Forcing Inmates to Particpate in Programs In WhichThey Must Admit Guilt Described As An Unfair "Hobson's Choice"

One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized in his SORA determination because of his refusal to participate in such a program while his appeal was pending:

With respect to risk factor 12, it is undisputed that defendant refused to participate in sex offender treatment while he was incarcerated, but he contends that his refusal was based on the advice of defense counsel to refrain from participation. According to defendant, his appeal from the judgment of conviction was pending when the treatment was offered and, in the event of reversal on appeal and a subsequent new trial on all counts of the indictment, his participation in treatment would have required him to make admissions against his interest, in violation of his Fifth Amendment privilege against self-incrimination. We note in addition that the risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [2006]).

We thus agree with defendant that the court improvidently exercised its discretion in determining that defendant was not entitled to a downward departure from his presumptive risk level. We therefore substitute our own discretion, " even in the absence of an abuse [of discretion],' " and we modify the order by determining that defendant is a level two risk (People v Smith, 30 AD3d 1070, 1071, quoting Matter of Von Bulow, 63 NY2d 221, 224; see People v Brewer, 63 AD3d 1604). In our view, "there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level" (Brewer, 63 AD3d at 1605; see Smith, 30 AD3d at 1071). The professionals who evaluated defendant all concluded that defendant was not a sexual predator, that he did not have abnormal sexual tendencies, and that he was not a threat to himself or others. In addition, we agree with defendant that he was faced with a "Hobson's choice" when deciding whether to participate in treatment. We thus conclude on the record before us "that there are . . . mitigating factor[s] of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (People v Santiago, 20 AD3d 885, 886 [internal quotation marks omitted]; see Smith, 30 AD3d at 1071; Risk Assessment Guidelines and Commentary, at 4).

Possession of Cash a Month after Alleged Drug Sale Inadmissible

A defendant's possession of case at time of arrest is not admissilbe if not linke to criminality. Thus, in People v Sumter (2009 NY Slip Op 09782 [4th Dept 12/30/09]), the Appellate Division, Fourth Department held that the trial

court erred in admitting in evidence testimony concerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as the cash itself. Defendant was arrested over one month after the drug sales that were the basis for the charges against him, and the People failed to establish a relationship between that cash and the charges in question. We thus conclude that defendant's possession of the cash was 'too remote to the issue of [defendant's] intent to sell drugs to outweigh the potential for prejudice inherent in the admission of evidence which invited the jury to speculate that defendant had previously sold drugs' (People v Corbitt, 221 AD2d 809, 810).

Knowing Where a Gun is Kept Does Not Establish Possession

The Appellate Division, Fourth Department, in People v Carmichael (2009 NY Slip Op 09788 [4th Dept 12/30/09]), held that the evidence is legally insufficient to support a conviction of criminal possession of a weapon in the third degree where, upon his arrest, the defendant told the police that

the gun was in a safe located on a closet shelf in his mother's bedroom and that he lived in his mother's house. Defendant gave the police an incorrect combination to the safe, and the police were able to open it only after defendant's mother retrieved the correct combination from a slip of paper in her purse.

On these facts, the Court held that that there is no valid line of reasoning and permissible inferences to support the conclusion that defendant exercised dominion and control over the safe, the bedroom in which the safe was located, or his mother, and

thus the evidence is legally insufficient to establish that defendant was in constructive possession of the firearm on the date of his arrest (see People v Manini, 79 NY2d 561, 573-574; People v Edwards, 39 AD3d 1078, 1079; cf. People v Ortiz, 61 AD3d 779, lv denied 13 NY3d 748...

Permissible for sitting Supreme Court justice to serve as grand jury foreperson

In People v. Davis, (12/30/09), the Fourth Department held that reversal was not required where a sitting Supreme Court justice sat as foreperson of the grand jury that indicted the defendant because she was not a part of the superior court that impaneled the grand jury.

Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05) and thus, not qualified to serve as a grand juror. Denying defendant relief, the Fourth Department reasoned that "a superior court is defined as '[t]he supreme court' or '[a] county court,' rather than as a single entity comprised of individual justices or judges (CPL 10.10 [2])."

The court also rejected defendant's challenged to the constitutionality of Legislature's action repealing Judiciary Law 511(4) (which had disqualified judges from sitting on juries).

Although ultimately unsuccessful, a fine bit of creative appellate advocacy by long-time creative appellate advocate Esther Cohen Lee of Utica.

18 minutes of blank tape - still

In People v. Hammons (12/30/09) the Fourth Department held that the trial court "did not abuse its discretion in refusing to give an adverse inference charge concerning the failure of the police to record defendant's interrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913), and that the failure to record a defendant's interrogation electronically does not constitute a denial of due process (see People v Lomack, 63 AD3d 1658, lv denied 13 NY3d 798; People v Malave, 52 AD3d 1313, 1315, lv denied 11 NY3d 790)."

Unless read carefully, the court's reasoning could be misleading. Neither police violation of an established obligation nor a denial of due process are prerequisites for a proper adverse inference charge - those criteria apply to the abuse of discretion standard applicable to the appellate court's consideration of the lower court's refusal to give such an instruction; i.e., if the police refusal to record defendant's interrogation violated defendant's due process rights, it would have been an abuse of discretion for the trial court to refuse to give an adverse inference instruction.

This analysis means a couple things: (1) the Appellate Division won't be doing anything to advance the recording of interrogations or confessions, and (2) application of the abuse of discretion standard facilitates an overly deferential approach to law enforcement procedures by insuring that juries will never be instructed that they may draw an adverse inference from the police election to deprive the fact finder of what would have constituted the best evidence of the circumstances and content of defendant's interrogation and confession.

Keep in mind that with or without an adverse inference instruction, a defendant can still comment on the police election not to record a defendant's interrogation and confession (see, People v. Harrison, 35 A.D.3d 52 [1st Dept. 2006] lv. denied 8 N.Y.3d 923 [2007]; People v. Wright, 41 N.Y.2d 172 [1976]).

Some further resources on this issue include:

● Police Experiences with Recording Custodial Interrogations, Thomas P. Sullivan, Northwestern University School of Law (Summer 2004).

● Practices of U.S. police departments regarding recording interrogations, Sullivan and Thomas (2003).

● Eye on Interrogations: How Videotaping Serves the Cause of Justice, Hennepin County Attorney website (2002).

● Report of the Governor’s Commission on Capital Punishment (Illinois, 2002).

● True Confessions, Margaret Talbot, http://www.truthinjustice.org/confessions.htm (2004).

● Statement of the District of Columbia Association of Criminal Defense Lawyers in Support of Bill 14-3 “The Miranda Codification Act of 2001”

There can be no legitimate reason not to record interrogations and confessions, nor have police or prosecutors ever suggested one. As Professor Yale Kamisar asks “Why should we assume that the police remember everything that happened?” (Illinois Will Require Taping of Homicide Investigations, New York Times, 7/16/03). In Illinois, Kankakee County State’s Attorney Edward Smith finds that a courtroom videotape is helpful given the popularity of home video cameras: “We feel that a common question in a juror’s mind might be: Why didn’t they tape it, if it’s so important?” (Cops Urged to Tape Their Interrogations, Chicago Tribune, 5/30/03).

The inescapable conclusion that flows from the refusal to record interrogations and confessions is that the interrogators have intentionally elected to deprive the fact-finder of the best evidence – a contemporaneous, verbatim recording of the suspect’s statements – in favor of a “sum and substance,” “I can’t recall” malleable recollection of events, impaired by imperfect memories and subject to the interrogators’ prism of prosecutorial bias. In short, some cops continue to refuse to resist recording interrogations because it eliminates the opportunity to lie later on about what took place during the interrogation, and what the defendant said in his confession. Slowly, courts and legislatures are beginning to agree.

The Massachusetts Supreme Court has ruled that when “interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation, that fact alone justifies skepticism of the officers’ version of events, above and beyond the customary bases for impeachment of such testimony,” and ruled that juries must be so instructed by trial courts (Commonwealth v. DiGiambattista, 442 Mass. 423 [2004] [emphasis added]).

This level of professionalism and accuracy – rather than the “sum and substance” guesstimation that occurs in the absence of recording – is easily attainable, and should be, and is becoming, the expected, rather than the resisted standard by courts, legislatures, police agencies, and, perhaps most importantly, by juries. Evidence in a murder case is at least as important, and merits commemoration with at least the same level of accuracy and reliability as we routinely use to preserve our children's Christmas pageants and birthday parties.

