional sealingsealing inin that:that: ¾¾itit nono longerlonger requiresrequires DADA consent;consent; ¾¾therethere isis anan adjudicatoryadjudicatory process;process; ¾¾itit allowsallows forfor thethe sealingsealing ofof upup toto threethree additionaladditional priorprior misdemeanormisdemeanor drugdrug convictions;convictions; ¾¾isis conditionalconditional (meaning(meaning thatthat sealedsealed convictionsconvictions willwill bebe automaticallyautomatically unsealedunsealed uponupon aa newnew criminalcriminal arrest);arrest); andand ConditionalConditional Sealing:Sealing: ThinkThink ofof ItIt asas ““22--StepperStepper””

StepStep OneOne:: IsIs thethe clientclient eligible?eligible? [look[look toto CPLCPL 160.58160.58 (1)](1)]

StepStep TwoTwo:: ShouldShould thethe courtcourt exerciseexercise itsits discretiondiscretion ofof conditionallyconditionally sealingsealing thethe eligibleeligible clientclient’’ss conviction?conviction? [look[look toto CPLCPL 160.58(3)]160.58(3)] WhoWho isis EligibleEligible forfor ConditionalConditional Sealing?Sealing? SomeoneSomeone convictedconvicted ofof…… 99AA PenalPenal LawLaw ArticleArticle 220220 oror 221221 offenseoffense [includes[includes misdemeanors!misdemeanors!-- PLPL 10.00(1)]10.00(1)];; oror 99AnAn offenseoffense listedlisted inin CPLCPL 410.91(5)410.91(5) (the(the ““WillardWillard”” offenses);offenses); ……whowho hashas successfullysuccessfully completedcompleted…… Either:Either: 11)) JudicialJudicial DiversionDiversion underunder CPLCPL ArticleArticle 216;216; oror 2)2) ““oneone ofof thethe programsprograms heretoforeheretofore knownknown asas drugdrug treatmenttreatment alternativealternative toto prisonprison”” (drug(drug courtcourt oror DADA sponsoredsponsored diversiondiversion program);program); oror 3)3) ““anotheranother judiciallyjudicially sanctionedsanctioned drugdrug treatmenttreatment programprogram ofof similarsimilar duration,duration, requirementsrequirements andand levellevel ofof supervisionsupervision”” WhatWhat isis ““another judicially sanctioned drug treatment program…”…”?? 1)1) AA WillardWillard sentence?sentence? 2)2) JudiciallyJudicially OrderedOrdered Shock?Shock? 3)3) JudiciallyJudicially OrderedOrdered CASAT?CASAT? 4)4) AA substancesubstance abuseabuse treatmenttreatment programprogram completedcompleted asas aa conditioncondition ofof probationprobation oror conditionalconditional discharge?discharge? Yes!Yes! (Decisions(Decisions fromfrom OnondagaOnondaga && KingsKings County)County) …and has finished his or her sentence.

The defendant “has completed the sentence imposed for the offense or offenses” [See CPL 160.58(1)]

Then you may apply for Conditional Sealing. Not eligible if charge pending

• CPL §160.58(7) states “The court shall not seal the defendant’s record pursuant to this section while any charged offense is pending.”

• Based upon PL 10.00(1) the use of the word “offense” could mean that sealing will not occur even if there is a violation level offense pending Procedure:Procedure: CPLCPL §§ 160.58(2)160.58(2)

MotionMotion andand Notice:Notice: 99 MotionMotion toto sentencingsentencing courtcourt ofof eligibleeligible offense,offense, withwith noticenotice toto DistrictDistrict AttorneyAttorney’’ss officeoffice identifyingidentifying thethe eligibleeligible offenseoffense toto bebe sealed;sealed; 99 IfIf priorprior misdemeanormisdemeanor convictionsconvictions areare toto bebe sealed,sealed, thethe motionmotion mustmust identifyidentify thosethose misdemeanorsmisdemeanors andand thethe DistrictDistrict AttorneyAttorney andand sentencingsentencing courtscourts ofof thethe countiescounties involvinginvolving thosethose misdemeanorsmisdemeanors mustmust bebe notified;notified; 99 NotifiedNotified DistrictDistrict Attorney(sAttorney(s)) andand court(scourt(s)) mustmust bebe givengiven atat leastleast 3030 daysdays toto respond.respond. To Decide the Motion - The Court must follow CPL 160.58(2)(a-d) •• MustMust orderorder DCJSDCJS oror FBIFBI criminalcriminal historyhistory withwith sealed,sealed, suppressedsuppressed andand outout--ofof--statestate informationinformation ((thethe partiesparties shallshall getget toto examineexamine themthem);); •• ClientClient oror CourtCourt mustmust identifyidentify thethe misdemeanormisdemeanor conviction(sconviction(s)) forfor whichwhich reliefrelief maymay bebe granted;granted; •• TheThe CourtCourt mustmust receivereceive informationinformation thatthat misdemeanormisdemeanor sentencessentences havehave beenbeen completedcompleted oror aa swornsworn affidavitaffidavit toto thatthat affect;affect; 3030 dd ti ti t t t t id id DA DA d d The Hearing CPL 160.58(3): • Defendant and a DA from any jurisdiction involved can request a hearing. • The Court “may” conduct a hearing to “consider and review any relevant evidence offered by either party that would aid the court in its decision.” • There is no burden of proof articulated in the statute. The Court’s Discretion is Guided: CPL 160.58(3) In deciding the conditional sealing application, “the court shall consider any relevant factor, including, but not limited to: i) The circumstances and seriousness of the offense(s) that resulted in the conviction(s); ii) The character of the defendant, including his or her completion of the judicially sanctioned treatment program; iii) The defendant’s criminal history; iv) The impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.” [This is where you can really advocate!] WhatWhat happenshappens whenwhen thethe CourtCourt grantsgrants thethe conditionalconditional sealingsealing application?application? CCACCA’’ss websitewebsite hashas OCAOCA’’ss formform order.order. WhatWhat isis sealed?:sealed?: ““allall officialofficial recordsrecords andand paperspapers relatingrelating toto thethe arrests,arrests, prosecutionsprosecutions andand convictionsconvictions includingincluding allall duplicatesduplicates andand copiescopies thereofthereof onon filefile withwith DCJSDCJS oror withwith anyany CourtCourt shallshall bebe sealedsealed..”CPL” 160.58(4) Who seals the records?

CPL §160.58(5): The Clerk of the Court shall immediately notify the following regarding the records that shall be sealed: a. The Commissioner of DCJS; b. Any Court that sentenced the defendant in a case that has been conditionally sealed; c. CPL 160.58(5) does not say who shall notify law enforcement, but OCA’s form order includes court notice to law enforcement. Who Does NOT get the Records? CPL 160.58(4) • The “arrest, prosecution, and conviction” records shall NOT be available to “any person or public or private agency” • But, DCJS “shall retain any fingerprints, palmprints and photographs, or digital images of the same.” Who still gets the sealed records? CPL §160.58(6) 1) the defendant or his/her designated agent; 2) agencies listed in Executive Law 835(9); 3) law enforcement when “acting within the scope of their official duties” or when making police or peace officer employment decisions; 4) officers/agencies responsible for issuing gun licenses. Notably absent from that list…

• State agencies responsible for occupational licensing and municipal housing agencies, such as: a) Department of State b) Education Department c) Department of Health d) Public Housing Authorities AutomaticAutomatic unsealingunsealing ofof recordsrecords CPLCPL 160.58(8)160.58(8) If,If, subsequentsubsequent toto conditionalconditional sealingsealing,, thethe personperson isis arrestedarrested forfor oror formallyformally chargedcharged withwith anyany misdemeanormisdemeanor oror felonyfelony offense,offense, suchsuch recordsrecords shallshall bebe unsealedunsealed immediatelyimmediately andand remainremain unsealedunsealed…….. UnlessUnless thethe newnew arrestarrest resultsresults inin terminationtermination inin favorfavor ofof thethe accused,accused, asas defineddefined inin 160.50160.50,, oror byby aa convictionconviction forfor aa nonnon--criminalcriminal offense,offense, asas describeddescribed inin 160160 5555 Appellate Division Review of Conditional Sealing Denials? There are no appeal rights written into the statute. Perhaps review by the Appellate Division is available via… 1) CPLR §5701(c) - civil appeal by permission; or 2) CPLR Article 78 – as a failure to perform a duty enjoined by law OR acting outside of authorized legal authority ? What can your clients say about their Sealed Convictions? In truth- there is really no clear answer for this. Human Rights Law § 296(16) – Originally written for sealed arrests that did not lead to criminal convictions. The 2009 DLRA amended 296(16) to add CPL 160.58 sealings, but these are sealed convictions. Amended 296(16) means employers should ask only about criminal convictions that have not been sealed. But most employers still ask the wrong question: Have you ever been convicted of a crime? Safest answer to the wrong question: “I have no arrests or convictions that I am required to disclose.” Human Rights Law § 296(16)

"It shall be an unlawful discriminatory practice ... to make inquiry about ...any arrest or criminal accusation...which was followed by ... a conviction which is sealed pursuant to section 160.58..."

"...no person shall be required to divulge information pertaining to any arrest or criminal accusation which was followed by a...conviction which is sealed pursuant to section 160.58." What can your clients say about their Sealed Convictions?

1. “I have no arrests or convictions that I am legally required to disclose” (Safest Answer)

2. “NO” What Issues Have Arisen Since Enactment of the Conditional Sealing Statute? Conditional Sealing is not happening around the State Effective date: June 6, 2009.

Thousands might be eligible.

A DCJS Report in June of 2011 says there were a total of: 30 Lessons from People v. Modesto

Only known written decision to date • Mr. Modesto sentenced for an A-II felony drug charge to state prison; completed Shock and a drug treatment program while on Parole. • Mr. Modesto’s application for conditional sealing was denied in a confusing, poorly written decision in which several reasons for denial are given. - But was Mr. Modesto eligible in the first place? Did lack of eligibility drive a bad decision? • Lesson: Be thoughtful about both steps of the conditional sealing motion and supporting material. Is Conditional Sealing Retroactive?

• The plain language of the statute contemplates retroactive application. a) “Heretofore known as…” b) Allows sealing remote misdemeanors, which is consistent with retroactivity.

• The legislative intent indicates sweeping and inclusive reforms.

• OCA, DCJS and Hon. Barry Kamins all agree the statute is retroactive. [Supporting documents cited in materials]

• Most, if not all, Conditional Sealing applications granted so far have been retroactive orders. How are the sealing statutes different? Refresher on Sealing Statutes 160.50: disposition favorable to the accused (not a conviction); full sealing (court and law enforcement records); permanent (fingerprints destroyed); falls w/in protections of Human Rights Law 296(16) 160.55: non-criminal conviction; partial sealing (law enforcement records); permanent (fingerprints destroyed); falls w/in protections of Human Rights Law 296(16) 160.58: a criminal conviction; full sealing (court and law enforcement) with some exceptions; conditional (fingerprints not destroyed); falls w/in protections of Human Rights Law 296(16) Resources • Website: www.communityalternatives.org – Sample Motion including Affidavit & Memo of Law – Decisions from Onondaga & Kings County – Latest Decisions on Conditional Sealing

• Blog: “Make Drug Law Reform a Reality”

• Monthly State-wide phone calls Special Thanks

Our ability to provide this information is made possible by a grant from the Foundation to Promote Open Society New York State Defenders Association

Public Defense Backup Center R E P R I N T

RiVolume XXVIXXIEPORT Number Number 31 January–March June–July 2006 2011 A PUBLICATION OF THE DEFENDER INSTITUTEi

Defense Practice Tips Advocating for Conditional Sealing— 2) The judge can order the sealing over the DA’s objec- tion; CPL § 160.58 3) There is an adjudicatory process with an opportunity for all the parties to be heard; By Andy Correia, Alan Rosenthal and Patricia Warth* 4) Up to three prior Penal Law article 220 or 221 misdemeanor convictions may also be sealed; and Introduction 5) The sealing is conditional, and conditionally sealed Effective June 2009, Criminal Procedure Law (CPL) convictions are automatically unsealed upon a subse- § 160.58 allows the sealing of drug-related convictions quent criminal arrest. under certain circumstances. This is the first time that it is possible to seal convictions in New York. To date, how- B. Why is Sealing Important? ever, only about 30 people have benefited from this new 1) The dissemination of criminal records is more legislation. In light of the expanded use of criminal back- widespread than ever, and a criminal conviction often ground searches and the significant barriers to successful creates barriers in all aspects of a person’s life, in- reintegration that a person with a criminal conviction cluding: faces, it is surprising that more people have not taken • Employment advantage of the conditional sealing statute. This article • Housing provides tools and practice tips for defense counsel who • Education seek to assist their clients in realizing the significant ben- • Immigration status efits of conditional sealing. • Family life Sealing helps to limit or eliminate the negative impact A. Is Sealing After Completing a Drug Treatment of a criminal record by removing it from the public Alternative to Prison a New Concept? eye. No! For years, defendants have had arrests sealed after completing Drug Court programs or District 2) We know that recovery from addiction is a life long Attorney sponsored Drug Treatment Alternative to process and it is not enough to simply refrain from Prison Programs (DTAP). This has been accomplished drug abuse. Instead, people in recovery need the by dismissing the charges, resulting in a CPL § 160.50 tools, like stable employment and housing, to live a sealing, or by reducing the charges to a violation, law-abiding and fulfilling life. Sealing criminal con- resulting in a CPL § 160.55 sealing. victions helps put those tools within reach. CPL § 160.58 is different from traditional methods of C. Are Enough New Yorkers Taking Advantage of sealing in that: Conditional Sealing? 1) Criminal convictions are sealed; No! Though hard to estimate, it is likely that there are many thousands of people around the State who completed Drug Court or District Attorney sponsored *Andy Correia, Esq. is Wayne County’s First Assistant DTAP programs and who are eligible for conditional Public Defender. Alan Rosenthal, Esq. and Patricia Warth, sealing, as well as the hundreds who complete a Esq. are Co-Directors of Justice Strategies at the Center for Judicial Diversion program each year. A Division of Community Alternatives (CCA), a private, not-for-profit crim- Criminal Justice Services (DCJS) update released in inal justice agency with offices in Syracuse and New York City. May 2011 almost two years after the June 6, 2009 effec- CCA is pursuing the full implementation of the New York Dug tive date of CPL § 160.58, reported that there were Law Reforms through a grant from the Foundation to Promote only 33 CPL § 160.58 conditional sealing orders grant- Open Society. ed in the entire State during that time. D. Who is Eligible for Conditional Sealing? 3) The defendant must have also completed the sentence CPL § 160.58(1) sets forth the following three general imposed for the offense or offenses to be conditionally eligibility requirements: sealed.

1) The defendant must be convicted of any Penal Law E. An Eligibility Issue: Does CPL § 160.58 Apply article 220 or 221 offense (including misdemeanors) or Retroactively? an offense listed in CPL § 410.91(5), often referred to Though most district attorneys clearly understand as the “Willard offenses.” that the conditional sealing statute applies retroac- The non-drug Willard offenses are: tively, some have asserted otherwise, stating that the Penal Law (PL) § 140.20—Burglary 3rd Legislature intended only to provide conditional seal- PL § 145.05—Criminal Mischief 3rd ing of convictions that occurred after CPL § 160.58’s PL § 145.10—Criminal Mischief 2nd effective date of June 6, 2009. This is incorrect. If any- PL § 155.30 (sub 1,2,3,4,5,6,8,9,10)—Grand Lar- one encounters a court or district attorney arguing ceny 4th against the retroactive application of CPL § 160.58, PL § 155.35—Grand Larceny 3rd please inform CCA (contact information below), and PL § 165.06—Unauthorized Use of Vehicle 2nd we can assist you in rebutting this argument. Here is PL § 165.45 (sub 1,2,3,5,6)—Criminal Possession an overview of why conditional sealing clearly of Stolen Property (CPSP) 4th applies retroactively: PL § 165.50—CPSP 3rd 1) The plain language of the statute contemplates PL § 170.10—Forgery 2nd retroactive application. PL § 170.25—Criminal Possession Forged Instru- The language of the statute is consistent with ment 2nd retroactive application. CPL § 160.58(1) refers to PL § 170.60 Unlawful Use of Slugs 1st programs “heretofore known as”—a reference to or drug treatment programs in the past. In addition, An attempt under PL § 110.00 for any above spe- the statue allows sealing for remote drug misde- cified offenses. meanors. 2) The legislative intent indicates sweeping, inclusive 2) The defendant must have also completed one of the reforms. following programs: Why would the Legislature restrict this benefit to • A judicial diversion program under CPL article future cases only, especially when the statute 216; clearly authorizes retroactive misdemeanors be- • A program “heretofore known as drug treating sealed? ment alternative to prison,” which is generally interpreted to mean a Drug Court or District 3) OCA, DCJS, and commentators all agree the statute Attorney sponsored DTAP program; or is retroactive. • A “judicially sanctioned program of similar Office of Court Administration: In a July 7, 2009 length, duration, and level of supervision.” memo, Michael Colodner of the Unified Court What drug treatment programs does this System circulated a memo to all Supreme Court include? and County Court judges exercising criminal This is where advocacy becomes very impor- jurisdiction. That memo clearly contemplated tant, and the following are just some of the CPL § 160.58 would apply to past graduates of possible programs that might fall within this judicially sanctioned drug treatment programs last provision: who had completed their sentences: —a sentence of Willard (CPL § 410.91) —Judicially ordered Shock (PL § 60.04[7]) Conditional sealing is available not only to —Judicially ordered CASAT (Compre- cases arising under CPL Article 216, but also hensive Alcohol and Substance Abuse to cases diverted to “one of the programs Treatment Program) (PL § 60.04[6]) heretofore known as drug treatment alterna- —sentence of probation with drug treat- tive to prison [D-tap] or another judicially ment ordered as a condition (An Onon- sanctioned drug treatment program of similar daga County Court judge has granted duration, requirements and level of supervi- such a conditional sealing application; a sion” (CPL 160.58(1)). Because the D-tap pro- transcript of the court proceeding is avail- gram started in 1990, any defendant who suc- able on CCA’s website at the address list- cessfully completed a D-tap or similar pro- ed below). gram and who is otherwise eligible for condi- Defense Practice Tips continued

tional sealing may request sealing pursuant the counties where those convictions occurred; and to CPL 160.58. • The notified district attorney(s) and court(s) Colodner memo, July 7, 2009, fn. 6. must be given at least 30 days to respond. DCJS: In periodic briefings regarding implemen- 3) The court must follow the steps outlined in CPL tation of the 2009 DLRA, DCJS officials have § 160.58(a)-(d): made it clear that they anticipated a large number • The court is to order a DCJS or FBI fingerprint- of conditional sealing applications soon after CPL based criminal history record of the defendant, § 160.58’s enactment, and set aside significant including sealed or suppressed information. Also, resources to process the large number of antici- DCJS shall include an FBI record with out-of-state pated sealing orders. convictions, if any. The parties shall be allowed to examine these records. [Practice tip—Counsel Hon. Barry Kamins stated in an article for the should obtain the client’s DCJS record prior to fil- New York State Bar Association (NYSBA) that: ing the conditional sealing motion to: ensure that The new law permits a court, on its own the client is eligible; identify prior misdemeanors motion, or upon motion of a defendant, to that may be subject to sealing; show that the sen- conditionally seal the current case and up to tences have been completed for relevant convic- three prior misdemeanor convictions for tions; and finally, ensure that this statutory condi- offenses under Penal Law Articles 220 or 221. tion is met so the court has one less reason to deny The sealing may be done in cases where the the motion.] defendant has been convicted and sentenced • The court must ensure that the defendant has after successfully completing a judicial diver- identified the misdemeanor conviction or convic- sion program, or a drug treatment program tions for which relief may be granted. that was in existence prior to the judicial • The court must ensure that there is sufficient diversion program. Thus, this provision evidence that the sentences for all convictions to allows defendants who have completed drug be sealed have been completed. The court may treatment in existing drug treatment courts rely upon a sworn affidavit that the sentences around the state to immediately file motions have been completed. [Practice tip—The statute for conditional sealing. does not specify who must be the source of this “New 2009 Drug Crime Legislation- Drug Law affidavit. Presumably, an affidavit from the defen- Reform Act of 2009,” NYSBA New York Criminal dant should be sufficient, particularly if it is con- Law Newsletter, Fall 2009, Vol. 7, No. 4, p. 6 sistent with information on the DCJS record.] 4) Finally, most conditional sealing orders tracked by • The court has ensured that the district attorneys DCJS have been retroactive. and courts of each jurisdiction have been notified that an eligible prior misdemeanor is being considered for conditional sealing. The district attor- F. Once You Have Determined that the Defendant is neys and courts notified shall have not less than Eligible, What is the Process for Applying for 30 days in which to comment and/or submit Conditional Sealing? materials to aid the court in making such deter- 1) The court that sentenced the defendant to a judi- mination. [Practice tip—Consider including, along cially sanctioned drug treatment program may “on its with your motion, proof that the relevant district own motion” begin the process, but to our knowledge attorneys and courts have been notified of the this has not yet happened. conditional sealing motion to ensure that there is 2) Conditional sealing applications will most likely be one less reason to deny the motion.] “on the defendant’s motion.” This motion involves the following steps: G. Is There an Opportunity for a Hearing? 1) CPL § 160.58 states that the judge may order a hear- • Motion made to the sentencing court of the eli- ing at the request of the “defendant” or the “District gible offense, with notice to the District Attor- Attorney for any jurisdiction in which the defendant ney’s office, identifying the offense to be sealed; committed a crime that is the subject of the sealing • If prior misdemeanors are to be sealed, the application.” motion must identify these prior misdemeanors • Use of the word “may” suggests that the judge and notice of the application must also be given to is not required to grant the request for a hearing. the district attorney(s) and sentencing court(s) in • If there is no request for a hearing, or if the co-occurring mental health disorder. Consider judge denies the request, the motion will be using the criminal history to tell the defendant’s decided on the papers submitted. [Practice tip— story about his or her addiction, treatment, and Because there is no guarantee of a hearing, coun- subsequent recovery.] sel should ensure that the moving papers are as iv) “the impact of sealing the defendant’s records thorough and comprehensive as possible. Where upon his or her rehabilitation and his or her suc- possible, counsel should attach documents that cessful and productive reentry and reintegration support the facts alleged in the motion, as well as into society, and on public safety” supporting affidavits, letters of recommendation, [Practice tip—This last factor offers you the most and possibly a personal statement in the defen- opportunity for effective advocacy. Make sure dant’s own words.] that you spend time with the defendant to find 2) The court may conduct a hearing to “consider and out if there have been times when the convic- review any relevant evidence offered by either party tion(s) have stopped her from getting something that would aid the court in its decision.” specific—a job, a place to live, a chance at educa- [Practice tip—Where there is an opportunity for a tion, etc. Then tell that story to the court. You hearing, counsel should consider the possible should also refer to Penal Law § 1.05(6), which benefits of live-witness testimony over (or in specifically identifies successful reintegration as a addition to) letters of support or affidavits.] sentencing goal in New York. Sobriety is just the H. How does the Court Decide a Conditional Sealing first step of a person’s successful reintegration. Motion? How is the Court’s Discretion to Grant or The next steps require the defendant to put her Deny the Motion Guided? life back together by repairing relationships, supporting herself, earning a living wage, having a 1) There is no burden of proof articulated in CPL stable residence, and often getting an education. § 160.58. The life-long stigma of a conviction prevents peo- 2) Instead, CPL § 160.58(3) provides that the court ple from completing their recovery, which nega- “shall consider any relevant factors, including, but tively impacts public safety.] not limited to” the following: i) “the circumstances and seriousness of the I. If the Court Grants the Motion for Conditional offense or offenses that resulted in the conviction Sealing, What is Sealed? or convictions” 1) CPL § 160.58(2) states that the court “may order all [Practice tip—Where appropriate, point out that official papers relating to the arrest, prosecution and the defendant’s conviction history is non-violent, conviction which resulted in the defendant’s partici- did not involve the use of weapons, physical pation in the judicially sanctioned drug treatment injury, or property damage, and instead involves program be conditionally sealed.” self-injurious drug offenses.] The Court may also order all “arrest, prosecution and ii) “the character of the defendant, including his conviction records for no more than three of the or her completion of the judicially sanctioned defendant’s prior eligible misdemeanors” condition- treatment program as described in subdivision ally sealed. one of this section” CCA’s website (listed below) includes OCA’s form [Practice tip—Where appropriate, discuss the sealing order. defendant’s work, school, substance abuse and/ or mental health treatment, family, friends, proof 2) Once sealed, the records shall NOT be available to of sobriety, community involvement, faith com- “any person or public or private agency” except for munity involvement—anything you can think of the following, as set forth in CPL § 160.58(6): to show that the defendant has turned her life a) the defendant or the defendant’s designated around and is committed to her sobriety and to agent; being a productive community member. Here, b) qualified agencies [under Executive Law § letters of support may be very important.] 835(9)] and federal and state law enforcement iii) “the defendant’s criminal history” agencies, when acting within the scope of their [Practice tip—More often than not, the defen- law enforcement duties; dant’s criminal history is not a product of malev- Executive Law § 835(9): olence or a “bad character,” but is instead a by- “Qualified agencies” means courts in the unified product of drug addiction and, in some cases, a court system, the administrative board of the Defense Practice Tips continued

judicial conference, probation departments, sher- automatically unsealed upon a subsequent arrest for a iffs’ offices, district attorneys’ offices, the state criminal charge. department of corrections and community super- 2) The conditionally sealed convictions will remain vision, the department of correction of any unsealed unless the new arrest charges are resolved by municipality, the insurance frauds bureau of the a disposition in favor of the accused as defined in CPL state department of insurance, the office of pro- § 160.50, or by a conviction for a non-criminal offense fessional medical conduct of the state department as described in CPL § 160.55, in which case it will be of health for the purposes of section two hundred conditionally sealed once again. thirty of the public health law, the child protective services unit of a local social services district L. Is Review by the Appellate Division Possible? when conducting an investigation pursuant to subdivision six of section four hundred twenty- CPL § 160.58 does not include any right to appeal. four of the social services law, the office of Thus, it is not clear if a court’s conditional sealing Medicaid inspector general, the temporary state decision is reviewable. There may be a possibility of commission of investigation, the criminal investi- asking for an appeal by permission pursuant to CPLR gations bureau of the banking department, police § 5701(c), or making an argument that because the forces and departments having responsibility for court is acting in an administrative capacity, a CPLR enforcement of the general criminal laws of the article 78 petition might be an appropriate remedy. state and the Onondaga County Center for M. What Can a Job Applicant with Conditionally Sealed Forensic Sciences Laboratory when acting within Convictions Say to a Prospective Employer? the scope of its law enforcement duties. Unfortunately, there is really no good answer to this. c) any state or local officer or agency with respon- In enacting CPL § 160.58, the Legislature also amend- sibility for the issuance of licenses to possess ed Executive (Human Rights) Law § 296(16) to in- guns, when the person has made application for clude conditionally sealed convictions. This provision such a license; or now reads as follows: d) any prospective employer of a police officer or 16. It shall be an unlawful discriminatory practice, peace officer as those terms are defined in subdi- unless specifically required or permitted by visions [33] and [34] of section 1.20 of this chapter, statute, for any person, agency, bureau, corpora- in relation to an application for employment as a tion or association, including the state and any police officer or peace officer; provided, however political subdivision thereof, to make any inquiry that every person who is an applicant . . . shall be about, whether in any form of application or oth- furnished with a copy of all records obtained un- erwise, or to act upon adversely to the individual der this paragraph and afforded an opportunity involved, any arrest or criminal accusation of to make an explanation thereto. such individual not then pending against that individual which was followed by a termination J. Can the Court Grant the Motion While the Defendant of that criminal action or proceeding in favor of has a Pending Case? such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by No. CPL § 160.58(7) states: “The court shall not seal the defendant’s record pursuant to this section while a youthful offender adjudication, as defined in any charged offense is pending.” subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation Based upon PL § 10.00(1), the use of the word “of- sealed pursuant to section 160.55 of the criminal fense” could mean that sealing will not occur even if procedure law or by a conviction which is sealed pur- there is a violation level offense pending. suant to section 160.58 of the criminal procedure law, in connection with the licensing, employment or K. Under What Circumstances will this “Conditional” providing of credit or insurance to such individ- Sealing be Unsealed? ual; provided, further, that no person shall be 1) According to CPL § 160.58(8), if “subsequent to a required to divulge information pertaining to any sealing of records pursuant to this subdivision, the arrest or criminal accusation of such individual person who is the subject of such records is arrested not then pending against that individual which for or formally charged with any misdemeanor or was followed by a termination of that criminal felony offense, such records shall be unsealed imme- action or proceeding in favor of such individual, diately . . . .” The word “immediately” has been as defined in subdivision two of section 160.50 of understood as meaning that the sealed conviction is the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision their practice. For example, the Saratoga County Public one of section 720.35 of the criminal procedure Defender’s office has had several conditional sealing law, or by a conviction for a violation sealed pursuant motions granted, leading the state in the number of con- to section 160.55 of the criminal procedure law. . . . ditional sealings thus far (8 of the 30 conditional sealings [Emphasis added.] as of May 2011). Given the importance of helping our clients overcome the life-long consequences of a criminal Section 16 means that employers should only ask job conviction, it is hoped that other defender offices and applicants to disclose criminal convictions that have not defense counsel will start to utilize CPL § 160.58 as a reg- been sealed. But what if the employer asks: “Have you ular part of the defense function. ever been convicted of a crime?” The legally safest and most conservative answer is: “I have no arrests or con- Resources victions in this state or any other state that I am required Center for Community Alternatives: http://www.com- by law to disclose.” Although that obviously will raise munityalternatives.org/publications/drugCases.html red flags to employers, it is probably the most lawful Making Drug Law Reform A Reality—A CCA-powered and truthful statement about sealed convictions. blog on New York DLRA This problem demonstrates that the conditional sealing statute is not intended to be an expungement http://makingreformreality.blogspot.com/ statute, and that actual expungement is still needed in CCA attorneys who are supporting the “Making Drug New York. Conditional sealing is intended to give Law Reform a Reality” Project: citizens who qualify for sealing of certain records a Alan Rosenthal, (315) 422-5638, ext. 227, chance for gainful employment. Hopefully employers [email protected] will follow the limits of the Executive Law. Jeff Leibo, (315) 422-5638, ext. 260, Conclusion [email protected] Some public defender offices across the state have Patricia Warth, (315) 422-5638, ext. 229, successfully embraced CPL § 160.58 as a regular part of [email protected] ORDER TO CONDITIONALLY SEAL CPL 160.58

______Court, County of ______------x People of the State of New York ORDER TO CONDITIONALLY SEAL CPL 160.58 v. Case Number: ______, Defendant ------x NYSID: ______

( ) To the Commissioner, New York State Division of Criminal Justice Services ( ) To the District Attorney of this County ( ) To the District Attorney of ______County ( ) To the Police Commissioner of ______County ( ) To the Superintendent of the New York State Police

Where eligible misdemeanor cases will also be sealed: G To the District Attorney(s) of ______, ______, ______County/Counties G To the following New York court(s): ______Court Name Street Address City Zip Code ______Court Name Street Address City Zip Code ______Court Name Street Address City Zip Code The above-captioned criminal action, having resulted in a sentence following the defendant’s successful completion of a judicially sanctioned drug treatment program, and the court having received an updated copy of the defendant’s criminal history report and provided a copy of the report to the parties, and having given the District Attorney a reasonable opportunity to be heard, it is hereby ordered that the record be conditionally sealed pursuant to 160.58 of the Criminal Procedure Law, as follows:

All official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court, shall be sealed and not made available to any person or public or private agency; provided, however, the division shall retain any fingerprints, palm prints and photographs, or digital images of the same. Records sealed pursuant to this order shall be made available to those authorized pursuant to 160.58(6) of the Criminal Procedure Law.

Further, the court has identified the following additional misdemeanor convictions for which conditional sealing is eligible pursuant to CPL 160.58(2), and having established that the sentence imposed on each of these convictions has been completed, and having notified the court of record and the District Attorney of each of those jurisdiction and provided them a reasonable opportunity of not less than 30 days to comment and submit materials; it is hereby ordered that the following cases are sealed pursuant to section 160.58 of the Criminal Procedure Law:

CASE NUMBER DEFENDANT COUNTY COURT CONVICTION CHARGE CONVICTION DATE

G This sealing to become effective immediately. G This sealing is stayed for 30 days.

So ordered.

______JUDGE/JUSTICE DATE UCS-160.58S 10/9/2009

A Practical Approach to Conditional Sealing

Assume you have identified a client who has met all the eligibility requirements of CPL §160.58. This client is coming into your office to speak with you and your defense team members about Conditional Sealing. What do you do?

You must strive to construct a narrative with supporting documents that will explain where your client has been, what struggles your client has had finding work or stable housing because of her record, the efforts your client has made to successfully complete treatment and further her rehabilitation even after treatment and why the Judge should conclude that granting the conditional sealing application will further your client’s rehabilitation and thereby promote public safety. You must anticipate the DA arguments against conditional sealing in your client’s case. According to CPL §160.58 (d), the Court can “consider and review any relevant evidence offered by either party that would aid the Court in its decision.” This would seem to mean that we can put in nearly anything, but so can the DA if they are so inclined, so be prepared for the prosecution to seek to admit non-criminal conduct such as Family Court orders of protection and DMV suspensions or revocations.

In addition, although there is no burden of proof articulated at this hearing, make no mistake, the District Attorneys Association of New York State has strongly opposed conditional sealing and it seems that with only a few exceptions, District Attorneys across the state are vigorously opposing sealing. Thus, the practical burden of proof rests on you and your client. You must be prepared to neutralize, explain or fold into your narrative anything in your client’s history that comes out at this hearing.

WHERE TO START

Although the statute mandates that the Court get a complete DCJS or FBI criminal history record (that includes sealed and suppressed information) and allow the parties to look at it [CPL §160.58(2)], the best practice is to have your client request a DCJS criminal history record prior to filing the motion in order to see everything, including any pending arrests as well as sealed and unsealed arrests. That record will enable you to have a frank conversation with the client about his or her criminal history and to see everything the Judge and DA will see when they run the record. In addition, it gives you a chance to correct the inevitable mistakes on the record prior to the CPL §160.58 hearing, or at least be able to articulate to the Court what the mistakes are, and why they are mistakes, while at the hearing. In addition, having the record will allow you to accurately identify prior misdemeanors drug convictions that may qualify for sealing.

You need to get a complete, reliable and current criminal record for the client. • Is an old PSI enough? Probably outdated and incomplete. • Is an OCA record check enough? Probably not complete enough because it does not include violations or suppressed and sealed information. • Can you rely on the Court to do obtain a complete DCJS record? Maybe. But if you do, you may not see it and have a chance to evaluate its contents until it is too late.

You must have a handle on your client’s criminal record in order to:

A) Defuse and counter DA arguments about eligibility AND appropriateness. B) To be able to show sentences have been completed. C) Or to be able to write an affidavit indicating sentences are complete D) Make sure you have the ability to identify for the Court all the possible charges, including the three prior misdemeanors that may be subject to sealing.

Practice tip: Don’t be satisfied with what you find on the rap sheet about any offenses. Don’t assume that facially innocuous charges mean no bad facts are lurking there. Talk to the client about all the charges to unpack what the general facts of each case were. You must be prepared for the inevitable arguments that client is more of a risk to the community than her record appears to show. The DA may have law enforcement records you don’t have access to and could admit them at the hearing. Do your best not to be blindsided!

SUPPORTING YOUR MOTION

Remember that in deciding whether or not to grant the application for Conditional Sealing, under CPL §160.58(3) the Court SHALL consider any relevant factors including but not limited to:

i) The circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; ii) The character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in Subdivision one of this section. iii) The defendant’s criminal history; iv) The impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.

What follows is a suggested checklist of issues and information to be explored in making the case that granting the application for conditional sealing will further your client’s rehabilitation, thereby promoting public safety. This is NOT a list of information that must be gathered in every case! Every client is different and will have different vital information to chase down and substantiate. Prioritize your investigation and your information. A discussion with your client and a review of the client’s criminal history will dictate what information is necessary and will be most persuasive on your particular facts.

Center for Community Alternatives 2 115 East Jefferson Street, Suite 300, Syracuse, NY 13202 39 West 19th Street, 10th Floor, New York, NY 10011 25 Chapel Street, 7th Floor, Brooklyn, NY 11201

A WORKING CHECKLIST: A STARTING POINT FOR PREPARATION

A) Gather information about the client’s current residence to explore the client’s current living situation and to uncover favorable witnesses. Who lives there? How long has client been there? Where did client live previously? If client moved, why? Does client have any dependents? Has client been providing for them in any way? Has client had any trouble finding stable housing due to unsealed convictions? Does client have any housing plans which would be aided by conditional sealing?

B) Client’s employment situation. If not employed, why not? If disabled, provide proof of disability. Has the client been denied a job due to unsealed convictions? Does the client have a career goal that would involve occupational licensing? Been denied occupational licensing due to convictions? Get the client to tell you the story of how that happened. If working, where? How long? Doing what? Does the client have any supervisory responsibilities? Gotten any promotions? Document with: Timesheets? Tax returns? Paystubs? Letters from employer? Supervisors?

C) Client’s education. What level of education has the client achieved? Has client tried to get more education? Has client had Higher Education Admissions trouble due to unsealed record? (See CCA report at: http://www.communityalternatives.org /pdf/Reconsidered-criminal-hist-recs-in-college-admissions.pdf ) Does the client have specific education plans? If so, gather specific information about client’s plans and present.

D) Client’s Drug Treatment, past and present. Length of sobriety. Descriptions of treatment programs. Admission/discharge papers Certificates of completion/graduation.

Center for Community Alternatives 3 115 East Jefferson Street, Suite 300, Syracuse, NY 13202 39 West 19th Street, 10th Floor, New York, NY 10011 25 Chapel Street, 7th Floor, Brooklyn, NY 11201

How does client maintain sobriety now?

E) Client’s Mental Health Treatment (if any). What exactly is the diagnosis? What exactly is the treatment? How is that treatment being accessed? Why should the Court believe it is going to continue? Document all aspects of treatment and compliance.

F) Family support. Identify family members. Gather letters of support and description of current situation. Spouse? Kids? Are kids living with client? Any Family Court proceedings? Any orders of protection issued for or against client? Did client win or lose custody or visitation? Is client paying child support?

G) Friends. Identify friends who have known person through all difficulties. Ability to compare past with how client is doing now. Get letters of support of affidavits.

H) Church/Religious Groups. This may overlap with friends and family. Your client’s church members may be in the perfect position to contrast your client’s past struggles with your client’s current commitment to rehabilitation. Involvement in church events. Charity events?

I) Community Involvement. Community groups? Talk to the leaders- get letters of support and explanation. Document any community volunteerism.

It is possible to convince judges to feel good about conditional sealing, as many practitioners have realized. For example, in a hotly contested conditional sealing motion in Onondaga County, CCA successfully convinced the judge that the client was eligible to conditionally seal a 1989 conviction because he had successfully completed a judicially sanctioned substance abuse treatment program as a condition of probation. Having overcome the eligibility hurdle, the judge turned to the factors listed in CPL §160.58(3) to make his discretionary decision, declaring as he did so, that the client’s “reputation in the community was a fine one!”You may read the minutes here:

Center for Community Alternatives 4 115 East Jefferson Street, Suite 300, Syracuse, NY 13202 39 West 19th Street, 10th Floor, New York, NY 10011 25 Chapel Street, 7th Floor, Brooklyn, NY 11201

http://www.communityalternatives.org/pdf/Conditional-Sealing-Decision.pdf

Practitioners in other communities have also told us that well-prepared conditional sealing motions cross-promote Judicial Diversion as a whole because these motions are a vehicle for bringing success stories before judges. But this success is not achieved with a pro forma, boilerplate application. All the above information (and anything else you can come up with or your client provides you with), specifically tailored to your client, must be collected, sorted through and pieced together in the most persuasive way to convince the Court to exercise its discretion in your client’s favor. It is also the surest way to combat any DA resistance to your client’s arrest and conviction records being sealed.

Center for Community Alternatives 5 115 East Jefferson Street, Suite 300, Syracuse, NY 13202 39 West 19th Street, 10th Floor, New York, NY 10011 25 Chapel Street, 7th Floor, Brooklyn, NY 11201

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““ThisThis newnew articlearticle……waswas addedadded inin 20092009 toto createcreate aa statewidestatewide statutorystatutory programprogram forfor divertingdiverting selectedselected felonyfelony offendersoffenders fromfrom thethe ordinaryordinary processprocess ofof criminalcriminal actionsactions…”…”

PracticePtiC Commentaries ti AnotherAnother PerspectivePerspective

“…“…[[T]heT]he legislaturelegislature recognizedrecognized thatthat thethe policypolicy ofof incarcerationincarceration andand punishmentpunishment ofof nonnon--violentviolent drugdrug usersusers failedfailed andand thatthat expandingexpanding thethe numbernumber ofof nonviolentnonviolent drugdrug offendersoffenders thatthat cancan bebe courtcourt orderedordered toto drugdrug abuseabuse treatmenttreatment willwill helphelp breakbreak thethe cyclecycle ofof drugdrug useuse andand crimecrime andand makemake ourour streetsstreets……safer.safer.”” JudgeJudge SusanSusan CapeciCapeci JudicialJudicial DiversionDiversion

NewNew CPLCPL ArticleArticle 216216

For individuals charged (by indictment or superior court information) with a felony drug or substance abuse-driven property crime, Article 216 allows for diversion from a prison sentence to a court supervised substance abuse treatment program. JudicialJudicial DiversionDiversion-- OverviewOverview

CPLCPL ArticleArticle 216216

Eligibility: – charged with class B, C, D, or E Penal Law 220 or 221offense; or – charged with Willard ‘specified offense’ (CPL § 410.91(5)) – first and second felony offenders (prior non- violent) JudicialJudicial DiversionDiversion -- ExclusionsExclusions

– within preceding 10 years (excluding incarceration time) was convicted of violent felony, class A drug offense, or merit time excluded offense (Correction Law 803(d)(1)); – previously adjudicated a second or persistent violent felon pursuant to PL 70.04, 70.08; or… Judicial Diversion Exclusions cont.

– currently charged with a violent felony or merit time excluded offense where prison is mandatory and charge is still pending.

*** Note:Note: ExcludedExcluded personspersons maymay becomebecome eligibleeligible uponupon consentconsent ofof thethe DistrictDistrict Attorney.Attorney. JUDICIAL DIVERSION - ELIGIBLE

• Practice note – a person charged with a Willard eligible felony whose prior violent conviction falls outside the 10 year “look back” is still eligible for judicial diversion, even though excluded from Willard (which excludes for a prior violent felony occurring at any time) JudicialJudicial Diversion:Diversion: ProcedureProcedure •• DefendantDefendant maymay requestrequest thethe courtcourt toto orderorder anan alcoholalcohol andand substancesubstance abuseabuse evaluationevaluation atat anyany timetime priorprior toto pleaplea oror guiltyguilty oror trial;trial; •• DefendantDefendant maymay declinedecline furtherfurther participationparticipation atat anyany time;time; •• EvaluationEvaluation byby credentialedcredentialed evaluator;evaluator; •• DefendantDefendant mustmust signsign releaserelease authorizingauthorizing disclosuredisclosure ofof evaluationevaluation toto court,court, defense,defense, prosecution,prosecution, andand probation;probation; JUDICIAL DIVERSION

– Report shall include: • An evaluation as to whether defendant has a history of alcohol or substance abuse or dependence, including “co-occurring mental disorder or mental illness and the relationship between abuse or dependence” and mental condition • A recommendation whether it could be effectively addressed by diversion • A recommendation as to the treatment modality, level of care and length of proposed treatment JudicialJudicial Diversion:Diversion: ProcedureProcedure

CourtCourt mustmust decidedecide ifif anan eligibleeligible defendantdefendant shouldshould ““bebe offeredoffered”” treatment.treatment. CPLCPL 216.05(3)(a)216.05(3)(a)

TheThe courtcourt ““shallshall considerconsider andand makemake findingsfindings ofof factfact withwith respectrespect toto”” thethe factorsfactors underunder CPLCPL 216.05(3)(b).216.05(3)(b). JudicialJudicial Diversion:Diversion: ProcedureProcedure

•• DefendantDefendant mustmust pleadplead guiltyguilty unlessunless thethe DADA consentsconsents oror therethere areare ““exceptionalexceptional circumstancescircumstances”” duedue toto severesevere collateralcollateral consequences;consequences; •• CourtCourt issuesissues aa securingsecuring order;order; •• IfIf defendantdefendant violatesviolates thethe conditionsconditions ofof diversion,diversion, thethe courtcourt mustmust considerconsider usingusing graduatedgraduated sanctionssanctions inin recognitionrecognition ofof factfact thatthat peoplepeople dodo relapse.relapse. JudicialJudicial Diversion:Diversion: ProcedureProcedure

UponUpon successfulsuccessful completion,completion, courtcourt may,may, amongamong otherother things:things: --AllowAllow defendantdefendant toto withdrawwithdraw guiltyguilty pleaplea andand dismissdismiss indictmentindictment oror SCISCI -- ImposeImpose interiminterim probationprobation andand uponupon completion,completion, allowallow defendantdefendant toto withdrawwithdraw guiltyguilty pleaplea andand dismissdismiss thethe indictmentindictment oror SCI,SCI, oror pleadplead guiltyguilty toto aa misdemeanormisdemeanor withwith aa sentencesentence ofof probationprobation oror anyany otherother agreedagreed uponupon sentence.sentence. ConditionalConditional sealingsealing isis anan optionoption uponupon sentencesentence completion!completion! Preparation of the Defendant to make the decision about judicial diversion

1) Discuss the pros and cons of diversion. 2) Is the client ready for treatment? 3) Is court supervised treatment appropriate for this defendant? 4) Conditional sealing. 5) The likely plea agreement – pros and cons. Preparation of the Defendant for the Alcohol and Substance Abuse Evaluation

1) Clarify use and abuse history. 2) Clarify treatment needs and desire. 3) Obtain documentation as it may help avoid erroneous reporting – value accuracy. 4) Review anticipated questions. 5) Review danger of minimization and exaggeration Areas for Advocacy within CPL 216

Implementation has varied from county to county and even from Judge to Judge within counties.

What follows is an issue spotting list and suggestions to deal with those issues in order to get better outcomes for your clients. Judicial refusal to refer case to Drug Treatment Part 1) Such a refusal undermines legislative intent. 2) Counsel is not statutorily prohibited from asking for Judicial Diversion at any time, right up until trial. CPL 216.05(1). 3) Try to get the court to put its reasons for refusing on the record. 4) Argue that review at this juncture is limited to facial statutory eligibility. Judicial refusal Cont.

Appropriate Procedure- Rules of the Chief Administrator of the Courts § 143.2(c):

• “Where a superior court orders an alcohol and substance abuse evaluation pursuant to section 216.05(1) of the Criminal Procedure Law to determine whether the defendant should be offered judicial diversion for alcohol and substance abuse treatment under Article 216, the case shall be referred for further proceedings to:” 1) The Superior Court for Drug Treatment or 2) Any other part in superior court designated as a drug treatment court part by the administrative judge. If the person does not enter judicial diversion, the case can be adjourned to any part designated by the administrative judge. Judicial refusal Cont.

A. All information not available to Court. B. Get your own evaluation done. C. Argue the very limited discretion the Court has at this juncture to deny access to mere consideration for diversion (Compare Rules of the Chief Administrator of the Courts § 143.1 (a) and (b) to (c). D. May only refuse if defendant is not eligible. Judge refuses to provide a copy of the evaluation to defense counsel.

CPL§216.05(2) states:

“Upon receipt of the completed alcohol and substance abuse evaluation report, the court shallshall providep a copy of the report to the eligible defendant and the prosecutor.” Eligibility Neutral Offenses

Should NOT exclude potential participants.

See CCA website under Tools for Attorneys for: a) Eligibility-Neutral Memo of Law b) People v. Jordan, People v. Kithcart & People v. Iverson Inappropriate Judicial Policies

1) No sale charges shall enter Diversion

2) If the DA objects- No Diversion

3) Denial of Judicial Diversion because of defendant’s delay in making the request.

4) There are no exceptional circumstances, certainly not for non-citizen defendants. The “Exceptional Circumstances” Exception (CPL 216.05(4)(b))

• Exceptional Circumstances = guilty plea is not required

• Exceptional Circumstances = severe collateral consequences The “Exceptional Circumstances” Exception (CPL 216.05(4)(b)) • People v. Patrick, 24 Misc.3d 1203(A), n.2 (dicta) – CPL 216.05(4)(b) “…would seem to clearly apply to defendants who might be subject to mandatory deportation by virtue of a guilty plea…” • People v. Duffy, 28 Misc.3d 718 (dicta) – “CPL 216.05(4)(b) should include deportation as a severe collateral consequence of taking guilty pleas in drug cases…” The “Exceptional Circumstances” Exception (CPL 216.05(4)(b)) • People v. Muniz, 28 Misc.3d 466

– The good: The “exceptional circumstances” exception may apply to non-citizens who are legal residents.

– The bad: Deportation for undocumented, noncitizen defendants is NOT a collateral consequence of a guilty plea, so the “exceptional circumstances” exception does not apply. The “Exceptional Circumstances” Exception (CPL 216.05(4)(b)) • Is Muniz correct that deportation is inevitable for undocumented, non- citizens? – NO! Even for non-citizens who do not have legal status, deportation is NOT inevitable if a criminal conviction is avoided. • Contact Joanne Macri for assistance and advisory letters Director of the Criminal Defense Immigration Project for NYSDA (716) 913-3200 What due process is required at a CPL 216.05(3)(a-b) hearing? (And what due process should we be demanding?) • Either party can request the hearing • No burden of proof in statute • Held “as soon as practicable” • May consider: i. Oral and written arguments; ii. May take testimony from witnesses offered by either party; and… What due process is required, cont.

• iii. May consider “any relevant evidence”, including but not limited to: a) information that the defendant had been adjudicated within the last 10 years (excluding time spent in jail on the YO or the instant offense) of a YO for a violent felony offense or any offense for which merit time is not available pursuant to Corr. Law §803(1)(d)(2). b) Any victim statement submitted under CPL §380.50 in cases defined in CPL §410.91(4). Should be 410.91(5)! What due process is required, cont.

The court shall consider and make findings of fact: i. the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article; ii. the defendant has a history of alcohol or substance abuse or dependence; iii. such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior; iv. the defendant’s participation in Judicial Diversion could effectively address such abuse or dependence; and v. institutional confinement of the defendant is or may not be necessary for the protection of the If we allow it, Due Process can be potentially limited by:

• The word “may”

• July 7, 2009 OCA memo

• General inclination of many courts to avoid hearings of any kind. Advocacy suggestions

• Written arguments put into the record, • Asking for oral argument and live testimony where appropriate, • If refused, make an offer of proof about the precluded evidence, • Using treatment evaluators as allies where possible, • Consider client testimony where possible. Are there appeal options regarding the Eligibility Hearing?

• Article 78?

• Direct Appeal under CPL 450.10? Seek an Agreement with a negotiated cap on sentence

• Language of the statute itself. • More incentive for defendants to participate. • Peter Preiser’s Commentary supports a cap. • Studies suggest defendants are more motivated by certainty of punishment rather than severity of punishment • Flexible caps- Bench warrants or new Must client plead to all counts? “It is the court that sets the parameters for treatment. Concomitantly, it is the court that has been given the authority to fashion suitable plea bargains. The court has been given control of defendant’s treatment program from start to finish… Accordingly, it is the determination of this court that the CPL 216 language…does not mandate a guilty plea to each and every count of a multi-count indictment prior to defendant’s entry into the judicial diversion program.” People v. Taveras, Judge Merrill, Onondaga County Court, 2010 Available at CCA’s website and Drug Law Reform Blog Violating – What Now?

• Is client actually in jeopardy of violating?

– Failed to show up for diversion monitoring court appearance “WITHOUT REASONABLE CAUSE”

– Court has “REASONABLE GROUNDS TO BELIEVE” client has failed to comply with a condition of the agreement (tested positive; missed program curfew; etc.) BE HEARD – Request a Hearing • Make a record on “reasonable cause” or “reasonable grounds to believe” • REQUEST a HEARING – cite to CPL §216.05(9)(b), “the court may conduct a summary hearing consistent with due process and sufficient to satisfy the court that the defendant has, in fact, violated the condition.” • People v Fiammegta, 14 N.Y.3d 90 VIOLATION HEARING ADVOCACY SUGGESTIONS • Submit written arguments (either formal motion pursuant to CPL §216.05(9)(b) OR letter memorandum) • Live testimony, where appropriate. Especially ask that the treatment provider be heard if they support the client staying in program. • AT THE VERY LEAST, ABSOLUTELY ASK FOR ORAL ARGUMENT – JUST BE HEARD!!! COURT FINDS CLIENT VIOLATED – NOW WHAT?

• CITE AND USE CPL §216.05(9)(c)! The court may sentence to the agreement or any authorized lesser sentence. The STATUTE controls and invites judicial discretion to be employed. COURT MUST CONSIDER MULTIPLE OPTIONS IF A CLIENT HAS VIOLATED

• Court MUST consider the views of –Counsel –Prosecutor –TREATMENT PROVIDER COURT MUST CONSIDER MULTIPLE OPTIONS IF A CLIENT HAS VIOLATED cont.

• Court MUST consider the CONCEPT OF RELAPSE – Counsel should REMIND the court of this requirement (CITE TO section 9(c)) and – EDUCATE the court that RECOVERY INCLUDES RELAPSE COURT MUST CONSIDER MULTIPLE OPTIONS IF A CLIENT HAS VIOLATED cont.

• Court MUST CONSIDER a system of “graduated sanctions” – Counsel should REMIND the court of this obligation and – ADVOCATE (with treatment provider if possible) for another shot at program (if it is right for the client) – The court should “facilitate, where possible, successful completion” of program. SENTENCING – MAKE A RECORD! Cont. • Record should demonstrate that the court did NOT – Comply with the statute (section 9(c)) • Court did not consider the view of the treatment provider • Court did not consider using a system of “graduated sanctions” • Court’s sentence did NOT facilitate successful completion • Court rejected concept of recovery includes relapse • Court thought it was BOUND by the plea agreement • Court thought it could only consider other sentences with DA consent • Court thought client would have to enter a new plea to impose a different sentence • ETC!, and thus the court abused or misunderstood its discretion and authority – Sentence was excessive given the circumstances HelpHelp

-- Website:Website: www.communityalternatives.orgwww.communityalternatives.org -- BlogBlog:: ““MakeMake DrugDrug LawLaw ReformReform aa RealityReality”” -- Monthly,Monthly, statestate--widewide phonephone callscalls -- AdviceAdvice:: JeffJeff Leibo,Leibo, (315)(315) 422422--5638,5638, ext.ext. 260,260, [email protected]@communityalternatives.org PatriciaPatricia Warth,Warth, (315)(315) 422422--5638,5638, ext.ext. 229,229, [email protected]@communityalternatives.org AlanAlan Rosenthal,Rosenthal, (315)(315) 422422--5638,5638, 227,227, [email protected]@communityalternatives.org Special Thanks

Our ability to provide this information is made possible by a grant from the Foundation to Promote Open Society Defense Practice Tips 1 CPL Article 216 Judicial Diversion Issues: jurisdiction, there may not be any separate screening part at all. Arraignment counsel needs to be aware of the Strategies for Effective Advocacy local practice and be prepared to advocate that the “non- treatment” superior court should only consider statutory By Andy Correia, Alan Rosenthal, and Patricia Warth* eligibility for judicial diversion. Counsel can request an evaluation and ask that the case be transferred to the court Introduction that has been designated under the local OCA adminis- The 2009 Drug Law Reform Act (2009 DLRA) includ- trative implementation as the Superior Court for Drug ed the addition of Criminal Procedure Law (CPL) Article Treatment for hearing determination of Article 216 cases. 216, which establishes the procedure for participation in Refusal to even consider an eligible, and thus potentially judicial diversion programs. CPL § 216.00(1) provides that appropriate, case for diversion undermines the broad dis- any person who is charged with a class B, C, D, or E felony cretion given to the courts in these matters and overlooks offense listed in Penal Law Article 220 or 221 or an offense the inclusive and ameliorative intent of the 2009 DLRA. listed in CPL § 410.91(4) (the “Willard offenses”) is eligible The correct procedure is for the “non-treatment” superior to participate in judicial diversion. See CPL § 216.00(1). court judge to simply order an “alcohol and substance This section goes on to provide, however, that an other- abuse evaluation” if requested to do so by a statutorily wise eligible defendant is excluded from judicial diver- eligible defendant. By ordering the evaluation the case sion eligibility if the defendant: 1) is also currently is automatically transferred to the Superior Court for charged with a violent felony or merit time excluded Drug Treatment. crime for which state prison is mandatory; 2) has, within The court rules indicate a very strict procedure for the the preceding ten years, been convicted of a violent felony ordering of the evaluation and the transfer, which is not offense, a merit time excluded offense, or a Class A drug being followed in some parts of the State. Rules of the Chief offense; or 3) has previously been adjudicated a second or Administrative Judge § 143(2)(c) states: persistent violent felony offender under Penal Law §§ “Where a superior court orders an alcohol and 70.04 or 70.08. See CPL § 216.00(1)(a), (b). substance abuse evaluation pursuant to section Below are some issues that trial attorneys have 216.05(1) of the Criminal Procedure Law to deter- encountered since the implementation of CPL Article 216 mine whether the defendant should be offered and some suggested strategies for dealing with these issues. judicial diversion for alcohol and substance abuse treatment under Article 216, the case shall be 1. Refusal By Trial Judges to Refer the Case to the referred for further proceedings to: Eligibility Screening Part and/or Sua Sponte Diversion 1) the Superior Court for Drug Treatment or Denial 2) any other part in superior court designated as a Some superior court judges around the State have drug treatment court part by the administrative refused to refer statutorily eligible [CPL § 216.00(1)] judge . . . .” If the person does not enter judicial defendants to the Superior Court for Drug Treatment for diversion, the case can be adjourned to any part a hearing and determination of whether such defendants designated by the administrative judge. are appropriate for Article 216 judicial diversion. [“Appro- Some courts appear to be following this procedure priate” is used here to mean statutorily eligible and should be and some are not. Defense counsel should become famil- offered alcohol or substance abuse treatment as determined by iar with the process in each jurisdiction in which they prac- considering the criteria in CPL § 216.05(3)(b)]. Other courts tice and formulate an approach to this issue accordingly. have simply stated that the particular client is not appropriate for judicial diversion without going through any 2. Refusal By Trial Judges to Order the CPL § 216.05(1) aspect of the CPL Article 216 process. Depending on the Evaluation Some courts have refused to order the “alcohol and * Andy Correia, Esq. is Wayne County’s First Assistant Public substance abuse evaluation” as defined in CPL § 216.00(2) Defender. Alan Rosenthal, Esq. and Patricia Warth, Esq. are Co- after the arraignment of a statutorily eligible defendant. Directors of Justice Strategies at the Center for Community Alterna- The refusals are often based on purely arbitrary rationales tives (CCA), a private, not-for-profit criminal justice agency with and serve to frustrate the sweeping ameliorative purpose offices in Syracuse and New York City. CCA is pursuing the full of the diversion statute. The difficulty arises from the per- implementation of the New York Drug Law Reforms through a grant from the Foundation to Promote Open Society. CCA’s website (www. missive language in CPL § 216.05(1) which provides that communityalternatives.org/publications/drugCases.html) and blog after the arraignment of an eligible defendant, but prior to (http://makingreformreality.blogspot.com) offer a wide variety of a plea or commencement of trial, “the court at the request materials that criminal defense counsel can use when representing of the eligible defendant, may order an alcohol and sub- defendants in drug offense cases. stance abuse evaluation.” (emphasis supplied)

6 | Public Defense Backup Center REPORT Volume XXVI Number 2 If your judge is making such decisions at arraign- 3. Judge Refuses to Provide Counsel with a Copy of the ment, you can try: Evaluation Assume that a CPL § 216.00(2) evaluation has been A. Pointing out that right now the trial court does not ordered and the defendant has been referred to the have all the information necessary to make an informed Superior Court for Drug Treatment. Then, the court sum- decision about whether the defendant should participate marily decides that the defendant, although statutorily in any diversion program. Ordering an evaluation does eligible, is not appropriate to participate in judicial diver- not commit the court to making an offer of diversion to sion. To compound matters, the court either does not or the defendant; it does serve the very legitimate purposes refuses to provide counsel and the defendant with a copy of providing the court with information necessary to of the evaluation. In fact, some courts have even make the decision under CPL § 216.05(3)(b) and the par- destroyed the evaluation at this point under the theory ties the opportunity to address the question of whether that they must do so to protect the client’s confidentiality. the defendant is appropriate for judicial diversion. Try to CPL § 216.05(2) states: get the court to articulate its reasons for refusing to even “Upon receipt of the completed alcohol and sub- order the evaluation. stance abuse evaluation report, the court shall provide a copy of the report to the eligible defen- B. Consider, if possible, arranging for your own alco- dant and the prosecutor.” hol and substance abuse evaluation of the defendant.† Your evaluation expert should meet the statutory creden- If you encounter a judge refusing to disclose the eval- tialing requirements of CPL § 216.00(2) and make the find- uation, you should make the record as clear as possible ings required by CPL § 216.00(2)(a)-(d). Then ask for your about what has occurred. This disclosure is not a mere for- hearing under CPL § 216.05(3). mality, but is critical to the entire process created by CPL Article 216. Defense counsel must have the evaluation in C. Advance the underlying policy of the Drug Law order to decide whether or not to request a hearing under CPL § 216.05(3)(a). The report is essential to assist defense Reform Act favoring treatment over incarceration to con- counsel in determining what the key issues are that need vince the court that an evaluation should be ordered. See to be addressed and what evidence should be introduced Governor Paterson’s signing statement, which states: at the hearing. We are reforming these laws to treat those who This kind of judicial conduct could be addressed by suffer from addiction and to punish those who filing an Article 78 under CPLR § 7803(1), a Writ of profit from it. But to be successful we must not Mandamus, stating that the court has failed to perform a only overhaul the drug laws, we must also pro- duty “enjoined upon it by law.” vide an infrastructure to ensure that we successfully rehabilitate those who are addicted with 4. Eligibility-Neutral Offenses Should Not Exclude programs like this one at Elmcor which exempli- fies our approach to focus on treatment, not pun- Potential Participants ishment. CPL § 216.00(1) lists the charged offenses that make a The laws will give judges the discretion to divert person eligible for judicial diversion. The statute goes on non-violent drug addicted individuals to treat- to list certain conditions that can result in exclusion, ment alternatives that are shown to be far more absent prosecutorial consent, and the offenses for which successful than prison in ending the cycle of the defendant, if currently charged, will be excluded from addiction. eligibility for judicial diversion. An issue has arisen when defendants are charged in the same indictment with To convince the court that an evaluation should at charges that are eligible offenses and at least one charge least be ordered, use the information posted on CCA’s which is neither an eligible offense nor an exclusion website (www.communityalternatives.org/) to make the offense, hereinafter referred to as an eligibility-neutral argument that treatment is a more effective and cost-effi- offense. Some prosecutors have argued that the presence of cient way than incarceration to improve public safety. an eligibility-neutral offense in the charging document Then use that same information to argue that the defen- renders such defendant ineligible for judicial diversion. dant should be found appropriate to be “offered” treat- From reports we have received from around the State, it ment under CPL § 216.05(3)(a). appears that most diversion courts are rejecting this prosecutorial gambit. The few written decisions from trial † Defense counsel with questions about County Law § 722-c courts have split on the issue. CCA’s website (see link applications for expert services may contact NYSDA’s Public below) has links to the reported and unreported decisions Defense Backup Center at 518-465-3524. on this issue.

April–May 2011 Public Defense Backup Center REPORT | 7 Defense Practice Tips continued

One persuasive argument to consider is that the over- related to the often murky distinction between a all plain reading of the statute does not indicate eligibili- buyer and seller. ty-neutral offenses are a bar to participation. The Legislature saw fit to list the specific exclusions to partic- B. Inappropriate policy: If the prosecution objects, no di- ipation in diversion, and even those exclusions can be version: Some judges still want a prosecutorial gatekeeper. overcome with prosecutorial consent. There is no reason We understand that this judicial policy is often stated to believe that the Legislature intended the sweeping, subtly and off the record. Nonetheless, whenever pos- ameliorative reforms to be thwarted by the mere presence sible counsel should remind the judge that the leg- of eligibility-neutral charges not specifically listed in CPL islative history of the 2009 DLRA makes it clear that it § 216.00. Such an interpretation would also allow the was the Legislature’s intent to empower judges to make their own decisions. As one court poignantly prosecution to control eligibility for diversion simply by observed: adding an eligibility-neutral offense to the indictment. If The Legislature in crafting the 2009 DLRA nothing else is clear about the legislative intent, what is wrote a detailed statute which gave courts the clear is that the Legislature intended to restore judicial discretion to make reasoned judgments and discretion over appropriateness for treatment and remove created an adjudicatory process the Legisla- the prosecution as the gatekeeper. Eligibility should not ture deemed fair to both the prosecution and turn on the manipulation of the charging decision. the criminal defendants…. Given this careful- See the Eligibility Issues section of the CCA webpage, ly considered legislative design, it is difficult Tools for Defense Attorneys, Defense of Drug Offense to understand why the judiciary would im- Cases, at www.communityalternatives.org/publications/ pose categorical limitations on its own discretion which the Legislature did not create. drugCases.html for a memo on the issue and the latest cases. See People v Figueroa, 27 Misc 3d 751, 894 NYS2d 724 5. Inappropriate Judicial Policies (Sup. Ct., New York Co. 2010). Some judges exhibit a strong reluctance to divert The trial advocate can point out that diversion has defendants, often relying on certain reoccurring themes. been implemented in jurisdictions around the state There has also been a judicial reluctance to employ the over the objections of district attorneys and, so far, no “exceptional circumstances” exception under CPL § judge has been forcibly removed from office.‡ Defense 216.05(4) allowing entry into diversion without a plea, counsel should be persistent in arguing for the exer- most often for defendants who likely face immigration cise of judicial discretion. It is that constant reminder consequences upon a guilty plea. In several jurisdictions, that will some day bear fruit. Without it, the policy judges and prosecutors have embraced the exception, will metastasize into the time-worn and institutionally- rejecting the knee-jerk anti-immigrant posture. There is reliable refrain: “that is just how we do it around always the possibility that certain unstated, subtle, and here.” off-the-record policies are at work. Advocates must be persistent in pointing out the legislative intent of the C. Inappropriate policy: There are no “exceptional cir- DRLA. You will need to be prepared to make arguments cumstances”; certainly not for non-citizen defendants. regarding certain predictable positions. For example: The legislative history specifically points to immigration issues as the prime example of circumstances in A. Inappropriate policy: No defendant charged with a which the court should consider allowing the defen- sale shall enter diversion. dant to participate without pleading guilty. Many “Your client doesn’t have a use problem, he has a dis- defenders have put forth great effort to avoid a plea or tribution problem.” any admissions that could be used in the immigration As we all know, many people sell drugs as a means to context. Some have been able to position their undoc- access drugs and pay for their addiction. For some, umented clients to finish diversion as a way to the drug trade is the only way they can afford a very improve their chances when they apply for Lawful expensive drug dependence. Judges who take a dog- Permanent Resident status. Joanne Macri of NYSDA matic position that sellers should not be in diversion is available to consult on these issues and to write fail to grasp the realities of the drug trade and under- advisory letters that spell out your client’s specific mine the broad ameliorative intent of the statute. At the very least defense counsel should have an oppor- ‡ CCA would like to hear from defenders around the State as to tunity to present the facts surrounding the defen- which jurisdictions and judges are requiring prosecutorial consent in order to offer a defendant judicial diversion. We would dant’s dependency so the court can ascertain appro- like to document those jurisdictions in which this problem of priateness for diversion on an informed case-by-case implementation of judicial diversion exists so that it might be basis. CCA will also post resources on our website addressed in a larger forum.

8 | Public Defense Backup Center REPORT Volume XXVI Number 2 immigration situation and explain in detail how judi- other courts are making short-shrift of the CPL § 216.05(3) cial diversion could help your client earn his or her hearing process, finding encouragement to make quick way to a better situation with immigration. Joanne work of the hearing in an Office of Court Administration can be reached at (716) 913-3200 or [email protected]. (OCA) memo sent out to the judges and dated July 7, 2009. In that memo, OCA describes eligibility hearings as 6. Due Process is Required at a CPL Article 216 follows: Eligibility Hearing Either party has the right to a hearing on the issue CPL § 216.05(3)(a)-(b) sets forth the following hearing of whether the court should grant diversion, but procedure. the statute gives the court wide latitude in how to conduct the hearing. For instance, although the A. Upon receipt of the evaluation report, either party court can elect to take testimony from witnesses, “may request a hearing” on the issue of whether this it can also simply rely on the oral or written argu- defendant should be offered diversion. There is no burden ments of the parties. of proof attributed to either side in this statute. OCA Memo, by Michael Colodner, at 2 (7/7/2009).

B. The “proceeding” should be held “as soon as prac- As a result, some courts are making the determination ticable” to facilitate early intervention if the defendant is of whether a defendant is appropriate for judicial diver- found to need treatment. sion at a “hearing” that resembles an advocacy free zone. Counsel should attempt to fortify the record by: C. The court may: i. Making arguments in writing and making sure such i. consider oral and written arguments; documents are a part of the record. ii. take testimony from witnesses offered by either ii. Submitting supporting documentation. party; iii. Asking for oral argument and live testimony iii. consider “any relevant evidence”, including but where appropriate. not limited to: iv. Making an offer of proof, if the judge rebuffs your a) information that the defendant had been adju- attempt to conduct a hearing at which testimony is dicated a YO within the preceding 10 years taken and exhibits are offered. (excluding time spent in jail on the YO or the v. Forming relationships with the local substance instant offense) for a violent felony offense or any abuse evaluators and transforming them into advo- offense for which merit time is not available pur- cates for your clients where possible. suant to Corr. Law § 803(1)(d)(2). The court cannot make reliable findings of fact on b) in the case of a “Willard-eligible” specified these issues absent the professional input of treatment offense (CPL § 410.91), any victim statement. providers, especially factors ii. through v. of CPL § 216.05(3)(b). These factors contain concepts best D. Upon completion of the “proceeding,” CPL § explained at length by treatment providers on the wit- 216.05(3)(b) directs that “the court shall consider and ness stand. If their favorable opinions withstand judi- make findings of fact with respect to whether: cial scrutiny and DA cross-examination, you may at i. the defendant is an eligible defendant as defined in least strengthen any potential issue for appeal, as well subdivision one of section 216.00 of this article; as educating the judge further about these issues. ii. the defendant has a history of alcohol or substance vi. Giving consideration to calling the defendant as a abuse or dependence; witness. In some jurisdictions this has been done with iii. such alcohol or substance abuse or dependence is a modicum of success, but obviously requires time to a contributing factor to the defendant’s criminal prepare the defendant for questioning about these behavior; issues. There are, of course, dangers involved with iv. the defendant’s participation in judicial diversion having the defendant testify which need to be care- could effectively address such abuse or dependence; fully weighed. and v. institutional confinement of the defendant is or may 7. Why the Court Should Use a Plea Agreement that not be necessary for the protection of the public.” Caps the Potential Sentence (emphasis supplied) CPL § 216.05 subsections (8), (9)(c), (9)(e), and (10) all make specific reference to an “agreement” between the E. Problems Related to the Eligibility Hearing court and the defendant. This agreement can be on the Unfortunately, while many courts are conducting full- record or in writing. It shall include a specified period of fledged hearings with exhibits and witness testimony, treatment and may include periodic court appearances,

April–May 2011 Public Defense Backup Center REPORT | 9 Defense Practice Tips continued urinalysis, and a requirement to refrain from criminal C. Peter Preiser’s Commentary in McKinney’s CPL behaviors. The statute implies, but does not explicitly Article 216 indicates strong support for the requirement of direct, that the plea agreement contain the agreed upon a sentence cap as part of the plea agreement to enter disposition and sentence to be imposed in the event the diversion: defendant successfully completes diversion (CPL § “And in consideration of the defendant’s agree- 216.05(10)) and the agreed upon sentence that will be ment the court will make a commitment as to the imposed if the defendant is unsuccessful in diversion. See ultimate disposition of the criminal charge if CPL § 216.05(9)(c), (e). If the defendant’s participation in defendant abides by the conditions of the pro- judicial diversion is terminated before successful comple- gram and an alternative sentence if the defendant tion “… the court may impose any sentence authorized … in does not… .” accordance with the plea agreement, or any lesser sentence… .” Preiser’s analysis of the statutory language clearly Despite the plain implications of the statute there still contemplates that the court is obliged to commit to the are some jurisdictions in which judges have refused to cap disposition and sentence for both successful completion the sentence for a diversion participant in the plea agree- and unsuccessful termination in exchange for the defen- ment. These courts insist on retaining the authority to sen- dant’s agreement to participate in the diversion program. tence a participant to the maximum sentence if the defen- Preiser also seems to express a preference that the condi- dant is terminated from diversion. tions of this agreement be put in writing prior to any There are several reasons, both statutory and practi- guilty plea. cal, why courts should include sentence caps in the plea agreement: D. There are studies that suggest defendants are more motivated by certainty of punishment rather than severity A. The language of the statute can be construed to of punishment. See Deterrence in Criminal Justice-Evaluating require or at least strongly imply that the plea agreement Certainty vs. Severity of Punishment (November 2010 Sen- should include an agreement as to the disposition and tencing Project Report summarizing research on the limit- sentence in the event of successful completion of treated value of severe sentences.) Caps on sentences, along ment or unsuccessful termination. CPL § 216.05(9)(c) with a system of supervision that creates a certainty of refers to sentencing in “accordance with the [plea] agree- detection for violations, are more effective in gaining compliance with supervision than more lengthy periods of ment.” Every other aspect of the statute regarding the incarceration. agreement takes pains to give the court options to tailor the terms of diversion participation to the specific defen- E. Some diversion courts use plea agreements which dant based upon that individual defendant’s problems cap the sentence, but the participant is informed on the and needs of service. There is every reason to believe that record that if he or she is arrested for a new offense while the Legislature intended the court to also individuate the in diversion, or if a bench warrant has to be issued at any sentence based upon the participant’s prior record, indi- point, the cap on sentence will be removed and the full vidual characteristics, and the facts of the case before it. range of the authorized sentence becomes available. Every case is different, and in recognition of that fact the Although there is still a question about whether a failure in Legislature encouraged courts to make the specific plan, treatment warrants an enhanced sentence that is more including potential punishment, fit each different case. than what the defendant would have received at the beginning of the case, at least in those jurisdictions the defen- B. There is much less incentive for potential partici- dant is somewhat protected from the maximum sentence. pants to sign up for the challenge of judicial diversion if If such contracts are not being used in your jurisdic- they face the potential maximum punishment for a failed tion, counsel can produce their own written contract, and attempt at treatment. Generally in criminal cases defense include a provision for a cap on sentence. Even if rejected counsel is able to negotiate a plea bargain that exchanges this could at least open discussions about such a cap. A an admission of guilt for a sentence less than the maxi- sample contract from Monroe County can be found on the mum sentence, often much less. Such a negotiated plea CCA website at www.communityalternatives.org/publi- should provide a baseline for the client's sentencing expo- cations/drugCases.html. sure while participating in diversion. Many clients will be reluctant to participate in diversion absent a negotiated 8. Must the Defendant Plead to all Counts to Enter cap. Many defense lawyers will be reluctant to advise Diversion? clients to participate in diversion if the maximum sen- CPL § 216.05(4) states that the “eligible defendant shall tence remains available to the treatment court simply be required to enter a plea of guilty to the charge or charges….” because the client has opted to try treatment and failed. Absent an agreement from the prosecution to drop

10 | Public Defense Backup Center REPORT Volume XXVI Number 2 charges, does this statute mean that the defendant must not sincere about seeking treatment and is manipulating plead guilty to all charges in the charging document for the system. CPL § 216.05(1) authorizes the defendant to the judge to issue an order granting judicial diversion? make the request for judicial diversion “[a]t any time after At least one court has said no. The court in People v the arraignment…but prior to the entry of a plea of guilty Adolfo Taveras (County Ct., Onondaga Co., J. Merrill, or the commencement of trial… .” There is nothing in the 1/4/2010) held that CPL Article 216 controls the plea lim- statute that requires the defendant to quickly opt in to itations found in CPL § 220.10 and does not require DA judicial diversion. consent to dismiss aspects of the indictment when a diver- Defense counsel may have many reasons to advise the sion court is fashioning a plea agreement with the eligible defendant to delay the request for diversion, including the defendant. The court relied heavily on the sweeping, in- need to review discovery, conduct an investigation, file clusive, and ameliorative intent of the Legislature in pass- appropriate motions, obtain a private evaluation, and ing CPL Article 216 and encouraging diversion cases. have informative discussions with the defendant about This case can be found on the CCA website at www. the pros and cons of judicial diversion. When confronted communityalternatives.org/publications/drugCases. by a judge who fits this modus operandi, defense counsel html. should run interference for the defendant. Explain to the judge that the delay was caused by counsel and not by the 9. Refusal By Trial Judges to Offer Judicial Diversion to defendant. a Defendant Who Delays His or Her Request for an Alcohol and Substance Abuse Evaluation Conclusion Some judges have “punished” defendants for a delay With persistence and well-considered advocacy, trial in making the request to be considered for judicial diver- counsel can help realize a more robust implementation of sion by refusing to either order an evaluation or refusing the Drug Law Reform of 2009 reflective of the full legisla- to offer judicial diversion. This refusal is apparently based tive intent of CPL Article 216, and help to foster a more upon the questionable assumption that the defendant is therapeutic, less-punitive response to drug offenses.

April–May 2011 Public Defense Backup Center REPORT | 11 1

Judicial Diversion: Eligibility When Charged with an Eligible Offense and An Eligibility-Neutral Offense1

I. Introduction

The 2009 Drug Law Reform Act (2009 DLRA) included the addition of Criminal Procedure Law (CPL) Article 216, which establishes the procedure for participation in Judicial Diversion programs. CPL § 216.00(1) provides that any person who is charged with a class B, C, D, or E felony offense listed in Penal Law Article 220 or 221or an offense listed in CPL § 410.91(5) (the “Willard offenses”) is eligible to participate in Judicial Diversion. See CPL § 216.00(1). This section goes on to provide, however, that an otherwise eligible defendant is excluded from Judicial Diversion eligibility if the defendant: 1) is also currently charged with a violent felony or merit time excludable crime for which state prison is mandatory; 2) has, within the preceding ten years, been convicted of a violent felony offense, a merit time excludable offense, or a Class A drug offense; or 3) has previously been adjudicated a second or persistent violent felony offender under Penal Law §§70.04 or 70.08. See CPL § 216.00(1)(a),(b). The intent of these provisions is clear – to exclude from Judicial Diversion individuals charged with a class A drug felony as well those who have a recent history of violence or a history of repeated violence.

Of course, there are numerous non-violent offenses that fall outside both the list of eligible offenses and the list of excludable offenses. These “eligibility-neutral” offenses include all misdemeanors (including drug and property misdemeanors), as well as other non-violent, merit time eligible felonies.

In an attempt to limit eligibility for Judicial Diversion, prosecutors have argued that a defendant who is charged with an eligible offense is excluded from Judicial Diversion eligibility if the defendant is also charged with one of the many “eligibility-neutral” offenses. Thus, argues the prosecution, a defendant who stands charged with criminal possession of a controlled substance 3rd (an eligible offense) and criminal possession of a controlled substance 7th (an eligibility- neutral offense) is not eligible for Judicial Diversion.

This prosecutorial argument gives rise to the following questions: (1) Does the statute’s language and intent support the notion that a defendant who is otherwise eligible for Judicial Diversion becomes excluded from Judicial

1 This document was prepared in consultation with and a review of motions and arguments prepared by Roger Brazil, Office of the Public Defender, Monroe County, and Joanne M. Dwyer, New York, NY. CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 2 Diversion simply because the defendant also stands charged with an “eligibility-neutral” offense; and (2) If not, what are the diversion court=s sentencing options if the defendant successfully completes the program?

As discussed in more detail below, the answer to the first question is a resounding “no.” With regard to the second question, the statute itself provides a simple, straight-forward answer.

II. The plain language of CPL § 216.00(1) clearly provides that an otherwise eligible defendant is not excluded from Judicial Diversion simply because he or she is also charged with an “eligibility-neutral” offense.

It is well-established that when interpreting a statute, the starting point must always be the plain language of the statute itself. See Pultz v. Economakis, 10 N.Y.3d 542, 547 (2008) (“The starting point is always to look to the language itself, and where the language of a statute is clear and unambiguous, courts must give effect to the plain language.”) (quoting State of New York v. Patricia II., 6 N.Y.3d 160, 162 (2006)). Adherence to the plain language rule prevents courts from legislating under the guise of interpretation. People v. Finnegan, 85 N.Y.2d 53 (1995).

There is nothing in the plain language of the Judicial Diversion statute, CPL § 216.00, to support the prosecution’s argument that defendants who are otherwise eligible for Judicial Diversion are rendered ineligible simply because they also stand charged with an eligibility-neutral offense. Indeed, by explicitly specifying exclusions, the statute on its face makes it clear that there is a limited list of offenses that exclude an otherwise eligible defendant from Judicial Diversion participation.

CPL § 216.00(1) defines an eligible defendant as “any person who stands charged … with a class B, C, D or E felony offense defined in Article two hundred twenty or two hundred twenty- one of the penal law or any other specified offense as defined in subdivision four of section 410.91 of this chapter.” (Emphasis added). Nothing in the statute explicitly states or even implicitly suggests that the defendant must be charged solely with one of these offenses. Instead, the statute goes on to set forth an explicit list of additional offenses a defendant may also stand charged with that would exclude an otherwise eligible defendant from Judicial Diversion. Specifically, CPL § 216.00(1)(b) states that an otherwise eligible defendant is excluded from eligibility if, among other things, the defendant:

also stands charged with a violent felony as defined in section 70.02 of the penal law or an offense for which merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law for which a court must, upon the defendant’s conviction thereof, sentence the defendant to incarceration in state prison…CPL § 216.00(1)(b).2

2 An otherwise eligible defendant can also be excluded from eligibility based on prior criminal conviction history, CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 3

Importantly, the prosecution can consent to Judicial Diversion participation for those defendants charged with an eligible offense and a violent felony offense or a merit time excluded offense. CPL § 216.00(1)(b).

By ignoring the language in CPL § 216.00(1)(b) regarding defendants who also stand charged with violent felonies or merit time excluded offenses, the prosecution seeks to craft additional eligibility restrictions onto the statute. Their attempt to do so violates the statute’s clear and explicit language.

The prosecution’s argument also violates other core principles of statutory construction. For example, it is a well-established rule of statutory construction that a statute must be read in a manner that gives meaning and effect to all its words and phrases. See Freidman v. Connecticut General Life Ins. Co., 9 N.Y.3d 105, 114 (2007) (“A court must consider a statute as a whole, reading and construing all parts of an act together to determine legislative intent, and where possible, should ‘harmonize all parts of a statute with each other and give effect and meaning to the entire statute and every part or word thereof.”) (quoting McKinney’s Statutes § 98) (emphasis added). See also McKinney’s Statutes § 97 (“A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine legislative intent.”). The prosecutorial argument that a defendant who also stands charged with any eligibility-neutral offense is ineligible for Judicial Diversion would render meaningless the language of CPL § 216.00(1)(b) regarding eligibility limitations only for those who also stand charged with a violent felony or merit time excludable offense.

Similarly, it is:

“A universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is, to say, the specific mention of one person or thing implies the exclusion of other person or things. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded. Thus, where the statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of other not mentioned.”

People v. Figueroa, 27 Misc.3d 751, 769 (Sup. Ct., N.Y. Co., 2010) (quoting McKinney’s Statutes § 240) (emphasis in original). Here, CPL § 216.00(1)(b) specifically excepts from Judicial Diversion eligibility those individuals who stand charged with an eligible offense and also a violent felony offense or a merit excludable offense for which prison time is mandatory. This explicit exception creates the “irrefutable inference” that the Legislature specifically did not intend to except from Judicial Diversion otherwise eligible defendants who also stand charged

such as a conviction for a violent felony offense within the preceding ten years or a prior adjudication as a second or persistent violent felony offender. CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 4 with non-violent, merit time eligible offenses.

It is also well-established that a statute should not be interpreted in such a way as to create “absurd consequences.” Long v. State, 7 N.Y.3d 269 (2006). The prosecution’s proposed interpretation of CPL § 216.00(1) would lead to the absurd result that while an otherwise eligible defendant who also stands charged with a violent felony offense could still participate in Judicial Diversion with prosecutorial consent, see CPL 216.00(1)(b), the statute does not explicitly provide for prosecutorial consent for an otherwise eligible defendant who also stands charged with an eligibility-neutral offense.3

Finally, it is also a well-established rule of statutory construction that “‘remedial statutes ... are liberally construed to spread their beneficial result as widely as possible.’” Figueroa, at 772 (quoting McKinney’s Statutes § 321). There is no question that the 2009 DLRA is a “remedial” statute that warrants liberal construction. Id. (“[I]t is obvious that the 2009 DLRA is a ‘remedial statute’ which was created to remedy perceived defects and injustices which were inherent in the sentencing system previously applied to low-level drug offenders.”).

The prosecution’s argument here - which essentially asks the Court to ignore the statute’s plain language while simultaneously violating several well-established principles of statutory interpretation - is nothing more than a thinly veiled attempt to usurp the Legislature’s role and rewrite the Judicial Diversion statute to significantly decrease the number of eligible defendants. Worse, as discussed in detail below, limiting eligibility in the manner the prosecution proposes would allow prosecutors through their charging decisions to determine who is and is not eligible for Judicial Diversion, thereby diminishing the carefully crafted discretion the Legislature gave to the courts in making decisions regarding Judicial Diversion participation.

As of May 2011 there was only one reported case that addressed this issue. In People v. Jordan, 29 Misc.3d 619 (Westchester Co. Ct. 2010), the court thoroughly analyzed the statute’s construction and concluded that “based upon the plain language of the statute” a defendant is not rendered ineligible for Judicial Diversion by the inclusion of an eligibility-neutral offense in the indictment when there is an eligible offense included in the same indictment. “Had the legislature intended to exclude defendants from eligibility from judicial diversion because of the inclusion of non-qualifying offenses in the indictment, it could have provided for that in the statute, but did not. Id. at 621.

III. Limiting Judicial Diversion eligibility to those defendants who stand charged solely with an eligible offense would undermine the overall intent of the 2009 DLRA.

Like the previous Drug Law Reform Acts of 2004 and 2005, the 2009 DLRA is intended to ameliorate the harsh and overly punitive sentences mandated by the Rockefeller Drug Laws.

3 Of course, the fact that the statute does not explicitly provide for prosecutorial consent to Judicial Diversion participation for an otherwise eligible defendant who also stands charged with an eligibility-neutral offense provides yet further proof that the Legislature never intended that such individuals be excluded from Judicial Diversion in the first place. CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 5 The 2009 DLRA accomplishes this by expanding the scope of non-incarcerative sentences for non-violent drug offenses, ultimately designing “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.” People v. Danton, et al., 27 Misc.3d 638, 644 (Sup. Ct., N.Y. Co. 2010).

Establishing the Judicial Diversion procedure, as set forth on CPL Article 216, is a core part of the 2009 DLRA. A critical feature of the Judicial Diversion statute is the discretion it gives to courts to decide who should participate. To be sure, CPL Article 216 carefully and thoughtfully guides this discretion by specifically excluding a discrete number of otherwise eligible defendants, establishing a specific procedure by which courts are to determine who should participate, providing an opportunity for the prosecution and the defense to submit information and advance arguments to the court, and identifying factors courts must consider in ultimately deciding whether or not an eligible defendant should participate. This thoughtful and specific adjudicatory process intentionally makes courts - not the prosecution - the final arbiter of who should participate in Judicial Diversion. See People v. Figueroa, 27 Misc.3d 751, 778 (Sup. Ct., N.Y. Co., 2010) (“[T]he Legislature, in crafting the 2009 DLRA wrote a detailed statute which gave courts the discretion to make reasoned judgments and created an adjudicatory process the Legislature deemed fair to both the prosecution and criminal defendants.”). To go beyond the statute’s plain language and to craft additional Judicial Diversion eligibility exclusions would fly in the face of the Legislature’s express efforts to expand, not contract, the use of judicial discretion for those charged with non-violent drug offenses.

The prosecution’s proffered interpretation of CPL § 216.00(1) does not merely limit eligibility for Judicial Diversion, but it does so in a manner that gives the prosecution, through the charging decision, complete control over who is able to participate in Judicial Diversion programs. Any time a defendant is charged with an eligible offense, the prosecution need merely add a misdemeanour or conspiracy charge to render this eligible defendant ineligible for Judicial Diversion. Yet the statute itself defines the limited circumstances in which a prosecutor can assert control over Judicial Diversion participation, providing that an otherwise eligible defendant who is excluded because of prior criminal history or because he or she also stands charged with a violent felony or a merit time excludable offense can still participate in Judicial Diversion if the prosecution consents. CPL § 216.00(1)(b). The court in People v. Jordan was particularly concerned about the manipulation of the charging decision by the prosecution as a means to thwart the very purpose of the statute, stating: “To read the statute to exclude individuals on the basis that they are also charged with non-qualifying offenses would allow the People to undermine the purpose of the statute by including a non-qualifying offense in the indictment, and thereby render the defendant ineligible.” Jordan, 29 Misc.3d at 622.

Expanding prosecutorial control beyond that specifically identified in the statute surely undermines the Legislative intent regarding Judicial Diversion specifically and the 2009 DLRA as a whole. It simply does not make sense to adopt an interpretation of CPL § 216.00(1) that is not only contrary to its plain language, but also corrupts an important Legislative goal – to enhance judicial discretion. See e.g., People v. Figueroa, 894 N.Y.S.2d at 743 (“Given this carefully considered legislative design, it is difficult to understand why the judiciary would

CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 6 impose categorical limitations on its own discretion which the Legislature did not create.”). The Jordan court carefully analyzed the underlying purpose of the Judicial Diversion statute, including the legislature’s recognition that “the policy of incarceration and punishment of non- violent drug users had failed” and that “expanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer.” With the legislative purpose clearly in mind, the Jordan court concluded that the statute must be read in accordance with its plain meaning and so as not to exclude from Judicial Diversion those defendants charged with both eligible and eligibility-neutral offenses. Jordan, 29 Misc.3d at 621-22.

IV. Allowing eligible defendants who are also charged with eligibility-neutral offenses to participate in Judicial Diversion does not open the door to allowing those charged with class A drug felonies to participate in Judicial Diversion.

The prosecution’s primary support for its proffered interpretation of CPL § 216.00(1) is the notion that permitting defendants charged with eligible and eligible-neutral offenses would open the door to allowing defendants who are charged with class A felony drug crimes to participate in Judicial Diversion. See e.g., People v. Sheffield, Decision and Order dated February 4, 2010 (Nunez, J.) Supreme Ct., N.Y. Co. Ind. # 4364/09.

This assertion is wholly without merit. The plain language of CPL § 216.00(1) makes it clear that class A drug felonies are not “eligibility-neutral” offenses. Not only are class A drug offenses omitted from the list of drug offenses that render a person eligible for Judicial Diversion at the outset, they are also specifically included in the list of prior convictions that exclude a defendant from Judicial Diversion participation. See CPL § 216.00(1)(b). The statute’s specific omission of class A drug felonies from the classes of felony drug offenses that render a defendant eligible for Judicial Diversion in addition to the inclusion of class A drug offenses as a prior conviction that renders a defendant ineligible for Judicial Diversion is a clear indication that the Legislature did not intend for those charged with class A felony drug offenses to participate in Judicial Diversion. Thus, allowing defendants who also stand charged with eligibility-neutral offenses would have no impact on the statute’s explicit bar of those individuals charged with class A drug felonies.

V. Judicial decisions regarding the effect of eligibility-neutral offenses in the indictment.

As noted above, there is only one published decision on this issue, People v. Jordan, athough there are three prior written, unpublished decisions that address the issue. Anecdotally it appears that in the months following the effective date of Judicial Diversion, October 7, 2009, judges in many jurisdictions readily rejected the prosecution argument from the bench, seeing no need to analyze what appeared to be a meritless argument. In those jurisdictions, the early bench decisions ended further attempts by the prosecution to limit access to Judicial Diversion and treatment.

CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 7 Of the written decisions, Jordan is not only the most recent but it is also the most thorough and best-reasoned. After addressing statutory construction, plain language of the statute, and the underlying purpose of the 2009 Drug Law Reform Act the Jordan court concluded that inclusion of an eligibility-neutral offense in an indictment which contains a Judicial Diversion eligible offense, and no exclusion offense, does not render a defendant ineligible for Judicial Diversion. In so doing, the court effectively addressed and refuted the flawed reasoning of two earlier written decisions holding that the inclusion of an eligibility-neutral offense in an indictment does exclude an otherwise eligible defendant from Judicial Diversion.

The unreported cases should also be noted. The first of these unreported decisions is a case that arose in Onondaga County. In People v. Kithcart, Decision and Order dated January 19, 2010 (Merrill,J.), County Ct., Onondaga Co., Index # 09-0347 the court held that the inclusion of a eligibility-neutral offense in the indictment does not render a defendant ineligible for Judicial Diversion. Sandwiched between Kithcart and Jordan were two poorly reasoned cases holding that the inclusion of an eligibility-neutral offense in an indictment forecloses the benefit of Judicial Diversion and thus treatment. (See People v. Sheffield, Decision and Order dated February 4, 2010 (Nunez, J.), Supreme Ct., N.Y. Co. Ind. # 4365/09) and People v. Jaen, Decision and Order dated March 19, 2010 (Coin, J.), Sup. Ct., N.Y. Co. Ind. # 5704-2008).4

Given that the Jordan court had the benefit of these three decisions, and that it is the best reasoned decision of the four written decisions, it may be safe to assume that Jordan has permanently resolved this issue in a manner that honors the statute’s plain meaning and the Legislative intent underlying CPL Article 216.

VI. Sentencing options for eligible defendants who also stand charged with an eligibility- neutral offense.

The Judicial Diversion statute sets forth the range of appropriate dispositions available upon successful completion of the Judicial Diversion program. See CPL § 216.05(10). This provision provides, in relevant part, as follows:

Upon the court’s determination that the defendant has successfully completed the required period of alcohol or substance abuse treatment and has otherwise satisfied the conditions required for successful completion of the judicial diversion program, the court shall comply with the terms and conditions it set for final disposition when it accepted the defendant’s agreement to participate in the judicial diversion program. Such disposition may include, but is not limited to: (a) requiring the defendant to undergo a period of interim probation supervision and, upon the defendant=s successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea and dismissing the indictment; or (b)

4 Links to the unreported decisions can be found on the CCA website @ Tools for Attorneys > Defense of Drug Offense Cases > 2009 DLRA – Judicial Diversion > Eligibility Neutral Cases Chart. CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201 8 ... permitting the defendant to withdraw his or her guilty plea, enter a guilty plea to a misdemeanor offense and sentencing the defendant as promised in the plea agreement, which may include a period of probation supervision pursuant to section 65.00 of the penal law; or (c) allowing the defendant to withdraw his guilty plea and dismissing the indictment.

(Emphasis added). As the Jordan court noted, the emphasized language in this section means that defendants who participate in the Judicial Diversion Program are to be sentenced in accordance with CPL § 216.05. See Jordan, 29 Misc.3d at 622-23. Thus, at the time the defendant initially agrees to participate in Judicial Diversion, there should be an agreement that upon successful completion of the program, the Court will permit the defendant to withdraw his plea to both the eligible and eligible-neutral offenses and either dismiss the indictment or superior court information or allow him to plead guilty to misdemeanors. Of course, since the defendant will have pleaded guilty to the indictment or superior court information as part of his participation in Judicial Diversion (unless the prosecution consents or there is a finding of “exceptional circumstances” due to collateral consequences), the agreement can and should also specify the sentence the defendant will face if he does not successfully complete the Judicial Diversion program.

CENTER FOR COMMUNITY ALTERNATIVES 115 EAST JEFFERSON STREET, SUITE 300, SYRACUSE, NY 13202 39 WEST 19TH STREET, 10TH FLOOR, NEW YORK, NY 10011 25 CHAPEL STREET, 7TH FLOOR, BROOKLYN, NY 11201

I I+:.1 :i'l'.!\l ){ RI.}S .{N D Al)}l [\- ISI'R.\'I'tr\' F] POLI(' I F]S

[]ART't.[2. ('[tIN,TnNA[,n)XviSnON OF SLrpRIi]{E ('{)LrRTIN EROI{\ {.OLrNT,Y

S 1ll.l. Establishnrenlol a ('rinrinal l)ivi- ('h) ,{ll crlmin.il .tls.s th.rli frending or thcrclrilrrr (,'ourt. sion ol SupremeCoult in Eronx (.'ount1 ctrnrrnenrerlin tlie ( r'jminal rr1the L it\' of Ne\1' 'l'he York in llrorrx Ca)unt-\'.in s'hrch at least rrne felonl r,r ('hit'1' Arlmrni-qttltr,r of the Cirults, f,'llou'ing ntisrlemcanr,ri-. charcell. shlill, foll,t\\.rngal'rai{l}rntLt. r"rnsLrltrrtionu-ith :irrri :1gre('nlr'ntof the I'rt'sitlirig be tlririsleu'ed ll- ' ln51;r'r,iri the Fir-st Jrrriirial [)ep:irlnicnt. r]ie\. es1.:rb thelefr,,lr thc Ailnririistratj\rJu(lgl li:lr. I'r' adniirristr:ttive older. a l'nmrnel L)ilision of 1i:rrthe Su|it.enrr:C ourt ln Ilronr Crrurrtt to the Su SLtl)i'erne('rr]l'f in fironx (]('Lll)t:'a]r(l assign (lne ()r pretnc L'ourt in su('h aountJ' uprin a finriitrg thrrr tr;rnsfr,r0f tllPse(its|s wotrlrl the arlrninist|a rrrrt'c.iLrsticls lr, lrrt,siilr:therprn. Sut,i[..1.tr' the frtl ]rronrrrte tion of i,t tlrr,r'ljrtrtlaliotrsl)rest,rilrcd in this part. -suchllrirninaj .ju-stir!. anil thertu1,,,n -suclr a:rses sh:ril llilisi.n sliall fre dera'tt,dt(| lhe he'r'l{ and .i(r1L.rnii- refcrred lor dispo-sitiont.r-, sucb L'rimlnal I )ir rsion ;rnrl rru,liB rrf lil cr.ttlitrul1::tses f\)il]rllenIr'rl in ,,r t)21nS turther prr'c(,t,{iirg.irr lrch urs,..sshall lr r',rrrlutt"ti li-rle,l to 1.hr.rr)urts srtting in Hrcrn,x( Lru;rt.r'lrr{)vide(l iIr lllrl part.st:stablislr,d lherejn. I\',,r'idcd.h,,lr,rlt.r. rl ltlrrt one fel{tn\'.)r rnisdcnrr::tttriris chat'gcd. that no ct'itrinal ca.s{,mal' hf tr:rnsli.rra'dpulsuant 1(l 'I'ntnslcr thi:, stthrlirisi,,rrrvhc,rc such r:t,cc re'turrralrlein \ i-ll.l. ol' ('rinrinal (-'ases lo the isr ir slrnlrons pall ( ('rinrinal Division of 1.he lrinIinirl Court and n,t litlonjfs {)l Suprenrel-ourt ('l (:lassA rnisdenictanolsare chargc,dtherein. \\'lr,,.tr'lhr, ('hief Arlmirti-st raf ()r' cst:rhlishcs :r ('l illij jlt rr,,l l)j!t:iii)It,rl Sulrrirtr,. l'oUlt Fit0trttt',,u,,1, t,ua- I 12.;j. Ir'rot c.dure I'pon lfransfer of :r ('rini- !uirlrl ,,1 "s 1o sectl(rrr11j.1 ihjs l';rr1: inal Case F{ereundt'r ttrl l'liirh r'rrlnil)al(ils.r l.hc 1x'nrli { r:rrtit('r'ea1'tcr ,1,l]rrn!r'a,{l ilr (he Srrl,tr.rrre ( i'ur1itr sl)f}rrr)un1), and Itli:h er.,r:tt trlrsfr'r't,,,11r'r,Irt the ( rirrrinul{ ')itrf r,l , rilir t:rirt;inal r'asr, thlreafiot tr':Llrsierr,d 1o Sr)p]cnl(l thc ('itl' ol \c\1' ]'o|k trr tirr.' Supt'eme L',,u11 :rlrrl ( ,ultin -such|r)untt'f|onr StrJ,r(:ntc( ourt in:rn(,th|r referrerlior r.li-spositrorrtl thl L lintinal llirisi,,n therc' ,.',rrrrtr.shall l-x.l1'li'rrerl Ii,t',iisf',rsttir,tr 1,, suclr ( t'inli- ol [ll]fsuart t(r sf ..'ti0t't l{1.:l 01'thi: lriirl sir:rll l,t :rLl l)irisiln errl lurthpr fforri,dings rrrsuth i';r:-cshall Sut)j('ftt.l tli(' sarJrcstlrst: t1jrc lnd 1rt'ot-r,dutel l:|r' li: 1,,r:r,rrilut'1r:rl in a plrrt i:slltlrltshedthcr.,in rl()ul(:lha!(, a1rl,lit'dt,r jt hrrd rt not l,t,i,n {r':irrslelreil

f),\[tT x,t:i. s{]tr,EtrtxoR['ou{tT's t-(}R [)*ttr(;'t'FR.I.lA'n's{EN'['

\ ('ourts irt llrtch tlrl, ,r)untr ts llrrilte(l has ,lrrslgr1ilr:dlh3 l.ril.l, !.1slabli-shnrenlol SuPerior 'J trol.[),ru1g'X'neatmt'nl Supr.t'i,rrl'ou|t li,r l)nrg tr.alnir:ntt() rdjudl('afL'su(.lr fSSIS l,'11,,\\ing(',,n,{rltali,rn \ith ,r1 rin,i:rrLftrrrf rr( thr' 'nlrans{el' li'resrrlrtig,lLrsti{:(, of tlre ,lurliciull)elrartrrrcnl rn r.,,hich S i l:1.2. o1 *rses lo Supcrior Cour'ls :1(ourtV is Irc:.rl{'{1.t}rt (lhief Atlrrrinrstr:rl.orol the lirnDrug Treatmentt FIowijflbctuated { ,'ut'l:..l,r'erltrrtristrlrtrrr Lrr,1r,1 .111n1, estllirlish a Strlrc (a ) Trlursler p('irding Iltrr'{ (,u)'tl,-rr'[)rug'1lr]atnlc]lt in Su|li'r-mc( ()u]'1a]l' oI { ascs in local criminlrl (:0urts. ( ,)l]llt\ ( {)ufl ln surh cottntt anil as-sigIt()n(t rtr tn(lfa .lustl('t,:,)r .jrr,l{,:sto lrrr.sidI therciI l;,airltsLrr-h l. A loi'al ctuninal eourt ll ti {.,,unt\ irr rlliich lL SttJrcrirrt'(l(lur-l lL)J'l-)nr!' f itr|itrrr,rntshrrll harrt a-sit. Slrfcri('r' ('Lrull hir I)rug Trt:rLrnent hlt-sbr,tr'tr es1,:rL' 1,ur'1rostthe hetrring:inri detL.rnln:ltion,.rf: lished jn the Supt'r:lneor (-'ount-vCourt tha'r:i,f ln:i.r'. (:r) critttitrila':rses tlllrt arrtit()rnnrenfed in the ('ou11 rrponurolic,rr r't the rl

j. \ot liiter then 1jvr.rl:ivs f,-rllrrstngrrfeift ()I the (ijl lrI r,r sllc, il sitting in (',,llr11J'('(|u11. shall so l,illrcr: irn(l ,,lhr.r rlor't}tnr'nls,t-hF .lr]iljare ,,)' .)lr'lgll rroti1,,lhp.)Lrstjr'e,rf thr'Loult \\lrt)('iir)se(l the paJ)prs (lou|t l,ri.si(Lngin tirt Supet'iIr' tor Drug l\',ratrnent rtnrlr,tht'r' dtrc'rtrnells 11r l)(, srrnl lo l1itt,nt herr.irnil jn sllirll rl|lerlrrjr(:,u lrethet'0f not I tra sli.r ,,1the trt'tirin slrfh ,iusticr )ra]' therr'ul),)nr,rrlel' sr(i) transfer. llr |r'(rr(,r,dirrgto tlrc courl \\'oul(ll)rrinlLrte the adntrnis' uhii:h eIcrrt tlre ;rt't.ion ,t,r l)rr'('i,ra.lltlg-qlitll Lre re'- tlaliorr,rl iustice. ll lhe .tusticeol judge l,rt:sjdingin ferrt:d for disposilion t. thr: Superior Cc,urt for tj1r,(i,ruft lJetenr)llre:ititat it \\r,Lrltl,lre 0r slre Inar' I)rug Tleatnrcnt.. lill t,r'rginal l).rpers shall be sr-'rt ,)r1let.sucil transfi:r. in rvhich cvent thc actiarn0r 1'romthe originating roull t., thL' Sulri,1ie1'(. oLrl'1l,,r' l)r,)a{.erlingshall Iic,t|aIlsli'rrcd to the S Ix,r'jo}'{',,lrrt lhrtg Trcatnrent. iind ell lul'th€11'l)rocr'.'djngs in ti,r l)rug Trrltmerl, all origrneting papr-.rsshall the| such action rrr lirt'('redirlg shall l-recrrnductctl iltt'r'r,- l,f s('l)t fronl the origrnating f0ur1 t0 the SuJrtrir,rr in. If the jurlge rl' ,justir'erplr.siding in the Sulrrt ilr 'I'ri'atnrerrl. ( ( r,urt for I)r-ug arrr.lall tlrtlrer |r'trcced orrlt lrrr Dlug Tle:rl.nrentdetclrnint,s th:tt :r tt'lttis' rnrs shall hr, conductedth(rleiri. II th€rjustice rlr f i.r- ol tlic action of Jrroce'erlinguottld noi lrromi)te .jrr,lg,.dt'tt'rtniucrs that n transfcr ,rl thc acti{fi 0r tbp adtninjstt':rt ir )n o1.jus1l('e. ]re ot slrc shnll n,rtjlr- ]rf,r(er,rling\\rrttlrl ncrl prol]rote thc: iLdmirti,.t|atiLrnoi thc origrn:rtingccittrt of such rlelr:rniinatiolr.\\'h(rrc iuslrr',.,1rt, ()) she sllall rrolifi'the loclilct'inrinal t',rutt rrlrona)J lurthcr l)',)aa'edingsin sur:iracliotr or' 1,t',r- Jjl)lI \\lrich tlrt relerencru.as |cccivr,d irf such rletcrr- ct,r:dingshalL be,:r'rrdnc1,,r.l 1n ac('rrlrlillirc rrtth llrr. lrintrti,rn.\\l)r,reuJr,)n all firrther Irrlrctdings in suclt (ct Transfcr of r::rsespursuant to ('FL Arl. ll+i lr'1i,)Jli,r slr.llibe r'r'nrittItirrlin riIc,,t'ilatlct J-)1,\lee(ill1! \\here a srrl'eriolcc'nrt ,'r'dels an aLi'oltolanri sul, \\ r\" ll ll l:l stllncealruse eyalnatirin to sr.ctiortl1(i.{l:-r, l , 'lransfcr l-lulsuant ttrt o1 c:rst'spending in a superior court. trl (lrt:('tinritr:rl I'r'ot'i rlutt l,au t,r rJr:tt-ttttirterthcth,,t the clefetrrlantshirrrlr:l be Lrlltrtd diltrsion lirr' I .\1 lrno u'hilr f)i' .irrilicial an\ a i,rintin:rl :lctton l)r-.'rce(l- alc,rbol;rld suI,s1:rnlealrrrst' lrr:lrfmertl undr,r' Artrll, is rn t:Lt|t,ri,,1 r'r'tul n courrt.vin $lritlr Ir! l,('n{lirlq il} :l tl. the l'i1sr,u1rIriot ( ,rurt f,rr I)rttq'l'r(,litrrent h:iSlrer'ri l'stab lrt t(i: li.lrr,1.rnclrrlon rr\'r't' ail:t: t lrr'ilrlr: li,r irt,lr't;rl,lir ' t -i"t' lt. lnll"rrirrFrlr, rrt,"lr',1,rn'l .rtl, l. \,it lrtt,r tlral 1irr, lrrisitr,'ssrlavs 1'r'll,ru.jnr-ri. -.ihl)t(. aLrttsi,r'\ tllt?ttt('n a))Llsl)l rSa(lltrnt lrt rrt'r,t,JtDrIs (, rlrt .l tile s ltld (rlllel (lorLlnIenls.tfrr.jrtrlgt: rrr lr.rlret liI](ler ('l'l- l 2lti()ir. llrt rlelirrtrlarrt(lo('s tra)t tlltcI iI thi. Srrl,elior ( ilu1-t 1o]- I)"lrg .trr.tiii,'ll('alrr(,I11 lrltsirlilig iurlit'i:rl rliversr,'rr.thc (nse r.nal lrr-,:rd.j,nrrrrld 1o anv sh:rll |.l,,lrrnlriIr,\\hrrth(J' (,r trarta tt'liirsle-|' lrutl desttnefr'd bv tlre':idnrinrsllrrtir,e.lrr,lgrr. ,,11]r('iicti0n (t J,rlceedilrgti' tlre a0urt rvoulriprr,m,rte llr,.ir,lllrinir--trirlion ,,J,j113tj1s. Il sut'h,iurjr:r,rrr'.jttstig: S l-13.3. Procedure in a Superior Court lhr 'l'reatment ,l, 1.etttrinr's tlrat it rrrntLi: [)rug upon fransfer (]f (':lse rr, ht r,f sl)r,, il sittillg in Sup,rern,:,('r)rlrt. nr:rv Thereto r-,ril(.r surh tr:itrsler. ln \fhrch cr(inl. thr act.r(in i-rl lI:rchall.t,nr,,r llr(i('eedrlt{ t.ralsfclrc{l from ii l,,cal ;,r'r,rt'r,iiirgshall lre r.lirre,l for ilj,slx)sitiontr' t.hc critninal t'0urt to a supitri,'r (rt)urt anrl rrlerrcd 1or Su1,"rii,r ( brrrt lirr l)rug Treatttrent. iill trrigtnal disJ,rrsiiiotr1,, 1 -Sylrorior'( 1,urt ftrr I)t'LrgTre:rlrrrltrt payrlrs slrlll be sent tr) the Superior f'out"t fur.Dnrg thereof shall bc subjertt to the salne subs rntirr, :rnd 'l\'eritnrcrrt. an(l all ILirl,hr:t'pr'(/('err{hrgs nr sr)ch er- prr).(:-.dDrall:rl as rve,r:ldhave :r1,1iiie11trr it 1,aUt, ,'u, ('r lion rrl ;rrrrceedingshall be (r()nductedthereili been tratrsfi:rrtri.

N'ARTN44" NIOWY(}[TK ST'A'{'E PANTENT'}.]DL]CAT'NON AND .\\\TARtrNtrSSF'}t(X;R,[$,[

\ [ ,i]. 1 Scopt' of {'r'ogran'r l)iu.lIrts:rl),)ul lllr' inrl,Jct all p:t}1.rrtlllr1'ei)]i111-, o1 1o;1- l'hr, \e$ Yi,rk Steti.Illrt.r:rLt l'ldurati,rn rurd Au:rre- []jt'i. irrt rhilrltr.rn, lr,ru c]rildr,-rt exl'rliL'nri, flrnilv 'r ' j ('lrllluf'. i rd u;rr.s irr rthjch l,e]r lrtlp 1ir,,ir |,.-:., l'r,){r'allt)i"l'r,)t'rilI|r") 1,r',,r,irlr.sir r I ,I rr r : r t ,, t I 1,r |.rrlr'nls 19i

29 Misc.3d 619 Page 1

29 Misc.3d 619 (Cite as: 29 Misc.3d 619, 908 N.Y.S.2d 844)

People v. Jordan Am Jur 2d, Drugs and Controlled Substances §§ 265– 29 Misc.3d 619, 908 N.Y.S.2d 844 267. NY,2010. LaFave, et al., Criminal Procedure (3d ed) § 26.3. 29 Misc.3d 619908 N.Y.S.2d 844, 2010 WL 3326863, 2010 N.Y. Slip Op. 20343 McKinney's, CPL 216.00 (1); 410.91 (5).

The People of the State of New York, Plaintiff NY Jur 2d, Criminal Law: Procedure §§ 2999, 3062; v NY Jur 2d, Penal and Correctional Institutions § 273. Earl Jordan, Defendant. County Court, Westchester County ANNOTATION REFERENCE Pretrial diversion: statute or court rule authorizing August 24, 2010 suspension or dismissal of criminal prosecution on defendant's consent to noncriminal alternative. 4 CITE TITLE AS: People v Jordan ALR4th 147.

HEADNOTE FIND SIMILAR CASES ON WESTLAW Crimes Database: NY-ORCS Sentence Eligibility for Participation in Judicial Diversion Pro- Query: judicial /2 diversion /s eligib! & non- gram qualifying /2 offense

Defendant was eligible to enter the judicial diversion APPEARANCES OF COUNSEL program (CPL art 216), which allows certain nonviolent drug users to be sentenced to probation and drug Legal Aid Society, White Plains, for defendant. Janet treatment rather than mandatory prison, notwith- DiFiore, District Attorney, White Plains, for plaintiff. standing that only one count of the underlying 23- count indictment comprised a qualifying offense (see *620 OPINION OF THE COURT CPL 216.00 [1]; 410.91 [5]). Under the plain language of the statute, defendant was not rendered ineligible for diversion by reason of the inclusion of Susan M. Capeci, J. nonqualifying offenses in the indictment. The statute A hearing was held on July 20, 2010 on the defen- sets forth specific circumstances which would render dant's request to enter the judicial diversion program, a person ineligible, but does not state that diversion is as codified in CPL article 216. The defendant has limited to those defendants charged exclusively with been charged in a 23-count indictment with 21 counts qualifying offenses, or that the inclusion of nonquali- of criminal possession of a forged instrument in the fying offenses in the indictment would render a per- first degree, one count of grand larceny in the third son ineligible. A narrow interpretation of the statute degree and one count of scheme to defraud in the first as excluding participation of those otherwise eligible degree. Both the People and defense counsel have defendants also charged with nonqualifying offenses submitted post-hearing memoranda of law on the would be inconsistent with the underlying statutory issue of the defendant's eligibility for judicial diver- purpose and the legislative reasoning behind the en- sion. actment of the diversion program of reducing drug- related crime by addressing substance abuse that of- The People argue that the defendant may not be con- ten lies at the core of criminal behavior. sidered an “eligible” defendant as that term is defined in CPL 216.00 (1), since only one of the counts con- RESEARCH REFERENCES tained in the 23-count indictment would render him

29 Misc.3d 619 (Cite as: 29 Misc.3d 619, 908 N.Y.S.2d 844) eligible for judicial diversion. The People oppose the 70.08). None of these exceptions are applicable in defendant's participation in judicial diversion, assert- this case. ing that since he has been charged with numerous offenses in the indictment which are not listed in the This court's review of the plain language of CPL judicial diversion statute, this renders him ineligible 216.00 compels the conclusion that the defendant is for the program. not rendered ineligible for the judicial diversion program by reason of the inclusion of nonqualifying The defendant contends that he is eligible for the ju- offenses in the indictment. The statute sets forth spe- dicial diversion program because he is charged with cific circumstances which would render a person in- grand larceny in the third degree, which is an ineligible, yet does not state that diversion is limited to cluded offense under the statute. He argues that the those defendants charged exclusively with the quali- statutory language of CPL 216.00 does not exclude fying offenses, or that the inclusion of nonqualifying his participation simply because he is also charged offenses in the indictment would render a person in- with offenses which fall outside the statute. None of eligible. the other offenses he is charged with in the indictment are specifically listed in CPL 216.00 as offenses It is an axiom of statutory construction that the legis- which would exclude him from the program. lative intent is to be ascertained from the language used, and that where the words of a statute are clear The codification of the judicial diversion program is and unambiguous, they should be literally construed set forth in Criminal Procedure Law § 216.00, which (People v Munoz, 207 AD2d 418 [2d Dept 1994], provides that an “eligible defendant” is citing McKinney's Cons Laws of NY, Book 1, Stat- “any person who stands charged in an indictment or a utes §§ 76, 94). Had the legislature intended to ex- superior court information with a class B, C, D or E clude defendants from eligibility for judicial diver- felony offense defined in article two hundred twenty sion because of the inclusion of nonqualifying of- or two hundred twenty-one of the penal law or any fenses in the indictment, it could have provided for **2 other specified offense as defined in subdivision that in the statute, but did not. four of section 410.91” (CPL 216.00 [1]).FN* Given that the underlying purpose of the statute, as CPL 410.91 (5) includes a number of nondrug crimes stated in both the Senate and Assembly memoranda often related to drug abuse. One of the 23 counts the in support of the legislation, is “[t]o significantly defendant is *621 charged with is grand larceny in reduce drug-related crime by addressing substance the third degree, which is specified in CPL 410.91 (5) abuse that often lies at the core of criminal behavior,” as an offense that would be included in the statute as and to “accomplish this goal by returning discretion rendering a person eligible for the judicial diversion to judges to tailor the penalties of the penal law to the program. facts and circumstances of each drug offense and authorizing the *622 court to sentence certain non- There are also specific exceptions to being an “eligi- violent drug offenders to probation and drug treat- ble defendant” listed in the statute under CPL 216.00 ment rather than mandatory prison where appropri- (1) (a) and (b). These include any defendant con- ate,” a more expansive interpretation of the statute victed of a violent felony offense as defined in Penal favors the underlying legislative purpose (see Spon- Law § 70.02, any other offense for which a merit sor's Mem, Bill Jacket, L 2009, ch 56). In enacting time allowance is not available pursuant to the statute creating the judicial diversion program, Correction Law § 803 (1) (d) (ii), or a class A drug the legislature recognized that “the policy of incar- felony (as defined in Penal Law article 220) within ceration and punishment of non-violent drug users the preceding 10 years (excluding any time the de- had failed” and that “[e]xpanding the number of non- fendant was incarcerated between the time of the violent drug offenders that can be court ordered to commission of the previous felony and the present drug abuse treatment will help **3 break the cycle of felony). Also listed as an exception is any defendant drug use and crime and make our streets, homes and who has previously been adjudicated a second violent communities safer” (id.). Thus, a defendant who felony offender (pursuant to Penal Law § 70.04) or a would otherwise be eligible for the judicial diversion persistent violent offender (pursuant to Penal Law § program and whose substance abuse is the driving

29 Misc.3d 619 (Cite as: 29 Misc.3d 619, 908 N.Y.S.2d 844) force behind his or her criminal behavior should not tional offenses which fall outside the statutory list, be automatically excluded from consideration simply those defendants charged with nonqualifying misde- because he or she is also charged with nonqualifying meanor offenses would also have to be excluded. In offenses. fact, this was the rationale of one lower court, cited by the People, which deemed a defendant ineligible To read the statute to exclude individuals on the basis (see People v Jaen, Sup Ct, NY County, Mar. 10, that they are also charged with nonqualifying of- 2010, Coin, J., index No. 5704-08 [holding that an fenses would allow the People to undermine the pur- otherwise eligible defendant also charged with non- pose of the statute by including a nonqualifying of- qualifying misdemeanor offenses is ineligible for fense in the indictment, and thereby rendering the diversion]). defendant ineligible (see People v Kithcart, County Ct, Onondaga County, Jan. 19, 2010, Merrill, J., in- The People also contend that finding a defendant who dex No. 09-0347 [holding that inclusion of nonquali- is charged with numerous offenses, only one of fying offenses in the indictment did not render defen- which is judicial diversion-eligible, to be an “eligible dant ineligible for judicial diversion]). While some defendant” would open up the program to a wider lower courts have read the statute narrowly to ex- range of offenders than contemplated by the statute. clude participation of those otherwise eligible defen- However, this argument ignores that a determination dants also charged with nonqualifying offenses, such of whether a defendant is “eligible” for the judicial a narrow interpretation of the statute is not consistent diversion program under the statute is only a thresh- with the underlying statutory purpose and the legisla- old inquiry as to whether he or she will ultimately be tive reasoning behind the enactment of the judicial accepted into the program. diversion program. It must not be overlooked that the final determination In arguing against the eligibility of defendants who of acceptance into judicial **4 diversion is left to the also are charged with nonqualifying offenses, the court's discretion after having received a completed People also contend that alcohol and substance abuse evaluation report, and “mandatory state prison terms are mandated for some having considered any relevant evidence in accor- first and second felony offenders by Penal Law arti- dance with CPL 216.05 (3) (a). To accept an eligible cle 70[ ]. A defendant who is indicted for a specified defendant into the diversion program, the court must offense and a non-specified offense that requires a make a finding that the defendant has a history of mandatory prison term could not be diverted without alcohol or substance abuse dependence and that such the court violating these other express provisions of alcohol or substance abuse dependence is a contribut- law.” ing factor to the defendant's criminal behavior. In- deed, courts have declined to place defendants who However, this reasoning is fundamentally flawed, were otherwise legally “eligible” under the statute because if a defendant was accepted into the judicial into the program based, for example, upon a lack of diversion program, he or she would then be sentenced sufficient substance abuse history, or where such in accordance with its provisions,*623 which, ac- abuse or dependence is not deemed a contributing cording to the statute, apply “notwithstanding the factor to the defendant's criminal behavior (see provision of any other law” (seeCPL 216.05 [10]). People v Hughes, 27 Misc 3d 1235[A], 2010 NY Slip Thus, the “mandatory” sentences of Penal Law article Op 51036[U] [Sup Ct, Kings County 2010]; People v 70 would not apply to a defendant accepted into the Jordan, 28 Misc 3d 708 [Sup Ct, Bronx County program, since CPL 216.05 would then govern his or 2010]). her sentencing. *624 Thus, based upon the plain language of the stat- There are other factors of concern here as well. The ute as well as the underlying statutory purpose, this People have consistently argued in this court for the court finds that the defendant is an “eligible defen- inclusion of defendants in the judicial diversion pro- dant” as that term is defined in CPL 216.00 (1), since gram who also stand charged with nonqualifying he stands charged with grand larceny in the third de- misdemeanor offenses. If this court were to read the gree, specified in CPL 410.91 (5) as a diversion- statute as excluding all defendants charged with addi- eligible offense.

29 Misc.3d 619 (Cite as: 29 Misc.3d 619, 908 N.Y.S.2d 844)

Having now determined that the defendant is an “eligible defendant” under CPL 216.00 (1), having received a completed alcohol and substance abuse evaluation report, having held a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment, and having considered any relevant evidence in accordance with CPL 216.05 (3) (a), this court now makes the following findings of fact: (1) the defendant is an eligible defendant as defined in CPL 216.00 (1); (2) the defendant has a history of alcohol or substance abuse dependence; (3) such alcohol or substance abuse dependence is a contributing factor to the defendant's criminal behavior; (4) the defendant's participation in judicial diversion could effectively address such abuse or dependence; and (5) institutional confinement of the defendant is not or may not be necessary for the protection of the public.

Based upon the above findings of fact, this court determines that the above-named defendant should be offered alcohol or substance abuse treatment and may be allowed to participate in the judicial diversion program as set forth in CPL 216.05. Such participation in the judicial diversion program is subject to the defendant's plea of guilty to the charge or charges, unless specifically exempted from this requirement, and further compliance with the orders of this court, including but not limited to the provisions of the judicial diversion contract.

FOOTNOTES

FN* Subdivision (4) of CPL 410.91 was repealed in 2009, and was replaced with the new subdivision (5), which lists the judicial diversion-eligible offenses.

29 Misc.3d 619

END OF DOCUMENT

Bail Advocacy in New York State 2 Marika Meis, Bronx Defenders

What to Do When a Judge Screws Your Client: Writs, Stays and 530.30 Motions Brian Crow, Legal Aid Society

BAILBAIL ADVOCACYADVOCACY ININ NEWNEW YORKYORK STATESTATE

NEW YORK COUNTY LAWERES ASSOCIATION NOVEMBER 3, 2011

Materials Prepared by Justine Olderman, Managing Attorney, Criminal Defense Practice And Marika Meis, Legal Director THE BRONX DEFENDERS

PRESENTED BY MARIKA MEIS, BXD & BRIAN CROW, THE LEGAL AID SOCIETY HISTORY OF BAIL IN NEW YORK

CODE OF CRIMINAL PROCEDURE (1881 – 1970)

•Permitted a judge to set an amount of bail only

•The term “bail” was synonymous with what we

now call “bond”

•Judge could not specify the type of bond

•The type of bond depended on the crime charged and the possible punishment

•Client always had the option of depositing cash CURRENT BAIL STATUTE

CRIMINAL PROCEDURE LAW (1970 – PRESENT)

• Substantial reform of the bail statute

• Intended to create a presumption in favor of pretrial release

• Goal of reducing unconvicted portion of prison population

• Statute added new forms of bail that permitted bail to be posted with minimal or no security (cash or property) STATUTORY PURPOSE OF BAIL C.P.L. § 510.30(2)(a)

Court CAN set bail: • To secure the client’s attendance at court when required Court CANNOT set bail:

• Based on presumed dangerousness to the community; or • As preventive detention Misdemeanors and Violations

Court may NOT remand and must order bail or release on misdemeanors and violations BAIL FACTORS C.P.L. § 510.30(2)(a)

The court must consider the following factors: • Character, reputation, habits and mental condition

• Employment and financial resources

• Family ties & length of residence in the community

• Criminal record

• Previous adjudication as a juvenile delinquent, or youthful

offender • Previous record in responding to court appearances when

required or with respect to flight to avoid criminal prosecution • Weight of the evidence and other factors indicating probability

or improbability of conviction • The sentence that may be imposed on conviction

TYPES OF BAIL C.P.L. § 520.10

1. Cash bail 2. An insurance company bail bond 3. A secured surety bond (fully secured) 4. A secured appearance bond (fully secured) 5. A partially secured surety bond 6. A partially secured appearance bond 7. An unsecured surety bond 8. An unsecured appearance bond 9. Credit card or similar device DEFINITIONS C.P.L. § 500.10

•Obligor - person who posts the bail & is therefore responsible for the bail

•Principal – client as obligor

•Surety - person who posts the bail who is not the client

•Appearance Bond - bond posted by the client

•Surety Bond - bond posted by someone other than the client (although the client can be one of the people posting)

•Secured Bail Bond - bond secured by (1) personal property valued equal to the amount of the bond, or (2) real property with a value of at least twice the amount of the bond

•Partially Secured Bail Bond - bond secured by a deposit of money not to exceed 10% of total amount

•Unsecured Bail Bond - bond secured by promise to appear with no money or property BAIL CHART

Type Who Pays Requirements $500 Example Cash Anyone can pay bail (serve Full amount in cash must Client and/or others pay $500 as “obligor”), including be posted cash client (who is called the “principal”)

Insurance Insurance Company is Insurance Company Client and/or others pay a Company surety-obligor and must be covers entire face of bond percentage of the $500 Bond an insurance company and requires percentage licensed by the of bond, signatures, and (percentage varies from Superintendent of fees from those posting company to company and Insurance to engage in the via Insurance Company from case to case), agrees to business of executing bail pay the full amount if the bonds client does not appear, and pays up to 8% of the bond amount in fees Secured Obligor(s) are one or more Bond is fully secured by Others (and client) put up car, Surety sureties, or one or more (1) personal property jewelry, stocks, etc. worth at Bond sureties and the principal valued equal to or greater (client) than of the bond, or (2) least $500 or a house/land real property with a value worth at least $1,000 of at least twice the amount of the bond BAIL CHART

Type Who Pays Requirements $500 Example Secured Obligor is principal Bond is fully secured by (1) Client alone puts up car, Appearance (client) personal property valued jewelry, stocks etc. worth at Bond equal to or greater than of the least $500 or a house/land bond, or (2) real property with worth at least $1,000 a value of at least twice the amount of the undertaking

Partially Obligor(s) are one or Bond is secured by a deposit Others (and client) put Secured more sureties, or one of money not to exceed 10% down $50 Surety Bond or more sureties and of total amount of undertaking the principal (client)

Partially Obligor is principal Bond is secured by a deposit Client alone puts down $50 Secured (client) of money not to exceed 10% Appearance of total amount of undertaking Bond BAIL CHART

Type Who Pays Requirements $500 Example Unsecured Obligor(s) are one or Bond is secured by signatures Others (and client) agree that Surety more sureties, or one guaranteeing return to court they will pay $500 if client Bond or more sureties and and agreeing to be responsible the principal (client) for full amount of bond in case does not appear of nonappearance, but not secured by any deposit of or lien upon property

Unsecured Obligor is principal Bond is secured by principal’s Client alone agrees that he Appearance (client) signature guaranteeing return will pay $500 if client does not Bond to court and agreeing to be responsible for full amount of appear bond in case of nonappearance, but not secured by any deposit of or lien upon property

Credit card Anyone can pay bail Full amount in cash must be Currently unavailable or similar (serve as obligor), posted by credit card or similar because OCA has not set the device including principal device and court may assess a (client) “reasonable administrative fee” “reasonable administrative fee” MECHANICS OF POSTING CASH BAIL C.P.L. § 520.15

Person posting cash bail must fill out a form which lists:

• Name, residential address and occupation of person posting bail;

• Criminal action; offense(s); name of client; date of next appearance; amount of cash bail;

• That the person(s) posting cash bail will ensure that the client will appear whenever required and will at all times render himself amenable to the orders/processes of the court;

• Acknowledgement that the cash bail will be forfeited if the client does not comply MECHANICS OF POSTING A BAIL BOND C.P.L. § 520.20

Required Documents The person posting a bail bond must fill out:

1) a bail bond (same information as included in cash bail form); AND

2) a justifying affidavit (information varies depending whether the bond is fully secured or partially/unsecured)

The Forms OCA has a form for both the bail bond and the justifying affidavit for each type of bond. Forms from 1972. WHEN TO SEEK ALTERNATIVE FORMS OF BAIL AND HOW

• What forms should you be seeking?

• Partially Secured Surety Bond

• Still requires some cash up front

• Face of bond can still be the same

• Family members are on the hook for larger amount

• Unsecured Surety and Appearance Bonds

• But not in every case so that it replaces ROR

• Where Judge needs some additional security

• Fully Secured Surety and Appearance Bonds

• Few of our clients will have the property necessary to secure a

bond of this type WHEN TO SEEK ALTERNATIVE FORMS OF BAIL AND HOW

• What Types of Cases

• Any type of case

• When Should You Seek It?

• At Arraignments

• Least likely to be granted

• Time restrictions

• Uneducated clerks

• Family less likely to have the money

• Family less likely to have the supporting documents court might

required • But in the right case, try it anyway

WHEN TO SEEK ALTERNATIVE FORMS OF BAIL AND HOW

• When Should You Seek It (cont.)?

• After Arraignments

• Can wait until the 170.70 or 180.80 day OR advance the case

• Should fill out paperwork ahead of time

• Should have obligors present in court for examination

• Should get obligors to bring proof of employment and tax

returns if possible • Should notify the D.A.

• Legal Basis for Application

• Position should be that this is not a de novo bail review or a

change in circumstances application • Application is to change the form of bail already set

EXAMINATION OF SURETY C.P.L. § 520.30 Court has Authority to Review:

• Reliability of the persons posting bail

• Value/sufficiency of any personal/real property (but not when

collateral for Insurance Co. bond), the source of money/property deposited or agreed to be delivered & whether such money/property constitutes the fruits of criminal or unlawful conduct

• Whether any aspect contravenes public policy

• Practice Note: Examination of CASH requires application by

D.A. and reasonable cause to believe fruit of illegality CURRENT METHODS FOR SETTING BAIL C.P.L. § 520.10

C.P.L. § 520.10(2)(a) provides: • “A court may designate the amount of the bail without designating the form or forms in which it may be posted. In such case, the bail may be posted in either of the forms specified in paragraphs (g) and (h) of subdivision one;”

C.P.L. § 520.10(2)(b) provides: • “The court may direct that the bail be posted in any one of two or more of the forms specified in subdivision one, designated in the alternative, and may designate different amounts varying with the forms[.]”

st • People ex rel McManus v. Horn, 77 A.D.3d 571 (1 Dept. 2010). Leave granted by Court of Appeals BAIL REVIEWS C.P.L. § 510.20

CHANGED CIRCUMSTANCES BAIL APPLICATION

• Application for reduction of bail or ROR

• Relevant factors are those articulated in C.P.L. § 510.30

• Application needs to be based on NEW information not available or offered to original bail-setting court

• There is no limit to defense changed circumstances bail applicaitons FORFEITURE AND REMISSION C.P.L. § 540.10-540.30

• Bail will be generally be forfeited if client warrants and does not return within 30 days (not a rule)

• If client returns within 30 days, most often forfeiture has not been processed and can be exonerated (re-instated)

• If 30 days have passed, a civil action must be brought for remission of forfeiture of bail CHANGE IN BAIL STATUS C.P.L. § 530.12(11)(a), C.P.L. §530.13(8)(a)

VIOLATION OF TEMPORARY ORDER OF PROTECTION

•Court may revoke bail or ROR in both non-family and family offense cases where client violates TOP

•Client entitled to a hearing

•Must be competent proof that TOP was violated AND

•Violation was willful CHANGE IN BAIL STATUS C.P.L. § 530.60(1)

GOOD CAUSE

• Court may revoke bail or ROR for “good cause” shown

• Only NEW evidence relevant to one of the criteria listed in C.P.L.

§ 510.30 can constitute good cause

• Subsequent arrest can constitute good cause ONLY IF

• Evidence of increased risk of flight (i.e., if it increases jail time

exposure)

• Minor arrests may only be used to increase bail if affect court’s

initial appraisal of the client’s character, reputation or habits CHANGE IN BAIL STATUS C.P.L. § 530.60(2)(a)

New Specified Offense

• Court may revoke bail or ROR if client commits:

• Class A felony

• Violent felony

• Specified witness tampering/intimidation

• Standard is “reasonable cause”

• Court must hold hearing (client may be remanded pending hearing

for up to 72 hours & additional 72 hours on showing of good cause or for defense adj) and receive any relevant, admissible evidence

• Defense may cross-examine witnesses and present relevant,

admissible evidence; transcript of grand jury testimony is admissible

• 90 days or until reduction or dismissal of new charge

CURRENT ISSUES IN BAIL PRACTICE

Types of Bail Commonly Set

•Most judges only set two forms • Cash bail and • Insurance Company Bond •These two forms are more difficult to make

•Result is that a large portion of the state’s jail population is incarcerated due to failure to post bail

•FTA rates same for cash (7%) and bond (8%) and similar across five boroughs 5-9% CURRENT ISSUES IN BAIL PRACTICE

Problems with Cash Bail

• Client must pay the entire amount up front

• Most clients who have assigned counsel, which is the majority of those criminally charged, do not have disposable income

• Judges do not routinely tailor their cash bail to an amount that the client can afford but instead set fixed amounts often in $500 increments ($ 500, $ 1,500, $2,000, etc.) CURRENT ISSUES IN BAIL PRACTICE

Problems with Insurance Company Bonds

• Fees are non-refundable regardless of outcome of case

• In 2005, fees were reported at 10% for first $3,000, 8% for the next $7,000; and 6% for amounts over $10,000

• The higher the bail amount, the more co-signers needed

• Lower amount of bail, less likely bondsman will accept

• When bail companies agree to post for small bond amounts, they often require a client to pay as much as 60% down in cash.

• In NYC in 2005, median amount was 37% of bond amount

PRE-TRIAL DETENTION POPULATION

New York City •In 2009, more than 50% of NYC’s jail population = pretrial detainees •In 87% of cases where bail was set at $1000, those charged were not able to post bail at arraignments •48% remained incarcerated until disposition •17.6% were able to pose $500 bail

HUMAN RIGHTS WATCH ,The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City EFFECTS OF PRETRIAL DETENTION

Effect on Misdemeanor Conviction Rates

• 45% of those released on bail were ultimately convicted

• 95% of those incarcerated on bail were ultimately convicted

Effect on Type of Misdemeanor Sentencing

• Only 30% of clients who were released on bail and convicted

received jail sentences

• Whereas 80% of people who were held in on bail at time of

conviction received jail sentences Charts compare conviction rates for clients whose bail was posted by The Bronx Freedom Fund and conviction rates for incarcerated clients as reported by the Criminal Justice Agency EFFECTS OF PRETRIAL DETENTION

Effect on Length of Incarceration

• The median length of pretrial incarceration for misdemeanor

defendants arrested in 2008 is five days, the average is 15

• Yet, in 48 % of misdemeanor cases disposed of with a jail

sentence, the sentence is less than 15 days

• In 9 % of cases it is less than five days

Statistics from the NYS Division of Criminal Justice Services EFFECTS OF PRETRIAL DETENTION

Effect on Jail Time Without a Jail Sentence

• In 22 % of nonfelony cases with a detained person, the person

was eventually acquitted or the case was dismissed

• In an additional 24% of nonfelony cases with a detained person,

the person was convicted but received no jail sentence (not even time served)

• In almost half of the cases where a person is held in on bail, they

ultimately served jail time simply because their were too poor to pay the money not because convicted or sentenced to jail

HUMAN RIGHTS WATCH ,The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City EFFECTS OF PRETRIAL DETENTION

Life Outcomes • Deportation

• Incarceration for as little as one day can trigger deportation proceedings

• Unemployment

• No legal protection for absence due to incarceration

• Homelessness

• Absence from certain types of supported housing can trigger eviction

• Loss of benefits

• Missed work assignment or appointment can result in client’s benefits

being terminated • Removal of children from the home

• Incarceration alone can result in a neglect proceeding and children being

placed in foster care Questions?

Contact Information: Marika Meis [email protected] (718) 838-7846

Brian Crow [email protected] (718) 243-6248

WHAT TO DO WHEN A JUDGE SCREWS YOUR CLIENT: WRITS, STAYS, AND 530.30 MOTIONS

This horrible judge just threw my client in jail (pre-trial) for no good reason, what do I do?

DO SOMETHING. Any time your client is in jail there’s any reason they should be let out, you have options. The 2 basic options are a writ of habeas corpus or a 530.30 motion. Both are ways to essentially appeal the bail/remand decision to Supreme Court, and get your client ROR’d or bail reduced.. They are similar, but the key differences between the two are:

530.30: de novo review, not available for indicted cases, not available if the judge who set bail/remand was a Supreme Court justice (in the Bronx this means only available between arraignment and the next court date), not appealable, CPL governs WRIT: abuse of discretion standard, applicable to any incarcerated defendant in any type of case, appealable, governed by CPLR Article 70

These remedies are available essentially any time a client is incarcerated and shouldn’t be, from the simplest issues of excessive bail and 170.70/180.80, to more complicated issues like an insufficient bail reduction when a case is only partially converted, an insufficient bail reduction after a Brady disclosure, 30.30(2) denials, etc.

So it’s an appeal of a criminal court judge, right?

Actually no, both are technically original actions, so you don’t need to order minutes or anything (though some judges, especially with writs, may require it).

Isn’t it really hard to do?

NO. You don’t even need to write a single word for a 530.30, and a writ only requires a few sentences. Here’s what you do:

530.30: No papers required, simply go to the applicable part (“miscellaneous motions” in Brooklyn, “emergency part” in Queens, Part 1 in Manhattan, the administrative judge in Bronx) and request a 530.30 hearing. Technically you don’t even need to notify the DAs, unless it’s a felony, but in practice almost all judges will require their presence anyway. WRIT: Fill out a 2 page pro forma application, with a brief description of why you’re entitled to relief – no more than 2 or 3 sentences. Only cite cases if necessary, otherwise save it for oral argument. Attach copies of the compliant, CJA, and RAP sheet, and file it first with the DAs office and then with the applicable Supreme Court part (in the Bronx, file it first with Civil Court, then later with the DAs and the applicable part). Supreme will calendar the case quickly. If the writ is granted, in some boroughs you may need to serve the signed and sealed judicial order on DOC – make sure to ask the court’s clerk or court officers whether they will fax the proper materials to DOC. What do you mean, “miscellaneous motions” or “emergency part?”

In Brooklyn and Queens, every week one Supreme Court judge is assigned to do writs and other random motions. You should get a weekly email telling you which judge you’ve got, or ask your paras. Other than that it’s the same as in criminal court: you sign in, your case gets called, then you start arguing. Don’t be intimidated by the fact that it’s Supreme Court.

For the Bronx and Manhattan, the judge will assign you to a Supreme Court justice. Again, don’t be intimidated, it’s not really any different than making a regular bail app.

Does the writ process differ if I’m “writ-ing” a Supreme Court Justice?

Not really. The system may assign a different judge, or deem the part hearing the motion by a different name, but substantively the process is the same – and you file your papers the same way.

What other random things do I need to know?

If you think bail may be reduced instead of ROR, find out what kind of bail D can make. Judges will get pissy if you don’t know.

How do I appeal the denial of a writ?

This process is more cumbersome, but the appellate division clerks are very helpful in getting your papers in the proper order. For the forms in Word format, and/or for example papers, email me at [email protected]. The process also varies by Division:

AD1: Serve a notice of appeal on the D.A. and file it in the Appeals Clerk's Office for Supreme Court, Civil Term. Attach the judge's written decision and order. Fill out the proper paperwork, then contact the D.A. and choose a time to meet at AD1 (24 hours notice should be enough). Upon arrival, present your papers and fill out some additional paperwork the clerk will give you. Then you will go to a judge’s chambers to argue the motion orally. The loser can appeal to a 4- judge panel, which involves the submission of further papers, but no further oral argument. But if the one judge has ordered release or a bail reduction, that decision takes effect immediately.

AD2: This process works similarly to filing a “regular” writ, except that you are now filling out specialized AD2 paperwork, and you must have the minutes from the earlier writ. Serve the DAs appellate bureau, then the DOC, then finally serve AD2. If the papers are in proper order, an appellate judge will sign the order to show cause, and you must again serve a copy of this single piece of paper on the DAs and DOC. This order will have a date for oral argument, usually within a week, and at that time you’ll argue in front of a panel of judges.

What do I do post-trial, or post-sentence?

You may always file a writ, but there are 2 more specifically tailored remedies:

Post-conviction pre-sentence: 530.45 gives you a one-time review, in many ways identical to 530.30 review. The standards are the same for any bail application, with the additional factor of the likelihood of the appeal being granted. For an “appeal” of criminal court, papers are filed in the same fashion as a writ, in Supreme Court with notice to the DAs. For an “appeal” of a Supreme Court justice you must go to the Appellate Division (and you can pick your judge!) Post-sentence: 460.50 allows a stay of judgment similar to 530.45, with these key differences: a notice of appeal must be filed before making this motion, with a felony you may choose either the appellate division or another Supreme Court justice

For both of these kinds of stays, the granting of the stay lasts only 120 days. You must have the appellate division/term extend the stay or else the sentence must be imposed.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

THE PEOPLE OF THE STATE OF NEW YORK , Ex. Rel: Index No. BRIAN CROW on behalf of CHAD CHAMBERS DOCKET #: 2011KN065239 NYSID #: 01563722K Petitioner B&C #: 141-11-10905 D.O.B.: 4/12/85 against WRIT OF HABEAS CORPUS WARDEN, OTIS BANTUM CORRECTIONAL CENTER 1600 HAZEN STREET, EAST ELMHURST, NY 11370 LAST COURT DATE: 8/14/11 or any OTHER PERSON HAVING CUSTODY OF THE PART: AR3 DEFENDANT. Respondent. NEXT COURT DATE: 9/22/11 PART: AP1F The People of the State of New York upon the relation of BRIAN CROW on behalf of CHAD CHAMBERS

TO WARDEN, OTIS BANTUM CORRECTIONAL CENTER Greeting: 1600 HAZEN STREET, EAST ELMHURST, NY 11370

WE COMMAND YOU, That you have and produce the body of CHAD CHAMBERS by you imprisoned and detained, as it is said, together with your full return to this writ and the time and cause of such imprisonment and detention, by whatsoever name the said person shall be called or charged before Hon. Presiding Justice one of the Justices of the Supreme Court of the State of New York, County of Kings at Part Miscellaneous Motion, 320 Jay Street, Brooklyn, New York, in the courthouse thereof on the 16th day of August, 2011 at ______.m. to do and receive what shall then and there be considered concerning the said person and have you then and there this writ.

WITNESS, Hon. Presiding Justice, one of the Justices of our said Court the 15th day of August, 2011.

Sufficient reason appearing therefore, let ______service of a copy of this order and the papers upon which it was granted upon all parties entitled to service on or before _____ o’clock ______on ______Clerk the ____ day of______be deemed good and sufficient service. NANCY T. SUNSHINE

PRODUCTION OF THE DEFENDANT STEVEN BANKS, ESQ. IS WAIVED FOR PURPOSES OF THIS WRIT. Attorney(s) for Petitioner BY: BRIAN CROW THE LEGAL AID SOCIETY ______111 Livingston Street BRIAN CROW, Attorney for Petitioner Brooklyn, New York 11201 (718) 243-6248 The within writ is hereby allowed this 15th day of August, 2011.

______J. S. C.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

THE PEOPLE OF THE STATE OF NEW YORK , Ex. Rel: BRIAN CROW on behalf of CHAD CHAMBERS Index No. Petitioner DOCKET #: 2011KN065239 NYSID #: 01563722K against B&C #: 141-11-10905 D.O.B.: 4/12/85 WARDEN, OTIS BANTUM CORRECTIONAL CENTER 1600 HAZEN STREET, EAST ELMHURST, NY 11370 PETITION FOR WRIT OF or any OTHER PERSON HAVING CUSTODY OF THE HABEAS CORPUS DEFENDANT. Respondent.

TO: SUPREME COURT OF THE STATE OF NEW YORK HELD IN AND FOR THE COUNTY OF KINGS

The petition of BRIAN CROW, ESQ. shows that:

1. This petition is made on behalf of CHAD CHAMBERS who is detained by WARDEN, OTIS BANTUM CORRECTIONAL CENTER at 1600 HAZEN STREET, EAST ELMHURST, NY 11370

2. The cause or pretense of the detention, according to the best knowledge and belief of the petitioner is the defendant is being held on bail and has no holds.

3. That a court or judge of the United States does not have exclusive jurisdiction to order the release of said person.

4. This writ is sought because of an illegal detention, the nature of the illegality being bail is excessive given that Mr. Chambers is only being charged with a misdemeanor of stealing $2.50. Alternatively, Mr. Chambers is entitled to an adjournment date far sooner than the 39 days Judge Wilson granted for discovery purposes, as this lengthy adjournment denies Mr. Chamber’s due process under the circumstances.

5. An appeal has not been taken from the order by virtue of which said person is detained.

No previous application has been made for this relief.

Wherefore your petitioner prays that a writ of habeas corpus issue, directed to the respondent, requiring the respondent to produce the said CHAD CHAMBERS before a justice of this court at Criminal Term, Part Miscellaneous Motion thereof on August 15, 2011.

Dated: Brooklyn, New York October 28, 2011

______BRIAN CROW, Of Counsel STEVEN BANKS, ESQ. Attorney(s) for Petitioner ...... being an attorney at law, does THE LEGAL AID SOCIETY hereby affirm under the penalties of perjury the truth of 111 Livingston Street, Brooklyn, NY 11201 the above allegations. (718) 243-6248

October 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

THE PEOPLE OF THE STATE OF NEW YORK , Ex. Rel: BRIAN CROW on behalf of CHAD CHAMBERS

Petitioner DOCKET #2011KN065239

against

WARDEN, OTIS BANTUM CORRECTIONAL CENTER 1600 HAZEN STREET, EAST ELMHURST, NY 11370 or any OTHER PERSON HAVING CUSTODY OF THE DEFENDANT. Respondent.

To Whom It August Concern:

Pursuant to Section 8018(b) 3 of the C.P.L.R., it is requested that index number fees for the attached writ, filed by the Legal Aid Society, be waived.

The pertinent language of that section reads as follows:

“Section 8010(b) - Exemptions from index number fees: No fee shall be charged for the assignment of an Index number;

3. To a criminal case or to any action at the request of a public agency office or poor person entitled by law to exemption from payment of fees to a County Clerk.”

Very truly yours,

DAWN C. RYAN, ESQ. Attorney-in-Charge (718) 243-6348

DCR/im

3 Challenging Ethical Dilemmas: Candor, Client Competency and Use of 3 Social Networking Ellen Yaroshefsky, Cardozo Law School

New York County Lawyers’ Association Continuing Legal Education Institute

Criminal Trial Practice Institute November 3 and 4, 2011

Challenging Ethical Dilemmas: Candor, Client Competency and Use of Social Networking

ELLEN YAROSHEFSKY CLINICAL PROFESSOR OF LAW EXECUTIVE DIRECTOR JACOB BURNS CENTER FOR ETHICS IN THE PRACTICE OF LAW BENJAMIN N. CARDOZO LAW SCHOOL 55 FIFTH AVENUE NEW YORK, NEW YORK [email protected] 212-790-0386

New York County Lawyers’ Association Continuing Legal Education Institute Criminal Trial Practice Institute November 3 and 4, 2011

Challenging Ethical Dilemmas: Candor, Client Competency and Use of Social Networking

ELLEN YAROSHEFSKY CLINICAL PROFESSOR OF LAW AND DIRECTOR JACOB BURNS ETHICS CENTER IN THE PRACTICE OF LAW BENJAMIN N. CARDOZO SCHOOL OF LAW [email protected] 212 790 0386

Program Hypotheticals ...... 1

Selected New York Rules of Professional Conduct ...... 5

Roy Simon on the New Rules—Part VII Rules 3.3 (a)(3) through 3.3(d) New York Professional Responsibility Reporter ...... 14

Printed with permission of the New York Professional Responsibility Reporter

Dishonesty: Attorneys May Not Mislead Witnesses Philadelphia Bar Association Ethics Opinion March, 2009 ...... 21

Letter from the National Association of Criminal Defense Lawyers To the Criminal Justice Section of the American Bar Association, 2009 ...... 27

American Bar Association Criminal Justice Section Draft Report on Rule 1.6 (not adopted) ...... 30

Lawyer investigation of juror internet and social networking postings during conduct of trial. NYCLA Committee on Professional Ethics formal Opinion 743 ...... 33

Obtaining Evidence from Social Networking Websites City Bar Formal Opinion 2010-2 ...... 38

Non-government lawyer use of investigator who employs dissemblance NYCLA Committee on Professional Ethics formal Opinion 737 ...... 42

Lawyer’s access to public pages of another party’s social networking site for the purpose of gathering information for client in pending litigation NYSBA opinion 843 ...... 48

Office of Lawyer Regulation v. Stephen P. Hurley ...... 50

New York County Lawyers’ Association Continuing Legal Education Institute Criminal Trial Practice Institute November 3 and 4, 2011

Challenging Ethical Dilemmas: Candor, Client Competency and Use of Social Networking

ELLEN YAROSHEFSKY CLINICAL PROFESSOR OF LAW AND DIRECTOR JACOB BURNS ETHICS CENTER IN THE PRACTICE OF LAW BENJAMIN N. CARDOZO SCHOOL OF LAW [email protected] 212 790 0386

PROGRAM HYPOTHETICALS

I. REPRESENTING THE COOPERATOR Rule 3.3 Candor to the Tribunal

Defense lawyer, Sparky Stavis, represents a defendant in a narcotics prosecution for possession of heroin with intent to distribute. The principal evidence against the client is the heroin seized from her during lawful police procedures upon her arrest for driving while intoxicated. She is on parole. Sparky’s candid assessment of the evidence against his client in light of her criminal record is that she will very likely be convicted and sentenced to a long prison term.

In Sparky’s discussions with the client, she has mentioned that she is well acquainted with a man who is reputed to be a “drug kingpin” in the local area. Sparky knows from conversations with his friends in the local prosecutor’s office that there is substantial interest in making a case against this man, who has thus far eluded prosecution.

Sparky has already generally informed his client that she might be able to reduce her sentence if she enters into a cooperation agreement with the prosecution in their pursuit of other lawbreakers. She subsequently agreed with the prosecution to provide detailed testimony regarding the drug kingpin’s illegal operations, in exchange for which she will plead guilty to a reduced charge and receive a short sentence after she testifies against the kingpin. Sparky assisted her in reaching this agreement.

Sometime before the kingpin’s trial (and thus before client has entered her guilty plea and been sentenced), she confesses to Sparky that her testimony against the kingpin will be "all lies – I figured out what those prosecutors wanted me to say, and I’m gonna say it." Sparky advises the

1 client against this procedure, but she is adamant, saying that this is the only way she can avoid a long sentence – "and besides, I’m convinced that guy is dirty, I just can’t prove it. He was too careful around me."

Assuming that Sparky now believes that his client is telling the truth, what are his ethical obligations? Is he required to withdraw from representing the client? If not, is he permitted to do so? Is he required to inform the court of her perjury? If so, which court – the one trying the kingpin, the one to which she plans to plead guilty, or both? If he is not required to disclose, is he permitted to do so? And once again, to whom?1

2. THE COMPETENT BUT MENTALL ILL CLIENT Rule 1.14 Client Under a Disability

Safir Mondi, is charged with attempted assault in the first degree, attempted murder in the first degree, and criminal possession of a weapon in the second degree. The prosecution alleges that the police, responding to a 911 call about a robbery at gunpoint at a local Jewish deli by three people, arrive within twelve minutes of the call and see a woman and man vaguely matching the description of two of the three robbery suspects. The police approach Safir who is walking back and forth on the street in agitated fashion. They ask her for identification, question her, and subsequently arrest her. A man who had been yelling at her ran from the police and was not apprehended. No weapon is recovered. At the station, she is questioned after being Mirandized, and makes a relatively rambling statement about “Jewish world control and the jihad.” This statement is memoralized along with her “confession” to hating Israel and the owner of the deli.

You are assigned to represent Ms. Mondi. It is apparent that she is intelligent but appears delusional to you at various times. She will discuss her political views quite cogently but rarely with discuss facts of her case. She does not want to hear or read any information from the the police or prosecutor. You are certain that she has a mental illness but remain unclear whether she is competent. She repeatedly refuses to see a psychiatrist, calling them “villains of a Western Israeli plot.” She will not read the indictment no less assist in her defense. She refuses to discuss her case with you and says she will not talk to any “suit.” She does not want another lawyer nor does she indicate that she wants to represent herself.

The prosecution has a weak case. They have no forensic evidence, a questionable identification, 2 independent eyewitnesses whose testimony is questionable and a confession, although ruled admissible, that can be attacked readily. Despite your best attempts to talk to your client, she is increasingly agitated and delusional.

1 Hypothetical by Robert Batey for Ohio State Journal of Criminal Law mini symposium (forthcoming 2010)

2 You seek the appointment of a psychiatrist to determine competency. Your expert tells you that Safir is not competent and that she is a paranoid schizophrenic who suffers from delusions. The State hires two experts to examine her. Both declare her competent. At a hearing, the Court, after testimony from all the doctors, determines that she is competent to stand trial.

Your best efforts to suggest a mental irresponsibility defense result in her anger and further delusional statements. You obtain a reasonable plea offer but she insists on going to trial.

You prepare as best as possible for trial. During your opening statement, she stands up and yells “this is all rigged.” Your attempts to talk with her and suggest any course of action are met with resistance most of the time. Other times she is lucid and calm.

The People have presented their case. It remains a weak one. You believe an acquittal is possible if you present no case. The client insists on testifying. She has become increasingly delusional during the trial, but she is smart and you fear that if she takes the stand, she will appear rational to the jurors and will readily admit to commiting whatever crime the prosecution suggests she did. You believe that she is not rational and that her mental illness is preventing her from making the right choice for her case. You explain the dilemma to the Court and place on the record that you will not call your client to testify. Is that an ethical choice? What are your options?

3. LYING TO YOUR CODEFENDANT’S COUNSEL Rule 4.1 Truthfulness in Statements to Others

Sally Unliss represents a cooperating defendant. The cooperation is a matter of utmost secrecy and her client’s case will be compromised if the cooperation is revealed. Unliss receives a phone call from co-defendant’s counsel who asks, “Is your client cooperating?”

What may/should Unliss say?

4. TWITTERING AWAY ON FACEBOOK Rule 8.4 Misconduct

You were retained to represent Adam Findel who is charged with forcible rape in the first degree of Sandy Smith, a twenty two year old woman he met at the Singles Bar on the Upper East Side. The evidence against him includes her statement, her call to the police twenty minutes after the alleged rape, a hospital examination about an hour after the alleged incident that includes noticeable bruises on Smith’s wrist and scratches and bruises on other parts of her body. Her blood alcohol level an hour after the incident was 0.19. Adam claims that they had consensual sex. He says that he ran into her several times in the past at the bar and that she was always provocative—touching and grabbing him.

Your trusty investigator found two witnesses who can testify to Smith’s past behavior at Singles Bar. Their testimony supports Adam’s recitation of events. One witness tell you that Smith talked about how many “friends” she has on Facebook and that she must talk very openly on her Facebook page.

Your investigator believes that engaging Smith on Facebook might produce some juicy material that can be used to establish that she is not truthful in her rape claim. Smith proposes that he set up a Facebook account as the fictitious Ted Frankel, a 20-something Wall Street banker, with an exciting personal profile. The investigator believes that when he asks Smith to be his Facebook friend that she might agree and that he will gain access to useful information to impeach her. He believes that it is the only way to get such information. You have run out of alternatives to get such information. You tell him to go ahead.

Sure enough, your investigator, posing as handsome and exciting Ted Frankel, is accepted as a “friend” on Facebook by Smith. Over the next two weeks, Smith obtains a great deal of impeachment information, including Smith’s discussion of the rough sex she had with a guy she met at the Singles Bar and how she was so drunk that she cannot remember how it ended but she knows she woke up in a hospital. She says “I was so plastered and embarrassed and could not say I did not have a clue what happened. So I said the creep raped me.” The investigator shows you the Facebook comments.

Your colleague, a civil practitioner, suggests to you that you have acted unethically. Is he correct?

4 SELECTED NEW YORK RULES OF PROFESSIONAL CONDUCT

RULE 1.1: COMPETENCE

(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it. (c) A lawyer shall not intentionally: (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or (2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

(a) Subject to the provisions herein, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client. (e) A lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, or accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client. (f) A lawyer may refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal. (g) A lawyer does not violate this Rule by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, and by treating with courtesy and consideration all persons involved in the legal process.

5 RULE 1.6: CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: (1) the client gives informed consent, as defined in Rule 1.0(j); (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or (3) the disclosure is permitted by paragraph (b). “Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney- client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm; (5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or (6) when permitted or required under these Rules or to comply with other law or court order.

(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either: (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

RULE 1.9: DUTIES TO FORMER CLIENTS

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 or paragraph (c) of this Rule that is material to the matter.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use confidential information of the former client protected by Rule 1.6 to the disadvantage of the former client, except as these Rules would permit or require with respect to a current client or when the information has become generally known; or (2) reveal confidential information of the former client protected by Rule 1.6 except as these Rules would permit or require with respect to a current client.

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

RULE 1.16:DECLINING OR TERMINATING REPRESENTATION

(a) A lawyer shall not accept employment on behalf of a person if the lawyer knows or reasonably should know that such person wishes to: (1) bring a legal action, conduct a defense, or assert a position in a matter, or otherwise have steps taken for such person, merely for the purpose of harassing or maliciously injuring any person; or (2) present a claim or defense in a matter that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of existing law.

(b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when: (1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the lawyer is discharged; or (4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

8 (c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action with which the lawyer has a fundamental disagreement; (5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees; (6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; (7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively; (8) the lawyer’s inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal; (9) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively; (10)the client knowingly and freely assents to termination of the employment; (11)withdrawal is permitted under Rule 1.13(c) or other law; (12)the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or (13)the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.

(d) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal without its permission. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(e) Even when withdrawal is otherwise permitted or required, upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.

9 10 11 12 13 14 15 16 17 18 19 20 THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE Opinion 2009-02 (March 2009)

The inquirer deposed an 18 year old woman (the “witness”). The witness is not a party to the litigation, nor is she represented. Her testimony is helpful to the party adverse to the inquirer’s client.

During the course of the deposition, the witness revealed that she has “Facebook” and “Myspace” accounts. Having such accounts permits a user like the witness to create personal “pages” on which he or she posts information on any topic, sometimes including highly personal information. Access to the pages of the user is limited to persons who obtain the user’s permission, which permission is obtained after the user is approached on line by the person seeking access. The user can grant access to his or her page with almost no information about the person seeking access, or can ask for detailed information about the person seeking access before deciding whether to allow access.

The inquirer believes that the pages maintained by the witness may contain information relevant to the matter in which the witness was deposed, and that could be used to impeach the witness’s testimony should she testify at trial. The inquirer did not ask the witness to reveal the contents of her pages, either by permitting access to them on line or otherwise. He has, however, either himself or through agents, visited Facebook and Myspace and attempted to access both accounts. When that was done, it was found that access to the pages can be obtained only by the witness’s permission, as discussed in detail above.

The inquirer states that based on what he saw in trying to access the pages, he has determined that the witness tends to allow access to anyone who asks (although it is not clear how he could know that), and states that he does not know if the witness would allow access to him if he asked her directly to do so.

The inquirer proposes to ask a third person, someone whose name the witness will not recognize, to go to the Facebook and Myspace websites, contact the witness and seek to “friend” her, to obtain access to the information on the pages. The third person would state only truthful information, for example, his or her true name, but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness. If the witness allows access, the third person would then provide the information posted on the pages to the inquirer who would evaluate it for possible use in the litigation.

21 The inquirer asks the Committee’s view as to whether the proposed course of conduct is permissible under the Rules of Professional Conduct, and whether he may use the information obtained from the pages if access is allowed.

Several Pennsylvania Rules of Professional Conduct (the “Rules”) are implicated in this inquiry.

Rule 5.3. Responsibilities Regarding Nonlawyer Assistants provides in part that,

With respect to a nonlawyer employed or retained by or associated with a lawyer:…

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; …

Since the proposed course of conduct involves a third person, the first issue that must be addressed is the degree to which the lawyer is responsible under the Rules for the conduct of that third person. The fact that the actual interaction with the witness would be undertaken by a third party who, the committee assumes, is not a lawyer does not insulate the inquirer from ethical responsibility for the conduct.

The Committee cannot say that the lawyer is literally “ordering” the conduct that would be done by the third person. That might depend on whether the inquirer’s relationship with the third person is such that he might require such conduct. But the inquirer plainly is procuring the conduct, and, if it were undertaken, would be ratifying it with full knowledge of its propriety or lack thereof, as evidenced by the fact that he wisely is seeking guidance from this Committee. Therefore, he is responsible for the conduct under the Rules even if he is not himself engaging in the actual conduct that may violate a rule. (Of course, if the third party is also a lawyer in the inquirer’s firm, then that lawyer’s conduct would itself be subject to the Rules, and the inquirer would also be responsible for the third party’s conduct under Rule 5.1, dealing with Responsibilities of Partners, Managers and Supervisory Lawyers.)

Rule 8.4. Misconduct provides in part that,

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; …

22 Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.

The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that the deception might not be necessary to obtain access does not excuse it.

The possibility or even the certainty that the witness would permit access to her pages to a person not associated with the inquirer who provided no more identifying information than would be provided by the third person associated with the lawyer does not change the Committee’s conclusion. Even if, by allowing virtually all would-be “friends” onto her FaceBook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived. The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown internet users, does not mean that deception at the direction of the inquirer is ethical.

The inquirer has suggested that his proposed conduct is similar to the common -- and ethical -- practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.

23 Rule 4.1. Truthfulness in Statements to Others provides in part that,

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; …

The Committee believes that in addition to violating Rule 8.4c, the proposed conduct constitutes the making of a false statement of material fact to the witness and therefore violates Rule 4.1 as well.

Furthermore, since the violative conduct would be done through the acts of another third party, this would also be a violation of Rule 8.4a. 1

The Committee is aware that there is controversy regarding the ethical propriety of a lawyer engaging in certain kinds of investigative conduct that might be thought to be deceitful. For example, the New York Lawyers’ Association Committee on Professional Ethics, in its Formal Opinion No. 737 (May, 2007), approved the use of deception, but limited such use to investigation of civil right or intellectual property right violations where the lawyer believes a violation is taking place or is imminent, other means are not available to obtain evidence and rights of third parties are not violated.

1 The Committee also considered the possibility that the proposed conduct would violate Rule 4.3, Dealing with Unrepresented person, which provides in part that

(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested . . .

(c) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter the lawyer should make reasonable efforts to correct the misunderstanding.

Since the witness here is unrepresented this rule addresses the interactions between her and the inquirer. However, the Committee does not believe that this rule is implicated by this proposed course of conduct. Rule 4.3 was intended to deal with situations where the unrepresented person with whom a lawyer is dealing knows he or she is dealing with a lawyer, but is under a misapprehension as to the lawyer’s role or lack of disinterestedness. In such settings, the rule obligates the lawyer to insure that unrepresented parties are not misled on those matters. One might argue that the proposed course here would violate this rule because it is designed to induce the unrepresented person to think that the third person with whom she was dealing is not a lawyer at all (or lawyer’s representative), let alone the lawyer’s role or his lack of disinterestedness. However, the Committee believes that the predominating issue here is the deception discussed above, and that that issue is properly addressed under Rule 8.4.

24 Elsewhere, some states have seemingly endorsed the absolute reach of Rule 8.4. In People v. Pautler, 47 P. 3d 1175 (Colo. 2002), for example, the Colorado Supreme Court held that no deception whatever is allowed, saying,

“Even noble motive does not warrant departure from the rules of Professional Conduct. . . We reaffirm that members of our profession must adhere to the highest moral and ethical standards. Those standards apply regardless of motive. Purposeful deception by an attorney licensed in our state is intolerable, even when undertaken as a part of attempting to secure the surrender of a murder suspect. . . . Until a sufficiently compelling scenario presents itself and convinces us our interpretation of Colo. RPC 8.4(c) is too rigid, we stand resolute against any suggestion that licensed attorneys in our state may deceive or lie or misrepresent, regardless of their reasons for doing so. “ The opinion can be found at http://www.cobar.org/opinions/opinion.cfm?opinionid=627&courtid=2

The Oregon Supreme Court in In Re Gatti, 8 P3d 966 (Ore 2000), ruled that no deception at all is permissible, by a private or a government lawyer, even rejecting proposed carve-outs for government or civil rights investigations, stating,

“The Bar contends that whether there is or ought to be a prosecutorial or some other exception to the disciplinary rules is not an issue in this case. Technically, the Bar is correct. However, the issue lies at the heart of this case, and to ignore it here would be to leave unresolved a matter that is vexing to the Bar, government lawyers, and lawyers in the private practice of law. A clear answer from this court regarding exceptions to the disciplinary rules is in order.

As members of the Bar ourselves -- some of whom have prior experience as government lawyers and some of whom have prior experience in private practice -- this court is aware that there are circumstances in which misrepresentations, often in the form of false statements of fact by those who investigate violations of the law, are useful means for uncovering unlawful and unfair practices, and that lawyers in both the public and private sectors have relied on such tactics. However, . . . [f]aithful adherence to the wording of [the analog of Pennsylvania’s Rule 8.4], and this court's case law does not permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements. In our view, this court should not create an exception to the rules by judicial decree.“ The opinion can be found at http://www.publications.ojd.state.or.us/S45801.htm

Following the Gatti ruling, Oregon’s Rule 8.4 was changed. It now provides:

“(a) It is professional misconduct for a lawyer to: . . . (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law.

25 (b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these Rules of Professional Conduct. ‘Covert activity,’ as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. ‘Covert activity’ may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future. “

Iowa has retained the old Rule 8.4, but adopted a comment interpreting the Rule to permit the kind of exception allowed by Oregon.

The Committee also refers the reader to two law review articles collecting other authorities on the issue. See Deception in Undercover Investigations: Conduct Based v. Status Based Ethical Analysis, 32 Seattle Univ. L. Rev.123 (2008), and Ethical Responsibilities of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation under Model Rules of Professional Conduct, 8 Georgetown Journal of Legal Ethics 791 (Summer 1995).

Finally, the inquirer also requested the Committee’s opinion as to whether or not, if he obtained the information in the manner described, he could use it in the litigation. The Committee believes that issue is beyond the scope of its charge. If the inquirer disregards the views of the Committee and obtains the information, or if he obtains it in any other fashion, the question of whether or not the evidence would be usable either by him or by subsequent counsel in the case is a matter of substantive and evidentiary law to be addressed by the court.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

26 27 28 29 30 31 32 NYCLA COMMITTEE ON PROFESSIONAL ETHICS

FORMAL OPINION

No.: 743

Date Issued: May 18, 2011

TOPIC: Lawyer investigation of juror internet and social networking postings during conduct of trial.

DIGEST:

It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror, but must not "friend," email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of juror misconduct, including deliberations that violate the court's instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer's client, but must promptly comply with Rule 3.5(d) and bring such misconduct to the attention of the court before engaging in any further significant activity in the case.

RULES:

RPC 3.5, 4.1, 8.4

QUESTION:

After voir dire is completed and the trial commences, may a lawyer routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites? If so, what are the lawyer's duties to the court under Rule of Professional Conduct 3.5?

OPINION:

This opinion considers lawyer investigations of jurors during an ongoing trial. With the advent of internet-based social networking services, additional complexities are introduced to the traditional rules barring contact between lawyers and jurors during trials.

New York RPC 3.5(a)(4) and (a)(5) provide that a lawyer shall not:

379003.1

33 4. communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case, or, during the trial of a case with any member of the jury unless authorized to do so by law or court order;

5. communicate with a juror or prospective juror after discharge of the jury if (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer a desire not to communicate; (iii) the communication involves misrepresentation, coercion, duress or harassment; or (iv) the communication is an attempt to influence the juror's actions in future jury service . . . .

Thus, the rules proscribe any direct or indirect communication with a juror or potential juror during trial, and prohibit certain categories of communication after the jury service is complete. It should also be noted that the RPC prevent a lawyer from doing indirectly, such as through a proxy, that which is directly proscribed for the lawyer. (RPC 8.4(a); 3.5).

A. Impermissible Communication

The RPC explicitly draw a distinction between conduct during trial, which is governed by RPC 3.5(a)(4), and conduct after discharge of the jury, which is regulated less strictly under RPC 3.5(a)(5). In fact, a lawyer's contact with jurors is divided, at least in practice, into three distinct areas. These are voir dire or jury selection, actual conduct of the trial, and post-verdict contact with jurors. As mentioned, any contact, direct or indirect, is proscribed as a matter of attorney ethics during the conduct of the trial, but permitted with certain conditions after discharge pursuant to RPC 3.5(a)(5).

Some authorities have examined a lawyer's use of internet resources to investigate potential jurors in the voir dire stage. For example, one recent Missouri decision considered and set aside a jury verdict in which a juror had specifically denied (falsely) any prior jury service. See Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010). In holding that the juror had acted improperly, the Court observed that a more thorough investigation of the juror's background would have obviated the need to set aside the jury verdict and conduct a retrial. The trial court chided the attorney for failing to perform internet research on the juror, and granted a new trial, observing that a party should use reasonable efforts to examine the litigation history of potential jurors. 306 S.W. 3d at 559. A New Jersey appellate court similarly held that the plaintiff counsel's use of a laptop computer to google potential jurors was permissible and did not require judicial intervention for fairness concerns. See Carino v. Muenzen, No. A-5491-08T1, N.J. Super. Unpub. LEXIS 2154, at *26-27 (App. Div. Aug. 30, 2010); see also Jamila A. Johnson, "Voir Dire: to Google or Not to Google" (ABA Law Trends and News, GP/Solo & Small Firm Practice Area Newsletter, Fall 2008, Volume 5, No. 1).

In another context, the New York State Bar Association Committee on Professional Ethics, in Ethics Opinion 843, recently considered whether a lawyer could ethically access the publicly available social networking page of an unrepresented party or witness for use in litigation, including possible impeachment. The NYSBA concluded that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer's client in litigation as long as the party's profile is available to all members in the network and the lawyer neither

379003.1

34 "friends" the other party nor directs someone else to do so."1 Drawing an analogy to jurors, we conclude that passive monitoring of jurors, such as viewing a publicly available blog or Facebook page, may be permissible.

During a trial, however, lawyers may not communicate with jurors outside the courtroom. Not only is direct or indirect juror contact during trial proscribed as a matter of attorney ethics, as a matter of law (which is outside the scope of this committee's jurisdiction), the courts proscribe any unauthorized contact between lawyers and sitting jurors.

Significant ethical concerns would be raised by sending a "friend request," attempting to connect via LinkedIn.com, signing up for an RSS feed for a juror's blog or "following" a juror's Twitter account. We believe that such contact would be impermissible communication with a juror.

Moreover, under some circumstances a juror may become aware of a lawyer's visit to the juror's website.2 If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites, the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.

B. Reporting Juror Misconduct

Lawyers who learn of impeachment or other useful material about an adverse party, assuming that they otherwise conform with the rules of the court, have no obligation to come forward affirmatively to inform the court of their findings. Such lawyers, absent other obligations under court rules or the RPC, may sit back confidently, waiting to spring their trap at trial.3 On the other hand, a lawyer who learns of juror impropriety is bound by RPC 3.5 to promptly report such impropriety to the court. That rule provides that: "A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge." RPC 3.5(d).

The standard jury charge in a civil or criminal case instructs jurors not to discuss the case with anyone outside the courtroom, not to conduct any independent investigation, not to view the scene of the incident through computer programs such as Google Earth, and not to perform any independent research on the internet. See PJI 1:10, 1:11. According to the New York pattern jury instruction:

1 See NYSBA Ethics Op. 843, http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID= 43208 at 2-3

2 For example, as of this writing, Twitter apparently conveys a message to the account holder when a new person starts to "follow" the account, and the social networking site LinkedIn provides a function that allows a user to see who has recently viewed the user’s profile. This opinion is intended to apply to whatever technologies now exist or may be developed that enable the account holder to learn the identity of a visitor.

3 Lawyers should keep in mind that RPC 3.4 provides that a lawyer shall not "disregard or advise the client to disregard a standing rule of a tribunal. . .."

379003.1

35 It is important to remember that you may not use any internet services such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties or the lawyers or the court.

Jurors have sometimes ignored instructions. For example, a New York juror googled defense 4 counsel during trial, and discussed it at a social dinner. A prominent television newscaster was criticized for tweeting on his Twitter account about his own jury service.5 In a recent South Dakota case, a jury verdict was set aside after a juror performed his own internet research, which 6 he shared with the other jurors.

Any lawyer who learns of juror misconduct, such as substantial violations of the court's instructions, is ethically bound to report such misconduct to the court under RPC 3.5, and the lawyer would violate RPC 3.5 if he or she learned of such misconduct yet failed to notify the court. This is so even should the client notify the lawyer that she does not wish the lawyer to comply with the requirements of RPC 3.5. Of course, the lawyer has no ethical duty to routinely monitor the web posting or Twitter musings of jurors, but merely to promptly notify the court of any impropriety of which the lawyer becomes aware.

Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement negotiations. The lawyer may not research a juror's social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must "promptly" notify the court of the impropriety—i.e., before taking any further significant action on the case.

CONCLUSION:

It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not "friend" the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of juror misconduct, including deliberations that violate the court's instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer's client, but must promptly

4 People vs. Jamison, 24 Misc. 3d 1238A, 243 N.Y.L.J. 42 (2006).

5 Michael Hoenig, Juror Misconduct on the Internet, N.Y.L.J. October 8, 2009.

6 Russo vs. Takata Corp., 2009 S.D. 83, 2009 S.D. Lexis 155 (Sept. 16, 2009).

379003.1

36 comply with RPC 3.5(d) and bring such misconduct to the attention of the court, before engaging in any further significant activity in the case.

379003.1

37 38 39 40 41

NYCLA COMMITTEE ON PROFESSIONAL ETHICS FORMAL OPINION No. 737 Date Issued: 5/23/07

TOPIC: Non-government lawyer use of investigator who employs dissemblance

DIGEST: In New York, while it is generally unethical for a non-government lawyer to knowingly utilize and/or supervise an investigator who will employ dissemblance in an investigation, we conclude that it is ethically permissible in a small number of exceptional circumstances where the dissemblance by investigators is limited to identity and purpose and involves otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who dissemble would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the “Code”) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available. This opinion does not address the separate question of direction of investigations by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. This opinion also does not address whether a lawyer is ever permitted to make dissembling statements directly himself or herself.

CODE: DR 1-102(a)(2)(3)(4), DR 1-104(d), DR 5-102, DR 7-102(a)(5), DR 7-104

QUESTION: Under what circumstances, if any, is it ethically permissible for a non- government lawyer to utilize the services of and supervise an investigator if the lawyer knows that dissemblance will be employed by the investigator?

OPINION:

The word “dissemble” is defined as follows: “To give a false impression about (something); to cover up (something) by deception (to dissemble the facts).” Black’s Law Dictionary (8th ed. 2004).

DR 1-102(a)(3) provides: “A lawyer or law firm shall not . . . engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” (emphasis added). DR 1-102(a)(4) of the Code provides: “A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” (emphasis added). DR 7-102(a)(5) provides, “In the representation of a client, a lawyer shall not knowingly make a false statement of law or fact.” DR 1-104(d) provides, in relevant part, that a lawyer shall be responsible for a violation of the disciplinary rules by another lawyer or non-lawyer through involvement, knowledge or supervisory authority if the lawyer orders, or directs the specific conduct, or, with knowledge of the specific conduct, ratifies it.

DR 1-102(a)(2) of the Code provides, “A lawyer or law firm shall not . . . circumvent a Disciplinary Rule through actions of another.” (emphasis added).

Accordingly, when a lawyer is faced with the option of hiring an investigator who intends to employ dissemblance in order to gather certain evidence1, the lawyer must consider whether the Code of Professional Responsibility permits the lawyer to proceed.

A plain reading of DR 1-102(a)(4) (the “Honesty Rule”), DR 7-102(a)(5) (the “False Statement Rule”), together with DR 1-102(a)(2) and DR 1-104(d), (“the Integrity Rules”), on their face leave little doubt that “dissemblance” is ethically impermissible in New York if dissemblance is deemed equivalent to “dishonesty, fraud, deceit, or misrepresentation.” Moreover, the legality, vel non, of the specific conduct also has a bearing on whether the conduct is covered within the meaning of DR 1-102(a)(3).

Importantly, dissemblance is distinguished here from dishonesty, fraud, misrepresentation, and deceit by the degree and purpose of dissemblance. For purposes of this opinion, dissemblance refers to misstatements as to identity and purpose made solely for gathering evidence. It is commonly associated with discrimination and trademark/copyright testers and undercover investigators and includes, but is not limited to, posing as consumers, tenants, home buyers or job seekers while negotiating or engaging in a transaction that is not by itself unlawful. Dissemblance ends where

1 This opinion only addresses the situation in which the investigator acts as the lawyer’s agent as opposed to the client’s agent. See, e.g., Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693, 695-6 (8th Cir. 2003) (lawyers had “retained” the investigator and directed the investigator’s conduct). The question of agency will likely depend on the facts and circumstances. See, e.g., Allen v Int’l Truck & Engine, 2006 U.S. Dist. LEXIS 63720 at *22-25 (S.D. Ind. 2006) (analysis of counsel’s level of involvement in investigation).

43 misrepresentations or uncorrected false impressions rise to the level of fraud or perjury2, communications with represented and unrepresented persons in violation of the Code, see DR 7-104, or in evidence-gathering conduct that unlawfully violates the rights of third parties. See also David B. Isbell & Lucantonio Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under The Model Rules of Professional Conduct, 8 Geo. J. Legal Ethics 791, 817 (Summer 1995) (“[ABA Model] Rule 8.4(c) applies to conduct by a lawyer in a private capacity that is so grave as to call into question the lawyer’s fitness to practice law . . . .”).

This opinion does not address the separate question of direction of investigations by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. Such investigations, which are discussed approvingly in United States of America v. Parker, 165 F. Supp. 2d 431, 476 (W.D.N.Y. 2001), are outside the scope of this opinion. This opinion also does not address whether a lawyer is ever permitted to himself or herself make dissembling statements directly.

Survey of Authorities

We are aware of only three jurisdictions that have adopted explicit rule-based exceptions for the use of dissemblance in an investigation; two of which are limited to government lawyers: Oregon,3 Alabama4 and Florida5. There is no explicit rule-based exception permitting the use of dissemblance in New York. Accordingly, any ethically permissible use of dissemblance must rely on existing case law and ultimately on a principles-based determination.

Nor can we look to the ABA for firm guidance. In its opinion on surreptitious recording, the ABA left “for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical.”6 Aside from D.C. Opinion 323 (2004) and Oregon Opinion 2005-173, which interpret certain language in Oregon’s explicit exception for “covert activity” (Rule 8.4(b)), we are aware of one other ethics opinion, from Utah, on the subject of

2 See, e.g., In the Matter of Malone, 105 A.D. 2d 455; 480 N.Y.S.2d 603 (Third Dept 1984) (New York State Corrections Inspector General, a lawyer, advised informant to lie in arbitration testimony in order to protect the informant from retribution by fellow correctional officers; the lawyer was censured as a result). 3 Oregon’s Rule 8.4(b) provides an exception for lawyers to advise clients or supervise “lawful covert activity” in the investigation of violations of “civil or criminal law or constitutional rights” provided the conduct is otherwise in compliance with Oregon’s Rules of Professional Conduct and that “the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.” See also Oregon Opinion 2005-173 (interpreting “advise and supervise” to mean a lawyer may not “participate directly” in the covert activity). 4 Alabama’s Rule 3.8(2) permits a government prosecutor to advise and order “any action that is not prohibited by law” and to have “limited participation in the action.” 5 Florida’s Rule 4-8.4(c) permits a government lawyer to supervise an “undercover investigation.” 6 ABA 01-422.

44 dissemblance in investigations.7 Utah’s Opinion 02-05 (2002) concludes that a government lawyer “who participates in a lawful covert governmental operation” that uses dissemblance “does not, without more, violate the Rules of Professional Conduct.”

Certain federal district courts have declined to suppress evidence gained through investigative dissemblance. In Gidatex, Judge Shira Scheindlin noted: “As for DR 1- 102(a)(4)'s prohibition against attorney ‘misrepresentations’, hiring investigators to pose as consumers is an accepted investigative technique, not a misrepresentation.”8 In Cartier v. Symbolic, Inc., the same court cited Gidatex in refusing to find that Cartier’s use of an investigator demonstrated its consent to any alleged trademark infringement.9 The New Jersey District Court in Apple Corps stated that the Honesty Rule does “not apply to misrepresentations solely as to identity or purpose and solely for evidence- gathering purposes.”10 The court rested its conclusion on the prevailing understanding in the legal profession, as evidenced in part by other courts’ decisions11 and on statutory construction.12

More recently, another federal district court cited Gidatex for the proposition that, “prohibition against attorney misrepresentations in DR1-102(a)(4) is not applicable to use of undercover investigations initiated by private counsel in trademark infringement case.” United States of America v. Parker, 165 F. Supp. 2d 431, 476 (W.D.N.Y. 2001) (upholding undercover law enforcement sting operation supervised by prosecutor).

While Gidatex and Parker appear to judicially sanction, as ethically permissible, the use of dissemblance in investigations, the specific issue of whether the use of dissemblance in investigations is ethical was not the actual holding in both cases. Much if not all of the judicial commentary on the issue of the ethical use of dissemblance is dicta. The Gidatex court observed that, “a court is not obligated to exclude evidence even if it finds that counsel obtained the evidence by violating ethical rules.” Gidatex, 82 F. Supp. 2d at 126 (emphasis in the original). Similarly, the Parker court also observed that, “even if the alleged misconduct, attributed by Defendants to the Government attorneys in this case, were deemed an ethical violation, and the relevant disciplinary rule were applicable to the instant facts, such does not warrant use of the exclusionary rule as a remedy for such violation.” Parker, 165 F. Supp. 2d at 477 (internal citations omitted). Simply put, these cases dealt primarily with the issue of admissibility of evidence -- not with the ethical issues in obtaining it.

Other courts throughout the country have struggled with this issue to mixed results. The Eighth Circuit in Midwest Motor Sports called for the suppression of evidence because it believed the attorneys could have obtained the

7 Cf., Ala. Opinion Ro-89-31 (permitting a lawyer to direct an investigator to pose as a customer in order to determine whether plaintiff lied about his injuries). 8 Gidatex v. Campaniello Imports, Ltd., 82 F. Supp.2d 119, 122 (S.D.N.Y. 1999). 9 Cartier v Symbolix, Inc., 2006 U.S. Dist. LEXIS 71446 at *20 (S.D.N.Y. 2006). 10 Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456, 475 (D. N.J. 1998) 11 Id. (citations omitted). 12 Id. at 475-576. New Jersey’s False Statement rule includes the word “material” unlike New York’s rule.

45 information through “formal procedures, such as a motion to compel.”13 Likewise the Supreme Court of Wisconsin in In re Wood held that an attorney in a dispute with a former client violated the Honesty Rule when he hired an investigator to pose as the former client in order to obtain a document, which “could have been subpoenaed.”14 In Allen v. Int’l Truck & Engine, the U.S. District Court for the Southern District of Indiana suppressed evidence because a company had sent investigators to talk to employees internally in response to allegations of racial hostility by plaintiff-employees, knowing that some of the employees were represented by counsel in the matter.15

On the other hand, the Seventh and Tenth Circuits have explicitly authorized the use of “testers” in racial discrimination cases, the Seventh Circuit noting that the “deception was a relatively small price to pay to defeat racial discrimination.”16 And the U.S. Supreme Court has upheld the standing of “testers” in such cases.17

The public and profession’s expectations with respect to dissemblance in investigations may evolve over time, and rules such as the Dishonesty Rule must be applied in the light of reason and experience 18 While we recognize that there is no nationwide consensus on this issue at this time, we conclude that the conduct approved by a number of courts as discussed above is most consistent with the overall purposes of the Disciplinary Rules and conforms to professional norms and societal expectations. Non-government attorneys may therefore in our view ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably available through other lawful

13 Midwest Motor Sports v. Arctic Cat Sales Inc., 347 F.3d 693, 700 (8th Cir. 2003). The court observed that the investigator’s surreptitious recording combined with the fact that counsel had violated the no- contact rule should result in suppression. Midwest at 699. See also Hill v Shell Oil Company, 209 F. Supp. 2d 876, 880 (E.D. Ill. 2002) (noting a “discernable continuum in the cases from clearly impermissible to clearly permissible conduct.”). 14 In re Wood, 190 Wis. 2d 502; 526 N.W.2d 513, 514 (Wisc. 2005). 15 Allen v Int’l Truck & Engine, 2006 U.S. Dist. LEXIS 63720 at *25-26 (S.D. Ind. 2006) 16 Richardson v. Howard, 712 F.2d 319, 321-22 (7th Cir. 1983); Hamilton v. Miller, 477 F.2d 908, 909 n.1 (10th Cir. 1973). The U.S. Supreme Court defined a “tester” as “an individual who, without an intent to rent or purchase a home or apartment, poses as a renter or purchaser for the purpose of collecting evidence of unlawful steering practices.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373; 71 L. Ed., 2d 214, 225 ; 201 S. Ct. 1114, 1121 (1982). 17 Havens Realty Corp. v. Coleman, 455 U.S. 363, 373; 71 L. Ed., 2d 214, 225 ; 201 S. Ct. 1114, 1121 (1982). 18 See, e.g., N.Y. State 328 (1974) (secret taping impermissible except under “extraordinary” circumstances); N.Y. County 696 (1993) (secret taping permissible where one party has consented); ABA 01-422 (taping permitted if legal and lawyer does not falsely deny the fact of recording); N.Y. City 2003-2 (permitting non-routine taping in “pursuit of a generally accepted societal good”). See also ABA 06-439 (in negotiations, posturing or puffery “are statements upon which parties to a negotiation ordinarily would not be expected justifiably to rely.”)

46 means19; and (iii) the lawyer’s conduct and the investigators’ conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the “no-contact” rule) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. Moreover, the investigator must be instructed not to elicit information protected by the attorney-client privilege.

CONCLUSION:

A plain reading of New York’s Code of Professional Responsibility supports the view that it is generally unethical for a non-government lawyer to utilize and/or supervise an investigator who will employ dissemblance in an investigation if the dissemblance is unlawful; rises to the level of fraud or perjury; unlawfully violates the rights of third parties; otherwise violates the Code, or where other lawful means of obtaining evidence is available. Nevertheless, under certain exceptional conditions as set forth in this opinion, dissemblance by a non-attorney investigator supervised by an attorney is ethically permissible. Lawyers who supervise investigators employing dissemblance, however, should interpret these exceptions narrowly.

19 See Midwest Sports and Wood decisions described supra. In Pautler, the court noted that the DA “had several choices” other than dissemblance in pursuing the suspect’s apprehension. Pautler at 1180.

47 NYSBA | Ethics Opinion 843 Page 1 of 2

NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics

Opinion 843 (9/10/10)

Topic: Lawyer's access to public pages of another party's social networking site for the purpose of gathering information for client in pending litigation.

Digest: A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.

Rules: 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c)

QUESTION

1. May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network?

OPINION

2. Social networking services such as Facebook and MySpace allow users to create an online profile that may be accessed by other network members. Facebook and MySpace are examples of external social networks that are available to all web users. An external social network may be generic (like MySpace and Facebook) or may be formed around a specific profession or area of interest. Users are able to upload pictures and create profiles of themselves. Users may also link with other users, which is called “friending.” Typically, these social networks have privacy controls that allow users to choose who can view their profiles or contact them; both users must confirm that they wish to “friend” before they are linked and can view one another’s profiles. However, some social networking sites and/or users do not require pre- approval to gain access to member profiles.

3. The question posed here has not been addressed previously by an ethics committee interpreting New York’s Rules of Professional Conduct (the "Rules") or the former New York Lawyers Code of Professional Responsibility, but some guidance is available from outside New York. The Philadelphia Bar Association’s Professional Guidance Committee recently analyzed the propriety of “friending” an unrepresented adverse witness in a pending lawsuit to obtain potential impeachment material. See Philadelphia Bar Op. 2009-02 (March 2009). In that opinion, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial. The witness’s Facebook and MySpace pages were not generally accessible to the public, but rather were accessible only with the witness’s permission (i.e., only when the witness allowed someone to “friend” her). The inquiring lawyer proposed to have the third party “friend” the witness to access the witness’s Facebook and MySpace accounts and provide truthful information about the third party, but conceal the association with the lawyer and the real purpose behind “friending” the witness (obtaining potential impeachment material).

4. The Philadelphia Professional Guidance Committee, applying the Pennsylvania Rules of Professional Conduct, concluded that the inquiring lawyer could not ethically engage in the proposed conduct. The lawyer’s intention to have a third party “friend” the unrepresented witness implicated Pennsylvania Rule 8.4(c) (which, like New York’s Rule 8.4(c), prohibits a lawyer from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”); Pennsylvania Rule 5.3(c)(1) (which, like New York’s Rule 5.3(b)(1), holds a lawyer responsible for the conduct of a nonlawyer employed by the lawyer if the lawyer directs, or with knowledge ratifies, conduct that would violate the Rules if engaged in by the lawyer); and Pennsylvania Rule 4.1 (which, similar to New York’s Rule 4.1, prohibits a lawyer from making a false statement of fact or law to a third person). Specifically, the Philadelphia Committee determined that the proposed “friending” by a third party would constitute deception in violation of Rules 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).

5. Here, in contrast, the Facebook and MySpace sites the lawyer wishes to view are accessible to all members of the network. New York’s Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network). Obtaining information about a

48 http://www.nysba.org/AM/PrinterTemplate.cfm?Section=Ethics_Opinions&TEMPLATE... 10/25/2011 NYSBA | Ethics Opinion 843 Page 2 of 2

party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted. [1] Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.

CONCLUSION

6. A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not "friend" the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).

(76-09)

[1] One of several key distinctions between the scenario discussed in the Philadelphia opinion and this opinion is that the Philadelphia opinion concerned an unrepresented witness, whereas our opinion concerns a party – and this party may or may not be represented by counsel in the litigation. If a lawyer attempts to “friend” a represented party in a pending litigation, then the lawyer’s conduct is governed by Rule 4.2 (the “no-contact” rule), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer. If the lawyer attempts to “friend” an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3, which prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer's role, and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party's interests are likely to conflict with those of the lawyer's client. Our opinion does not address these scenarios.

Related Files Lawyers access to public pages of another partys social networking site for the purpose of gathering information for client in pending litigation. (Adobe PDF File)

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49 http://www.nysba.org/AM/PrinterTemplate.cfm?Section=Ethics_Opinions&TEMPLATE... 10/25/2011 50 51 52 53 After Padilla v Kentucky ---- What Defense Attorneys Need to Know 4 Joanne Macri, New York State Defenders Association Appendix A: The Facts about ICE ACCESS Appendix B: Newest ICE Form, I 247Detainer Appendix B: ICE 2010 I 247Detainer Form Appendix C: ICE Citizenship Claims Memo Appendix D: Prosecutorial Discretion Memo Appendix E: Bail Determination Chart Appendix F: NYSDA Padilla Advisory Appendix G: Immigration Consequences Chart Appendix H1: Sample Jail Letter Appendix H2: Form G28 Notice of Entry of Appearance as Attorney or Accredited Representative Appendix H3: Online Detainee Locator System (ODLS) English and Spanish Final Immigration Detainer Advisory

After Padilla v. Kentucky: What Defense Attorneys Need to Know

New York County Lawyer’s Association CLE Institute Criminal Trial Advocacy Institute

New York City, NY November 3-4, 2011

The NYSDA Criminal Defense Immigration Project is sponsored in part by a grant from the New York Bar Foundation IMMIGRATION ENFORCEMENT & THE NYS CRIMINAL JUSTICE SYSTEM IMMIGRATION ENFORCEMENT: PLAYERS?

Dept. of Homeland ICE’s Criminal Alien, Security Secure Communities and INA 287(g) programs facilitate (Homeland Security the collection of information. Act of 2002)

Citizenship and Immigration and Customs and Immigration Customs Border Border Patrol Services Enforcement Protection (CIS) (ICE) (CBP)

“ICE ACCESS” collaboration with law enforcement agencies Deportations/Removals Based on Criminal Conviction (1993 - 2010)

DHS Secretary Napolitano’s October 2010 Announcement of record-breaking statistics for immigration enforcement of “criminal aliens” Increasing Federal Immigration Enforcement and State and Local Collaboration ICE ACCESS = AGREEMENTS OF COOPERATION IN COMMUNITIES TO ENHANCES SAFETY AND SECURITY SECURE COMMUNITIES

www.ice.gov/pi/news/factsheets/secure_communities.htm STATUS OF SECURE COMMUNITIES PROGRAM NATIONWIDE

Map and grid published by Deportation Nation at http://www.deportationnation.org/

FBI BIOMETRICS THE NEXT GENERATION Who is at risk of removal? And How?

REVIEW WHO CAN BE REMOVED?

= SUBJECT TO REMOVAL FROM THE U.S. PERMANENT RESIDENT CARD

Review issuance and expiration dates of Permanent Resident Check Alien Registration Card Number to Confirm Whether in Removal Proceedings RESIDENT ALIEN CARD: OLDER VERSION

NOTE: No expiration date listed FORMER EMPLOYMENT AUTHORIZATION

code identifies type of pending “(a)(12)” = TPS or granted immigration “(a)(5)” status. = asylum of

8 CFR §274a.12 NEWER EMPLOYMENT AUTHORIZATION

Check Alien Registration Number to Confirm Whether in Removal Proceedings NEWEST EMPLOYMENT AUTHORIZATION

Check Alien Registration Number to Confirm Whether in Removal Proceedings HELPFUL INFORMATION NAME, DATE AND COUNTRY OF BIRTH ALIEN REGISTRATION NUMBER (“A” #) COPY OF IMMIGRATION DOCUMENTS PRIOR CRIMINAL HISTORY LAST & FIRST LAWFUL ADMISSION TO U.S.

USES: Locating Client: ICE Locator https://locator.ice.gov/ Pending or Prior Immigration Hearing: Immigration Court (EOIR) hotline at 1-800-898-7180 Assessing Immigration Consequences: NYS RAP Sheet (also contains prior deportation orders) IMMIGRATION DETAINERS: & DEFENSE STRATEGIES

Preparing for the “ICE” Age WHAT IS AN IMMIGRATION DETAINER?

IMMIGRATION DETAINER is a “hold” that will prevent a client’s release. Pursuant to 8 C.F.R. Sec. 287.7(a): “… is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate custody is either impracticable or impossible.” (emphasis added) WHAT IS AN IMMIGRATION DETAINER?

Pursuant to 8 C.F.R. Sec. 287.7(d): “… such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” (emphasis added) AN IMMIGRATION DETAINER IS NOT… equivalent to a judicial warrant for arrest or criminal detainer a guarantee or authorization of ICE detention evidence that a defendant is subject to removal from the US evidence that a defendant is deemed a danger to the community or a flight risk an instrument that allows for detention beyond the requisite 48-hour period a tool that permits law enforcement to engage in warrantless arrests/searches or unlawful stops that are premised on ethnic and/or racial profiling supported by any legal standard of proof FORM I-247 IMMIGRATION DETAINER

Alien Registration Number or “A” #

Prior removal from The U.S. - possible federal prosecution

“notification purposes only”… “does not limit your discretion…”

ICE contact telephone number ADVISING NONCITIZENS IN DETENTION: The DO’s and DON’T’s

DON’T advise person to lie to ICE. DO advise person of right to remain silent. DO advise person of right not to sign anything without consultation with an attorney. DO advise person to say to police and/or ICE, “Please talk with my attorney” or “I will not speak until my attorney is present.” DETAINERS AND PRE-TRIAL DETENTION: PRACTICE TIPS ¾ Assert Fifth Amendment right against self-incrimination ¾ Assert right to consular assistance in accordance with the Vienna Convention on Consular Relations ¾ Investigate basis for stop and arrest (i.e., move to suppress) NOTE: Detainer should not be issued during Terry stop ¾ ICE detainer and/or detention cannot be used to toll or circumvent speedy trial calculations (i.e., ICE detainer does not constitute “custody” or a “proceeding” ¾ Advocate for prosecutorial discretion by ICE (i.e., to suspend/cancel the immigration detainer or to consider an administrative bond (See ICE Director Morton, June 17, 2011 Memorandum on Prosecutorial Discretion) DISCRETION IN IMMIGRATION PROSECUTION ICE MAY EXERCISE DISCRETION ON THE SUSPENDING AN IMMIGRATION DETENTION AND/OR PROSECUTION IF THE NONCITIZEN IS: a military veteran or member of the U.S. armed forces; a long-time lawful permanent resident (i.e., green card holder); a minor or elderly person; a person present in the United States since childhood; a pregnant or nursing women; a victim of domestic violence; trafficking, or other serious crime; a person who suffers from a serious mental or physical disability; and/or a person with serious health conditions.

See memorandum entitled, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” dated June 17, 2011 issued by ICE Director, John Morton. Take Away Points for Criminal Defenders

Bail out before client enters jail to avoid detection through CAP Advise client to refuse an interview with ICE officials If ICE interviews the client, advise the client to remain silent and only ask for his/her attorney If a detainer has been lodged, explain how criminal bail and immigration bond interact to avoid early entry into the immigration detention system Be mindful of the 48 hour rule after criminal custody has terminated - request release from the jail if the 48 hour period has expired GROUNDS FOR REMOVAL

and CASE UPDATES

DEPORTABILITY vs. INADMISSIBILITY CRIMINAL GROUNDS OF DEPORTABILITY AGGRAVATED FELONY = MANDATORY DEPORTATION

AVOID THE “AGGRAVATED FELONY” GROUND OF DEPORTABILITY Some reasons why: ¾ Bars almost all forms of relief from removal available from an immigration judge so that deportation is a near certainty ¾ Triggers mandatory detention without bond ¾ Permanently bars return to the US after deportation CRIMINAL GROUNDS OF DEPORTABILITY

VERY BAD!!! AGGRAVATED FELONY: SEXUAL ABUSE OF A MINOR

Includes “broad . . . spectrum of sexually abusive behavior” against minors See Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) – NY PL § 130.25, Includes misdemeanor offense of sexual abuse of a minor

Examples: NYPL §130.20(1),(2), sexual misconduct (class A) or NY PL §130.55 sexual abuse, (class B) See Matter of Small, 23 I&N Dec. 448 (BIA 2002) AGGRAVATED FELONY: SEXUAL ABUSE OF A MINOR

Includes offenses that may not involve sexual touching Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) (i.e., Board of Immigration Appeals found that indecency with a child by exposure pursuant to Tex. Penal Code § 21.11(a)(2) constitutes AF SAM)

Will likely include review of the Record of Conviction for most NY Penal Law sexual offenses Ganzhi v. Holder, ___ F.3d ___, 2010 WL 3465604 (2d Cir. 2010) – N.Y. PENAL LAW § 130.20(1) = divisible statute requiring review of record of conviction

AGGRAVATED FELONY: DRUG TRAFFICING CRIMES

USSC state drug offense = drug felony under federal law as punishable under CSA 18 USC § 924(c)(2) See Lopez v. Gonzales, 549 U.S. 47 (2006); see also Carachuri- Rosendo v. Holder, 130 S.Ct. 2577 (2010)

Controlled Substances Act, 18 USC § 924(c)(2)) (ex. punishes drug distribution and possession with intent to sell) AGGRAVATED FELONY: DRUG TRAFFICING CRIMES If a second or subsequent drug possession offense is prosecuted a recidivist possession felony offense under federal law - may be deemed an aggravated felony drug trafficking offense.

Therefore, a New York State second or subsequent drug possession offense may be deemed an aggravated felony if it is prosecuted as a recidivist offense and if the earlier drug possession conviction(s) are final and not on appeal.(NYPL § 70.06); See Alsol v. Mukasey; Powell v. Mukasey, 548 F.3d 207 (2nd Cir.).

AGGRAVATED FELONY: DRUG TRAFFICING CRIMES

EXCEPTIONS TO AF DRUG OFFENSES: ¾ Offer to sell (not penalized under federal law); ¾ Distribution of small amount of certain controlled substances (ex. codeine, in a larger mixture or preparation with medicinal qualities = felony misdemeanor); ¾ Gratuitous (Free) distribution of small amount of marijuana = federal misdemeanor AGGRAVATED FELONY: EXCEPTION: “offer to sell”

NY sale offenses include “offers to sell” NY PL § 220.00(1) “sell” includes to “sell, exchange, give or dispose of to another, or to offer or agree to do the same.” If NY PL § 220.14 involves “offer to sell,” which is not an offense under the CSA, it is not categorically a drug trafficking aggravated felony See Davila v. Holder, 2010 U.S. App. LEXIS 12230 (5th Cir. 2010) – Review of Record of Conviction required in this divisible AGGRAVATED FELONY: EXCEPTION: free distribution

21 USC § 841(b)(4) creates exception to felony treatment of drug sale: if distribution is of a “small” amount of marijuana “without remuneration” (= treatment as a federal misdemeanor or less pursuant to 8 21 USC § 844 and 18 USC § 3607)

AGGRAVATED FELONY: EXCEPTION: free distribution Sale of Marijuana, 5th degree & 4th degree – case law include free transfers of small amounts of marijuana (3rd, 4th an 5th Circuits) NY PL § 221.40, criminal sale of marijuana in 4th degree is NOT a drug- trafficking aggravated felony if it involves distribution of a small amount of marijuana for NO remuneration. – BE AWARE OF ROC!!! See Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008). AGGRAVATED FELONY: CRIME OF VIOLENCE + 1 year As defined in 18 U.S.C. § 16: (a)an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b)any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. AGGRAVATED FELONY: RELATING TO EXPLOSIVE MATERIALS

Attempted Arson in the third degree (NY PL § 110/150.10) = Aggravated Felony as an offense described in18 USC § 842(h) or (i), or § 844(d), (e), (f), (g), (h), or (i) (relating to explosive materials)

(NOTE: Even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. BIA followed an earlier decision in Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002). AGGRAVATED FELONY: PROSTITUTION BUSINESS OFFENSES Promoting Prostitution in the third degree (NY PL §§ 20.00 and 230.25) is NOT AN AGGRAVATED FELONY as defined in INA § 101(a)(43)(K)(i)(i.e., defines conduct relating to "the owning, controlling, managing or supervising of a prostitution business" to be an aggravated felony). NOTE: New York's definition of "prostitution" is broader than the INA's applicable definition, which includes only sexual intercourse for hire. Employing the categorical approach, the Second Circuit US Court of Appeals - "[i]f the criminal statute punishes conduct that falls outside of the INA's definition, then the crime does not constitute an aggravated felony." See Prus v. Holder, 10-599-ag, 6 (2d Cir. September 28, 2011) (quoting Richards v. Ashcroft, 400 F.3d 125, 128 (2d Cir. 2005)). CRIMINAL GROUNDS OF DEPORTABILITY

(continued) NY STATE OFFENSES: CIMT????

Probable/definite CIMTs: Possible CIMTs: All felony assaults: Article 120 Assault 3rd degree: Misdemeanor assault: 120.00(2) 120.00(1) CD/DVD sales: 275.35 Grand and petit larceny: CPSP: Article 165 Article 155 Aggravated unlicensed Criminal possession of a driving: VTL 511(2); VTL weapon 4th degree: (intent to 511(3)(a)(i); VTL 1192 use) 265.01(2) Sex offenses: Article 130 CD/DVD sales: 165.71 CRIMES OF DOMESTIC VIOLENCE

Deportable for conviction of any “crime of violence” against a person committed by:

Current or former spouse; Individual with whom person shares a child in common; Individual now or before cohabiting with person as a spouse; Individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs; or Any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the US or any State, Indian tribal government, or unit of local government. CRIMES OF DOMESTIC VIOLENCE Includes offenses with ALL of the following elements: (1) a conviction; (2) after lawful admission to the U.S.; (3) occurring “after” September 30, 1996; (4) listed as a crime of violence offense, i.e., (a) a crime of violence which is a crime against the person as defined in 18 U.S.C.§16(a) and 18 U.S.C. §16(b), (5) committed against: (a) a DV protected person, or (b) stalking, or (c) child abuse, neglect, or abandonment. CRIMINAL GROUNDS OF INADMISSIBILITY CRIMINAL GROUNDS OF INADMISSIBILITY

“CONVICTION” or “ADMISSION”

•Drugs – no exception

•CIMT – petty offense exception Broad Definition of a “Conviction” CATEGORICAL APPROACH

Immigration Court will look solely to the elements and the nature of the offense of conviction, rather than to the particular facts relating to the noncitizen defendant’s crime.

See Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 381 (2004) CATEGORICAL APPROACH: EXAMPLES

Petit Larceny, NY PL § 155.25, (class A misd.) “A person is guilty of petit larceny when he steals property.”

Criminal possession of a forged instrument in the third degree, NY PL § 170.20 (class A misd) “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.” MODIFIED CATEGORICAL APPROACH When a criminal statute is not a categorical match to a “generic” definition of conviction but instead, includes elements of different criminal conduct (some are categorically grounds for removal and others are not), these statutes are considered divisible under some circumstances See Dulal-Whiteway v. DHS, 501 F.3d 116 (2d Cir. 2007)

But see Gonzales v. Duenas Alvarez, 549 U.S. ___, 127 S.Ct. 815 (2007) MODIFIED CATEGORICAL APPROACH: Divisible Statute?

Second Circuit found that a statute is divisible *ONLY where the offenses (i.e., both removable and non-removable offenses) are either listed in: different subsections or discrete elements that compose a disjunctive list of proscribed conduct

See Dulal-Whiteway v. DHS, 501 F.3d 116 (2d Cir. 2007) MODIFIED CATEGORICAL APPROACH: Divisible Statute – Discrete Subsections

Criminal Mischief in the fourth degree, NY PL § 145.00, (class A misd.) “A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he: (1) Intentionally damages property of another person; or (2) Intentionally participates in the destruction of an abandoned building as defined in section one thousand nine hundred seventy-one-a of the real property actions and proceedings law; or (3) Recklessly damages property of another person in an amount exceeding two hundred fifty dollars. MODIFIED CATEGORICAL APPROACH: Divisible Statute: Discrete Elements of a Disjunctive List

Hazing in the first degree, NY PL § 120.16, (class A misd.) “A person is guilty of hazing in the first degree when, in the course of another person`s initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury.” MODIFIED CATEGORICAL APPROACH: Divisible Statute?

Second Circuit – if statute is divisible, the immigration judge may look beyond the elements of the statute to determine if conviction falls within ground(s) of removal or makes applicant barred from application for relief from removal (i.e., application to avoid/waive removal) Immigration judge can review the: RECORD OF CONVICTION MODIFIED CATEGORIAL APPROACH: RECORD OF CONVICTION Limitation on documents that can be used under the modified categorical approach: The charging document Written plea agreement Transcript of plea colloquy and Any explicit findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms See U.S. v. Johnson, 130 S.Ct. 1265, 1273 (2010) MODIFIED CATEGORIAL APPROACH: NOT IN THE RECORD OF CONVICTION

Prosecutor’s remarks, Police reports, Probation or “pre-sentence” reports, Statements made outside of the judgment and sentencing transcript, (e.g., statement made to police or immigration authorities or the immigration judge), or Statements from co-defendants (EXCEPTION: Nijhawan v. Holder, 08-495 (June 15, 2009)) What Is a “Conviction” for Immigration Purposes?

“Conviction” (8 USC 1101(a)(48)(A), INA 101(a)(48)(A)):

FORMAL JUDGMENT OF GUILT entered by a court;

IF ADJUDICATION HAS BEEN WITHHELD, where:

a. A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and b. The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. WHICH NEW YORK DISPOSITIONS ARE “CONVICTIONS” ?

CONVICTION NOT A CONVICTION Formal judgment of guilt in adult Youthful offender disposition (even criminal court though entered in adult court) and (including NY Juvenile Offender juvenile delinquency* dispositions conviction) (*possibly not “conduct” grounds) Diversion, drug treatment or family Diversion, drug treatment or family counseling IF PLEA OR ADMISSION counseling IF PLEA OR ADMISSION OF GUILT made by defendant OF GUILT WAIVED** NYPL 216.05(4) Conditional Discharge Sentence or Adjournment in contemplation of Alford Plea dismissal Post Conviction Relief/Motion Conviction on direct appeal or pending on collateral challenge NYS late notice of appeal (460.30) Disposition vacated/expunged in Disposition vacated based on legal the “interest of justice” – based on defect in criminal case (i.e., NYCPL rehabilitation ONLY! 440.10 motion) “CONVICTION”: DIRECT APPEAL

Dismissal of a criminal appeal involving an involuntarily deported individual before the Appellate Division review of the appeal is completed = an abuse of discretion.

See People v. Ventura; People v. Gardner, 2011 NY Slip Op 07475 (10/25/2011). SAMPLE NOTICE TO APPEAR DEVELOPING OFFICE PROTOCOL

Post Padilla v. Kentucky STEP 1: INVESTIGATE THE FACTS ASK “WHERE WERE YOU BORN?” DETERMINE IMMIGRATION STATUS (i.e., 4 categories) DETERMINE LENGTH OF TIME IN U.S. (include info. of most recent trip abroad) DETERMINE “IMMEDIATE FAMILY”IN US OBTAIN INFO ON PRIOR CRIMINAL HISTORY Establish defense goals according to client’s priorities (i.e., include immigration priorities) STEP 2: DETERMINE CLIENT’S DEFENSE GOALS Review charge and/or plea offer Document client’s immediate goals on intake sheet Discuss and document long term goals (i.e., include immigration goals) Negotiate plea options that meet immigration goals Document the client’s file STEP 3: ANALYZE THE IMMIGRATION CONSEQUENCES Determine likelihood that charge/plea will trigger deportation, inadmissibility and/or naturalization Determine impact of charge/plea offer or sentence on “discretionary relief from removal” or other immigration status being sought (i.e., TPS status, LPR status, eligibility for citizenship, etc.) Document the client’s file STEP 4: PRIORITIZE CLIENT’S DEFENSE GOALS DEFEND ACCORDING TO CLIENT’S GOALS (short term vs. long term goals): Seeking and/or Posting bail? (i.e. ICE detainer) Negotiate plea/sentence that is non- deportable offense (i.e., 364 days vs. 365) Seek plea colloquy or sentencing record that will support immigration goals Assist in filing a direct appeal PADILLA-BASED POST- CONVICTION RELIEF

Select the appropriate post-conviction remedy Select a legal grounds of invalidity that are appropriate for the post-conviction remedy Determine a suitable substitute disposition Provide sufficient client equities that would motivate the DA and the court to vacate the conviction PART VI:

Where To Get Help

Immigration Resources ATTORNEY RESOURCES

Seek assistance: NYSDA CDIP - JOANNE MACRI (716) 913-3200 or (518) 465-3524; [email protected]

IMMIGRANT DEFENSE PROJECT – HOTLINE (Available Tues. & Thurs. 1:30 p.m.-4:30 p.m.) (212) 725-6422; www.immigrantdefenseproject.org

DEFENDING IMMIGRANTS PARTNERSHIP www.defendingimmigrants.org

Representing Immigrant Defendants in New York, 5th Edition (*Released in August 2011 by IDP) Immigration/Criminal Website Resources

NYSDA www.nysda.org

Immigrant Defense Project www.immigrantdefenseproject.org

Defending Immigrants Partnership www.defendingimmigrants.org

NLG National Immigration Project www.nationalimmigrationproject.org

Immigrant Legal Resource Center www.ilrg.org A Theory of Voir Dire 5 Tom Klein, Legal Aid Society Addressing the Ten Scariest Criminal Issues in Voir Dire Randy McGinn, 29 Champion 26 An Analysis of Closing Arguments to a Jury, Anthony G. Amsterdam and Randy Hertz, 37 N.Y.L. Sch. L. Rev. 55

Page 1

August, 2005

29 Champion 26

LENGTH: 6303 words

FEATURE: ADDRESSING THE TEN SCARIEST CRIMINAL ISSUES IN VOIR DIRE

By Randy McGinn

Randi McGinn is a woman warrior from Albuquerque, New Mexico, who has destroyed adverse witnesses by leaving a pretentious Beverly Hills doctor standing in front of the jury covered with post-its and clutching a grapefruit to his chest, by grilling a government snitch until he threw up and by exposing the fact that a world-renowned polygraph expert had been polygraphing his own sperm cells in the dead of night. After one vigorously fought civil rights case, the local SWAT cops put her picture on their Christmas pinata and took turns whacking it with a big stick.

Randi McGinn MCML, P.A. 420 Central Ave. SW Suite 200 Albuquerque, NM 87102 505-843-6161 Fax 505-242-8227 E-MAIL [email protected]

TEXT: [*26] In the early days of my law practice, the general wisdom about jury selection was that you never asked the jury to express any bad opinions or attitudes that might be unfavorable to your case. The thinking in those days was that if one panel member expressed a bad opinion, it would somehow "taint" the rest of the panel. If a bad opinion was stated in open court, a young lawyer was advised to request a mistrial and start over, trying not to tread into that dangerous territory again. In my 25 years of practice, this was some of the worst advice I ever received about how to select a jury. This approach did not work then and does not work now. Jury panels today are more educated than ever before about the judicial process, the rules of evidence, and the conduct of trials. Potential jurors come to the courtroom with strong attitudes and Page 2 29 Champion 26, * opinions about criminal trials, lawyers, and the accused person sitting in the chair next to you. Some have the same kind of beliefs you may have expressed about problems with the legal system. Some of them come to the courtroom with an agenda, i.e., that they are not going to be like those other "crazy juries" that let someone off on a technicality. Ironically, as jurors have gotten more opinion- ated and biased, many judges have responded by limiting jury selection so these "attitudes" are not openly expressed, rather than recognizing that, the more biased the jury pool, the greater the need for an extensive voir dire. Your job in jury selection, if the judge allows you to question the panel, is to identify and eliminate those "agenda" jurors who are there to wreak havoc in the jury room, who will disregard the presumption of innocence and, regardless of whether there is proof beyond a reasonable doubt, will lead the charge to convict. The only way to do that is to ask them the things that scare you most. If you do not bring the attitudes of those jurors out in voir dire, they will, without your knowledge, take those attitudes back to the jury room and, behind closed doors, do everything they can to prevent an acquittal, even when your client is innocent.

[*27] I. Getting The Panel To Talk To You There you are standing in front of a group of 30-70 complete strangers and you want them to open up to you about their secret, innermost fears and feelings about crime, lawyers, and the legal system. How do you get them talking? In this age of Oprah Winfrey-style talk shows and self- confessions, it is easier than you might think. The key is to focus on what should be the three goals of jury selection: gather information; educate the jury about your case and the legal process; and develop rapport.

A. Gather Information The more you know about a potential juror, the better off you are. If you are given enough time for a thorough voir dire, you must get sufficient information from a panel member to help you decide whether they are "one of yours", "a disciple of the prosecution," or somewhere in the mushy middle. Without that information you will not be able to challenge for cause or intelligently exercise a peremptory challenge. Here is how you get them talking: 1) Ask Open-Ended Questions If you want jurors to talk to you, then you must ask them questions that cannot be answered merely with a yes or no. Start your questions with the journalist's five W's or an H -- Who?, What?, When?, Where?, Why?, and How? To that list, you can add open-ended questions that ask them to "describe" or that start with "How many of you ... think feel or believe. ..." This last question gives those answering some comfort that there may be other people who feel the way they do and makes them believe they will not be the only one raising their hand in answer to your question. 2) Let Them Talk More Than You The voir dire process is a terrifying one for most lawyers, who are typically control freaks. It's not like direct or cross-examination where you know what the witnesses will say and can thoroughly prepare to deal with those limited areas. In jury selection, no matter how much you prepare, you have no idea what may come out of the mouths of some of these prospective jurors. Jury selection is like walking across a tightrope without a net. Page 3 29 Champion 26, *

Many lawyers cope with their fear of jury selection by doing all the talking. This keeps you from having to deal with any unexpected juror answers, but also prevents you from really gaining any information from the panel. Ask your question, then be quiet and listen to the answers. Do not explain things to them. Let them explain things to you. That is the best way to gather the most information possible. 3) No Lawyer Words A former client once postulated (a lawyer word) that attorneys deliberately use Latin phrases and big words so they can justify their high fees. Although some people think big words work for fee setting, speaking in a foreign lawyer language does nothing to aid communications with your prospective jury panel. If they do not understand the words you are using, they will not let you know. It is embarrassing to admit in public that you have no idea what somebody is talking about. Rather than question your phrasing, most jurors will just nod as if they know what you are talking about and you will not get an accurate answer to the things you are concerned about. Contrary to the belief of some attorneys, jurors are not impressed by ten-dollar words. They tend to gravitate toward the lawyer in the courtroom that speaks in their language. Some examples of words to use, rather than the words on the right:

- The accused/name not the defendant - The prosecutor not the state, the people's lawyer - Before/after not prior/subsequent - Car/truck not vehicle - Jury selection not voir dire 4) Do Not Be Judgmental Nothing will stop the flow of information like a well placed "tsk, tsk," even if it is under your breath. Even worse is asking that the juror be excused for cause in front of the other panel members. No one else will talk to you about their true feelings and risk public humiliation. No matter how abhorrent the opinion being given, thank the prospective juror for his or her honesty. You should mean it. If the candidate had not been honest with you, you would not know that you needed to strike him or her. If you have made a decision to try and strike the prospective juror for cause, keep gathering sufficient information for your challenge. Once you have enough information, move on or "bounce" (see below) off another juror. 5) No Note Taking How would you feel if someone you were having a conversation with began writing down everything that you said? Chances are you would stop talking to the person who was writing down your comments. The prospective jurors feel the same way. No matter how small your office, you cannot afford to do voir dire alone and try to keep track of the information being provided by the jurors. If you do not have the resources to hire a jury consult- ant, then have a friend, a secretary, an associate, or some intuitive person from off the street be responsible for writing down the information provided by the jurors. This will free you to maintain eye contact with each juror and to carry on a conversation that encourages them to provide more information. Page 4 29 Champion 26, *

B. Educate The Jury About Your Case And The Court System Modern jurors now come to the courtroom with some information and a great deal of misinfor- mation about how the court system works. Although they may have watched all of the Scott Peter- son trial, they still may not understand some of the simpler concepts like the difference between a criminal and civil case or the plaintiff and the defendant. They look for someone in the courtroom to help them understand all these things. Although voir dire is not the time to explain all of your case or all of the intricacies of the criminal justice system, if you are doing your job, a jury's education begins at that time. 1) No Lecturing. Make Them Think How much information do you remember from all of those classroom lectures you heard in high school and college? Unless the speaker was unusually dynamic, you probably do not remember much. Most learning comes not from someone telling you what to think, but from thinking things out yourself. The same is true for your prospective jurors. You will get nowhere by telling them what to think. Avoid the standard lawyer questions you hear in voir dire that begin with the following:

- I am sure we can all agree that . - Do you all agree that everyone deserves a fair trial (before you send them off to prison)? - By your silence, I assume all of you can be fair and impartial to my client. [*28] None of these lecturing-type statements get you anywhere with the jury. A juror is un- likely to challenge you on a statement of a legal principle, even if he or she disagrees. Some will nod their heads, most will do nothing, and you will have no idea about their true feelings. Instead, educate them through questions about some of the unique challenges they may be fac- ing as jurors in your case. Do you remember the Socratic Method? That is how we learned to think like lawyers and how the jurors can learn to do their jobs in this case. Remember, many of the things they will be asked to do are new to them. They may never have thought about how they will accomplish these tasks. Asking them questions about how they will judge credibility will tell you much about their thinking process and will educate both you and them along the way. Consider the following example: Q. How many of you have ever had to decide between two people (your kids, your employees) who was telling the truth? Q. How did you go about determining who was telling the truth between those two people? Q. What factors were important to you in making that determination? Q. Can you think of some reasons why a person (or your children) might lie? [You might go to several jurors for the answers to these questions. They will probably come up with the reasons pertinent to your case -- for money, to get out of trouble, for revenge. If not, then ask whether they have ever seen people lie for those reasons] Q. Can you think of some reasons why a person, even an "eyewitness," might be mistaken? [Again, go to several jurors to elicit the factors that apply to your case -- had lighting, distance, fear, etc.] Page 5 29 Champion 26, *

Q. Are there some things you should not use in deciding whether one person is telling the truth and another is not?

- How about the race of the person? Why should not that be used? - How about a person's occupation? Why should not that be used? - How about the sex of the person? Why should not that be used? 2) Intersperse Facts With Questions In Texas, you can give your opening statement in voir dire. In Arizona, you can give a brief opening before jury selection begins. For those of you who practice in those jurisdictions, have at it. Every where else, you have to intersperse your facts and questions. Although most judges feel voir dire is not a time to give your complete opening statement, you have to give the jury some idea of what your case is about in order for them to intelligently evaluate their own biases and give you honest answers to your questions. Once prospective jurors have an understanding of the facts of the case, they are more easily able to identify and tell you about their own personal biases. In truth, lawyers do not eliminate jurors as much as jurors eliminate themselves by an honest recitation of their potential prejudices. That works best when they know more facts about the case. Even the most restrictive judges should understand that the jury has to know something about the case to (a) respond to your questions and (b) not get angry that you are asking these personal questions for no reason. For example, it would be rude to ask for a show of hands of all those women who have been raped or had family members raped, without first explaining that your case involves a sexual assault. The best and probably the most interesting way to let the jury know about the important facts of your case in voir dire is to intersperse the facts with your questions. For example, does your case involve self-defense? Tell the jury that before you ask them whether they have ever been in a situation where they were afraid they might be hurt or killed. 3) Questions Should Be Related To Your Theme/Theories Of The Case Why wait until opening to try out the themes in your case? For example, if one of the theories of the case is police misconduct, you have to run that up the flagpole in jury selection and see how your jurors respond. Despite the Rodney King case, some of the panel will still never believe that law enforcement officers could ever act improperly or "testilie." If they are unwilling to even consider what may be a central theory of your case, you want to find them and hopefully, exclude them. 4) Use Current Events To Elicit True Feelings Although many prospective jurors are reluctant to admit that they are biased or prejudiced in any way, their views of cases in the news may give you their true feelings about some of the issues in your case. For example, a panel member's reaction to either the Kobe Bryant or Scott Peterson cases may reveal something about his/her true feelings about allegations of sexual assault or accusa- tions of marital homicide. Find a case with controversial issues that have been already debated in the press and ask your jurors about it. The things they reveal in their discussions of the case may reveal prejudices they would be reluctant to admit head-on. 5) Bounce Prospective Jurors' Opinions Off Other Candidates Page 6 29 Champion 26, *

My best jury selections occurred when one or two jurors took extreme positions on issues. Real- izing that I would never talk them out of their positions, I asked the other jurors what they thought about these extreme positions. What ensued was a rousing debate over the issue in question, with the vast majority of jurors standing up against these extreme opinions and explaining why our criminal justice system, with all its flaws, was the best in the world because it erred on the side of letting a questionably guilty person free, to protect the innocent. Those ideas came from the jurors, not me. When one juror espouses an extreme position, explore that briefly (unless you want to lay the foundation for a cause challenge through leading questions). You and your assistants should watch for those who are nodding in agreement with the abhorrent opinion. Then ask whether any other jurors disagree with that position. Talk to those on the opposite side of the issue and see who nods in agreement with them. 6) Put Them In The Shoes Of Your Client You understand a person's position best by being asked to argue for it. If a juror states a negative opinion towards your client's case, test the strength of their convictions by asking them how they would go about convincing someone else of the position they have just rejected. Those who are unable to do so may be so thoroughly entrenched that you wish to seek a cause challenge. Those who are able to see the other side may make good jurors.

[*29] C. Develop Rapport The best way to establish a rapport with a jury is to be honest with them. That means being honest about some of your concerns, your own fears about their views and your views about the judicial system. Most importantly, you must ask the things that scare you the most. Some of the ten things that should scare you the most in a criminal case are listed in the next section.

II. The Ten Scariest Jury Issues In A Criminal Case The advent of Court TV and in-court cameras has resulted in jurors who are more educated that ever before about the criminal justice system. As we know from the hazards of eyewitness testimony, a group of people can all witness the same thing and come away with very different views. So it is with the media-watching public. Most of the panel will have a great fear of crime (despite the fact that crime statistics are down, the latest brutal murder is beamed instantly into our living room). Some will mistrust the government and its ability to catch and prosecute the right person. Some will believe that juries can not be trusted. All will believe that they, personally, can be trusted to do the right thing. The good news is that the average American citizen still wants to do what is fair and right. Those citizens want the system to work correctly and believe their presence on the jury will make that happen. In talking with them about the things that concern them, you need to be looking for people who have no preset agenda but can be fair. Although voir dire is unique for every case, here are the top ten areas you may need to talk to them about: 1) Fear Of Crime/Victim Rage Page 7 29 Champion 26, *

We are all afraid of crime. On every jury panel you will find that the majority of jurors or their family members have been victims of some kind of crime, whether burglary, sexual assault, or even homicide. No one wants to be soft on crime or to be perceived by their neighbors as being soft on crime. How do you help people set that aside so they can fairly hear the case before them? You must match the fear of crime with something that should be a greater fear -- the fear of wrongfully convicting an innocent person. If you have time, first find out what each juror's experience is with being a crime victim. How did they feel after the crime? Did they catch the person who did it? What happened to that person? How did they feel about how the criminal justice system handled the case? Remember, the most important information is not what happened to them, but how it affected them. Then explore some of the things you are most concerned about: Q. How many of you think that criminals have too many rights or that the courts have made it too difficult to prosecute and convict criminals? Q. What kind of rights do you think we should give to criminals? Should we change the criminal justice system to make it easier to convict people? How should we change it? Q. Now let me change the question a little bit. Rather than use the word "criminal," let me ask how many of you think that American citizens, including those who might be accused of a crime, have too many rights? Q. What rights would you want if you were falsely accused of a crime? Q. How many of you at any time in your life, including your childhood, have ever been falsely accused of something you did not do? Q. What happened when you were falsely accused? Q. Did people believe you based on your word when you said you did not do it? Q. Were you able to prove that you did not do it? Q. How did you go about proving you were innocent? Q. Were you able to prove your innocence? Are there still people who do not believe you? Q. You think there would have been a fairer result if your accusers had to prove you were guilty, rather than you proving you did not do it? Q. When you hear that a guilty person went free or an innocent person was convicted, which seems worse to you? Why? [*30] Q. Have you thought about what kind of proof you are going to require before you convict a person? What things will be important to you in making that decision? Q. You have probably heard the phrase "proof beyond a reasonable doubt" in criminal cases. What do you think about the state having that burden? Q. What would you do if you thought the accused person was probably guilty, but the state had not convinced you of his/her guilt beyond a reasonable doubt? 2) The Accused's Previous Record Q. What do you think about someone who has admitted breaking the law in the past? Page 8 29 Champion 26, *

Q. Once a person has admitted breaking the law, can they ever be trusted again? Q. How many of you have ever known someone that made a mistake in the past and then straightened out his/her life? Q. Tell me about that person. How do you feel about him/her now? Would you trust him/her? Q. If something turned up missing at your house and that person was there, would you suspect him/her? Why or why not? Q. The reason I am asking you about these things is because (client's name) is someone who made a mistake (or some mistakes) in the past. When he/she was younger, he/she stole some money, was caught, admitted his/her guilt and went to prison. Since then he/she has worked very hard to overcome that mistake. That past mistake is one of the reasons the police suspected him/her in this case ... but he/she did not commit this crime. I am concerned that because of that past mistake, you may not listen to what he/she has to say. How do you think this past mistake will affect you in listening to the evidence in this case? Q. Have you ever heard of an innocent person being picked up and falsely accused by the police because of a past criminal record? Why do you think that happens? Q. How are you going to keep the kind of biases the police have against ex-felons from affect- ing your decision in this case? 3) Racial Issues Q. How many of you have ever had family, friends, or have yourself ever been discriminated against or witnessed discrimination against another person? Q. Tell me about your experience. How did it make you feel when it happened? What did you do when it happened? Q. What do you think about affirmative action programs in the workplace or for college admission? Have you ever felt discriminated against because of those programs? What did you do about it? Who do you blame for that discrimination? Q. Have you ever felt that any minority groups have been getting ahead too quickly in the last ten years? Q. How do you feel about interracial dating? How about in your own family? Q. Would you say this is a good place or a bad place for a (Hispanic, African-American, Asian, etc.) to stand trial? (This question courtesy of Michael Stout, who always accuses me of stealing his best stuff without giving him credit). Why? (I am sure Michael would come up with that "Why" question too). Q. I have heard some stereotypes about (African Americans, Hispanics, Asians, etc.). Give some examples. What kind of stereotypical comments have you heard? What do you think about those comments? How should you deal with those kinds of comments in the jury room? Q. What effect should the race of Mr./Ms. have on your decision in this case? Q. How would you feel if you were on trial in a foreign country and the judge, all the lawyers, the bailiff, and all the jurors were (African-American, Hispanic, Asian, etc.)? What concerns would you have under those circumstances about getting a fair trial? Page 9 29 Champion 26, *

Q. Since Mr./Ms. is in that exact situation, how can he/she get a fair trial? [*31] 4) Eyewitness Identification Q. Have you ever thought you saw someone you knew and then realized you were mistaken? Tell me about that experience. Q. Why do you think you were mistaken? Q. What kinds of things can make a person believe they saw someone or something they did not really see? [Bounce off several panel members to elicit all of the elements that may be in your case]

- Bad lighting - Distance - People look alike - Bad vision/no glasses - Expecting to see a particular person there - Similar clothing - Corner of your eye - Only a short time to see them - Stress of the moment - Someone suggests it is them Q. Have you ever heard of people who are eyewitnesses to a crime being mistaken about the identity of the person there? Have you ever heard of an innocent person being convicted and sent to prison based on mistaken eyewitness testimony? What did you hear? Q. How can that happen? Q. What things will be important to you in deciding whether the eyewitnesses may be mistaken in this case? 5) Accused May Not Testify Q. How many of you are aware of the constitutional right that says an accused person can never be called as a witness against himself or herself at trial? What do you think of that rule? Why do you think that rule exists? Q. If someone were falsely accused of a crime, can you think of a situation where he/she might not want to testify at the trial? [Again, bounce off as many jurors as possible to flesh out this answer].

- Not a very good witness - Not very smart or educated - Easily misled by the prosecutor - Fear - Too much pressure - Embarrassed about his/her past - The state has not proven its case When you get the inevitable answer, "Because he/she is guilty," try the following response: Page 10 29 Champion 26, *

Q. You know, that may be the reason in some cases and that is the very thing I am concerned you may think in this case if I make the decision that Mr./Ms. should not testify. Unfortunately, if I decide he/she should not testify, the law does not allow us to tell you why that decision has been made. That means you will not get to know if it was because he/she was afraid, or would not make a very good witness or any other reason. How will you feel if you can not know the reason I have decided he/she should not testify? Q. What will you think about Mr./Ms. if I make the decision he/she should not take the stand? Q. Since the law does not let me tell you the reason, how will you deal with your curiosity about that? Q. Would it be fair to guess or speculate about the reason I have decided he/she should not testify, if you are not allowed to know? 6) War On Drugs Q. Have you had any personal experiences, either yourself or with your family members or friends, regarding the abuse of alcohol or drugs? Tell me about your experiences. Q. How was the person's drug or alcohol abuse problem handled? Q. Was the person ever arrested or put in jail? How did that affect his/her problem? Q. Did he/she ever receive any treatment or counseling? How did that work? Q. How do you think we should deal with the drug problem? What is most effective? Q. What do you think about the government's War On Drugs? Are we winning or losing? Why? Q. Have you ever heard of any government abuses that have occurred in the name of the War On Drugs? Please tell me about them. 7) Police Misconduct I usually discuss the police in the context of my previous credibility questions, i.e., should you believe or disbelieve a person just because of his or her occupation? Why or why not? Probably the best discussions about police misconduct come from those who are on the police force or who know people on the police force. Identify those people and explore how well they know the police officer, whether they have ever discussed cases, crime and the criminal justice system, then ask them the following: Q. From your own experience or your discussions with your friend/relative on the police force, have you ever heard about bad cops who are willing to lie or plant evidence? Tell me about that. Q. Why would a police officer ever do such a thing? [You may wish to explore this with several jurors]

- To make a case - To get a criminal they have not be able to catch - For a promotion - For revenge - To make a quota Page 11 29 Champion 26, *

Q. Have you ever heard of a police officer who did not deliberately lie, but who may have been mistaken -- either about the evidence or about arresting [*32] the wrong person? Tell me about your experience. How can that happen?

- In a hurry - Gets bad info from the witnesses - A snitch lies - Bad or incomplete investigation Q. What things will be important to you in deciding whether the police officers who may testify in this case are lying or mistaken? Q. Is there anyone who thinks there has been too much criticism of the police recently? Why? Are there ever any circumstances in which the police should be criticized? Tell me about those circumstances. 8) Fragile Witness -- Child/Crying If you are going to have to cross-examine a fragile witness during the course of the case, do not wait until they are on the stand to tell the jury about him/her. You must bring it up in jury selection. Again, the most effective way to do that is during your discussion of how the jury should determine credibility. (a) The Child Witness Q. In judging the credibility of a person, should you use a person's age to determine whether or not he or she is telling the truth? Why or why not? Q. Have you ever known children to tell lies? Perhaps I should ask the opposite question -- have you ever known a child who has never told a lie? Q. Why do children lie? [Use several jurors for this answer].

- To keep from getting in trouble - To get someone else in trouble - For attention - For a reward - To get even - To keep from having to do something they do not want to do - Because they are led to lie - Because the adults around them ask them to - To please a parent - To protect someone else Q. What will be important to you in determining whether the child in this case is telling the truth, is lying, or is mistaken? (b) The Crying Witness Q. In judging the credibility of a witness, should you consider whether or not the witness cries or shows emotion when he/she testifies? Why or why not? Page 12 29 Champion 26, *

Q. Are there other reasons a person might cry when they tell you a story, other than that they are telling you the truth? What reasons are those?

- Acting - Upset about being in court - Covering up their own wrongdoing - Fear Q. Have you ever been fouled by someone who cried when they told you a false story? Q. How many of you saw Susan Smith crying on television before she was arrested for the drowning deaths of her two sons? How many of you believed that her sons had been kidnapped before the real story came out? Q. I am asking you these questions because, even though this event occurred over one year ago, I expect one government witness will come in and cry for you as she testifies. We intend to show you that she is mistaken/lying, but I am concerned about how her crying may affect you. How many of you think you may be affected in your decision about credibility based on someone's tears? Q. How are you going to determine whether the witness is crying because of remorse, guilt or just acting? If you can not make that determination, how many of you are willing to exclude the crying factor all together in trying to determine credibility? 9) Psychological Testimony/Defenses Q. Have you or anyone you have ever known suffered from a mental illness? Would you mind telling us about that? Q. What kind of effects did the mental illness have on this person? Was it as debilitating for this person as a physical disability is for some people? Q. Did this person have any control over their behavior when they were under the influence of this disease? Did they ever get in trouble because of this illness? Q. Who was to blame for the trouble they go into? Q. What happened to the person? Ever go to jail? Receive treatment? Medication? Did anything help? Q. How do you think we should deal with the mentally ill? Q. Some people do not believe mental illness exists. How do you feel about that? Q. Have you ever known anyone who consulted with a psychologist or psychiatrist? Q. What do you think about psychologists or psychiatrists? Q. What concerns will you have if you are asked to find the accused not guilty by reason of in- sanity? 10) Homicide/Self-Defense Q. Mr./Ms. is charged by the state with killing Joe Randall. In fact, he/she did kill Joe Ran- dall. [Pick someone who looks shocked or distressed by this revelation]. Juror X, you looked sur- prised when I just told you that. What do you feel about someone who took the life of another human being? Page 13 29 Champion 26, *

Q. Is there ever any time when you believe one human being is justified in killing another human being? What are those circumstances? Q. Under what circumstances is a person justified in acting in self-defense? Q. You talked about acting in self-defense when a person is afraid. How many of you have ever been in a situation where you were afraid and thought you might have to act in self-defense? Please tell me about those situations. Q. Why were you afraid? What did you do? Did you have a weapon? If you had one in your possession, what did you do or what would you have done? What were you thinking about at the time you were attacked or threatened? Q. Should you have been punished if you had been pushed to use deadly force to protect yourself? Why not? Q. How many of you think a person should be punished by a conviction or jail time if they kill someone else, even if they were acting in self-defense? What should happen to someone in that situation? Q. How do you think a person feels [*33] after killing someone in self-defense? Q. If that person is not convicted or does not go to jail after that kind of killing, do you think most people still suffer for what they did...even if it was justified at the time? III. Developing A Challenge For Cause Although our prospective jury panels have become more and more biased over the years, the response of many judges has been to reduce, rather than extend the time allowed to question the panel. Worse, the attitude of some judges is to try and select the jury as quickly as possible. These judges are reluctant to strike any juror for cause and will go out of their way to rehabilitate bad jurors. We have all been there. It goes something like this: Juror to lawyer: I think if the state files criminal charges against someone, they must have done something wrong. Judge (sensing a cause challenge jumps in) Excuse me, Mr. Juror. You really do not mean that, do you? Juror: I think so, your Honor. Judge: Well, if I instruct you that you have to set aside that belief and follow the law in the instructions, you can do that can not you? Juror: Of course, your Honor. Knowing that the judge may try to rehabilitate a juror, how can you develop a cause challenge that cannot be overcome without the court risking reversal on appeal? A. Switch To Leading Questions Just like the rehabilitating judge did in the example above, once you decide you want to strike a juror, you should switch from non-leading questions to leading questions. B. Cement The Juror's Commitment To His/Her Opinion Page 14 29 Champion 26, *

Some jurors simply repeat what they have heard about cases and judicial system in the media. Before deciding to reject the juror, explore the depth of their commitment to the opinion they have expressed. You may want to test the opinion by asking them to argue the other side or point of view from their own (see above). If they are unable to do so, be afraid, be very afraid. In order to build your record for a cause challenge, cement and commit them to their position. C. Complement Their Honesty And Deep Thought On The Issue As discussed above, always thank the jurors who are honest enough to reveal their biases against your case. This might go something like this: Juror: I think any unrelated adult who would sleep in the same bed with a child, must be a child molester. Lawyer: Thank you for sharing your personal view on this matter. It appears that you have given a great deal of thought to this issue, is that correct? Juror: Yes, I have. Lawyer: And it is based on your own life experiences? Juror: Yes, it is. Lawyer: And your own personal and deeply held views on the value of life? Juror: That is right. Lawyer: Having come to this conclusion after a great deal of thought, I do not expect there is anything someone like me could do to talk you out of that view? Juror: No. Lawyer: Because this is based on your own life experiences, there is nothing anyone could do at this point to change your mind? Juror: Nope. Lawyer: Not even if it was someone in a position of authority, like the judge? Juror: No. D. Find All The Jurors Who Agree With The Extreme Position Now that you have established the basis for your cause challenge, find all the other panel members who agree with the extreme position the juror has taken. Because you have been so nice and complimentary, they may be encouraged to tell you the truth. Go through similar questioning with each one to pin down the cause challenge. E. Find All The Jurors Who Disagree With The Extreme Position After you have uncovered all of your case-killing panel members, ask if there is anyone who disagrees with the extreme position? Switch back to open-ended questions to discover why they oppose the views expressed by those who have closed minds on this issue. Remember, you have to find your friends as well as your enemies to intelligent exercise your preemptory challenges. We all stand on the shoulders of those who come before us. Everything I have learned about jury selection has come from those great lawyers and jury consultants who preceded me into the Page 15 29 Champion 26, * courtroom. This article is a compilation of the wisdom I learned from them. Thank you Cat, Mi- chael, Linn, Charlie, Joe, Sunwolf and all of you who made me not only a better lawyer, but a better person.

Legal Topics:

For related research and practice materials, see the following legal topics: Civil Rights LawPrisoner RightsDiscriminationConstitutional LawBill of RightsFundamental RightsCriminal ProcessRight to Jury TrialCriminal Law & ProcedureJuries & JurorsVoir DireGen- eral Overview

GRAPHIC: PHOTO 1, Randi McGinn

Page 1

LEXSEE 37 N.Y.L. SCH. L. REV. 55,AT 75

1992

37 N.Y.L. Sch. L. Rev. 55

LENGTH: 16951 words

ARTICLE: An Analysis of Closing Arguments to a Jury

NAME: Anthony G. Amsterdam * and Randy Hertz **

BIO:

* Edward Weinfeld Professor of Law and Director of the Lawyering Program, New York University Law School. ** Professor of Law, New York University Law School.

SUMMARY: ... He was socially acquainted with the victim, twenty-year-old Mary Smith, and with her two friends, Susan Stone and Nancy Gregg. ... So, if the defense argument is about what happened to the victim at the hands of the defendant, it is either a very poor and patchwork narrative or no narrative at all. ... Does anyone in that testimony actually tell you how specifically the shooting occurred?" The Riddle, which the Hero must solve, is whether to accept the prosecutor's version of the facts (in which the defendant intended to kill the victim) or to conclude that "in no way can you be satisfied that the evidence proves beyond a reasonable doubt that my client shot . . . [the victim] with the conscious . . . objective of causing her death. ... She employs an object metaphor (THOUGHTS ARE OBJECTS) to externalize both qualities--making "imaginations" and "common sense" objective instruments --and she then asks the jurors to use the fitter instrument:

...

TEXT: [*55] This article examines the lawyers' closing arguments to the jury in a single criminal case: a 1991 homicide prosecution in New York City. n1 The defendant was a twenty-two-year-old man Page 2 37 N.Y.L. Sch. L. Rev. 55, * whom we will call David Jones. n2 He was socially acquainted with the victim, twenty-year-old Mary Smith, and with her two friends, Susan Stone and Nancy Gregg. Late one evening in 1987, Smith, Stone, and Gregg were seated in Gregg's parked car talking with other young people on the sidewalk. Stone and Gregg were in the front seat, Smith in the rear. A friend of Stone's came by and Stone got out of the car to talk with him. At about this time, Jones came over to the car. Jones began to argue with Gregg and then with Smith. He accused them of spreading stories that he had engaged in oral sex with women. After a few minutes, Gregg left the car to talk to some friends. Jones got into the rear of the car, closing the door behind him, and sat beside Smith. He and Smith continued to argue inside the car. Stone and Gregg remained nearby, talking with their acquaintances. They heard Jones and Smith yelling at one another. Stone heard Smith call out: "David, no!" Stone saw Smith grab at Jones's jacket, then heard a gunshot. Just before the shot, Gregg saw the right rear car door open and Jones back out. She saw Jones pop a link chain off Smith's neck. Gregg heard [*56] the shot and saw Jones put a handgun in his pocket. Jones was standing bent over, partly outside the car, with his head still inside. Other young people urged him to take off before the cops came. He did and was not apprehended for more than three years. Stone and Gregg drove Smith to the hospital, where she died. The cause of death was a single bullet entering her chest and penetrating her heart, liver, stomach, and pancreas before lodging in her back. The sole issue at trial was whether Jones was guilty of second-degree murder or of manslaughter. Under New York law, murder requires a specific intent to kill. Killing by a reckless act is only manslaughter. Thus, the question for the jury was whether, when Jones shot Smith in the chest at close range, he intended to cause her death. n3 That question had to be decided on the testimony of the prosecution's witnesses, principally Stone and Gregg. Jones did not testify or present evidence. In our experience, this is the kind of case in which a jury can go either way. During times of media clamor about violent crime, it would probably be listed at two-to-one odds for a murder verdict in the weekly D.A.'s and P.D.'s office pools. In less frenzied times it would be an even-money case. Savvy lawyers in both offices would bet both sides at both sets of odds. After the verdict was in, the second-guessers in both offices would have a lot to say about why the case was won or lost. The backgrounds of the jurors, the prosecutor's or defense counsel's elo- quence or maladroitness, this or that witness's emotionality or dispassion, whether juror number three was looking at the judge when the left judicial eyebrow rose in that practiced arc of skepti- cism--all these topics and others would be fully canvassed in the controversies of the cognoscenti at the coffee machines. [*57] Without disparaging the importance of each of these factors, we think the Jones case is a useful setting in which to study particularly the lawyers' closing arguments. For it is in this kind of case--where the evidence, being subject to divergent interpretations, frames the jury's decision but does not compel it--that the lawyers' arguments can make a crucial difference. n4 What do the lawyers say to the jury in such a case, and how? n5 Our first examination of the arguments produced no surprises. Both lawyers used the same time- tested pattern. They praised the jury for approaching the case in a proper frame of mind. They Page 3 37 N.Y.L. Sch. L. Rev. 55, * summarized the testimony. They stated the issue that the jury must decide. They analyzed the evidence or the lack of evidence bearing on that issue. They explained how it supported their own position. They summarized their opponent's argument and criticized its logic. They expressed confidence in the jurors' good judgment, which would assure the verdict sought. This was all very [*58] straightforward and obvious. We discuss it in somewhat more detail in Parts I and II. However, below the surface, complex things were going on. These are the subjects of Parts III through V. Two broad generalizations emerge: First, a trial lawyer has great latitude in choosing what story s/he will tell and how s/he will tell it even when s/he is arguing a relatively uncomplicated case. Although the lawyer's range of choice is circumscribed by the evidence, by the substantive law, by procedural rules, and by the stock scripts that shape everybody's notions of what a closing argument should look like, lawyers nonetheless retain the power to construct widely diverse tales beneath a superficial semblance of same- ness and conventionality. In the Jones case, the prosecution and defense arguments ostensibly analyze an identical set of events within an identical logical framework, using an almost identical ter- minology. However, they tell entirely different stories. The prosecutor's story is about what happened on a New York City street in 1987. Defense counsel's story is about what is happening at the trial itself in 1991. Second, the story that is told and the manner of the telling are inseparable. The lawyer's power to create his or her chosen tale is exercised, and its exercises can be detected, largely in terms of language structuring. Much of what a jury argument says is conveyed by implicit narrative and dialogic structure and by linguistic microstructure. I. A FIRST TAKE: FORENSIC TECHNIQUE From beginning to end, the lawyers' closing arguments in Jones are textbook models of the recommended content and style of a jury argument. Both lawyers started with the conventional gambit of lauding traits that the jurors had demonstrated on voir dire and would now be called upon to demonstrate once more in deciding the case. They referred to the principles which the jurors had accepted in undertaking their responsibilities (to decide the case solely on the evidence presented, to hold the government to its burden of proof, and so forth) and to the characteristics which enable jurors to adhere to these principles and fulfil these responsibilities. Defense counsel (who, under New York practice, argues first n6) extolled dispassion and fidelity to the principle of proof beyond a reasonable doubt; the prosecutor extolled intelligence and common sense. As treatises on closing argument explain, this kind of preamble simultaneously reinforces the attitudes to which each lawyer will appeal and establishes rapport between the lawyer and the jurors. n7 [*59] Both lawyers then reviewed the evidence, focusing upon the testimony of Susan Stone and Nancy Gregg, which established (as the prosecutor emphasized) and established only (as defense counsel emphasized) that David Jones shot Mary Smith in the chest at close range during a quarrel. They specified the question posed for the jury's decision upon this evidence: whether Jones intended to bring about Smith's death. They pointed to the particular factual circumstances that, in their view, did or did not support a finding of intent to kill. Defense counsel emphasized that the prosecution had presented no proof that Jones aimed specifically at Smith's chest and no proof that Jones said anything signifying an intention to take Smith's life. He conceded that Jones's pulling out a gun while engaged at close quarters in an altercation was an act of complete and culpable indiffer- Page 4 37 N.Y.L. Sch. L. Rev. 55, * ence to human life (the state of mind required for a manslaughter conviction), but denied that it proved a conscious purpose to kill. The prosecutor urged the jury to infer an intent to kill from the firing of a single, close-range shot directly into Smith's heart and from the defendant's coolness in walking away immediately after he fired that shot, unconcernedly leaving Smith to die. Each lawyer paraphrased and rebutted his or her opponent's reasoning (or anticipated reasoning) from the facts. Once again, all of this conforms to the canons. The lawyers do--and do well--exactly what the treatises recommend doing. Each lawyer identifies the issues that are and are not in controversy. n8 Each marshals the facts, law, and logic supporting his or her position. n9 Each dissects the evidence, highlighting favorable details and explaining away problematic features. n10 Each rehearses or anticipates and refutes the other side's arguments. n11 Both lawyer's perorations reflect the received wisdom that a jury argument should end with an appeal to the higher interests at stake. n12 [*60] Using the approach favored in primers for defense attorneys, n13 defense counsel reminded the jurors of the responsibility that rests upon their shoulders as the ultimate adjudicators of the defendant's guilt or innocence. The prosecutor used a similarly well-worn prosecutorial coda, n14 appealing to the jury to deliver its verdict in accordance with the interests of justice. II. A SECOND TAKE: RHETORICAL STRUCTURE Let us now examine the fit between the arguments and classic rhetorical models. Both lawyers start by referring to the last time they spoke with the jurors, when the jury was selected on voir dire. We have just noted that this standard technique is designed to recall the amicable relationship established between counsel and the jurors at the beginning of the trial and to remind the jurors that they were accepted by counsel and the court because they exhibited the qualities necessary to be good jurors. Counsel can then go on to define those qualities in terms of values that favor his or her case. Notice that this stock beginning is nothing less--although, as we shall soon see, defense counsel makes it a great deal more--than an Aristotelian Proem. In Aristotle's formal model for a rhetorical presentation, the Proem serves to secure the good will of the audience by making the speaker appear to be a worthy person (for, as Aristotle puts it, "good character always commands more attention") and, at the same time, by appealing to values that the audience and the speaker share (sounding, as Aristotle puts it, a "note of praise [that] includes [the audience]"). n15 [*61] Thereafter, the prosecutor's argument continues to track the Aristotelian structure for a speech. n16 From the Proem it proceeds to a Statement, in which the prosecutor relates the defendant's shooting of the victim in vivid detail. The prosecutor does a good job of aligning this rhetorical structure n17 with a strong narrative sequence by the device of purporting to tell the jury what is not in issue between the parties, much as Shakespeare's Antony resolutely insists that he has not come to praise Caesar. Thus, says the prosecutor: "You don't have to decide whether the defendant was the one who pulled the trigger of that gun and who caused that bullet to penetrate Mary's heart and her liver and eventually lodge in her back and eventually cause her to bleed to death in Harlem Hospital. You don't have to decide who did that. We know it was . . . the defendant."

After relating the case in this manner, as a series of historical acts that indisputably occurred and leave only the actor's motivation to be considered, the prosecutor passes on to the Aristotelian Ar- gument proper, first specifying the nature of the dispute between the parties, then erecting the pros- Page 5 37 N.Y.L. Sch. L. Rev. 55, * ecution's case, then stating and refuting each of defense counsel's contentions with the logic of historical fact. For example: [*62] "Do [the defendant's] . . . actions after committing this crime comport with the actions of someone who just committed a terrible accident? [Defense counsel] argues to you that he was just cool and calm and just didn't care what . . . he . . . did. That's right, he didn't care. He had just killed a person he intended to kill in front of people to show he was a big . . . man . . . and he walked away. . . . I mean he wasn't saying, 'Oh, call the ambulance, let's get her to a hospital.'"

Consequently, in the Aristotelian Epilogue, the prosecutor can argue that a trial is a search for the truth, that justice is a verdict based on the evidence, and that the only verdict based on the evidence is guilty of second-degree murder. Defense counsel's argument, by contrast, does not follow any standard rhetorical sequence. Nor does it have any intelligible narrative structure as a story with the defendant and the victim as the principal characters. It contains ten separate capsule descriptions of the shooting:

-- first, in the form of a chronological recitation of the testimony of Susan Stone;

-- second, in the form of a chronological recitation of the testimony of Nancy Gregg;

-- third, in a shorthand, nontemporal inventory of the salient circumstances of the shooting;

-- fourth, in a nontemporal review of the defendant's words and actions at the outset of the encounter that led to the shooting;

-- fifth, in a shorthand, nontemporal inventory of the salient characteristics of the defendant's character as revealed by the shooting;

-- sixth, in a brief summary of the physical motions of the defendant and victim at the moment of the shooting;

-- seventh, in a condensed, chronological version of the "worst gloss" that the jury can put on the shooting;

-- eighth, in a nontemporal review of the defendant's actions after the shooting;

-- ninth, in a review of the victim's words and actions just prior to the shooting; and

[*63] -- tenth, in a series of one-sentence "hypotheses" as to how the shooting might have happened without any intent to kill on the defendant's part. With the exception of the recitations of the testimonies of the two prosecution witnesses--which defense counsel fills with reminders that the witnesses are speaking from their individual perceptual standpoints and cannot be telling the complete story n18 --none of these mini-stories is sustained for long enough to build up an engrossing narrative momentum. They are vignettes, not tales. And again with the exception of the two witnesses' accounts, they have neither the familiar form of nar- Page 6 37 N.Y.L. Sch. L. Rev. 55, * ratives ("patterns of events occurring over time" n19) nor the Aristotelian benchmarks of a narrative (a beginning, a middle, and an end) nor the structure that has been found to characterize even short and humble narratives. n20 Nor do these mini-stories build upon each other to compose a narrative whole. n21 They appear and disappear with no regard for any sequential, durational, plot-like development of the argument as a whole. So, if the defense argument is about what happened to the victim at the hands of the defendant, it is either a very poor and patchwork narrative or no narrative at all. [*64] III. A THIRD TAKE: NARRATIVE STRUCTURE But if the defense argument is viewed as a tale with the jury as protagonist and the courtroom as its setting, it has not only a coherent overall narrative structure but an almost classic narrative theme: First, the Hero is set on stage. Defense counsel's opening sentences depict the voir dire process through which the jury is constituted. Second, the virtues of the Hero are extolled. Defense counsel describes the "concepts" and "values" that make for valorous jurors, for duteous jurors, and he attributes them to this jury. Third, the temptations that may sway the Hero from obedience to duty are described: the understandable temptations of the jury to despise the defendant, to convict him for his evil nature without demanding proof of his criminal guilt, or to demand that he prove his innocence by evidence. Fore- warned of these temptations, the jury swears a sacred oath (several times recounted) to resist them. "How easy," defense counsel exclaims and repeats, "how easy would it be" to break those sacred oaths! But if the jury can uphold its oaths and do its duty, "then you deserve our great admiration and I hope you can do it." Fourth, with its vows sworn, the Hero is called to its Task. There is a break in scene (not unlike the traditional transportation of the Hero to the Kingdom where the Quest must be pursued n22); the prosecution's witnesses are introduced; their testimonies are recounted. In this scene, the prosecutor first appears, as Questioner of the Witnesses. Under questioning, the witnesses present testimony that confronts the Hero with a Riddle. The witnesses' testimony, while certainly not "an exact match of the story," appears to be basically truthful. "There is a problem, though. Does anyone in that testimony actually tell you how specifically the shooting occurred?" The Riddle, which the Hero must solve, is whether to accept the prosecutor's version of the facts (in which the defendant intended to kill the victim) or to conclude that "in no way can you be satisfied that the evidence proves beyond a reasonable doubt that my client shot . . . [the victim] with the conscious . . . objective of causing her death." Fifth, the Hero struggles to solve the Riddle. Where is the evidence of intent to kill? Can intent to kill be inferred from the defendant's words? (These are reviewed.) From his actions at the time of the shooting? (They are reviewed.) From the consequences of those actions? (They, too, are reviewed.) From his behavior after the shooting? (It is reviewed.) From his character or motives? (These are reviewed.) From the victim's outcry? (It is set in context and thereby made ambiguous.) From any other evidence? (The dregs are searched.) No. "If you just look at the [*65] evidence, the lack of evidence and don't make any irrational leaps or bounds . . .[,] you can't find proof beyond a reasonable doubt that my client intended to cause the death. The ambiguity remains." Hence does the Hero, puzzled, arrive at the predicted temptation. It is driven to demand that defense counsel "tell us how a woman is shot in the chest at close range if it's not intentional murder?" And defense Page 7 37 N.Y.L. Sch. L. Rev. 55, * counsel can offer no answer. "I don't know." All that counsel can offer is a set of "hypotheses"--a series of alternative possible visions flashed across the screen like the successive acts of Kurosawa's Rashomon--which may or may not be true. So the Riddle appears unanswerable. But, sixth, the Hero finds the Answer. The Answer lies in keeping faith with the sacred oath that the Hero swore before beginning this Quest, "the promise that you made to not make me prove to you in any way how . . . [the killing] may have occurred." Thus does the Hero perform the Difficult Task and achieve Apotheosis: "So what I'm really asking you to do is to do what I think will probably be one of the hardest things that you have ever been required to do in public, which is to stand up and at some point look over at David Jones and while looking at him vote not guilty of charges brought against him. Thank you."

The Quest of the Hero theme is unmistakable. n23 [*66] This particular story line has a distinct advantage for defense counsel. It permits the defendant's activity in killing the victim--an activity that defense counsel is not denying and can hardly tuck under the rug--to be fitted into the narrative without becoming the dominant action of the tale. For it is a commonplace of narrative structure that, in addition to the protagonist or "subject" of a fabula, n24 at least one other active agent plays an accepted role. This is the role which Greimas called the destinateur [*67] ("sender")--an actor or a force that enables the protagonist to achieve his or her objective or prevents the protagonist from achieving it. n25 The destinateur's role in the fabula requires a high level of activity, n26 which nonetheless remains functionally subordinate to the protagonist's and does not overshadow it. Thus the defendant can kill the victim without that action becoming the center of attention if the story line goes: The jurors, faithful to their oath, acquitted the defendant although he sorely tempted them to do otherwise by killing the victim in a das- tardly fashion. The trick is to do at a semantic level what this italicized sentence does at a grammatical level: to put the activity of killing into a dependent clause and to create a narratively convincing independent clause having the jury as its subject and acquittal as its outcome. Defense counsel does this by a number of structural devices: In the opening sentences of the defense argument, the subject is defense counsel, but the verbs are all about talk n27 and immediately make apparent that counsel's role is simply that of Wollflin's Sprecher--one who points verbally to the central action that is taking place. This action--the jury's assumption of its Task--is described in sentences in which the jurors or their intentional states and emotions are consistently the subject. The defendant has no active role in these sentences. He appears not as an agentive subject, but as the object of the jury's actions n28 [*68] or attitudes. n29 The first clauses of the defense argument in which the defendant takes the place of subject are dependent members of compound sentences or their equivalent. n30 Sometimes the jury is the subject of the independent clauses; n31 sometimes it is not (as when the independent clause is some form of the statement: "A witness testified") n32; in either case, the [*69] relegation of the defendant's activity to a structurally subordinated plane keeps it from invading the narrative mainstream. n33 At every pivot of the argument, whenever a new perspective is introduced, the same sort of compound sentence structure is used (although with wide stylistic variation) to subordinate the active verbs whose subject is the defendant. n34 Page 8 37 N.Y.L. Sch. L. Rev. 55, *

The fabula develops in three large movements: the jury undertakes its duty; the jury is tempted to abandon its duty; the jury perseveres and does its duty. Only in the second movement, and after that movement has been both foreshadowed n35 and framed n36 by locutions that consign the defendant's [*70] action in killing the victim to the status of a subplot (one of the jury's temptations) n37 do there occur simple declarative sentences or independent clauses in which the defendant is the subject. n38 In the first movement, he appears almost always in prepositional phrases, as the object of "to" or "toward"; n39 in the last movement, he emerges as the object of the jury's activity of acquitting. n40 By contrast, in the prosecutor's argument, the defendant's actions are usually recounted either in simple sentences n41 or in dependent clauses joined to independent clauses that contain no competing narrative to subordinate the story line "David shot Mary in the chest": Most commonly, they are variants of "There is no question that . . ." n42 or "You know that . . ." n43 A subtler signature of the difference between the stories being told in the defense and prosecution arguments is their differing focalizations. Focalization has to do with the perspective, the van- tage point, from which a narrated event is seen. n44 The focalizor is not necessarily the narrator: [*71] "narrator" refers to the voice that is recounting an event; "focalizor," to the lens or eye--the epistemological intake scoop--through which the event is perceived. n45 In narrative analysis, it is often instructive to disentangle the two. n46 When this is done to the predicative statements in the Jones arguments in which defense counsel and the prosecutor recount the actions of David and Mary in 1987, the result is revealing. The statements fall into five general categories. Category one consists of recountings of acts performed by David or Mary from the standpoint of what the evidence does or does not tend to show. n47 De- fense counsel makes thirteen such statements; the prosecutor, nine. This is quite an even distribution, since defense counsel's overall argument is slightly less than half again as long as the prosecutor's. Category two consists of recountings of acts performed by David or Mary from the standpoint of what has or has not been proved. n48 Defense counsel makes seven such statements; the prosecutor, one. [*72] Category-two focalization, like category-one focalization, is, of course, traditional closing-argument jargon for both prosecutors and defense lawyers; it differs from category one principally in that the perspective of the jury is slightly more engaged than in category one. n49 Category three consists of recountings of acts performed by David or Mary from the standpoint of what the jury finds, thinks, believes, infers, and so forth. n50 Defense counsel makes fifty-six such statements; the prosecutor, twenty. Category four consists of recountings of acts performed by David or Mary from the standpoint of what a witness perceived or what an attorney conceived. n51 Defense counsel makes seventy-eight such statements; the prosecutor, seven. Category five consists of recountings of acts performed by David or Mary from the standpoint of an EF--an external focalizor n52 --statements, that is, about [*73] what happened. n53 Defense counsel makes nineteen such statements; the prosecutor, sixty. Plainly, the prosecutor is telling a tale about how David shot Mary in 1987 and is asking the jury to accept that tale as true in 1991. Equally plainly, defense counsel is telling a tale about how the jurors in 1991 are deciding where the truth lies after listening to the testimony of witnesses and the arguments of lawyers anent an intriguing but intangible murder mystery set in 1987--a play within a play, and one in which Gonzago's poisoning is of considerably lesser consequence than the catching of Claudius's conscience. n54 On the compositional level, it is particularly interesting to compare how the two lawyers talk about the central issue that the jury must decide: whether David Jones's killing of Mary Smith was Page 9 37 N.Y.L. Sch. L. Rev. 55, * intentional. Now and again each lawyer uses most of the grammatical parts of speech through which the concept of intentionality is commonly expressed in English: verbs (such as whether Jones "intended to kill" Smith), adverbs (such as whether Jones "intentionally killed" Smith), nouns (such as whether Jones "had an intent to kill" Smith or whether Jones shot Smith "with an intent to kill"), and adjectives (such as whether this was "an intentional killing"). These four parts of speech are essentially interchangeable from a denotative standpoint. But they are not interchangeable from a narrative standpoint. Verb formulations fit seamlessly into a story about what David Jones did to Mary Smith in 1987; they intrude awkwardly into a story about the trial in 1991 because they do not predicate any plot action that can occur in 1991. n55 Noun formulations fit smoothly into both stories and can serve to mediate between them--Jones's "intent" being, on the one hand, something that he did or did not have in 1987 and, on the other [*74] hand, something that the jury searches for and does or does not find in 1991. n56 Adverb formulations are primarily grounded in the story of the 1987 killing but connect it to the story of the 1991 trial by emphasizing that the way in which Jones did what he did in 1987 depends upon the way in which the jury does its interpretive job in 1991. n57 Adjective formulations highlight even more strongly the jury's interpretive role. n58 Thus, the frequency with which the lawyers use the various parts of speech reveals--and at the same time shapes--the stories that they choose to tell. The prosecutor overwhelmingly favors verb formulations, using relatively few nouns, very few adjectives, and no adverbs at all. Defense counsel favors noun formulations over verb formulations; he also uses significant numbers of adjectives and adverbs. n59 While the prosecutor [*75] recounts an historical chronicle, defense counsel in- cants a narrative of rediscovery. IV. A FOURTH TAKE: DIALOGIC STRUCTURE Yet, more than storytelling is going on here. Because the subject of the prosecutor's argument is the killing in 1987, its form of narrative is the History. Because the subject of defense counsel's argument is the trial in 1991, its form of narrative is the Drama. Both lawyers use their particular forms of narrative to embody an epistemology. n60 The defense epistemology, as befits Drama, is performative and constructivist. Its organon is dialogue. By contrast, the prosecutor wants no part of dialogue. For, to engage in dialogue is to participate in the creation of meaning. Defense counsel strives mightily to draw the jurors into this kind of constitutive conversation. The prosecutor strives as mightily to keep them out of it. Both strategies make sense. Consider that in the Jones trial the prosecutor has presented all the evidence; the defense, none. So long as meaning, reality, truth are conceived as immutable, inherent properties of "the facts," to be found in the evidence and not constructed out of it, the prosecutor has a big advantage. Moreover, the first impression created by the prosecution's evidence fits a folk- cultural script for intentional killing. If the jury takes the evidence at face value, a murder verdict is assured. Imaginative pursuit of alternative meanings is required to derail that train. [*76] Defense counsel wants to stimulate the pursuit; the prosecutor wants to suppress it. But defense counsel cannot explicitly invite the jury to be imaginative, for at least three reasons. First, the judge will charge the jury that it is not permitted to "speculate," so defense counsel cannot allow what he is doing to be perceived as asking the jury to speculate. Page 10 37 N.Y.L. Sch. L. Rev. 55, *

Second, the common image of defense counsel in a criminal case includes the con-artist (smoke- and-mirrors) stereotype and the "Officer Krupke" stereotype. Defense counsel must avoid the appearances of being either a trickster or a peddler of psychological soft stuff. n61 Third, the judge will charge the jury that the prosecution bears the burden of proving every element of the crime beyond a reasonable doubt. Defense counsel cannot afford to forfeit the benefit that this standard of proof, as applied to the elusive element of intent to kill, confers on the defense. For all of these reasons, defense counsel must implicitly draw the jurors into an imaginative dialogue while explicitly insisting that they "stick to the facts." He must embed in the structure of his argument the notion that the jury has an active role to play in the creation of facts. And he must embed this notion in his argument too deeply and too subtly to be extracted and criticized because, as we shall mention in a moment, the notion is at war with powerful legal and folk-cultural conceptions of "facts" as objective realities. To counter those conceptions, defense counsel must proceed by immersing the jury in a different and more compelling reality--the reality of the trial in which they are actors, the reality of the dialogic process, which assigns meaning to events. For her part, the prosecutor can explicitly urge the jurors to be unimaginative--and can do so without demeaning their intelligence and independence--only to the extent that she can identify im- aginativeness with "speculation." She wants to ask them to restrict their thinking to conventional patterns because two conventional patterns of considerable force favor her position. The first is the legal canon, which the judge will charge the jury, that the defendant can be found to have intended the natural and probable consequences of his acts. n62 The second is the canon of folk psychology that "complex human actions are assumed to be voluntary unless something indicates otherwise. A voluntary action is one in which someone did something to accomplish some goal." n63 [*77] The two conventions authorize a line of reasoning that gives the prosecutor her best hope of satisfying the jury, beyond a reasonable doubt, that the defendant intended to kill. Lawyers and logicians would call this kind of reasoning a permissive inference. But the prosecutor does not want the jury to think about it as permissive or as an inference. She wants them to view it rather as a connection that is innate in the facts of the case. She would much prefer that the jury not think about the reasoning involved at all, but just do it, since thinking about it may detrack it. The prosecutor faces the problem that if she emphasizes the strength of her evidence concerning the physical acts and events surrounding the killing--which she wants to do because she possesses a monopoly of such evidence and it paints a picture of the defendant as a wanton killer--the very strength of this evidence may call the jury's attention to the comparative weakness of her evidence concerning the defendant's mental state, which is the rubber issue (in every sense) in the case. She can overcome this problem if she can keep the jury from focusing on the epistemological differences between physical acts and mental states. n64 In this she is aided by another and deeper convention of folk psychology: that mental states and physical acts are interconnected parts of an objective chain of events, a true story, something that happens in the world, something that is real and, being real, is knowable--something, in short, that a jury can find from evidence. She will want to root her argument in this convention. [*78] A. Macrostructure The macrostructure of the lawyers' arguments reflects their respective strategies. Page 11 37 N.Y.L. Sch. L. Rev. 55, *

1. The Defense Argument Defense counsel's opening words portray him as engaged in a dialogue with the jury: "When I spoke to you all about a week ago I tried to summarize with you all what I thought were two critical concepts [or values] that I thought were necessary in a jury that was going to hear the evidence in this case."

The dialogue is partly verbal and partly empathic: "Even though I didn't talk to each and every one of you, I sensed from most of you or from the collective that was here an awareness of those values and an assuredness that you would apply these two values to the evidence in the case." "[Counsel's argument will] assume . . . that I was right in thinking that these two values permeated this jury, because if I'm wrong then I fear that my summation will fall on deaf ears."

But the jury will have to do more than listen; it will have to continue the dialogue after counsel has finished speaking. Counsel calls on those jurors who appreciate the two concepts to "talk to the other members of the jury and explain to them" the importance of these concepts. n65 Counsel proceeds to cast the jury for its part in the dialogue by describing the two concepts "that I tried to speak about in voir dire." The first concept is that the jurors would set aside their natural repugnance for the defendant as someone who has killed a young woman by a wanton act of violence and would hold him account- able only for the specific crimes "proved to you beyond a reasonable doubt." This concept is enacted performatively in a pair of explicit dialogues between counsel and the jury in which the jury is depicted as speaking out repeatedly: "Yet you all tell me that you can still apply the laws to him, a man who created such a perilous situation. [*79] "You all said or said to me that you can still apply the laws to him. . . . You said you would still apply the laws to him. . . ." "I mean, how easy would it be for each of you to say, 'Why should we show any serious regard for a man who showed so little regard for the life of another?' How easy it would be for each of you to say, 'Why should we care about what crime is proved against him when he in so cavalier a manner apparently pulled a gun and ended up killing another humanbeing [sic]?'" The second concept is that if facts were not proved, the jury would treat them as unproved and would not expect the defense to present evidence about them. This concept, too, is developed in the form of an active dialogue between the jury and defense counsel and the defendant: "You all said basically that you would not say at this point, 'Well, wait a second, there were two people in that car, . . . [the defendant] and . . . [the victim]. . . . They are the two who really knew what happened. She obviously can't speak, let him speak. Let Page 12 37 N.Y.L. Sch. L. Rev. 55, *

him get up and tell us what really occurred. . . . If it wasn't a shooting with intent to kill, then you . . . [the defendant] get up and you tell the jury what occurred.' "Well, you promised him and you promised me that you understood that the law does not give you a right to demand or ask that of . . . [the defendant]. You cannot ask him to speak and most importantly you cannot in any way use his silence against him." Defense counsel then summarizes the testimony of the witnesses, states that the issue that the jury must resolve is whether the defendant had an intent to kill, and argues that there is insufficient evidence to allow the jury to find an intent to kill. His argument ends with a final dialogue, a fully enacted dramatic dialogue, between himself and the defendant and the jury, in which defense counsel asks the jury to "stand up," to "look over at" the defendant, and "while looking at him[,] vote not guilty." n66

2. The Prosecution Argument The prosecutor also begins by describing her argument as a "discussion" with the jury, but she does so in a perfunctory, conventional style and immediately signals that her conception of "discussion" is non-dialogic: [*80] "This is the last opportunity I'll have to talk with you concerning the evidence in this case. I am going to take this opportunity to discuss with you how the evidence proves the defendant's guilt beyond a reasonable doubt. You may find my argument to be persuasive and you may not. ". . . [Defense counsel's] arguments are not evidence and my arguments are not evidence and I'm relying on the common sense and your own intelligence and innate abilities to determine the facts in this case."

Thus, no interchange of ideas appears to be contemplated. The prosecutor will offer the jury her arguments on a take-it-or-leave-it basis. Moreover, the arguments are not evidence, and the jury's real job is to get right down to the work of determining the facts of the case on the basis of the evidence. Of course, the statement that counsels' arguments are not evidence is a boilerplate item that has a number of traditional functions and may be virtually obligatory in some prosecutors' offices. Technically, it helps to insulate the prosecutor from reversible error if she inadvertently misstates the record; rhetorically, it reminds the jury of her dominant position when, as is ordinary, the prosecution's evidence was bulkier than the defendant's; and in cases where, as in the present one, the defendant has presented no evidence at all, it permits the prosecutor to call the jury's attention to that omission without risking a rebuke for commenting on the defendant's exercise of the privilege against self-incrimination. Here, the arguments-are-not-evidence statement lays the groundwork for the prosecutor's premier theme to come: that defense counsel has offered nothing but irresponsible speculation to support a finding of unintentional homicide. But the interjection of the statement at the outset reinforces the tendency of that theme to project the prosecutor's relationship with the jury as non-dialogic: When one's claim is that the evidence said it all, there is little left to converse about. The prosecutor proceeds immediately to offer a rather different account than defense counsel of the virtues for which the jurors "were chosen": these were "common sense, . . . fairness and . . . Page 13 37 N.Y.L. Sch. L. Rev. 55, * what we perceived to be in you the ability to judge the evidence in this case." n67 [*81] Hearing, rather than speaking, discernment rather than discourse, seem to be their chief features: "Now there are certain things which aren't in issue . . .[,] certain things which are not being disputed in this case as I'm sure you just heard [during the defense argument] and as you probably perceived during the course of this trial."

The prosecutor dwells for some time on these things, which permit her to talk about the fact of the killing "over four years ago," its "violent and senseless" nature, its concrete anatomical details, the defendant's identity as the killer, the fact that the killing occurred in the course of a quarrel between the defendant and the victim, and (simultaneously) the credibility of the prosecution's witnesses--all to a double drum roll of epistemological certainty:

"I mean there is no question that. . . ." "There is no question that. . . ." "There is no question. . . ." "There is no issue apparently. . . ." "There is no issue that. . . ." "There is no question about. . . ." "There is no question. . . ." "Those things aren't in issue. . . ."

And:

"We all know that." "You know they were telling the truth." "You know they didn't tailor their testimony." "You know that. . . ." "You know that. . . ." "You know that. . . ." "You know . . ." "You know . . ." "We know it was . . . the defendant." n68 [*82] With this firm substructure of indisputable facts established--not by dialogue or reasoning, but because "there is no question" about any of it and the jury "know[s]" it all from the evidence--the prosecutor next states "the thing that is in issue": "The only question for you is what did . . . [the defendant] intend. . . ." The way the jury is to decide that question is immediately stated: ". . . I'm not going to ask you to speculate on things that aren't in evidence. I'm not going to ask you to hypothesize about other theories of this case. ". . . The Judge will tell you that you're not to speculate on things that aren't in evidence. So what I am going to discuss with you is what the evidence shows in this case."

There follow a dozen pages (about fifteen minutes) of interwoven arguments of three sorts:

Page 14 37 N.Y.L. Sch. L. Rev. 55, * a. "The defense would have you believe that in this case and in fact in any case unless . . . the defendant walks up to another person[,] declares his intent to kill that person, pulls the trigger, aims the gun at a chest or head, says 'Gee[,] I'm glad I did that, I really meant to kill you' . . . and walks away, that it's impossible to prove a person's intent beyond a reasonable doubt." But "I'm sure you all know that simply isn't true." n69 b. Rather, the jury needs only use its "common sense" n70 to put together the physical facts of the case (which "you know") and certain principles of human conduct (which, also, "you know") in order to conclude that the defendant intended to kill the victim. For example, "you don't point a loaded gun at someone . . . and pull the trigger when you don't intend to kill them"; also, the defendant's "callous disregard" for someone he had just shot in the chest "shows that this wasn't an accident." n71 c. "It would be pure speculation and pure imagination on your part" to accept defense counsel's hypothetical scenarios of unintended killing, because "there is no evidence in this case that anything other than and [*83] [sic] intentional murder took place," n72 and "it's only through speculation and hypothesizing that you can find anything other than that the defendant in this case when he pulled the trigger and fired that shot into . . . [the victim's] heart that he intended to kill her." n73 The prosecutor's peroration picks up the theme that "I'm not going to ask you to hypothesize, to use your imaginations. I'm simply going to ask you to use your common sense to evaluate the evidence that you heard and to base your verdict on that evidence." "What's being sought in this courtroom . . . is . . . justice[,] and justice is a verdict based on the evidence." "Justice cries out for a conviction in this case." B. Microstructure By contrasting defense counsel's argument with the prosecutor's, we have seen that the defense argument has three interrelated properties. It tells the story of the trial, not the killing. It tells that story as Drama. The Drama is performed by drawing the jury into dialogue. So far we have examined these properties primarily as functions of macrostructure. We now focus on microstructure.

1. Defense counsel's use of verb tense is a powerful instrument for focusing the jury on the present rather than the past. The events surrounding the killing are, for the most part, described in the present tense. The play of tense throughout the defense argument is remarkable:

-- The form for describing the witnesses' testimony is mostly "she testifies" that "X happened," but sometimes counsel even paraphrases testimony in the present tense.

-- Analysis of the evidence is mostly but not entirely in the present tense: "Where does she see all this from?" "Where does she position herself?"

-- Tension ("difference") in the evidence is described in the present tense. The jury is asked to wres- tle in the present with the present (or eternal present) state of evidence about what happened in the past tense: "You must find in his actions something that proves to you what was in his mind." * Page 15 37 N.Y.L. Sch. L. Rev. 55, *

"But if ther [sic] is no adequate motive that [*84] has been presented to you, doesn't that make you question whether or not Mr. Jones had the intent to kill?"

-- Lack of evidence is almost always described in terms of present-tense ignorance about past-tense happenings. "But where is the proof presented to you that he aimed there?" When there is an unclar- ity in the story, it is (suddenly) because this all "happened four years ago."

-- The facts that the prosecutor and defense counsel are portrayed as arguing or as having to prove are described in the past tense. "Ms. Brooks will argue that . . . that testimony shows my client shot Mary Smith with intent to kill. . . ."

-- But direct accounts of the "reality" of what happened on the street are virtually all in the present tense. n74 For example: "Is an intent to kill established by his cold manner in which he walks away from the scene? He spins around and puts the gun away and walks away. I mean he knew this woman. They're all friends of some sort. He killed her. Is he unconcerned? Likely, he leaves a woman dying, he's a bad guy. Is he in shock when he walks away? Maybe. We don't know. Everyone says split, someone says to him go up the street and he goes. He gets out of the scene. . . ." n75 The prosecutor, on the other hand, tells the story of the killing wholly in the past tense. n76 For the most part, even the testimony of the witnesses is recounted with the introduction "she testified" or "she said."

[*85] 2. The prosecutor uses several additional, connected devices to give her story the solidity of an authoritative history:

-- She keeps her prefatory remarks short, states matter-of-factly that "certain things . . . aren't in issue," and--within twenty-five lines of greeting the jury--begins her tale. It starts: "I mean there is no question that on February 10, 1987 over four years ago Mary Smith, a 20 year old woman was the victim of a violent and senseless death."

-- Her discussion of the killing itself has a physical quality--an iconicity--that is almost totally lacking in the defense argument. We have given one example of this in footnote sixty-four: Defense counsel talks about Mary's being shot in the chest only when he is explicitly debating whether the location of the entry wound proves an intent to kill; the prosecutor repeatedly refers to a chest shot whenever she talks about shooting, whether or not the location of the wound is logically relevant in context. The point is made more generally by the following chart, which shows the frequency with which the two lawyers use various phrases to describe the act of killing: phrase defense counsel prosecutor created a perilous situation 1 - killed her 6 2 shot [intransitive] 2 - shot her [or Mary or a person] 6 3 fired 3 7 pulled the trigger 2 6 caused a shot to go into her side - 1 caused the bullet to penetrate Page 16 37 N.Y.L. Sch. L. Rev. 55, *

phrase defense counsel prosecutor her heart and liver - 1 n77

-- The prosecutor also gives concrete solidity to the historical events of the killing by making fre- quent use of an object metaphor to describe [*86] facts or evidence or testimony about the killing as things that the jury has. "We have . . . [the victim] and the defendant inside a car." * "What other evidence do we have of the defendant's intent . . ." * "No, you don't have any evidence of the defendant . . . saying . . . 'I'm going to kill you.' But what you do have is a continuing argument . . . where the defendant is angry and the defendant has a gun and what you do have is a shot being fired and what you do have is evidence of the defendant . . . with a smoking gun. . . ." n78

3. Defense counsel's means for transmuting the process of factfinding into a Drama with the jury as protagonist are complex: a. As noted above, counsel begins his argument by describing the way in which the jurors should go about deciding the case. He frames this description in terms of certain virtues that the jurors will bring to the task of decision making--namely, two basic "concepts" or "values" concerning a juror's proper role in a criminal trial, which the jurors "have" and will "apply." These concepts and values are described as being in tension with other, negative emotions that the jury may entertain toward the defendant--passions, feelings, and attitudes n79 that each juror "has the right" to have but which the jurors have promised on voir dire that they would put aside. Thus, the jury's decision making is portrayed as a process which begins with the jurors' own mental activity, involves a conflict between the jurors' feelings and duties, and requires the exercise of will to resolve that conflict. So the Drama in which the jury is cast as the Hero is a psychological drama. Externally, the jury's Difficult Task is to answer the riddle of the evidence. Psychologically, it is to overcome the temptation to answer the riddle in a manner that is inconsistent with the Hero's Duty. The Duty is portrayed as that of disciplined inquiry. n80 The temptation is repeatedly [*87] described in terms of undisciplined passions and feelings that are at war with this duty: n81 "Is it horrible? Is it proof of a depraved and damnable mind? Yes. But even if you think that[,] you must acquit. n82 "The law is specific that you have agreed to uphold. . . ." "Then what then, what[,] Mr. Lee [defense counsel], you tell us[,] I can hear you all saying, you tell us how a woman is shot in the chest at close range if it's not intentional murder. If there was no intent to kill, what's the scenario[,] how did it happen. I don't know. And I'm not going to play detective and it's not my job and I'm going to just hold you to the promise that you made to not make me prove to you in any way how it may have occurred." n83 [*88] The prosecutor, on the other hand, does not depict the jury as internally conflicted. Like defense counsel, the prosecutor emphasizes the importance of the jury's own attitudes and natural reasoning processes. And like defense counsel, the prosecutor acknowledges that these may be of two kinds. First, the jurors have "imaginations." The prosecutor several times identifies "imaginations" with "hypothesizing" and with "speculating," n84 and she warns the jurors that the judge will Page 17 37 N.Y.L. Sch. L. Rev. 55, * tell them not to speculate. n85 but this prohibition is not couched in such a way as to generate tension: hypothesizing and speculating are not temptations that have much allure for sensible people to begin with. n86 Second, the prosecutor tells the jurors that they have "common sense." Common sense is a good and attractive quality, and the prosecutor repeatedly invites the jury to use its "common sense." n87 To the extent that there is any [*89] possibility of conflict between the appealing quality of common sense and the unappealing quality of hypothesizing or speculating, the prosecutor defuses it by a double move. She employs an object metaphor (THOUGHTS ARE OB- JECTS) to externalize both qualities--making "imaginations" and "common sense" objective instruments n88 --and she then asks the jurors to use the fitter instrument: n89 "I'm not going to ask you to use your imaginations . . . because that is not your job." "I'm relying on you as I said in the beginning to use your own common sense in deciding what it was the defendant intended to do." "I'm not going to ask you hypothesize, to use your imaginations. . . . I'm simply going to ask you to use your common sense to evaluate the evidence that you heard and to base your verdict on that evidence." b. Defense counsel, having by contrast cast the jury as a Hero torn between desire and duty, calls upon it to resolve this conflict in the classic heroic mode: by an exercise of will. n90 He consistently uses verbs of volition to describe what the jury must do and to remind the jurors of the responsibilities that they have taken on themselves: [*90] "One concept [mentioned on voir dire] was that whatever passion you felt or didn't feel towards the Defendant, no matter what attitude you may have towards the Defendant . . . that no way would that interfere with the verdict that you would bring in this case." n91 "You would not assign blame to him unless specific blame worthiness had been proved to you beyond a reasonable doubt. . . ." "You would not in anyway expect us . . . to prove or to disprove anything. . . ." "You would in no way hold us responsible for clarifying these ambiguities for you and you would in no way expect us . . . to make up for the lack of clarity . . ." n92

The prosecutor, by contrast, never uses forms of the verb "will" with the jury as the subject. c. Another way in which defense counsel plays the same theme is by the use of phrases that conjoin volition and emotion: "show . . . regard for"; "care about"; "desire to analyze"; "be concerned." n93 Phrases of this sort mark an exception to the ordinary tenet of folk psychology that "feelings, like perceptions, are not considered to be under one's direct control." n94 They reflect a belief, or at least an aspiration, that one can [*91] direct one's feelings by an act of will. The prosecutor uses no such language in connection with the jury. d. A key passage in the defense argument summarizes the jury's moral dilemma and the need for the jurors to make a deliberate choice between the paths of natural temptation and higher duty: Page 18 37 N.Y.L. Sch. L. Rev. 55, *

"I hope I make clear to you why I still believe . . . [that the concepts and values which the jurors accepted on voir dire] are critical to your ability and maybe even more to your desire to analyze this case. "Why do I say that it's important that you have a feeling or a notion that however you feel towards the defendant won't influence you in the decision you make? Why is that critical in this case? Because each and every one of you has the right to despise the man who I represent. "Whatever he did in a legal sense or an illegal sense, whatever his state of mind may have been at the time, that man had a loaded gun in his hand during an argument in a car and he pulled the trigger and he killed a young woman. Yet you all tell me that you can still apply the laws to him, a man who created such a perilous situation. "You all said or said to me that you can still apply the laws to him, a man who is obviously responsible for the death of Mary Smith. You said you would still apply the laws to him, still be concerned and still only convict him for what is really proven against him."

By contrast, the prosecutor describes the jurors' "innate abilities" as given, requiring no act of will to exercise, and harmonious with the paths of law and logic which lead naturally to conviction: "I'm relying on the common sense and your own intelligence and innate abilities to determine the facts in this case." "You were chosen because of that common sense, because of that fairness and because of what we perceived to be in you the ability to judge the evidence in this case."

The following parallel passages epitomize the contrast: [*92] Defense counsel: "Some of you do have these values and understand these concepts [referring to the same values and concepts mentioned in the immediately preceding excerpt from the defense argument] and I'm going to rely on those of you who do have these concepts to talk to the other members of the jury and explain to them why these concepts or values are so critical in evaluating the evidence. . . ."

The prosecutor: "And I'm going to rely on your common sense and your ability to determine the facts in this case in making a decision as to whether the defendant in fact intended the natural consequences of his actions." n95 e. The way in which the respective lawyers use the deontic forms must, need, have to, and should in relation to the jury are particularly revealing. With one exception, n96 defense counsel always in- vokes these forms in the positive voice, as commands of duty: "If proof is lacking then you must acquit." "But you must find before you convict him of Murder a specific intent to kill and you must find in his actions something that proves to you what was in his mind." "But even if you think that[,] you must acquit." n97 Page 19 37 N.Y.L. Sch. L. Rev. 55, *

Conversely, in the prosecutor's arguments, the same forms are invariably negative or dismissive, stating an absence of command: "You don't need to consider whether it [the motive] might be enough for a reasonable person." n98 [*93] "You don't have to put yourself in the defendant's mind and decide whether[,] you know[,] you think it's reasonable that that was enough of an insults [sic]." "All you have to do in this case is to make a reasonable assumption about the defendant's intent based on his conduct. . . ." f. The verbs of action that the lawyers attribute to the jury in their respective arguments are also significant. Defense counsel uses the verb do in connection with the jury nine times, thrice in his closing sentence asking the jury to vote his client not guilty. With two possible exceptions, n99 all of these uses are affirmative and empowering. n100 The prosecutor uses the verb do in connection with the jury four times. With one exception, n101 each of these uses is negative or restrictive. n102 [*94] Defense counsel often refers to the ultimate act that the jury will perform in the case, using verbs of action: "convict," "acquit," "vote not guilty." The prosecutor never uses such action verbs. Even in her peroration, the prosecutor uses a remarkable combination of devices--a relatively abstract verb phrase (return a verdict), n103 a muted future perfect tense, n104 and a compound sentence ending in two successive copulas--to mitigate the action that she is asking the jury to take: "I know that when your service is over here you want to look back on your jury service and feel that you did the right thing, you want to feel that you returned the just and appropriate verdict in this case and that is a verdict based on the evidence and I submit to you that the only verdict based on the evidence in this case is guilty of Mur- der in the Second Degree."

This peroration contrasts starkly with defense counsel's, in which the jury is asked to "stand up," to "look over at" the defendant, and "while looking at him," to "vote not guilty." n105 And the contrast is plainly strategic. For in the passage immediately preceding her peroration, the prosecutor is at pains to portray the jury's verdict as something other than an engine of the jury's agentivity--or, indeed, of any human agency. Not human will or human purpose, but transcendent "Justice" will speak in the verdict: "Ladies and Gentlemen, we are not--the People are not seeking vengeance in this case. . . . [The victim's] family is not seeking vengeance in this case. I mean a trial is a search for truth. I mean it's not an excuse to find doubts. I'm not going to ask you to hypothesize, to use your imaginations, I'm simply going to ask you to use your common sense to evaluate the evidence that you heard and to base your verdict on the evidence. "What's being sought in this courtroom n106 as I said is not vengeance but it's justice and justice is a verdict based on the evidence. Justice cries out for a conviction in this case, Ladies and Gentlemen."

Page 20 37 N.Y.L. Sch. L. Rev. 55, *

[*95] In defense counsel's philosophy, on the other hand, it is "law" rather than "justice" that is the transcendent value; and "law" is not a self-moving force but a canon that the jury must apply. n107 "If you can put . . . [aversion to the defendant] aside, if you can apply the law in a cool rational way, then you deserve our great admiration and I hope that you can do it." n108 g. Defense counsel tends to use metaphors that depict the jury's thinking processes as physical and active:

-- He makes extensive use of the metaphor THINKING IS SPEAKING. When referring to the mental operations of the jury, defense counsel consistently describes the jurors as talking: "How easy would it be for each of you to say, 'Why should we show any serious regard. . . .'" "How easy would it be for each of you to say, 'Why should we care. . . .'" "The second concept I thought was critical was if you would be willing at the end of the case to say if certain matters aren't proved beyond a reasonable doubt that there [sic] just not proved." "[On voir dire:] You all said basically that you would not say [meaning "think"] at this point, 'Well, wait a second. . . .'" "Can you go from assuming that . . . [particular fact] to leaping and saying therefore when the gun went off he intended to kill?" "I can hear you all saying, . . . ." n109 [*96] This metaphor is consistent with two defense strategies: (a) to depict the trial as an exercise in dialogue, in which the lawyers and the jury are engaged in an exchange and in which the jury's role is an active, not merely a passive one, and (b) to support the defense argument that because David Jones never spoke a single word expressing an intent to kill, the evidence of intent to kill is fatally ambiguous. n110 Of course, defense counsel neither states the THINKING IS SPEAKING metaphor overtly nor connects it explicitly with the issue of the defendant's intent. If he did so, he'd get chopped to pieces. What he does do is to establish the metaphor performatively n111 and then reason implicitly from its entailments. n112

-- Defense counsel uses the metaphor LOOKING IS ATTENDING TO in the same way: "Look, the issue here is not so mysterious." "Look, in no way am I telling you to ignore the result." "Look at the evidence in a really bad light." "If you just look at the evidence, the lack of evidence. . . ."

Then, in the peroration of defense counsel's argument, the verb "look" is used literally to dramatize the jury's agentivity and responsibility: Defense counsel asks the jury to "stand up and . . . look over at David Jones and while looking at him vote not guilty." n113

Page 21 37 N.Y.L. Sch. L. Rev. 55, *

[*97] h. Defense counsel occasionally uses classic heroic verbs with the jury as the subject: "If proof is lacking then you must acquit. You cannot fail to acquit. . . ." "The law is specific that you have agreed to uphold. . . ."

The prosecutor uses no such verbs. The prosecutor's verbs to describe the jury's function in the trial stress judgment; n114 defense counsel's stress action and the Heroic Quest. Consider the compari- son in the following chart: [*98] VERB NUMBER OF USES WITH JURY AS SUBJECT prosecutor defense counsel judge 1 0 decide (or make a decision) 6 4 tell (in the sense of discern) 1 0 determine 2 0 conclude (or draw a conclusion) 1 1 base a verdict on evidence 1 0 infer 1 0 figure (or figure out) 1 1 evaluate 1 1 analyze 0 1 ADD IT ALL TOGETHER 0 1 APPLY THE LAW 0 4 ASSIGN BLAME 0 1 FIND 2 4 BE SATISFIED 0 1 i. Another way in which defense counsel creates an heroic role for the jury is apparent in his use of the verb can with the jury as its subject. Both lawyers' arguments are full of statements that the jury "can" or "cannot" do certain things--draw inferences, reach conclusions, take a certain view of the evidence, etc. However, in the defense argument, more than half of these passages refer to positive or negative constraints of duty--obligations that the jury has undertaken or must observe to keep faith with the law: "If you can do that, if you can do that in a cool dispassionate way, then do it." n115

[*99] The residue refer to things that the jury can or cannot do as a matter of logic. n116 In the prosecution's argument, by contrast, almost all of the can and cannot passages have to do with what is physically or logically possible n117 rather than with what is legally or morally permissible. n118

4. Defense counsel uses a variety of means to carry out the project of engaging the jury in a dialogue. a. His argument is full of rhetorical questions. Whole paragraphs are nothing but series of questions and answers: "Were any words heard before, during or after that my client uttered that shows an intent to kill? Did he say during the shooting 'Die.' Did he say, 'I want you . . . dead.' Did he say, 'I'm going to kill you.' Is there any of that shown in the evidence that you have before you to prove an intent to kill? Is there any proof before you that shows that Page 22 37 N.Y.L. Sch. L. Rev. 55, *

my client actually aimed the gun at . . . [the victim]? There is none. Is there any evidence before you that shows that my client actually pointed the gun at . . . [the victim]? There is none. Is there any evidence that he held it out in a grip so that he could make sure he killed her? There is none. Is there any evidence that shows him . . . getting a [bead] . . . on her. . . . There is none. Is there something presented to you that proves an intent to kill so you don't have to speculate to draw that conclusion? "Is he angry? Yes. Does he have a gun? Absolutely. Does he fire a shot in a small confined space? No doubt. Is he blame worthy? Absolutely."

[*100] Defense counsel asks a total of sixty-five rhetorical questions in a twenty-one-page argument. By contrast, the prosecutor asks five rhetorical questions in a fifteen-page argument. b. Defense counsel repeatedly describes himself as engaged in conversation with the jury. The defense argument contains eleven sentences that portray defense counsel as "speaking" or "talking" to the jury, "saying" or "telling" something. n119 By contrast, the prosecutor's argument contains four sentences that portray the prosecutor as speaking to the jury. n120 Defense counsel's peroration begins with the phrase: "What I'm really asking you to do." The prosecutor's argument contains six sentences in which she is the subject of the verb "ask" and the jury is the indirect object. Five are negative: "I'm not going to ask you to speculate. . . ." * "I'm not going to ask you to hypothesize. . . ." * "I'm not going to ask you to use your imaginations. . . ." * "I'm not asking you to rely completely on that evidence but its [sic] very compelling." * "I'm not going to ask you to hypothesize, to use your imaginations. . . ." (Cf.: "No one is asking you to do that.") c. When defense counsel talks about facts being proved, he repeatedly uses the formulation "proved to you" (the jury); when he talks about evidence that was presented, it was "presented to you." There are twenty-three formulations of this sort; much less often does defense counsel say simply that facts were "proved" or evidence "presented." The prosecutor's argument contains five statements in the form: "[a witness] told you," or "[a witness] testified . . . in front of you," or "we will prove to you"; more frequently she says simply "we have proved," or "the evidence proves," or "there is no question," or "no issue" about certain facts, or "there is no evidence" of facts to support the defense position; or she talks about "what the evidence shows in this case." d. In the defense argument, the jurors are frequently portrayed as speaking.

-- As noted at pages 95-96 above, defense counsel consistently uses "say" to mean "think" when he describes the mental operations of the jury. n121

[*101] -- The jurors' commitments on voir dire are described as having been spoken to counsel: "you all tell me," or "you all said or said to me." n122

-- Defense counsel sometimes puts specific words in the jury's mouth. "You all said [on voir dire] basically that you would not say at this point, 'Well, wait a second there were two people in that car, . . . [the defendant] and . . . [the victim]. . . . She obviously can't speak. Let him get up and tell us what really occurred. . . .'" * "You tell us[,] I can hear you all saying, you tell us how a woman is shot in the chest if it's Page 23 37 N.Y.L. Sch. L. Rev. 55, *

not intentional murder? If there was no intent to kill, what's the scenario[,] how did it happen?"

-- Or defense counsel poses questions as though the jury were asking them of him and then proceeds to answer them. "Is he capable of scaring someone with a gun? Yes. Is he a bully? Absolutely[,] and most bullys [sic] are just that, they're bullys [sic]."

[*102] -- The defense argument portrays the jurors as wanting to ask questions; defense counsel reminds them that there are some questions that they are not allowed to ask n123 but he encourages others. n124 He describes the jurors as continuing the dialogue in the jury room. n125

5. By contrast, the prosecutor's argument employs several related strategies: The jury is discouraged from taking any active role in the construction of the facts on which its verdict will rest. The facts are something that happened four years ago. The jury's job is to discern those facts by observing their fossils in the evidence. (Concededly, the prosecution bears the burden of proof of the defendant's intent and must prove it by circumstantial evidence. But fossils are the most powerful species of circumstantial evidence.) Resolving the issue of the defendant's intent is simply a matter of perceiving a reality which certain facts inherently possess and which their fossilized remains in the evidence therefore "prove." Reality does not need to be created. It is already out there, in events. n126 It is knowable. [*103] Indeed, having heard the prosecution's evidence and being capable of using common sense, the jury already "knows" the relevant reality. n127 [*104] Defense counsel is perversely trying to distract the jury from that reality--to make it abandon the "search for the truth"--by luring it into an imaginative dialogue which is "an excuse to find doubts." This kind of imaginative exercise is synonymous with "hypothesis" and "speculation"; the law forbids the jury to hypothesize or speculate. Thus, defense counsel and the jury really have nothing to talk to one another about. Lawyers' arguments are not evidence and the defense presented no evidence. The prosecutor, who did present evidence, can talk to the jury authoritatively about "what the evidence shows in this case" and "how the evidence proves the defendant's guilt beyond a reasonable doubt."

6. The prosecutor explicitly criticizes defense counsel for resting his argument on a scenario that "only happens in the movies. Doesn't happen in real life." This is a two-pronged attack, contemning both the defense attorney's tale and the tale teller. n128 The prosecutor dismisses defense [*105] counsel's scenario of an intentional killing--a killer with a motive, a carefully aimed weapon, a statement manifesting intent to kill--as the kind of story that could only come out of the Hollywood dream factory; she simultaneously disparages the defense attorney for trying to pass off this cellu- loid fantasy as legitimate argument. The prosecutor is right that defense counsel has tapped into a story line immortalized in movies and television shows: the cold-blooded killer who kills for some identifiable motive (hatred, revenge, to eliminate a witness to a previous crime), taking careful aim before firing and preceding or punctuating the killing with some dramatic remark. n129 The effectiveness of devices like the rhetorical questions with which defense counsel develops his theme of the cold-blooded murderer Page 24 37 N.Y.L. Sch. L. Rev. 55, * commonly depends upon predicting accurately and playing to the stereotypical assumptions of one's audience. n130 Motion pictures and other sources of popular culture (television, best-selling nov- els, and so forth) offer a window into the stock scripts that are familiar to our culture. n131 By taking [*106] these stock scripts into account, an advocate can prompt his or her audience to supply the "right" answers to the syllogisms that s/he sets up. n132 Thus, it is not surprising that the prosecutor, after faulting defense counsel for relying on a movie script, taps into two such scripts herself. First, she counters defense counsel's arguments about the absence of any proof of motive by drawing on the story, commonly featured in news reports as well as motion pictures, of the killer so disdainful of human life that s/he will kill for the slightest provocation or imagined slight. n133 "What we have proved," the prosecutor says, "through the insulting conversation that was overheard by Nancy and Susan, . . . is a motive[; it] may not be a motive that you would act on, may not be a motive that a reasonable person would act on, but it was a motive that the defendant acted on." And again: "Whether you understand the nature of that insult or not really isn't at issue here. But there is no question that the defendant felt insulted and I'm sure you all know that people have been killed for less."

Second, the prosecutor alludes to the oft-told story of the "mad dog killer," n134 portraying the defendant as having "killed a person he intended to kill in front of people to show that he was a big, you know, he was a big man." Like her attack on defense counsel's tale, the prosecutor's attack on the teller evokes stock scripts. By characterizing defense counsel's arguments as not just wrong but Hollywood hype, the prosecutor [*107] implicitly asks the jury to view her opponent through the stock script of the amoral, opportunistic defense attorney who will stop at nothing to "get the client off." n135 In this, she acts upon the insight of the classical rhetoricians that a speaker's credibility depends upon the audience viewing him or her as a person of "good will" and "good character." n136 Once defense counsel has been cast in the role of the con artist, the jury is more likely to view his arguments skep- tically; what might otherwise have seemed deft argumentation may be transformed into unfair manipulation. n137 The most effective way for defense counsel to avoid being cast in this role is to persuade the jury to apply a different, more favorable stock [*108] script. n138 There are screen images that portray defense lawyers in a better light. The earliest and most enduring image is the one popularized by Erle Stanley Gardner's "Perry Mason": the crusader who fights nobly on behalf of an innocent client (or at least a client whom s/he reasonably believes to be innocent). n139 Also admirable is the image of the defender as paladin: the defense attorney who, although a "hired gun," achieves a higher nobility and morality by performing his or her professional duty in a scrupulously conscien- tious manner. n140 Often, a defense attorney's task is to navigate successfully among these stock scripts, encouraging the jury to think in terms of either the Perry Mason or the paladin script and avoiding the image of the con artist. [*109] In Jones, several aspects of the defense argument which we have already mentioned have the effect of placing defense counsel squarely within the stock script of the paladin. First, counsel uses the Aristotelian Proem to establish himself in the jurors' eyes as a professional who is committed to follow the rule of law. Second, counsel's heavy reliance on rhetorical questions helps to refute the negative con-artist script. Con artists are notorious for their manipulative use of Page 25 37 N.Y.L. Sch. L. Rev. 55, * speech ("fast-talk," "doubletalk," "sweettalk"). By asking questions instead of making assertions, counsel fosters the impression that he wants the jurors to think through the issues on their own and to use their independent judgment. Third, by repeatedly conceding that his client's conduct--even under the defense theory of the facts--was reprehensible, defense counsel demonstrates that he is neither a bleeding-heart apologist for his client's misdeeds nor a trickster trying to conceal unpalat- able facts with smoke and mirrors. ("Look, in no way am I telling you to ignore the result. In no way am I telling you to ignore the fact that she was shot in the chest where her heart was.") He is able, as a result, to cast himself in the role of legal technician, required by the law to focus on a very narrow question of mens rea and performing that task in an appropriately professional manner. Fourth, counsel takes pains to read directly and extensively from the trial transcript of the testimony of the prosecution witnesses. Six or seven minutes of his argument is devoted to straightforward reading. How, then, can it be doubted that his facts and he are straightforward? n141 Finally, defense counsel presents the myth of the Hero performatively, implicitly encouraging the jurors to view themselves in that role rather than explicitly exhorting them to play the role. Counsel thereby limits the risk that the jurors will perceive him (or that the prosecutor will be able to portray him) as trying to manipulate the jury. In addition to using the stock script of the paladin defensively to guard against a prosecutorial attack, counsel uses it affirmatively. The same story line that enables him to assume the persona of the paladin also [*110] enables him to cast the jurors in the role of the Quest Hero. Disciplined obedience to duty is the soul of it. n142 V. CONCLUDING OBSERVATIONS Please recall again the factual issue framed for the jury's decision by the law of New York in the Jones trial: whether David Jones intended to kill Mary Smith. Recall also the evidence and the posture of the parties regarding the evidence. All of the testimony indicated that Jones had fired one shot from a handgun during a loud argument with Smith in the back seat of a parked car; this shot entered Smith's chest, pierced her heart, and killed her; Jones fled. Defense counsel did not dispute that these events were proved; the prosecutor did not assert that any additional relevant events were shown. In this state of the record, the prosecutor could be expected to argue that people do not shoot others in the heart at close range unless they intend to kill them. She so argued. Defense counsel could be expected to argue that the possibility of other unexcluded but evidentially unidentified ex- planations for the shooting left a reasonable doubt. He so argued. At the logical level, these two arguments were pretty much everything the lawyers said in closing. Logically, there was little more for them to say. But their closings also drew upon resources other than logic. Notwithstanding their complete agreement about the events before, during, and after the shooting of Mary Smith, the lawyers told completely different stories, with completely different plots, completely different themes, completely different narrative structures. They evoked different stock scripts. They used different metaphors and different grammars. Despite their acceptance of the same legal and logical canons--or perhaps because of it--they created different worlds that gave those canons different meanings. [*111] The recognition of this phenomenon raises interesting questions. One wonders, most immediately and practically, whether the creation of these different worlds in closing arguments has any effect upon the jury's reactions to a case. If so, what effects, and under what conditions? These Page 26 37 N.Y.L. Sch. L. Rev. 55, * are subjects that would lend themselves to study through empirical research techniques like those developed to examine other aspects of jurors' thinking; n143 but, so far as we are aware, little such study has yet been done. n144 [*112] A second level of questions has to do with the nature of the processes through which the lawyer's closing arguments might affect the jurors' reactions. If the kinds of stories, tropes, and linguistic devices that we have found exemplified in the Jones arguments influence jurors' cogni- tion, how does this happen? A considerable body of theoretical work from a number of disciplines is potentially relevant here. The ways in which narratives and myths shape people's interpretations of experience have been the subject of varied, richly polyphonous theorizing. n145 So have the [*114] ways in which stock scripts and other prototypes organize thinking. n146 So [*116] have the workings of metaphor. n147 And so, lately, have the semiotic codes [*117] that, in the telling of a story, create "a grammatical framework engineered to ensure proper interpretation." n148 A third level of questions has to do with the nature of the processes through which the lawyers themselves produce the sort of argumentation that we have detected in Jones: thickly textured tales in which the lawyer's explicit logical reasoning is backed by the implicit sending of additional mes- sages, strikingly harmonious, mediated by the multiple devices of narration, allusion and linguistic coding. It is hardly plausible to suppose that all of these communicative strategies are employed de- liberatively, or even deliberately. The defense lawyer in Jones may or may not have consciously chosen to structure his argument as a prototypical Hero's Quest; it is much less likely that he consciously chose to use his SPEAKING IS THINKING metaphor; it is almost inconceivable that he consciously chose to use each of implicit focalizations, dialogic speech acts, dependent and independent sentence constructions, verb tenses, and so forth that he put together with such remarkable consistency and mutually reinforcing interplay. As Claude Levi-Strauss has pointed out, "It is the same with myths as with language: the individual who conscientiously applied phonological and grammatical laws in his speech, supposing he possessed the necessary knowledge and virtuosity to do so, would . . . lose the thread of his ideas almost immediately." n149 So how did he do it? Is the process involved akin to the workings of a computer program: once the lawyer chose the overall message that he [*118] wanted to send to the jury, all of the subrou- tines for sending that he had evolved throughout the course of his professional and personal life went "on line" and sent accordingly? Is there something here akin to the wisdom of the Zen masters who, after the most intensive preparation and discipline, are enabled to pass beyond a conscious concentration on technique and achieve the spontaneity of oneness with their art? n150 We do not know the answers to these questions. We are thinking about them, and we hope this article may intrigue others to think about them also and to share their thoughts with us. That has been its primary objective. Such thinking is work for scholars who are interested in understanding the complicated processes through which trials construct the reality which they are authorized by law to announce. It is also, we think, work for practicing lawyers and for those who educate lawyers for practice. To be sure, we have just said that we doubt any lawyer's ability to consciously mobilize all of the linguistic strategies that we found exemplified in the Jones arguments--themselves a small sample of the vast range of linguistic strategies that the lawyers might have used. But this is not to say that conscious attention to the nature of these strategies is impractical. Page 27 37 N.Y.L. Sch. L. Rev. 55, *

While perhaps not conscious, many of the strategies would seem to be at least preconscious: they are susceptible to being thought about and thereby modified. Let us close with a single example from the Jones trial. As we have seen, the prosecutor's argument--like defense counsel's--was remarkably self- consistent. There was, however, one quite striking exception. Despite the prosecutor's mobilization of all of the resources of language to portray David Jones's mental state as an activity [*119] that was simply part of the whole historical sequence of activities leading to the violent death of Mary Smith, the prosecutor somehow got herself into (to mix a metaphor) a container metaphor for mind. She repeatedly says things like: "They [the prosecution witnesses] told you about something which frankly they probably would rather put out of their minds. . . ." "There is no question in there [sic] minds that he was the one that shot her." "You don't have to put yourself in the defendant's mind and decide. . . ." "You can't put yourself in the defendant's mind." "You can't go into the defendant's mind and decide what exactly was going through it at the time he fired that shot." "Science hasn't invented the instrument which can look into someone's head and tell us all what they mean or what their intent is." This was understandable, certainly. In the first place, the MIND IS A CONTAINER metaphor is such a common structuring metaphor for English speakers n151 that it would have come naturally to anyone's lips. In the second place, the trial judge's instructions to the jury, which the prosecutor may have anticipated, used the metaphor. n152 Lawyers in closing [*120] argument often do well to encapsulate phrases that they know the judge will charge, either to obtain the support of the judge's authority for their own reasoning if the phrase is helpful or to set unhelpful phrases in the least hurtful context for damage-control purposes. n153 However, it seems to us that this particular metaphor was just about the worst way that the prosecutor could have talked about mental states generally and the defendant's intent particularly. To the extent that the jury's deliberations were modeled as an effort to peer into a container (the mind) from the outside and discern a solid object (the specific intent to kill) inside, the defendant had every advantage. The walls of the container are notoriously opaque (a point that defense counsel emphasized by repeated use of a KNOWLEDGE-IS-LIGHT/IGNORANCE-IS-DARK metaphor) n154 and the criterion for satisfactory discernment is the daunting beyond-a-reasonable-doubt rule (which defense counsel belabored). We would guess that the prosecutor fell into this trap simply for want of attending to the meta- phoric quality of language. The prosecutor probably never realized that phrases like "in the defendant's mind" are only metaphors, that there are other metaphors for mind, and that it would have been to her advantage either to seek one or to avoid metaphors entirely in this connection. Once these things are realized--once the trap is seen--a bit of additional thought is necessary to avoid it. One says: "There must be alternative metaphors available to a prosecutor; the job is to rev up one's mind to think about them. Or is it 'tool up one's mind'?" Hmmmm. What about the MIND IS A MACHINE metaphor? Page 28 37 N.Y.L. Sch. L. Rev. 55, *

I can't get my mind to WORK right this morning. He has a SCREW loose. That really started my WHEELS spinning. His mind went into high GEAR. She has a HIGH POWERED mind. [*121] He had a mental BREAKDOWN. They kept CRANKING OUT ideas.

The MIND IS A MACHINE metaphor is consistent with the familiar IDEAS ARE PRODUCTS metaphor. n155 It offered a viable alternative to the prosecutor in Jones, since it is about as commonplace as the MIND IS A CONTAINER metaphor n156 and has very different entailments. n157 Also, the MACHINE metaphor, like the CONTAINER metaphor, was reflected in the judge's instructions. n158 As soon as one begins to fish for alternative conceptualizations, of course, additional ideas will start to swim into one's mind. So, what about the MIND IS A FLUID metaphor?

That's a mind-curdling thought. I sank into a reverie. Her mind runs deep; she's a profound thinker. She is level-headed--cool, calm, and collected. My mind froze. Let's wait until our thinking gels. She is clear-headed; her ideas are not muddy.

[*122] The MIND IS A FLUID metaphor has particular potential here because it can be conjoined with useful FLUID metaphors for emotion--"he shot her in cold blood"--that play well for the prosecution. There are other metaphors for mind but our circuits are becoming overloaded, so we'll stop with these. The point is not that the prosecutor should have used any one of them, but that a bit of brainstorming about the various ways in which one can talk about the mind might prove useful to you if you are a prosecutor in a similar situation. Exploring a range of ideas can sometimes get us out of a rut. It can expand our mental horizons, as it were. It can make our minds more fertile, sprout the seeds of new ideas, make them grow. It can help to break the chains that too often bind our thinking as well as its expression. It can enable us to spin out different lines of thought, perhaps even whole new webs of ideas. n159

Legal Topics:

For related research and practice materials, see the following legal topics: Civil ProcedureEminent Domain ProceedingsJury TrialsCriminal Law & ProcedureTrialsBurdens of ProofGeneral OverviewCriminal Law & ProcedureTrialsClosing ArgumentsGeneral Overview

FOOTNOTES:

Page 29 37 N.Y.L. Sch. L. Rev. 55, *

n1 Earlier versions of the article were presented at the Lawyering Theory Conference at New York Law School and in sessions of the Lawyering Theory Colloquium at New York University Law School. We are grateful for the criticisms of the participants and for much aid and inspiration by Jerry Bruner, Peggy Davis, Kim Hawkins, Florian Miedel, Richard Sher- win, and David Soskin. [For purposes of clarity and understanding, the style used in this article departs at times from the 15th edition of The Bluebook: A Uniform System of Citation (Ed.).] n2 We have assigned fictitious names to everyone involved: the defendant, victim, witnesses, and lawyers. A reporter's transcript of the closing arguments is on file with the New York Law School Law Review. In quoting from the transcript, we sometimes italicize words or phrases to emphasize specific language; all such emphases are ours. An asterisk between quo- tations indicates that they are taken from separated passages of the transcript. n3 The judge charged the jury: "Section 125.25 of the Penal Law . . . reads as follows: A person is guilty of murder in the second degree when[,] with intent to cause the death of another person, he causes the death of such person. "Now, for you to find the defendant guilty of this crime, the People are required to prove from all the evidence in the case beyond a reasonable doubt . . . that the defendant shot Mary Smith with the intent to cause her death."

The judge defined intent as "a person's conscious aim or objective," then added: "Now the element of intent is obviously a subjective element, certainly can't look into a person's mind to see what he was thinking at the time of the incident. Intent is the secret operation of the mind. But the law permits you to infer intent from a person's actions, leading up to, surrounding and following the incident. That is, you are permitted to infer but need not that a person intends that which is the natural and necessary and probable consequences of the acts done by him."

n4 Cf. W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING RE- ALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE 89-90 (1981): "The structure of stories becomes crucial to judgment in cases in which a collection of facts or evidence is subject to competing interpretations. In such cases, it may not be the evidence that sways final judgment; judgment hinges on the structure of interpretation that provides the best fit for the evidence."

n5 Closing argument is, of course, only one of the means through which a lawyer speaks to the jury. S/he may address the jurors directly in opening argument and, in some courts, by questioning them personally on voir dire during jury selection. Where the latter practice is not permitted, s/he may communicate indirectly with the jurors by submitting questions for the Page 30 37 N.Y.L. Sch. L. Rev. 55, * judge to ask on voir dire. S/he may submit requests for instructions to be included in the judge's charge to the jury. In examining witnesses, the lawyer speaks both directly through the phrasing of questions and indirectly through the answers, which are often shaped by meticulous pretrial preparation. The lawyer's choice of witnesses may itself be a communication: a witness may symbolize or convey by his or her appearance more than the content of the testimony s/he gives. A lawyer may offer physical evidence and may prepare and offer visual aids as exhibits. S/he may make objections and arguments on objections that communicate a part of the message consti- tuting his or her case. The way s/he interacts with his or her client at counsel table may send another part of that message. And so forth. By isolating closing argument for study in this article, we do not ignore or disparage the importance of these other means of making presentations to the jury. Rather, by concentrating on a single form of presentation, we hope to contribute to efforts to understand others as well. Analyses of lawyers' courtroom storytelling can be found in JANICE SCHUETZ & KATH- RYN HOLMES SNEDAKER, COMMUNICATION AND LITIGATION: CASE STUDIES OF FAMOUS TRIALS (1988); BENNETT & FELDMAN, op. cit. supra note 4; BERNARD S. JACKSON, LAW, FACT AND NARRATIVE COHERENCE (1988); W. Lance Bennett, Storytelling in Criminal Trials: A Model of Social Judgment, 64 Q.J. SPEECH 1 (1978). n6 N.Y. CRIM. PROC. LAW §§ 260.30(8)-(9), 320.20(3)(c) (McKinney 1982). In a case such as Jones, each lawyer argues once; there is no rebuttal argument. n7 See, e.g., HENRY ROTHBLATT, SUCCESSFUL TECHNIQUES IN THE TRIAL OF CRIMINAL CASES 107 (1961); LAWRENCE SMITH, ART OF ADVOCACY-- SUMMATION § 1.12, 1-B.12 (1982); CHARLES W. TESSMER, CRIMINAL TRIAL STRATEGY 120 (1968); 3 ANTHONY G. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES § 337, at 44-45 (1989); Joseph T. Karcher, The Closing Argument, 15 PRAC. LAW., No. 3, at 49, 67 (1969); G. Arthur Martin, Closing Argument to the Jury for the Defense in Criminal Cases, 58 J. CRIM. L., CRIMINOLOGY & POL. SCI. 2, 5 (1967). n8 See, e.g., THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES 288-89 (3d ed. 1992); 3 AMSTERDAM, op. cit. supra note 7, § 446(C) at 264. n9 See, e.g., ROTHBLATT, op. cit. supra note 7, at 115-19. n10 See, e.g., id. at 119, 123, 128, 163; SMITH, op. cit. supra note 7, § 1.22; TESSMER, op. cit. supra note 7, at 121-22. n11 See, e.g., MAUET, op. cit. supra note 8, at 298; ROTHBLATT, op. cit. supra note 7, at 123-24, 128, 163; TESSMER, op. cit. supra note 7, at 129-32. n12 See, e.g., ROTHBLATT, op. cit. supra note 7, at 168-69; SMITH, op. cit. supra note 7, § 1.26. n13 See, e.g., CRIMINAL JUSTICE TRAINING COMMISSION, STRATEGIES AND TECHNIQUES IN CRIMINAL DEFENSE 242 (2d ed. 1983); TESSMER, op. cit. supra note 7, at 133. Page 31 37 N.Y.L. Sch. L. Rev. 55, *

n14 See, e.g., John F. Keenan, Thoughts on Summations, in BUREAU OF PROSECU- TION SERVICES & DIVISION OF CRIMINAL JUSTICE SERVICES, CRIMINAL LAW- YER'S SUMMATION MANUAL 14, 22 (1987). n15 ARISTOTLE, THE RHETORIC OF ARISTOTLE, bk. 3, ch. 14, at 224-25 (Lane Cooper trans., 1960); see also I CICERO, DE ORATORE, bk. I, ch. XXXI, at 99 (E.W. Sut- ton trans., 1942) ("Before speaking on the issue, we must first secure the goodwill of our audience."); II QUINTILIAN, THE INSTITUTIO ORATORIA OF QUINTILIAN, bk. IV, ch. 1, at 9 (H. Butler trans., 1921) (The "sole purpose of the exordium [or Proem] is to prepare our audience . . . by making the audience well-disposed" and "securing" their "good-will" so as to "gain admission to the mind of the judge in order to penetrate still further."); cf. KEN- NETH BURKE, A RHETORIC OF MOTIVES 55 (1969) ("If, in the opinion of a given audience, a certain kind of conduct is admirable, then a speaker might persuade the audience by using ideas and images that identify his cause with that kind of conduct."). n16 See ARISTOTLE, op. cit. supra note 15, bk. 3, ch. 13, at 220 (explaining that a speech generally consists of four stages: the "Proem, Statement, Argument, and Epilogue"). n17 The classical rhetoricians viewed the selection of an appropriate argument structure as a critical part of the art of persuasion. See, e.g., I CICERO, op. cit. supra note 15, bk. I, ch. XXXI, at 99; III QUINTILIAN, op. cit. supra note 15, bk. VII, ch. 10, at 165. Quintilian compared the orator's arrangement of the parts of an argument to a wartime general's "distribution [of] his forces for battle." See id. at 170-71. Modern rhetoricians have found other analogies in the arts, comparing the construction of an argument to the process of "composing an essay," EDWARD P.J. CORBETT, CLASSICAL RHETORIC FOR THE MODERN STUDENT 274 (1965), and comparing the "set stages in the strucure [sic] of an oration" to the "formal . . . movements of a symphony," BURKE, op. cit. supra note 15, at 69. In these very different contexts, the identification of a "natural" or inherently "appropriate" arrangement of the parts, III QUINTILIAN, op. cit. supra note 15, bk. VII, ch. 10, at 165, is said to produce an essential "'quality of organic wholeness,'" CORBETT, op. cit. supra, at 274-75 (quoting RONALD S. CRANE, THE LANGUAGE OF CRITICISM AND THE STRUC- TURE OF POETRY (1951-1952)). Compare MONROE C. BEARDSLEY, THE POSSIBIL- ITY OF CRITICISM 58-59 (1970) (A "whole poem can be thought of as a single act, made up of several: the compound illocutionary act of its fictional speaker."). n18 There are more than a dozen such reminders, ranging from statements (made in the course of conceding the witnesses' credibility) that the witnesses "testified as best they could" (or "as best they recalled") to statements (made in the course of summarizing their testimony) that "she couldn't remember the exact words" or "it appeared to Nancy that there was an argument in the car." n19 Jerome Bruner, The Narrative Construction of Reality, 18 CRITICAL INQUIRY 1, 6 (1991); see also PAUL RICOEUR, HERMENEUTICS & THE HUMAN SCIENCES 277 (John B. Thompson trans., 1981) (describing narrative as "a sequence of actions and experiences of . . . characters . . . represented in situations which change or to the changes of which they react . . . giving rise to a new predicament which calls for thought or action or both"); MIEKE BAL, NARRATOLOGY: INTRODUCTION TO THE THEORY OF NARRATIVE 8 (Christine van Boheemen trans., 1985); CLAUDE BREMOND, LOGIQUE DU RECIT 131, 332 (1973). Page 32 37 N.Y.L. Sch. L. Rev. 55, *

n20 For example: orientation, complication, evaluation, resolution, and coda. See William Labov & Joshua Waletzky, Narrative Analysis: Oral Versions of Personal Experience, in ESSAYS ON THE VERBAL AND VISUAL ARTS 431-40 (June Helm ed.) (Proceedings of the 1966 Annual Spring Meeting of the American Ethnological Society). n21 Cf. VLADIMIR PROPP, MORPHOLOGY OF THE FOLK TALE 92-96 (Laurence Scott trans., 1968); BAL, op. cit. supra note 19, at 143-49; see also ROLAND BARTHES, Introduction to the Structural Analysis of Narratives, in THE SEMIOTIC CHALLENGE 95, 111-17, 128-33 (Richard Howard trans., 1988). n22 See PROPP, op. cit. supra note 21, at 50-51. n23 "The myth of the hero" has been characterized as "the most common and the best known myth in the world." Joseph L. Henderson, Ancient Myths and Modern Man, in MAN AND HIS SYMBOLS 101, 101 (Carl G. Jung ed., Laurel 1968); see id. at 101-19. A few of the epic versions are the stories of Inanna (later Ishtar, Isis, Aphrodite, and Venus), Gil- gamesh, Odysseus, Theseus, the Argonauts, Hercules, Psyche, Beowulf, Cuchulainn, the Grail Hero, Shen I, Hare (and Red Horn), Budak Yoid Intoie, Paul Bunyan and--more recently--J.R.R. Tolkien's The Lord of the Rings, Stephen Donaldson's Chronicles of Thomas Covenant the Unbeliever, Gordon Dickson's Childe Cycle, Janny Wurts' Cycle of Fire, Gene Wolfe's Book of the New Sun, Katherine Kurtz's Deryni Chronicles, Terry Brooks' Shannara and Magic Kingdom cycles, and Robert Jordan's Wheel of Time cycle. Hierophantic versions are found in the traditions of many religious creeds. The structure of the common folktale versions is the subject of Propp's great formalist classic cited in note 21 supra. "Popular tales represent the heroic action as physical; the higher religions show the deed to be moral; nevertheless, there will be found astonishingly little variation in the morphology of the adventure, the character roles involved, the victories gained." JOSEPH CAMPBELL, THE HERO WITH A THOUSAND FACES 38 (1968). Campbell's book is the best general survey of these subjects of which we are aware. Aspects are illuminated in, e.g., GEORGES DUMEZIL, THE DESTINY OF THE WARRIOR 111-38 (A. Hiltebeitel trans., 1970); NORTHROP FRYE, Archetypal Criticism: Theory of Myths, in ANATOMY OF CRITICISM: FOUR ES- SAYS 131, 186-206 (1957); DOROTHY NORMAN, THE HERO: MYTH/IMAGE/SYMBOL (1969); CAROL PEARSON & KATHERINE POPE, THE FE- MALE HERO IN AMERICAN AND BRITISH LITERATURE (1981); LORD RAGLAN, THE HERO: A STUDY IN TRADITION, MYTH AND DRAMA 58-72, 120-209, 267-275 (1949); JESSIE L. WESTON, FROM RITUAL TO ROMANCE (Doubleday Anchor 1957). More specifically, the version of the Quest of the Hero embodied in defense counsel's argument parallels the common oriental form of Quest narrative that has the World Savior as its Hero. This is no accident. Like defense counsel's argument, that version in particular undertakes the ultimate, difficult task of persuading the listener to accept No Answer as the Answer to the riddle of existence. It is the special task of this narrative to lead the listener to nirvana-- to the void--by endowing him or her with the strength to bear the terrors of a cosmic disorder without succumbing to the illusion of order. Here the Quest assaults the Hero in the Hero's home territory, and the Hero must and does remain unmoved before the onslaught of the most powerful positive and negative forces of persuasion: Page 33 37 N.Y.L. Sch. L. Rev. 55, *

First, the Hero takes his position--for example, Gautama Shakyamuni (the Buddha-to-be) on the eastern side of the Bodhi Tree; Lord Parshva (of the Jain teaching of Mahavira) standing naked in the dismissing-the-body posture. Second, the virtues of the Hero are recalled--the life or lives that led to this position at the midpoint of the universe. Third, the Hero swears that he will not be moved from his seat until he has attained ultimate wisdom. Fourth, the Lord of Life Illusion appears and assaults Gautama first with appeals to the duty of his caste and rank, then with an army of hideous, misshapen demons; Meghamalin assaults Parshva with tigers, elephants, scorpions, darkness, and a cyclone. Fifth, the Hero remains unmoved, ignoring all of these alluring and frightening illusions. The Adversary ravens and steps up the attack, sending new hordes against the Hero. And, sixth, a voice utters from the sky to protect Gautama, dispersing the Adversary's hordes with a few words; or, from beneath the earth, the king and queen of serpents arise to shield and protect Parshva; whereupon, the Hero is illuminated, and a rain of flowers de- scends. See EDWARD THOMAS, THE LIFE OF BUDDHA AS LEGEND AND HISTORY 227-32 (3d ed. 1949); E.H. BREWSTER, THE LIFE OF GOTAMA THE BUDDHA (from the Pali Canon) 75-76, 77-78, 135 (1926); 2 JOSEPH CAMPBELL, THE MASKS OF GOD [ORI- ENTAL MYTHOLOGY] 218-19 (Penguin Books 1976). n24 We use fabula in the traditional formalist sense of "a series of logically and chrono- logically related events that are caused or experienced by actors," BAL, op. cit. supra note 19, at 5, as distinct from the sjuzet, which is a "fabula that is presented in a certain manner," id. We sometimes use "story" as a synonym of sjuzet and use "story line" as a synonym of fabula. n25 A.-J. GREIMAS, SEMANTIQUE STRUCTURALE: RECHERCHE DE METHODE 128-34, 172-91 (1986); in the English translation: A.-J. GREIMAS, STRUCTURAL SE- MANTICS: AN ATTEMPT AT A METHOD 146-52, 197-221 (Daniele McDowell, Ronald Schleifer, & Alan Velie trans., 1984). n26 See BAL, op. cit. supra note 19, at 28: "In principle, the subject [the protagonist] and the power [the destinateur] predominate more, or are more active in a grammatical sense . . . because they are the agent, or the (grammatical) subject, either of the function of intention/evasion or of giving/receiving." n27 E.g., "When I spoke to you all about a week ago I tried to emphasize with you all what I thought were two critical concepts. . . ." * "And I'm going to assume now that I was right in thinking that these two values permeated this jury, because if I'm wrong then I fear that my summation will fall on deaf ears." * "What are the two concepts or values that I tried to speak about in voir dire?" * "Why do I say it's important that you have a feeling or a notion that however you feel towards the defendant won't influence you in the decision you make?"

Page 34 37 N.Y.L. Sch. L. Rev. 55, *

n28 E.g., "And that you would not assign blame to him [the defendant] unless specific blame worthiness had been proved to you beyond a reasonable doubt." * "Be- cause each and every one of you has a right to despise the man who I represent."

n29 E.g., "One concept was that whatever passion you felt or didn't feel towards the Defendant, no matter what attitude you may have toward the Defendant David Jones, that no way would that interfere with the verdict that you would bring in this case." * "Why do I say it's important that you have a . . . notion that however you feel towards the defendant won't influence you in the decision you make?"

n30 E.g., "You all said . . . that you can still apply the laws to him, a man who is obviously responsible for the death of Mary Smith." * "And if at the end you decided that something was not clarified for you, if you decided that ambiguities in the evidence still remain, that you would in no way hold us responsible for clarifying these ambiguities for you and you would in no way expect us, me or Mr. Jones or Mr. Bell, to make up for the lack of clarity. . . ." The very first passage of the defense argument in which the defendant is the subject of a verb is this: "Whatever he did in a legal sense or an illegal sense, whatever his state of mind may have been at the time, that man had a loaded gun in his hand during an argument in a car and he pulled the trigger and he killed a young woman. Yet you all tell me that you can still apply the law to him, a man who created such a perilous situation."

See note 33 infra. n31 E.g., "How easy it would be for each of you to say, 'Why should we care about what crime is actually proved against him when he in so cavalier a manner apparently pulled a gun and ended up killing another humanbeing [sic]?'" * "If it's not proved by the People's evidence that he had an intent to kill, then you would just find him not guilty of that charge."

See also the first example in note 30 supra. n32 E.g., Page 35 37 N.Y.L. Sch. L. Rev. 55, *

"Well Susan Stone testifies that everybody knew each other. That Dave came down, Dave being my client. That he had an argument with Nancy Gregg. That Dave got into the car. . . ." * "Another question from Ms. Brooks, 'Let me take you back. You said that after Mary said something to the effect of "No, Dave, don't." That is when you said he shot her?' Susan Stone's answer, 'Yeah, I was looking, it's like she was holding onto his jacket or something and then he shot her. It's like he backed out of the car and he spun around like. . . .'" Or "evidence" or "testimony" may be the subject of the independent clause: e.g., "Ms. Brooks will argue that in context that testimony shows that my client shot Mary Smith with intent to kill. . . ."

n33 This is striking even at the level of grammatical analysis. Throughout the initial three- fifths of the defense argument there is only a single sentence in which the defendant is the subject of a verb found in a simple sentence or independent clause. The one exception is quoted at the end of note 30 supra: it is an instance in which the defendant's activity, while grammatically coordinate (at least in the reporter's transcript) is syntactically subordinate to the jury's activity. Concerning subordination, see BREMOND, op. cit. supra note 19, at 320- 21. n34 E.g., "Yet you all tell me that you can still apply the law to him, a man who created such a perilous situation." * "I mean how easy would it be for each of you to say, 'Why should we show any serious regard for a man who showed so little regard for the life of another?'" * "If it's not proved beyond a reasonable doubt that Mr. Jones is guilty of intentional murder, then it's just not proved." * "You all said basically that you would not say at this point, '. . . Let him get up and tell us what really occurred if it's not a murder that he committed. . . .'" * "You cannot fail to acquit because Jones or myself have not adequately explained to you what occurred in the car." * "Nancy testifies that she sees Dave come down. . . . She says that my client says to Mary. . . ." * "And I will argue that it's not shown, that in no way can you be satisfied that that evidence proves to you beyond a reasonable doubt that my client shot Mary with the conscious aim or objective of causing her death." * "Is there any proof before you that shows that my client actually aimed the gun at Mary? There is none. Is there any evidence before you that shows that my client actually pointed the gun at Mary? There is none." * "Well what should you do then . . .? Just figure that some reason must have made him decide to kill Mary?" * "But where is the proof presented to you that he aimed there?" * "She says stuff, he grabs at her neck and she grabs at his jacket and assume that he knowingly and voluntarily and consciously fires a bullet into a car. . . ."

See also the first and third examples in note 32 supra. Page 36 37 N.Y.L. Sch. L. Rev. 55, *

n35 The foreshadowing occurs in two passages early in the defense argument, one quoted in part in the last examples in each of notes 28 and 30 (indented) supra, the other quoted in part in the first example in note 31 supra and in the second example in note 34 supra. n36 After summarizing the testimony of the prosecution witnesses, defense counsel begins his analysis of that testimony with the following framing passage: "Look, the issue here is not so mysterious. Ms. Brooks will argue that . . . that testimony shows beyond a reasonable doubt that . . . [the defendant's] intent was to kill that woman. And I will argue that it's not shown, that in no way can you be satisfied that that evidence proves to you beyond a reasonable doubt that my client shot Mary with the conscious aim or objective of causing her death."

n37 The passages referenced in note 35 supra and those quoted in text and footnote at note 82 infra exemplify the temptation motif. n38 E.g., "Did he say during the shooting, 'Die.' Did he say, 'I want you . . . dead.' Did he say, 'I'm going to kill you.'?" * "Is he angry? Yes. Does he have a gun? Abso- lutely. Does he fire a shot in a small confined space? No doubt." * "I mean look at the evidence in a really bad light. My client's mad. She says stuff, he grabs at her neck. He has no specific conscious objective. He shoots. . . ."

See also the passage quoted in text at note 75 infra. n39 E.g., the examples in note 29 supra and the first example in each of notes 30 and 34 supra. n40 See defense counsel's peroration, the last passage quoted on page 65 supra. n41 See, e.g., the last example in note 53 infra. n42 E.g., "There is no question as to who pulled the trigger[,] who fired the shot into Mary Smith's chest causing her death." * "There is no question that the defendant felt insulted and I'm sure you all know that people have been killed for less."

n43 E.g., "You know that he was angry and you know that he was insulted by remarks that Nancy or that Mary had been spreading around about him."

n44 The concept of focalization originated with Genette, see GERARD GENETTE, FIG- URES III (1972), and has been most usefully elaborated by Bal, see BAL, op. cit. supra note 19, at 100-17, 130-32; MIEKE BAL, NARRATOLOGIE: ESSAIS SUR LA SIGNIFICA- Page 37 37 N.Y.L. Sch. L. Rev. 55, *

TION NARRATIVE DANS QUATRE ROMANS MODERNES (1984); Mieke Bal, On Meanings and Descriptions, in 6 STUDIES IN TWENTIETH CENTURY LITERATURE 100, 134-42 (Nomi Tamir-Ghez ed., 1981); cf. Lubomir Dolezel, Truth and Authenticity in Narrative, 1 POETICS TODAY, no. 3, at 7, 15-24 (1980). n45 BAL, op. cit. supra note 19, at 100-01, articulates the distinction as being "between, on the one hand, the vision through which the elements are presented and, on the other, the identity of the voice that is verbalizing that vision. To put it more simply: . . . a distinction between those who see and those who speak." Thus, when the Jones prosecutor argues: "I submit to you that he had just shot her in the chest," the narrator is the prosecutor herself--the lawyer who is doing the submitting; the focalizor is an omniscient or external focalizor-- commonly called an "EF" by narratologists, see BAL, op. cit. supra note 19, at 105. n46 Bal's 1984 Essais, cited in note 44 supra, develop a number of powerful insights through this analytic technique. In his 1981 article, cited in the same note, he illustrates the use of the technique to unravel an aspect of Emma's character in Flaubert's Madame Bovary. See id. at 134-37. n47 Common frames for this focalizor are, e.g.: "No, you don't have any evidence of the defendant getting in that car and saying to Mary, 'I'm going to kill you.'" * "What you do have is evidence of the defendant getting out of that car with a smoking gun right after that shot is fired." * "Is there any evidence that shows him reaching back and getting a mark on her so he can be sure to shoot in a specific place?"

n48 Common frames for this focalizor are, e.g.: "Ms. Brooks will argue that in context that testimony shows that my client shot Mary Smith with intent to kill. . . ." * "[That] doesn't show that [at] the time when she was killed that he intended to cause her death." * "If it's not proved by the People's evidence that he had an intent to kill, then you would just find him not guilty of that charge."

n49 "We have proved X" or "they have not proved Y" implicates the jury's perspective as factfinder somewhat more than "the evidence shows X" or "there is no evidence showing Y" or "where is there any evidence of Z?" n50 Common frames for this focalizor are, e.g.: "You know what, give this case and this scenario really the worse gloss that I think you can. I mean look at the evidence in a really bad light. My client's mad. She says stuff, he grabs at her neck. . . ." * "Even if he's a man who you think is capable of killing because he carries a gun. . . ." * "Doesn't that make you question whether or not Mr. Jones had the intent to kill?" * "By the woman's plea, by her statement, 'Dave, no[,]' . . . is she really saying to us Dave was pointing the Page 38 37 N.Y.L. Sch. L. Rev. 55, *

gun at my chest and I am begging for my life. . . ." Standard-form rhetorical questions are also a subspecies of this category.

n51 Common frames for this focalizor are, e.g.: "[Reading from the transcript of testimony of Nancy Gregg:] Question, 'When was the first time that you looked over in the direction of the defendant and Mary? . . .' Answer, 'After the car door opened and he stepped out of the car.' 'And as he was stepping out of the car, what did you see him do if anything?' 'She had a link chain on her neck and he popped it off.'" * "According to Nancy[,] he's actually the one who brings it up. He's the one who goes over to a car and within the hearing of other people says, 'Why are you saying that I like to suck pussy?'" * "There is no question in there [sic] minds that he was the one that shot her. And that in fact they did see the gun in his hand as he was walking away." * "I can put forward another [hypothesis], that he has a gun and he's taking it out to scare her, that she grabs at his coat and in the struggle he accidentally pulls the trigger."

n52 See note 45 supra. n53 Common frames for this focalizor are, e.g.: "Is he angry? Yes. Does he have a gun? Absolutely. Does he fire a shot in a small confined space? No doubt." * "That's right, he didn't care. He had just killed a person he intended to kill in front of people to show that he was a big, you know, he was a big man, wasn't going to take any insults from Mary or any- body else and he walked away."

n54 Of course the different focalizations of the defense and prosecution arguments have not only syntagmatic but paradigmatic--specifically, epistemological--implications. We will return to the latter, particularly in note 127 infra. n55 Thus, expressions of intentionality in verb form tend to look backward to the events of 1987 even when the defendant is not the subject of the verb. Consider, for example, the prosecutor's argument: "It's only through speculation and hypothesizing that you can find anything other than that the defendant in this case when he pulled the trigger and fired that shot into Mary's heart that he intended to kill her. "You don't point a loaded . . . gun at someone and . . . pull the trigger when you don't intend to kill them."

n56 Consider, for example, defense counsel's argument: Page 39 37 N.Y.L. Sch. L. Rev. 55, *

"Were any words heard before, during or after that my client uttered that shows an intent to kill? . . . Is there any of that shown in the evidence that you have before you to prove to you an intent to kill?"

n57 When a description of the quality of an action is embedded in a verb, its dependence on interpretation is less obvious than when it is isolated in an adverb. This is why Gerard Genette was obliged to make his well-known demonstration that verbs are to some extent descriptive; "Even a verb can be more or less descriptive in the precision it gives to the specta- cle of the action. It suffices to compare 'seized a knife' with 'took a knife'; consequently no verb is totally free of descriptive implication." Gerard Genette, Boundaries of Narrative, in 8 NEW LITERARY HISTORY 1, 5-6 (Ann Levonas trans., 1976). Far from concealing their descriptive thrust, adverbs advertise it and thereby call attention to the necessity for a separate narrative to motivate an interpreter/describer. Cf. Evelyn Cobley, Description in Realist Dis- course: The War Novel, 20 STYLE, No. 3, at 393, 404 (1986) ("A new arrival appears because a description of the devastated landscape requires his presence. Although the narrative succession might persuade us that the new arrival generates the description, the causal relationship is in fact the reverse."); see also MICHAEL RIFFATERRE, TEXT PRODUCTION 24 (Terese Lyons trans., 1983). Thus, defense counsel's turn to adverbs to express intentionality spotlights the jury's fact-finding quest. Consider, for example, his argument: "I mean[,] look at the evidence in a really bad light. My client's mad. She says stuff, he grabs at her neck and she grabs at his jacket[,] and assume that he knowingly and voluntarily and consciously fires a bullet into a car, a small place[,] knowing a human is there, knowing that a bullet may well strike another and he just doesn't care."

n58 Consider, for example, defense counsel's argument: "Then what then, what[,] Mr. Lee, you tell us[,] I can hear you all saying, you tell us how a woman is shot in the chest at close range if it's not intentional murder."

n59 The prosecutor uses the verbs intend, mean, try, and want 19 times in connection with the defendant's or a suppositious killer's mental state at the time of the killing. She says four times that the defendant "knew" something, once that he "perceived" something, four times that he "didn't care," and once that he "wasn't concerned." She says twice that he "was [or is] angry" and twice that he "was [or felt] insulted." Once she uses a purposive infinitive to describe his motivation ("he had just killed a person . . . to show that he was a big . . . man . . ."). By contrast with these 34 verb formulations, she uses 10 noun formulations ("intent" six times, "conscious desire" once, and "accident" three times), two adjective formulations ("intentional shooting" and "intentional murder"), and no adverb formulations. Page 40 37 N.Y.L. Sch. L. Rev. 55, *

Defense counsel uses the verbs intend and want seven times--try and mean not at all--in this connection. He uses the verb phrase "make sure" four times and he uses "decide" once. He says thrice that the defendant "knew" something, once that the defendant "doesn't care," once that the defendant "is . . . unconcerned," and once that the defendant "showed . . . little regard" for the victim. He speaks three times of the defendant's being embarrassed, shamed, or ashamed, and twice of the defendant's being angry or mad. Once defense counsel uses a purposive infinitive to describe the defendant's motivation ("he has a gun and he's taking it out to scare her"). By contrast with these 24 verb formulations, defense counsel uses 30 noun formulations ("intent" 17 times, "aim" or "objective" or both five times, "reason" twice, "state of mind" once, "depraved and damnable mind" once, "depravity" once, "complete indiffer- ence to human life" once, and "callous disregard" twice), four adjective formulations, and four adverb formulations. n60 Cf. JACKSON, op. cit. supra note 5, at 33-36. n61 We return to this subject at pages 106-10 infra. n62 See note 3 supra. The prosecutor explicitly tells the jury that the judge will so instruct them. n63 Roy D'Andrade, A Folk Model of the Mind, in CULTURAL MODELS IN LAN- GUAGE AND THOUGHT 112, 120 (Dorothy Holland & Naomi Quinn eds., 1987). The prosecutor repeatedly argues that "you don't fire a shot into someone's chest from a handgun without intending to kill them, without that being your conscious desire." n64 One way in which the prosecutor does this is to embed the physical details in the narrative flow of her argument at every point, thereby avoiding transitions that would flag the question of their epistemological status. See Bal, supra note 44, at 109-10 (discussing the technique of description in which a "character carries out an action with an object. The description is . . . [thus] made fully narrative." Id. at 109.). See generally PHILIPPE HAMON, INTRODUCTION A L'ANALYSE DU DESCRIPTIF 180-223 (1981). The most striking example of this technique is the prosecutor's repeated narration of the defendant's action as "shooting a person in the chest." Virtually every time the prosecutor talks about "shooting" or "firing," she follows the verb with the phrase "in the chest" or "in the heart," as though shoot in the chest was an indissoluble predicative unit. By contrast, defense counsel talks about the chest shot only when he wants to focus the jury precisely on the question whether the location of the wound will support an inference that the defendant intended to kill: "In no way am I telling you to ignore the fact that she was shot in the chest where her heart was. . . . But where is the proof presented to you that he aimed there?" n65 See the first indented passage quoted on page 92 infra. n66 See the last passage quoted on page 65 supra. n67 Thus, the prosecutor defines the jury's role as bringing common sense to the task of judging evidence, see note 87 infra, whereas defense counsel (in the opening set out at pages 78-79 supra) defines the jury's role as exercising self-discipline in the critical scrutiny of evidence, see note 80 infra. Note another difference between the lawyers' openings. Both undertake to establish an empathetic relationship between counsel and the jury in the traditional way: by adverting to Page 41 37 N.Y.L. Sch. L. Rev. 55, * the previous interchange between counsel and the jury during voir dire. But defense counsel's portrayal of the relationship is dialogic: counsel "sensed from most of you or from the collective that was here an awareness of . . . [certain] values and an assuredness that you would apply these . . . values to the evidence." Defense counsel receives from the jurors a sense that they will be active in upholding values of a particular sort. The prosecutor perceives in the jurors certain attributes bearing on their ability to judge, and she (together with the judge and defense counsel), chose the jurors for those attributes. Here there is a less active interplay between counsel and the jurors, less activity of any sort on the jurors' part. n68 These "there is no question" and "you know" formulations will recur later in the argument as well. See note 127 infra. n69 This point is elaborated at some length, with variations on the theme, in three separate passages in the middle and at the end of the argument. n70 See text and note at note 87 infra. n71 This point is elaborated recurrently and extensively, with variations on the theme, from the middle through the end of the argument. n72 This point is made, with variations, a half-dozen times within four pages. n73 This point is made, with variations, in three passages of some length within four pages. n74 See, e.g., the last two examples in note 38 supra. (The first example in that footnote shows the use of the past tense in a lack-of-evidence statement.) n75 Notice that the two past-tense verbs in this passage function syntactically as past perfect statements. Sometimes counsel's persistence in using the present tense to describe the happenings on the street produces extraordinary verbal gymnastics. Once, for example, counsel interpolates a single sentence of his own into a lengthy recitation of witness testimony; all of the testimony is in the past tense but counsel's interpolation is in the present tense. In another passage, within a few lines counsel shifts from a past-tense lack-of-evidence statement to a present-tense narration of events: "But where is the proof presented to you that he aimed there? . . . Here we have people in a car, in motion, in movement. He's aiming at what? Is he aiming at anything at all?" Elsewhere, within a single sentence he shifts from a past-tense statement of what the prosecutor has to prove to a present-tense statement of what the facts are. n76 There are only two exceptions in the prosecutor's 15-page argument, and one appears in a sentence that contains a past perfect tense in another clause. n77 That this pattern is not the result of a higher level of abstraction in the defense argument as a whole is indicated by the respective lawyers' uses of the following phrases in discussing the defendant's actions before and after the killing: phrase defense counsel prosecutor had a gun 7 3 pulled the gun 5 - pointed the gun 3 1 aimed the gun 6 2 put the gun [back] in his pocket 5 -

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n78 In all, the prosecutor uses this object metaphor nine times. Defense counsel uses it only twice. n79 Defense counsel's language is: "whatever passion you felt or didn't feel towards the Defendant" * "no matter what attitude you may have towards the Defendant" * "however you feel towards the defendant." n80 The jury is not to "assign blame" to the defendant "unless specific blame worthiness had been proved to you beyond a reasonable doubt." Although the defendant cavalierly did a perilous act that killed another human being (defense counsel twice concedes), "you all tell me that you can still apply the laws to him" (a formula that defense counsel repeats thrice). "The law is specific that you have agreed to uphold": it requires the prosecutor to prove that the defendant had a conscious intent to kill. The jury cannot convict the defendant even if it is persuaded that he has a "depraved and demnable mind." The jury must put aside such impressions and "apply the law in a cool rational way," "in a cool dispassionate way." "If you can do that . . .," says counsel "then you deserve our great admiration and I hope you can do it." n81 See, e.g., the second indented passage quoted on page 79 supra; the first indented passage quoted on page 90 infra; the first indented passage quoted in paragraph d on page 91 infra. This point is reiterated in a half-dozen passages in addition to the examples given in the text. n82 The defendant's conceded blameworthiness undergoes a significant transmogrifica- tion in the course of the defense argument. It starts out as something that the jury will feel because of what the defendant did--because of the killing that he committed and for which he is on trial. But then the defendant's blameworthiness is recast in the present tense and in personal terms, as in the quoted passage or, e.g., "Is he blameworthy? Absolutely." Thus, it will be "one of the hardest things that you have ever been required to do in public . . . to . . . look over at David Jones and while looking at him vote not guilty." Progressively, blameworthiness becomes something that attaches to the defendant not because of the evil acts for which he is on trial but because of some (unspecified) evil aura that hangs about him. Consequently, while it is natural for the jury to detest the defendant, it is not cool to do so; this kind of emotionality must be recognized as human but resolutely controlled. n83 And: "You all said basically that you would not say at this point, 'Well, wait a second[,] there were two people in that car, . . . [the defendant and the victim]. . . . They are the two who really know what happened, She obviously can't speak, let him speak. Let him get up and tell us what really occurred if it's not a murder that he committed. . . .' "Well, you promised him and you promised the judge that you understood that the law does not give you a right to demand or ask that of . . . [the defendant]. You cannot ask him to speak and most importantly you cannot in any way use his silence against him." "Well what should you do then, just assume he's crazy? . . . You can't speculate in that way. You need proof presented to you before you make that decision." Page 43 37 N.Y.L. Sch. L. Rev. 55, *

n84 The following passage is representative: "I'm not going to ask you to speculate on things that aren't in evidence. I'm not going to ask you to hypothesize about other theories of this case. I'm not going to ask you to use your imaginations . . . because that is not your job."

n85 See the indented passage quoted on page 82 supra. n86 Defense counsel's argument had also told the jurors that they "can't speculate." Both attorneys were anticipating that the judge's boilerplate charge would admonish the jury not to speculate, as indeed it did. n87 Thus: "I'm relying on the common sense and your own intelligence and innate abilities to determine the facts in this case. "You were chosen because of that common sense, because of that fairness and what we perceived to be in you the ability to judge the evidence in the case."

"Common sense" is the repeated keynote. The prosecutor uses the phrase a half-dozen times and reinforces it with cognate phraseology (for example, asking the jury to make "a reasonable assumption"). A variant is the "you [or we] all know that" appeal to common sense, which the prosecutor uses again and again. See note 127 infra. Note the absence of words of analysis and intellection in the prosecutor's description of the jury's role: the jury will intuit truth directly and comfortably. The prosecutor's final paragraph begins: "I know that when your service is over here you want to look back on your jury service and feel that you did the right thing, you want to feel that you returned the just and appropriate verdict in this case and that is a verdict based on the evidence. . . ." Similarly, the evaluation of the credibility of testimony appears to be linked to intuition rather than analysis: "You heard the witnesses testify[,] you heard with compelling emotions how they told you of Mary's death four years ago." n88 The prosecutor's argument does not attribute emotions of any sort to the jury. She uses the verb feel with the jury as the subject only twice, in a single passage, describing how the jurors will want to feel at a later day, after their jury service is finished. This passage (which is set out in footnote 87 supra) harmonizes rather than opposing feeling and duty. n89 Defense counsel never makes the jurors' internal states the object of the verb use. When the jury is the subject of this verb in the defense argument, the object is something other than the jurors' own mentation: "You cannot ask him to speak and . . . you cannot in any way use his silence against him."

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n90 In a very subtle move, defense counsel praises the prosecution's star witnesses, Susan Stone and Nancy Gregg, as models of dispassion. "They testified as best they could." * "They were both recounting as they described, as best they could, as best they recalled the death of a close friend." * "They actually testified pretty much free of any bias they have a right to hold or have against the defendant." Surely, counsel insinuates but avoids saying overtly, the jury can do as well. After all, Nancy Gregg is a criminal who had to be caught and put behind bars before she came to "understand that she has a real obligation to the Criminal Justice System" to tell the truth. Maybe she "is really proof that in some way our much maligned criminal justice system actually works." Inspired by such paragons of discipline, the jury is called to make the system work. n91 See also, e.g., the last indented passage quoted on page 79 supra and the first indented passage quoted in paragraph d on page 91 infra. n92 And: "The second concept I thought was critical was if you would be willing at the end of the case to say if certain matters aren't proved beyond a reasonable doubt that there [sic] just not proved." "If it's not proved by the People's evidence that he had an intent to kill, then you would just find him not guilty of that charge."

See also paragraph e infra. n93 See the second indented passage quoted on page 79 supra and the first indented passage quoted in paragraph d on page 91 infra. n94 D'Andrade, supra note 63, at 119. D'Andrade explains that: "One may be able to modify one's feelings by thinking of one thing rather than another, or by engaging in various activities, but according to the folk model, one cannot will oneself to hate or not to hate, to love or not to love someone, or even to enjoy something (but one can try)."

Id. The last parenthetical suggests that D'Andrade is aware of some tension on this point in folk psychology. And the exhortations commonly heard in American discourse to "care" and to "be concerned" do appear to reflect a belief that at least certain aspects of one's feelings are subject to a measure of volitional control. It is particularly noteworthy in the Jones arguments that words that touch upon these aspects--words such as "expect" and "ignore"--are found exclusively in defense counsel's summation, never in the prosecutor's. n95 See also the second and third indented passages quoted on page 89 supra. n96 "Is there something presented to you that proves an intent to kill so that you don't have to speculate to draw that conclusion?" n97 And: "You need to be--has to be proven to you that . . . [the defendant's] conscious aim . . . was to cause her death. . . ." Page 45 37 N.Y.L. Sch. L. Rev. 55, *

"How easy would it be for each of you to say, 'Why should we show any serious regard for a man who showed so little regard for the life of another?' How easy it would be for each of you to say, 'Why should we care about what crime is actually proved against him . . .?'" "Well what should you do then, just assume he's crazy? You can't speculate in that way. You need proof presented to you before you make that decision."

n98 And: "I said you may infer. You need not, but one of the ways that you can tell what somebody means to do is what they eventually do." "You don't have to decide whether the defendant was the one who pulled the trigger of that gun. . . . You don't have to decide who did that. We know it was, the defendant."

n99 "Well what should you do then, just assume he's crazy? . . . You can't speculate in that way. You need proof presented to you before you make that decision."