Sunday, April 26, 2015

Ignorance of the Law--by the Police--IS an Excuse

The Supremes and NY's High Court Say So 

Ignorance of the law is no excuse, right?
Well, almost always.

Driving 65 mph because you didn't see the 55 limit posted? No excuse.
Thinking it's ok to let your spouse take some of your prescription medication for her pounding headache, unaware that your state criminalizes such sharing? No excuse.
Serving wine with dinner to your minor child, niece or nephew, unaware that your state allows no exceptions even within your own home. No excuse.
Carrying your lawfully registered firearm, unaware that the state your visiting has far different restrictions than your home? No excuse.
Etc., etc., etc.

But now suppose a police officer pulls you over for headlights that seem too bright, but are actually legal. Officer excused? Stop lawful?
Or an officer pulls you over for tinted windows that seem too dark, but are actually legal. Officer excused? Stop lawful?
Or an officer detains you for carrying a concealed firearm, unaware of special regulations authorizing you to do so. Officer excused? Detention lawful?
Or an officer detains you for wearing some police attire, unaware that the state's illegal impersonation law does not cover that. Officer excused? Detention lawful?

It just so happens that recent judicial decisions do in fact excuse officer ignorance of the law.
And those decisions do in fact hold that such stops or detentions are perfectly lawful.

More than that, these decisions were not rendered by some backwater courts.
No, these are recent decisions of two of the nation's most important courts: the United States Supreme Court and the New York's highest court, the Court of Appeals.

Both courts in the last several months rendered decisions placing their respective stamps of approval on stops based on police ignorance--or "mistake"--of the law.
The Supreme Court ok'd such stops under the United States Constitution.
The New York high court did so under the state's own constitutional search and seizure protections.

In the Supreme Court case, Heien v. North Carolina, the police officer stopped the defendant because one of his car's two brake lights wasn't working. Under the state's law, however, only one working light was required. (The stop resulted in the officer's discovering contraband in the car.) The Supreme Court, in an 8-1 vote, excused the officer's ignorance of the state's law,  and it held that the stop was constitutional.

In the NY Court of Appeals case, People v. Guthrie, the police officer stopped the defendant after seeing him drive through a stop sign. Problem was that the stop sign, at the exit of a private shopping center parking lot, was not legally authorized. (The stop resulted in determining that the defendant was driving while intoxicated.) New York's high court, in a 6-1 vote, excused the officer's ignorance that the stop sign was unauthorized. The court held that the stop was valid under the state's constitution--in addition to being valid under the Supreme Court's Heien decision.

These are significant decisions with considerable ramifications. That is not to suggest--or even intimate--that these decisions were wrong as a matter of law or unwise as a matter of policy. But the implications are far reaching and need to be explored.

We will do that in the next two posts.
First we'll look at the Supreme Court's decision. It happens to be the latest in a long series of decisions in which the Court seems increasingly less concerned about search and seizure rights.
We'll next look at the Court of Appeals decision which, albeit rendered by a court which typically requires much more justification for police intrusions, also forgave police ignorance--again, "mistake," as courts usually label it when speaking of official ignorance.

So the Heien decision in the next post.
New York's Guthrie decision in the one after that.

Saturday, March 21, 2015

NY Chief Judge Lippman Moderates Chief Justices at Albany Law, Monday, March 23, 2015

New York's Chief Judge Jonathan Lippman will moderate a panel of state Chief Justices from around the country, Monday, March 23, 5-7 pm, at Albany Law School, for the annual Cooke State Constitutional Commentary Symposium 

Link to a video of the event HERE.
More information on State Constitutional Commentary and the Cooke Symposia in previous years, HERE.

Thursday, March 5, 2015

Preet Bharara on Sheldon Silver: Prosecutorial Ethics?

Is U.S. Attorney Preet Bharara behaving more like a politician or like a prosecutor bound by the rules of legal ethics?
Do his press conferences, speeches, interviews, and other public comments about Sheldon Silver, the now-indicted former Speaker of the New York Assembly, sound more like he's running for elected office, or like a prosecutor who is abiding by the ethical restrictions on over-zealous, prejudicial out-of-court statements?

Let's consider some ethical obligations of a prosecutor that are clear:
--no public statements, other than what's actually necessary for law enforcement, that tend to malign someone who's been accused;
--no public statements that might prejudice the case against someone who's been accused;
--no crusade for a conviction, but to conduct oneself impartially and to do justice.

Yes, that's my recap of some of the applicable ethical rules. So here are the rules themselves. They are taught to every law student--in New York and elsewhere:
"The prosecutor in a criminal case shall...except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused." (American Bar Assn. Model Rules of Professional Conduct, Rule 3.8, Special Responsibilities of a Prosecutor.)
"A prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of  increasing opprobrium against the accused." (N.Y. Rules of Professional Conduct, comment to Rule 3.8, Special Responsibility of Prosecutors.)
A prosecutor shall not make "extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding." (Both the American Bar Assn. Model Rules of Professional Conduct and the N.Y. Rules of Professional Conduct, comments to Rule 3.8, specifically applying Rule 3.6, Trial Publicity, to prosecutors.) 
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation [is] to govern impartially... and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. U.S. [Supreme Court 1935])

With those ethical mandates in mind, let's now consider the kinds of public statements federal prosecutor Bharara has reportedly made in commenting on his office's case against Sheldon Silver.
("Reportedly" only because I did not personally hear or see these remarks emanating from Bharara's mouth. But they have been widely reported in the NY Times, the NY Daily News, the Observer, Vanity Fair, and elsewhere.)

Here are just a few examples:
“How could Speaker Silver, one of the most powerful men in all of New York, earn millions of dollars in outside income without deeply compromising his ability to honestly serve his constituents? Today, we provide the answer: He didn’t.”
“These charges go to the very core of what ails Albany — a lack of transparency, lack of accountability and a lack of principle joined with an overabundance of greed, cronyism and self-dealing.” 
“When you see somebody who has basically sold his office to line his pockets and compromised his integrity and ethics with regard to how to make decisions that affect people’s lives, that’s a big problem. And it’s a big problem for democracy.”
“It’s the concentration of power. Power in New York State, as far as anyone can tell, is concentrated in the hands of just a few men—some would say, just three men.”
“Why three men? Can there be a woman? Do they always have to be white? How small is the room that they can only fit three men? Is it three men in a closet? Are there cigars? Can they have Cuban cigars now? After a while, doesn't it get a little gamey in that room?”
 “The decision to charge the speaker of the New York Assembly yesterday was made by more than three men in a room.”
 “The people of New York should be disappointed, but they should be more than disappointed. They should be angry. When so many of their leaders can be bought for a few thousand dollars, they should think about getting angry."
So let me ask:
Which of those statements was actually necessary for law enforcement?
Which of those statements was in any sense necessary to insure the public's health or safety--as, for example, from a violent fugitive?
Which of those statements in any sense whatsoever reflected a presumption of innocence until conviction?
Which of those statements in any sense whatsoever reflected an ethical aspiration to do justice, unmired by personal bias and animosity?
Which of those statements reflects the ethical mandate to avoid trial through the media rather than in the courtroom?
(Need I say none?)

On the other hand:
Did those statements heighten public condemnation of the accused?
Did they tend to prejudice the public
Did they likely prejudice members of the public who might be called for jury duty?
Did they reflect a determination to convict and punish, rather than to insure that the legal system operates to protect the rights of the accused and to do what the legal system requires?
Did they reflect the emotions of a man on a crusade, rather than a prosecutor doing the law's work impartially--and yes, ethically?
(All of them?)

It's seems pretty clear to me.
These public comments--and apparently many others--were inappropriate.
They were hardly necessary to serve any proper prosecutorial or law enforcement purpose.
They seem clearly to fall outside the boundaries of public statements permissible under basic rules of legal ethics.

The United States Attorney owes it to his office, and to the justice system he is entrusted to serve, to conduct himself less like a crusading politician and more like an ethically restrained prosecutor.

Saturday, February 21, 2015

NY's Chief Judge Lippman on Exonerations

Guest Post
By Catherine L. Bonventre
Ms. Bonventre, a graduate of Albany Law School, is a Ph.D. candidate in the School of Criminal Justice at the University at Albany.  She is co-editor of EXAMINING WRONGFUL CONVICTIONS: STEPPING BACK, MOVING FORWARD (with Allison Redlich, James Acker, and Robert Norris, Carolina Academic Press, 2014).

Last Tuesday, New York's Chief Judge Jonathan Lippman delivered his final State of the Judiciary address – Access to Justice: Making the Ideal a Reality.  I say final because, as many of you are aware, the Chief Judge is (unfortunately) facing mandatory age-retirement at the end of this year.

But what a way to go out. Watch the webcast of the address. It was truly inspiring. So, let’s take a look at one of the many important issues the Chief discussed—wrongful convictions.

The National Registry of Exonerations, which catalogs information about known exonerations, currently (as of 2/21/15) lists 1,552 exonerations since 1989.  That’s 1,552 people who were wrongly convicted of crimes and “later cleared of all charges based on new evidence of innocence.” In the section of the State of the Judiciary entitled, “Continued Legislative Priorities,” Chief Judge Lippman noted that “there is no greater failure in the criminal justice system than to unjustly deprive an innocent person of her or his liberty.”

Back in 2009, when Lippman was appointed Chief Judge, he created the New York State Justice Task Force.  In this week’s address, the Chief announced that the Task Force’s recommendations concerning post-conviction DNA testing and expansion of the State DNA Databank had been enacted. But, as the Chief noted, three of the Task Force’s other recommendations have yet to be passed: state-wide video-recording of custodial interrogations by the police; improved practices for police administration of identification procedures; and the reform of criminal discovery laws.

Much can be said about the importance of all of these reforms. But I will focus on just one—video-recording of custodial interrogations.

However counter-intuitive it may seem that innocent defendants would falsely confess to crimes they did not commit, they do. Thirteen percent of the cases collected by the National Registry of Exonerations (NRE) involved a false confession. Moreover, false confessions were involved in 25% of the convictions which later were the subject of DNA exonerations.
(See National Registry of Exonerations, n.d. The NRE notes that this difference is likely due to the fact that false confessions are difficult to overcome and that DNA evidence is more likely to help in that regard than other evidence of innocence.)

Yet, the benefits of video-recording custodial interrogations don’t just accrue to falsely accused defendants. As attorney Thomas Sullivan notes, it’s a win for everyone. As he explained:
For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution's case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did. (Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 3 J. Crim. L. & Criminology 1127-28 [2005].) 
Indeed, criminal justice reforms aimed at reducing wrongful convictions aren't simply about improving the justice process for defendants. Make no mistake, preventing wrongful convictions is a public safety issue.

James Acker, Distinguished Teaching Professor in the University at Albany School of Criminal Justice (and my mentor, I’m lucky to say) argues that it’s counterproductive to infuse the discussion of criminal justice reform with adversarial, ideologically-oriented notions of “us-against-them.” As Acker eloquently puts it:
Wrongful convictions entail profound social costs in addition to the hardships borne by the unfortunate individuals who are erroneously adjudged guilty. When innocents are convicted, the guilty go free. Offenders thus remain capable of committing new crimes and exposing untold numbers of additional citizens to continuing risk of victimization. Public confidence in the administration of the criminal law suffers when justice miscarries.  At some point, as cases mount and the attendant glare of publicity intensifies, the perceived legitimacy of the justice system and the involved actors is jeopardized. Associated monetary costs, paid from public coffers, represent yet another tangible social consequence of wrongful convictions. (James R. Acker, The Flipside Injustice of Wrongful Convictions: When the Guilty Go Free, 76 Alb. L. Rev. 1629, 1630-31 [emphasis added].)
It’s time for the legislature to make Chief Judge Lippman’s ideals a reality.

Monday, February 9, 2015

Part 5 [Judge Fahey's 'Tendencies']--NYCOA: Cuomo's Latest Two Nominees

Eugene Fahey, who has served on the Appellate Division, 4th Department for nine years (the state's intermediate appeals court that sits in Rochester), was nominated by Governor Cuomo in January to sit on New York's highest court. The Senate Judiciary Committee is scheduled to hold hearings on his nomination on Monday.

As with Leslie Stein, whose nomination will be considered the same day, Fahey seems assured to get the committee's approval and then confirmation by the full Senate. He has considerable judicial experience, he has a reputation for collegiality and cordiality, he's been placed on the recommended list for the last four Court vacancies by the Commission on Judicial Nomination, and he has been uniformly rated very highly by bar associations across the state. It would be most surprising if he were not warmly and overwhelmingly received and confirmed.

But who exactly is Judge Fahey? Not what's in his formal biography which is available from several sources with a quick Google search. But who is he jurisprudentially? What does his judicial record--opinions, majorities and dissents--reveal about him? Yes, that "stream of tendencies" we've been discussing in the last couple of  posts on Judge Stein. Yes, what are Fahey's "tendencies," leanings, strongly held perspectives? The common threads in his judicial work.

Well, a review of his Appellate Division opinions--with special focus on the most revealing ones, i.e., the dissenting opinions and majority opinions responding to a dissent--suggests that there are certainly a few dots that can be connected. So let's connect the dots. At least a few of them.

Dissenting opinions
Lots of them! His record evinces no reluctance to disagree with a majority of his colleagues. There is never anything biting or otherwise disagreeable in his dissents. But he apparently feels no overriding need to just go along with his colleagues when he thinks they are mistaken.

For example, over the same period of time in which Judge Stein issued 13 dissenting opinions as an Appellate Division Justice (i.e., since 2008), Judge Fahey has issued over 50.

In addition to being many, Fahey's dissents cover a wide range of issues, civil and criminal, substantive and procedural. And there are some pretty clearly patterns. Let's take a look.

Review by the Court of Appeals
Vindications? Yes. Several of Fahey's dissenting opinions--i.e., his disagreements with the majority of his colleagues--received the imprimatur of the Court of Appeals. But even more notable than that is the breadth of approval his positions have garnered at the high court.

Whether criminal or civil, pro-plaintiff or pro-defendant, Fahey's vindicated dissents received a unanimous or near-unanimous vote. It was not just the more-liberal Court of Appeals Judges who approved his dissenting positions, or just the more-conservative ones. But all the Judges, or all but one of them in one case.

Here are the cases:
People v Buchanan (2008) [Dissenting opinion arguing that it was reversible error to require the defendant to wear a visible stun belt during the jury trial (The COA, 6-1, agreed and reversed)]; Shosek v Amherst Paving (2008) [Dissenting opinion arguing that the municipality's paving contractor owed a duty of care to motorists, including the mother and son who were killed in a crash caused by the contractor's negligence (The COA, 7-0, agreed and reversed)]; Smith v Sherwood (2009) [Dissenting opinion arguing that the regional transportation authority could not be liable for injuries sustained by a private school student who was struck by a vehicle after being dropped off safely at the curb by the city bus driver (The COA, 7-0, agreed and reversed)]; Dzielski v Essex Ins. (2011) [Dissenting opinion arguing that the insurance company was not obligated under the policy to indemnify the owner of a night club for certain injuries sustained on his property (The COA, 7-0, agreed and reversed)]; Davis v Boeheim (2013) [Dissenting opinion arguing that the defendant-basketball coach's statements were actionable in defamation because they necessarily implied a basis in facts (The COA, 6-0, agreed and reversed)].

Positions in criminal cases
A review of Judge Fahey's dissenting opinions in criminal cases reveals a clear willingness to disagree with his colleagues to argue in favor of the defendant. Indeed, overall, these opinions manifest a strong determination to enforce the due process/rights-of-the-accused side of the criminal justice system. There are cases where Fahey does adopt a crime control/law-and-order posture. But those seem to be exceptions to the rule, and they represent certain distinct categories of crimes and circumstances.

Before we look at the exceptions, let's look at some of the more typical cases in which he takes a more-liberal, pro-defendants' rights position.

ineffective counsel:
People v Mays (2011) [Dissenting opinion arguing that defense counsel was ineffective for failing to object to the trail judge's error in allowing the prosecutor to communicate with the jurors during deliberations]; People v Wright (2014) [Dissenting opinion arguing that defense counsel was ineffective for failing to object to prosecutorial misconduct in mischaracterizing DNA evidence]; People v Parson (2014) [Dissenting opinion arguing that defense counsel was ineffective for failing to present evidence showing that the police officer's testimony at the suppression hearing was dishonest]; People v Carver (2015) [Dissenting opinion arguing that defense counsel was ineffective in failing to challenge the questionable traffic stop and frisk at the suppression hearing].

insufficient evidence:
People v Reed (2012) [Dissenting opinion arguing insufficient evidence where none of the eyewitnesses saw the robbery and felony murder defendant participating in the shooting or taking any property from the victim]; People v Lamont (2014) [Dissenting opinion arguing insufficient evidence for attempted robbery based solely on defendant's possession of a gun but no evidence of intent to steal ]; People v Heatley (2014) [Dissenting opinion arguing that the indictment should be dismissed, and no lesser included conviction ordered, where the weight of the evidence did not support the intentional murder conviction]; People v Woolson (2014) [Dissenting opinion arguing that the sex offense verdict was against the weight of the evidence where the alleged victim, whose testimony was the basis of the prosecution's case, had a history of mental illness and had made a remarkably similar false accusation in another case].

harsh/unfair sentence
People v Maliszewski (2009) [Dissenting opinion arguing that it was error for the county court, on remittal, to enhance the sentence of incarceration based on the defendant's failure to pay restitution on previous convictions]; People v Rivera (2010) [Dissenting opinion arguing that it was error for the county court to exceed the statutory limit for restitution without conducting a hearing]; People v Johnson (2012) [Dissenting opinion arguing that it was error for the county court to resentence the defendant to impose post-release supervision, even after the prosecutor had stipulated that such was unnecessary]; People v Prial (2014) [Dissenting opinion arguing that the sentence of 5 years incarceration for the sale of 5 morphine pills was unduly harsh and should be reduced in the interest of justice].

