Tagged: criminal law

The Newburgh Sting – HBO Documentary Screening with Director and Attorneys

On February 3, 2015 at 6:00 pm in the Moot Court Room of the Gerber Glass building at Pace Law School, the Criminal Justice Institute and Criminal Justice Society at Pace Law School will host a screening of the HBO Movie The Newburgh Sting, with the film’s director, David Heilbroner. This film, which was shown at the 2014 Tribeca Film Festival, tells the story of United States v. Cromitie, a 2013 terrorism case that arose out of Newburgh, New York and was tried in White Plains. The defendants were young men who joined the efforts of an undercover FBI agent posing as a terrorist in his plan to bomb a synagogue in Riverdale. United States v. Cromitie, 781 F. Supp. 2d 211 (S.D.N.Y. 2011). It has been said to involve the most outrageous government entrapment methods of any post-9/11 terrorism case. But did it? Or was it rather a successful prosecution of young men willing to join the efforts of an apparently well-armed, well organized terrorist? The jury took eight days to render its verdict, rejecting the entrapment defense. The defendants were sentenced to twenty-five year prison sentences. The Second Circuit affirmed in a divided opinion. United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).

After the screening, the attorneys involved in the case will join the director for a panel discussion addressing the many provocative issues raised by the film. Among these issues are:

  • Were the defendants entrapped as a matter of law or were they properly convicted for willingly joining a terrorist plot?
  • How can the government discover and prosecute people who are not members of a known terrorist organization but who are willing to join a plot to bomb US targets?
  • What are the differences between a film director trying to show “what happened” and a lawyer trying to prove “what happened” in a courtroom?
  • What do those differences say about our criminal justice system?
  • What do these lessons mean for lawyers and law students?

Several of the attorneys taking part in the panel discussion are graduates of Pace Law School: Susanne Brody is a 1988 graduate and an attorney with Federal Defenders of New York; Heather Bird is a 2010 graduate and is an attorney in Toronto, Canada; Gonul Aksoy is a 2008 graduate and an attorney with a White Plains firm; and Giovanni Rosania is a 2006 graduate also in private practice in White Plains. The panel also includes two well respected and well known criminal defense lawyers who were defense counsel in the case: Sam Braverman of Fasulo Braverman & Di Maggio, LLP, President of the Bronx County Bar Association, and Kerry Lawrence of Calhoun & Lawrence, LLP, a former Assistant United States Attorney.

The Pace Criminal Justice Institute generates educational opportunities for Pace Law students and promotes interdisciplinary collaboration between scholars, policymakers and practitioners in and outside the Pace community. The Institute supports and encourages creative research, teaching, and discussion concerning the theory and practice of Criminal Law. The Institute created and maintains an online forum, Pace Criminal Justice Blog, fostering and encouraging the discourse of important current issues in domestic and international criminal law and procedure.

Know Your Rights Event at Pace

KnowYourRighsFall2014The Pace Criminal Justice Society (CJS), the Pace Criminal Justice Institute (PCJI) and the Pace Alumni Relations Office are co-hosting an event titled Know Your Rights on Tuesday, November 18, 2014 at 4:30-5:30 PM in the Preston Hall Tudor Room during which our Criminal Justice Clinic Students under the leadership of Prof. David N. Dorfman will explore the appropriate responses to and the underlying issues that arise from police car stops, street stops, cell phone searches and more. Immediately after this event, the Annual Criminal Practice Networking Reception will take place at 5:30-6:30 PM in the Student Lounge, across the hall from the event, during which alumni, local prosecutors and defense counsel are invited to learn about the resources of the Pace Criminal Justice Institute, meet with other criminal law practitioners, and get to know and talk with students interested in pursuing a career in criminal practice.

NY Court of Appeals Addresses Another Statutory Presumption

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

New York State has codified several evidentiary presumptions authorizing courts to instruct a jury that it may infer a fact necessary for an element of a crime charged from supporting facts that the jury finds the prosecution has proved beyond a reasonable doubt. In conformance with federal due process requirements, the inferences to be drawn are not mandatory but permissive. This means that based on the evidence – including any facts adduced by the defense during cross-examination or rebuttal – the jury may, but is not required to, draw an inference that the element has been established.

Such presumptions are potentially decisive for a defendant’s fate and should be carefully considered by the courts. Prior to submitting a case to the jury, trial courts must decide whether the evidence presented was sufficient to instruct the jury on a statutory presumption. Subsequently, appellate courts often are tasked with reviewing whether such an instruction, if given and may have determined the jury’s guilty verdict on the related charge, was improper and constituted an error requiring reversal of the conviction on that charge.

As discussed earlier, in June of this year the NY Court of Appeals, in a 5-2 decision, upheld a conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person, where the conviction on this charge was based on an evidentiary presumption under Penal Law § 265.15(4) stating that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” As noted previously, the Court did not fully address a possible constitutional issue regarding the application of the presumption in that case because the issue was not raised on appeal.

Recently the Court of Appeals heard People v. Kims, Slip. Op. 07196 (N.Y. Oct. 23, 2014) that, among other issues, involved the applicability of another statutory presumption. Penal Law § 220.25(2) provides, in summary, that the presence of certain controlled substances in open view in a non-public room under circumstances evincing an intent to prepare such substances for sale is “presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance ….”

The permissive inference allowed by section 220.25(2) has come to be termed the “drug factory” presumption. The New York State Legislature enacted this presumption in 1971 to aid prosecutors in proving a possession charge in circumstances where police did not find a controlled substance on the person of a defendant at the time the defendant was arrested. The presumption nevertheless permits a jury to find “constructive possession” in circumstances where the defendant is in “close proximity” to other facts regarding controlled substances mentioned in the statute.

Presumption in section 220.25(2) applies to any person in close proximity to a controlled substance in the circumstances set forth and is similar to presumption in section 265.15(4) that assigns criminal responsibility for any person in a vehicle in which a firearm is found. The presumptive criminal responsibility extended in these sections to a broad scope of persons provides prosecutors with plea-bargaining opportunities to turn associated persons against one another.

In People v. Kims, the Court of Appeals focused on the fact that the defendant was apprehended by police after exiting his apartment, in which police subsequently found controlled substances and was not trying to avoid arrest by fleeing the location. Under these circumstances, the Court agreed with the Fourth Department’s decision that the defendant, when apprehended, was not in “close proximity” to the controlled substances.

Accordingly, the Court unanimously affirmed the Appellate Division Fourth Department’s decision holding that the trial court erred when instructing the jury on Penal Law § 220.25(2)’s presumption. Relying on its previous decision in People v. Martinez, 628 N.E.2d 1320 (N.Y. 1993), the Court reasoned that in this case the trial court’s error in instructing the jury was not harmless because the jury’s verdict was based on the constructive possession inference. The Court affirmed the Fourth Department’s reversal of the convictions based on the presumption and ordered retrial on these charges, while affirming the defendant’s conviction on other charges.

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

Fighting for the Client in the Bronx – Reflections of a Student-Attorney

The following is a story written by a current Pace Law School student who has been working in the Pace Criminal Justice Clinic during his third year of law school. He describes the trials and rewards of representing real clients and shares with all of us what he learned – a lesson to all criminal practitioners.

POST WRITTEN BY: Christopher James Di Donna ’14

Unlike many third-year law students, I am, thankfully, not helping to keep alive that old adage about one’s final year at law school (You know the part about how your professors bore you to death after they have scared and worked you to death.). My third year has been far from boring. Instead, I have spent my final year at Pace Law School working as a student-attorney under the supervision of Professors David Dorfman and Robin Frankel at the Barbara C. Salken Criminal Justice Clinic. I still have regular classes in addition to the clinic; however, the clinic has been my primary focus.

It took my family and friends some time to understand that my peers and I at the clinic are not just doing “mock trials” with “mock clients.” Instead, we work for real clients with real problems in real court facing real consequences in the Bronx. This clinic gives us the unique opportunity to learn about and practice law before we graduate and sit for the bar exam.

Case in point (the pun was intended): I had the privilege of representing a man charged with Driving While Ability Impaired under New York Vehicle and Traffic Law (V.T.L) section 1192(1).  For over three years, this man made countless court appearances professing his innocence. This case was transferred to us from Bronx Legal Aid Society at the suggestion of Professor Frankel. I worked the case  for three and half months. I reviewed the case-file numerous times, especially the Intoxicated Driver’s Testing Unit (IDTU) video, investigated the scene of the alleged crime with my client and fellow students, and corresponded with the Bronx District Attorney’s Office.

The true highlight of this case was representing my client in a Dunaway/Johnson (probable cause for arrest) and Huntley (voluntariness of defendant’s statement) hearings. Here I was a third-year law student cross-examining a veteran highway officer of the NYPD; impeaching him on his own omissions and the inconsistencies between his testimony and his memo-book and arrest report. My cross-examination of the arresting officer and his demeanor throughout the hearings convinced the judge to suppress all the DA’s evidence. The DA’s Office was forced to dismiss the case and my client received the justice he sought after more than three years.

My work on this case and my overall experience at the clinic has had a profound effect on me. I realized the importance of persistence. To be an effective advocate you have to work a case hard. You have to think about the case often and play out all the approaches and possibilities in your mind. I thought about this case when I grocery shopped, drove, showered, and at countless other times of the day and night. The more hours I put into his case, the more sense I made of it. I learned the strengths and the weakness of the case and the law and the people involved in it. My strategy morphed over those months with each realization. Even during the suppression hearing, with the help of Professor Frankel and a fellow student-attorney at the clinic and my second seat on the case, Alexandra Ashmont, I tweaked and adjusted my cross examination of the arresting officer on the spot. Without persistence from day one to the day you go to court, I do not believe that one will achieve a palpable and just result for his or her client. And neither will you feel good about the result if you did not invest the necessary time into the case.

This experience taught me that the law, especially criminal law, is about real people in really bad binds. You as the advocate are sometimes the one person holding up the walls from crashing down on your client. You have a duty, within the confines of the rules of professional responsibility and ethics, to get the best results for your client. You have to listen to the client, chase down leads and documents, and beat your head on your desk until the best strategy falls out. The Pace Criminal Justice Clinic gave me the opportunity to learn, to help others, and to avoid being bored to death in my final year of law school.

Related Readings: