Tagged: New York State

Legislative Ethics and New York’s Moreland Commission

Last summer, Governor Cuomo created the Moreland Commission and gave it the job to investigate ethical violations by New York State legislators.  Pace Law School Professor Bennett L. Gershman analyzes the ambiguities in the Commission’s mandate and some of its recent problems.

Click here to read the full article.

Damages Award for Wrongful Conviction based on Coerced Confession

In Gristwood v. State of New York, Daniel Gristwood was convicted of the murder of his wife and sentenced to 12.5-25 years.  His original statement was exculpatory, but he later gave a coerced, false confession, which he quickly recanted. He was released after nine years in prison when someone else confessed to the crime. The court awarded damages of $5,485,394.

Gristwood v. State of New York, No. 114040, 2013 N.Y. Slip Op. 50737(U) (N.Y. Ct. Cl. Apr. 4, 2013) (Google Scholar)
Gristwood v. State of New York, No. 114040, 2013 N.Y. Slip Op. 50737(U) (N.Y. Ct. Cl. Apr. 4, 2013) (NY Court of Claims website)

Habeas Granted Based on Prosecutorial Misconduct and Ineffectiveness of Appellate Counsel

On September 4, 2013, in Williams v. Artus, Judge Gleeson of the EDNY granted habeas corpus based on prosecutorial misconduct and on ineffectiveness of appellate counsel for failing to raise ineffectiveness of trial counsel for trial counsel’s failure to object to the prosecutor’s misconduct.

In Williams, the defendant and his girlfriend, Rebecca Madigan, were involved in a high speed car chase; Williams was driving and Madigan was in the passenger seat. One of them fired a shot at the car they were chasing, causing the car to crash. One of the passengers in that car was killed. At trial, Madigan testified that Williams had fired the shot; Williams claimed Madigan had fired it. At trial, the prosecutor purposely elicited evidence from Madigan that Williams had told her he had killed before. The judge denied the motion for a mistrial and attempted to give a curative instruction that was ultimately confusing. The prosecutor returned to this in summation, erroneously stating that Madigan had testified Williams had told her he had “killed people before.” Defense counsel did not object.

Judge Gleeson granted the writ of habeas corpus based on the prosecutor’s misconduct and on the ineffectiveness of appellate counsel for failing to raise trial counsel’s failure to object to the summation comments. Interestingly, Judge Gleeson noted that this was a case that met the deferential standard for habeas set forth in the AEDPA: that the state court not only incorrectly rejected his claims but that there is “no possibility fair minded jurists could disagree that” the state court decision conflicts with Supreme Court case law.

The prosecutor committed clear misconduct in eliciting evidence of prior murders and, after objection was sustained, to return to that subject in summation. But equally important, Judge Gleeson made the very rare finding that there was no strategic reason for appellate counsel not to raise the issue of ineffectiveness of counsel on appeal. Habeas grants are rare to begin with; ineffectiveness of trial counsel claims rarely succeed; and claims of ineffectiveness of appellate counsel for failure to raise trial counsel’s ineffectiveness on appeal are extremely rare. Judge Gleeson’s opinion is a reminder that the habeas courts are still watching out for problems in state convictions.


  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 WL 4761120 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 BL 237268 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 U.S. Dist. LEXIS 126240 (E.D.N.Y. Sept. 4, 2013).
  • William v. Artus, 11-CV-5541, NYLJ 1202618541720, at *1 (E.D.N.Y., Decided Sept. 4, 2013).

New York State Commission on Correction Proposal to Limit Right of Access to the Courts

Pace Law School Professor and an expert on rights of prisoners, Michael B. Mushlin, weighs in on a proposed New York regulation, I.D. No. CMC-14-13-00010-P regarding inmate access to legal reference materials. The notice of the proposed regulation was published on April 3, 2013 and is available here starting on page 5. Public comment will be received until 45 days after publication of the notice.


In a society that operates under the rule of law access to the courts is the most basic right.  Without the accountability that courts provide, rights that exist on paper can easily become only that. This is especially true for incarcerated persons for whom the right of access to the courts is the “foundation of every other right an inmate has.”  Michael B. Mushlin, Rights of Prisoners, §12:1 (4th ed. 2010).  It has long been recognized that an important way to implement the right is to provide access to legal materials contained in law libraries.  Bounds v. Smith, 430 U.S. 817 (1977).  See also, Lewis v. Casey, 518 US. 343 (1996) (inmates who lose claims or defenses that they might win if they had access to legal materials have been deprived of a constitutional right of access to the courts).  The New York State Commission on Corrections has implemented the right of access to the courts by requiring all jails in the state to maintain small collections of essential legal materials governing New York State criminal law and some basic information about the constitutional rights of incarcerated people. The Commission is empowered under New York law to set standards for New York’s many jails holding pretrial detainees and persons serving misdemeanor sentences,

Now, however, the Commission proposes to abandon this simple requirement by amending its rule to eliminate the requirement that these legal materials be on site. Under the proposed amendments people who are held in these local facilities that choose to eliminate these small libraries will be limited to submitting written requests for material from other libraries with no guarantee the material will be delivered until the passage of three days following the request. (Alternatively, and less harshly, jails could establish computer terminals with online access but this would be limited only to New York state case law digests).  To make matters worse in a little noticed addition to the proposal, the Commission seeks to eliminate the obligation that inmates be given access to typewriters on which to prepare legal papers. In its place the Commission would only require that inmates be given access to “black ink pens” with which to write their legal submissions.  It is obvious, however, that typed or printed papers are more accessible to the judiciary than are handwritten document.  See, e.g. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114 (S.D.N.Y. 1977) (noting that typed papers “leap more vividly than handwritten ones to the watery judicial eye.”). These limitations on essential rights of incarcerated persons are imposed to achieve a small savings of a mere $5,000 per year per jail. The price tag for deprivation of constitutional rights has rarely been set so low. One can only hope that the Commission will on reflection abandon this proposal to limit the right of access to the courts.

Pennsylvania and Colorado try to get compensation legislation passed

If you are wrongly convicted and later exonerated in New Jersey, you may be able to obtain $20,000 for each year of your wrongful incarceration. New Jersey has a special statute designed to indemnify wrongly convicted individuals. So does New York, where there is no limit on the damages that can be awarded by the Court of Claims. But if you were wrongly convicted right next door in Pennsylvania, you are not likely to recover a cent. Unless you can fashion a lawsuit from the events leading to your conviction (and that’s often difficult), there is no statute to provide monetary assistance.   All statutes should enact legislation to compensate the innocent and help them integrate into society.

We’ve compiled some links for those of you who are interested in reading more on this subject: