Tagged: criminal justice reform

       A CALL FOR PAPERS FOR A SYMPOSIUM ISSUE

The Pace Law Review

The Pace Law Review at the Elisabeth Haub School of Law at Pace University invites submissions for an interdisciplinary conference on the theme of  “Game-changing Reforms in the NYS Criminal Justice System and How to Implement Them” to be held on March 20, 2020 at the NYS Judicial Institute on the campus of the law school.

In the last few years, culminating in the last legislative session, the New York State Legislature, the New York State courts, as well as the government of New York City, have enacted a number of far reaching reforms in criminal procedure and related criminal justice issues.  These changes include (but are not limited to) the following: raising the age of criminal responsibility to 18 years; comprehensive bail reform; discovery reform; major changes in the speedy trial statute; the anticipated closing of the Rikers Island detention and correctional facilities; significant changes in the imposition of solitary confinement of state prisoners; the expansion of the use of desk appearance tickets (and the consequent reduction of the number of custodial overnight detentions); expansion of the use of video-recorded police interrogations; expanded use of police body cameras in NYC; proliferation of conviction integrity programs in New York State district attorney’s offices; creation of a Prosecutorial Conduct Commission; and the large increase in funding of public defender offices statewide as part of the Hurrell-Harring case settlement.  Each of these reforms deserve considered analysis and debate.

This symposium will provide a forum for policymakers, jurists, academics, criminal law practitioners (on both the prosecution and defense side), students and concerned citizens to engage in a thorough discussion of criminal justice reform.  These changes share some common themes—an overall trend towards decarceration, increased use of modern technology in street policing, and increased emphasis on the prosecutorial obligation to share information, accelerate the process, avoid misconduct and prevent or correct wrongful convictions.

These changes in New York State reflect national trends in favor of bail and discovery reform, decarceration, and increased concern about wrongful convictions.  They also reflect changes in the modern prosecutor’s role and a 21st century model of organized policing.  Fixing a close gaze on New York and both its upstate and downstate counties, will provide insight for our national discussion about how we should create and maintain a just criminal process.

New York is one of the largest states in the nation and has an enormous criminal justice system.  Major changes in the law like those listed above will have significant effects in other states as well.  The far reaching impact of these reforms might include changes in policy, distribution of resources, rethinking what we mean by fairness and due process in criminal matters, and the proper balance between social control and individual liberty—all are implicated in these reforms.  Our federal system contemplates the various states as “laboratories” of justice.  With these reforms, New York once again is coming to the forefront in that role.  A Pace Law Review symposium issue containing excellent and insightful scholarship on matters of criminal justice policy, procedure, practice and jurisprudence would be a valuable resource both locally and nationally.

The Pace Law Review and the Pace Criminal Justice Institute invite you to be a part of that discussion.

We welcome full-length traditional law review articles with a maximum of 65 pages, as well as shorter essays and commentaries with a minimum of 10 pages.  Authors will be selected based on brief abstracts of their articles, essays or commentaries. We are looking for different perspectives on the goals and challenges of implementing the historic criminal justice reforms throughout New York State.

To submit, please send:

  1. Your name, title and professional affiliation
  2. Your curriculum vitae/resume
  3. Your contact details, including phone number and email address
  4. A two-three page abstract summarizing your article or essay and indicating what your expected page length will be.

Please submit your abstract for consideration to: Managing Editor Mellis Bakir at: mbakir@law.pace.edu.

Submission Deadlines

Abstract Deadline: November 25, 2019

Selection Notification Date: December 13, 2019

Article/Essay Deadline: February 28, 2020

If you have any questions about this call for papers, please contact Mellis Bakir at: mbakir@law.pace.edu or Carol Barry (Director of the Pace Criminal Justice Institute) at: cbarry@law.pace.edu.

 

 

 

Event: Civil Rights Symposium

Please join the Community Engagement Committee and the SBA at Elisabeth Haub School of Law, Pace University, for a full day Civil Rights Symposium on Saturday, March 11, 2017 at 9:00 AM – 5:00 PM in the Moot Court Room.

Criminal Justice Reform Panel 

  • Kenneth Chamberlain Jr. – Leader of the Westchester Coalition for Police Reform, and outspoken advocate for police reform within the greater Westchester region.
  • Eugene O’Donnell, J.D. – Professor and former NYPD officer. Previously served in the Queens and Brooklyn DA’s offices. Nationally recognized expert on policing issues, including use of force.
  • Chief Edward L. Stephens – Chief of Police for the Wolcott Police Department

Gender Discrimination in the Legal Practice Panel 

  • Professor Linda Fentiman, J.D. – Her most recent work has focused on women and addiction. In 2010 she was a Visiting Scholar at the Center for Reproductive Rights in New York.
  • Anne Golden, J.D.  – Co-founder of Outten & Golden LLP, and co-chaired the firm’s discrimination and retaliation practice group.
  • Steven Felsenfeld, J.D. –Over 20 years of labor and employment law practice experience, advising and litigating multiple sexual harassment matters. He has created and conducted sexual harassment training, and created multiple employee handbooks. Certified senior professional in Human Resources.

Legal Observer Training

  • Held by the National Lawyers Guild – Susan Howard – Executive Director of the NLG-NYC Chapter

Implicit Bias Training

  • Held by Cornell L. Craig – Director of Multicultural Affairs and Diversity Programs at Pace University

Westchester Orgnizations attending

  • WESPAC
  • Westchester Martin Luther King, Jr. Institute for Nonviolence
  • Westchester Coalition for Police Reform

Federal Judge Recommends Reform of Plea-Bargaining Process

Federal District Judge Jed S. Rakoff has a long-standing reputation for being an honest, open-minded, and fair jurist when presiding over criminal cases.   He has continually shown the courage to address some of the most profound issues within our criminal justice system, and has always taken the “high road” in doing so.  Many criminal defense practitioners have lauded Judge Rakoff’s judicial wisdom as well as his “no-nonsense” attitude when dealing with prosecutors that play fast-and-loose with their ethical obligation to disclose favorable evidence.

According to Professor Peter Widulski of Pace Law School, who once served as a law clerk for Judge Rakoff:

Judge Rakoff is one of the most brilliant and respected members of the federal bench. He is a man of the highest integrity, and his dedication to the law is a model for all jurists and lawyers. This dedication is manifested not only in his work on the bench but in the extensive teaching he has done for many years at Columbia Law School.

Recently, Judge Rakoff has proposed innovative changes to help reform the plea-bargaining process. He suggested a new process whereby magistrate judges would hear evidence and issue plea bargaining recommendations  pre-trial. Such proceedings would allow both the prosecution and defense an opportunity to present relevant facts, and to weigh-in on the evidence likely to be presented by the government at a trial.

Judge Rakoff explained that such a process would bring “plea bargaining from behind closed doors and relieve pressure on the defendants deciding whether to risk a longer sentence by heading to trial.”  He also noted that judges should become more involved in the process to protect defendants from feeling bullied into pleading guilty and help prevent overzealous prosecutors from using mandatory minimum sentences as a coercive bargaining chip.

Judge Rakoff estimates that from 1% to 8% of the prison population may be the result of false guilty pleas. He notes that the “current process is totally different from what the founding fathers had in mind.”  He explained that more needs to be done to protect innocent people from coerced pleas –as “even 0.5% [of false pleas] would total more than 10,000 [innocent] people” in prison.

In 2009, Judge Rakoff was also outspoken about sentencing inequities created by mandatory minimums for firearm offenses. In Unites States v. Ballard, Judge Rakoff refused to submit to the government’s request to impose a Guideline range sentence on non-gun counts, and to stack consecutive mandatory sentences for each firearm conviction on the defendant’s armed robbery counts. He noted that the case did not warrant the 64-year sentence advocated by the prosecution and refused to become a party to such an “unconscionable result.” He found that the imposition of a one-month sentence for the non-firearm counts was proper given the two consecutive 25-year sentences required under 18 U.S.C. § 924(c).

Judge Rakoff explained that the case was illustrative of the distorting effects of mandatory minimum sentences, given that a co-defendant was given a plea bargain excluding mandatory minimums, and obtained a sentence of 168 months in prison. He observed that the extreme sentencing disparity between the co-defendants was simply a result of one exercising his constitutional right to go to trial –while the other defendant did not. He noted that

[w]hen the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.

In 2006, Judge Rakoff also took a courageous stance against the disproportional sentencing recommendations that may occasionally arise in a case under the Sentencing Guidelines.  In United States v. Adelson, Judge Rakoff imposed a non-guideline sentence of 42 months imprisonment to a defendant convicted of conspiracy, securities fraud, and the three of the false filing counts -although the Government argued that the Sentencing Guidelines, if properly calculated, called for a sentence of life imprisonment.

Judge Rakoff noted that what the case “exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.” He concluded that “[t]his is one of those cases in which calculations under the Sentencing Guidelines lead to a result so patently unreasonable as to require the Court to place greater emphasis on other sentencing factors to derive a sentence that comports with federal law.”

It is to be hoped that all members of the Bar will rally behind Judge Rakoff to help facilitate reform to correct the injustices caused by the combination of our plea-bargaining process and harsh mandatory minimum sentencing.

A true leader of his time, “Judge Rakoff enjoys well-deserved admiration for fairness, and he has the courage and insight to address important issues of law and the administration of justice, without fear or favor” said Professor Widulski.

Related Readings:

Oh My Brady! Who Art Thou?

Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Brady disclosures in New York.

In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”

Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”

Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”

The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.”  Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”

Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott).  They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”

Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices.  Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.

The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Giglio rule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate.  Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”

All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative,  these Brady-Giglio materials, even if  referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.

To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.

References