Official misconduct
Among the most conspicuous exceptions to Judge Fahey's general tendency to side with the accused in close cases, where rights or fair treatment have arguably been violated, are those where public officials are the ones guilty of criminal wrongdoing. But his tough-on-official-misconduct predilection is no less evident in cases where the official wrongdoing was engaged in on behalf of law enforcement.

Here are some examples:
People v Zona (2009) [Dissenting opinion arguing that a deputy sheriff's conviction for grand larceny should be affirmed, where there was no basis for him to believe that he was entitled to take property from a county warehouse for personal use]; People v Backus (2011) [Dissenting opinion arguing that the sentence imposed on an off-duty police officer, for vehicular assault and driving while intoxicated, was not unduly harsh and should not be reduced].
But also:
People v Schrock (2013) [Dissenting opinion arguing that the sheriff's usurpation of the county court's authority by forcing the defendant to wear a stun belt during trial, and to do so without the court's knowledge, is a "mode of proceedings" error requiring a reversal of the convictions and a new trial]; People v Parson (2014) [Dissenting opinion arguing that evidence showing that the police officer was dishonest at the suppression hearing should have been presented and, therefore, the conviction should be reversed and a new hearing ordered].

Children and other vulnerables
Whether the case is a criminal one or civil, if a child or other vulnerable person has been victimized, Judge Fahey has typically adopted positions of being tough on the wrongdoer--especially if particularly cruel or barbaric--and sympathetic and protective toward the victim. Indeed, these tendencies of his often trump the others.

Several illustrations:
People v Bauman (2008) [Dissenting opinion arguing that a conviction for depraved indifference assault was not 'duplicitous,' and should be upheld, where the defendants' beat the multiple sclerosis afflicted victim with a bat and hammer, and burned him with a frying pan]; Shosek v Amherst Paving (2008) [Dissenting opinion arguing that a cause of action should be sustained against a municipality's paving contractor whose negligence caused an automobile accident that killed a mother and her son (The COA, 7-0, agreed and reversed)]; People v Groth (2010) [Dissenting opinion arguing that the evidence did prove beyond a reasonable doubt that the defendant was guilty of assault crimes, where the infant victim sustained rib fractures and cranial hemorrhaging]; People v Backus (2011) [Dissenting opinion arguing that the sentence imposed on an off-duty police officer should not be reduced where he was driving while intoxicated and seriously injured two 17 year olds when he collided with their vehicle]; People v Jerge (2011) [Dissenting opinion arguing that convictions for sexual abuse of a child should be upheld, despite the conduct of social service workers on the jury who gave advice based on their experience to other jurors during deliberation]; People v Diaz (2012) [Dissenting opinion arguing that the trial judge's upward departure from the presumptive risk assessment of the sex-offense defendant was justified based on prior sex offenses, serious mental disorder, and his penchant for "preying on women who are alone"].

To be sure, there's more to uncover in Judge Fahey's record at the Appellate Division than we've identified here. But what we've seen here does tell us quite a bit about Governor Cuomo's most recent nominee, and what we might expect of him once he's confirmed and takes his seat on New York's highest court. Yes, the foregoing should give us some sense of the kinds of choices he has made on the Appellate Division and, perhaps, the kinds of choices we should expect him to make on the Court of Appeals.

So...No hesitation to dissent. Oftentimes in sync with the high court even when a minority voice among his Appellate Division colleagues. A pretty insistent voice for taking the rights of the accused seriously--the right to effective counsel, the benefit of reasonable doubt, and fair sentencing. Little tolerance for official wrongdoing. Perhaps even less tolerance for doing harm to children and others who are vulnerable among us.

Well, those are among the most conspicuous "tendencies" reflected in Judge Fahey's record that we've seen from an examination of his opinions in divided decisions--especially in those cases where he has been willing to publicly express disagreement with a majority of his colleagues in a published dissent.

The Senate hearings on both Judge Stein and Judge Fahey will begin later this morning. (It's now early Monday morning as I'm concluding this.) Maybe--just maybe--we'll learn a bit more about each of them from their presentations to the Judiciary Committee and their answers to the Senators' questions. Good luck to them both.