Weight, weight, don't tell me

The recent packet of Fourth Department decisions (12/30/09) includes a number of appeals arguing (unsuccessfully, in every case but one) that the defendant's conviction was not supported by the weight of credible evidence, giving the court an opportunity to restate the applicable standard for review of such claims.

In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of the complainant's mother proved that defendant could not have committed the offense when the complainant claimed he did), although the defendant failed to preserve his claim that the evidence was legally insufficient to support the convictions under two counts of the indictment, the court reversed, reasoning that:

"[v]iewing the evidence in light of the elements of those counts as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we agree with defendant, however, that the verdict with respect to both of those counts is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495), and we therefore modify the judgment accordingly. Where, as here, a different finding from that of the jury would not have been unreasonable, we must 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from that testimony' and, if we conclude that the trier of fact failed to give the evidence the weight it should be accorded, we may set aside the verdict (id.)."

The court provided another iteration of the same standard in People v. Kalen: "Although an acquittal . . . 'would not have been unreasonable, upon weighing the probative value and force of the conflicting testimony and the inferences to be drawn therefrom,' we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d 493, 495, lv denied 9 NY3d 1007; see generally Bleakley, 69 NY2d at 495) . . . We accord great deference to the jury's credibility determinations, 'which obviously reflect[] at least [the jury's] uncertainty concerning much of the complainant[s'] testimony [with respect to] the . . . crimes of which defendant was acquitted. However, the jury was entitled to credit some of [their] testimony while discounting other aspects' (Kuykendall, 43 AD3d at 495; see People v Reed, 40 NY2d 204, 208)."

L4L is watching the store

Hello out there in coder-land. Law is 4 Losers here and you there, wishing all a happy New Year and how ya’ be?

Tom is taking a well-deserved vacation and asked me to look after the blog while he’s away (don’t worry, he bought a round-trip ticket and has not defected to Honduras to escape Sallie Mae.) As you probably know, I recently updated my own blog Big Debt, Small Law (er, sorry for the long wait) and even scored a feature over at ATL:

http://abovethelaw.com/2009/12/is_solo_practice_a_pipe_dream.php

As usual, the pro-law shills circled like a school of piranhas when a monkey falls into the Amazon. It’s simply amazing how many attorneys just 6 months into solo practice are clearing over 300 K doing shitlaw “estate planning” and breaking 7 figures with their books of Allstate fender-bender files, as the ATL comments state. Who knew? That’s not just “networking”, that’s hijacking the goddamned airwaves! Me thinks that Susan Carter Liebel must’ve had all hands on deck and manning their battle stations within minutes of the ATL post going up. Like dumping root beer down a beehive, scores of angry shills swarmed out with stingers locked n’ loaded, ready to attack all “losers” and venom them into submission. The few legitimate comments were likewise pathetic, with some Wilson Elser cut n’ paster bragging about his 76 K salary four years into the insurance defense racket and other assorted Kool-Aid burpers that don’t even rate a mention.

But enough about me. Here are some L4L doc review predictions to ring in 2010:

Rates will continue their downward plunge. Over the next three months, 15,000+ starry-eyed lemmings will “take the oath of office” and gain entry to the exalted bars of NY, NJ and CT. Since even the no-fault boiler rooms paying under 40 K now require a SCOTUS clerkship, Ivy-league pedigree and 10+ years experience, look for many new faces lining up at DeNovo, Lex-Pollution, Hudson, Update and the other pimp-daddies just dying to whore these virgins out for peanuts. The child-sex trade in Thailand will look benign by comparison once the agencies taste the sheer volume of fresh suckers signing up. And just imagine how bad the “training seminars” will be with squads of newbie gunners raising their hands every 30 seconds to ask if “we need to keep our eyes out for UCC 2-207?” and “will quantum meruit be a factor here?” and other bar exam-type “substantive” bullshit.

Worse yet, these kids are going to be clicking faster than the Morse Code operators sending Titanic’s distress signals. They haven’t yet learned that lightning-fast coding doesn’t lead to one being “discovered” and promoted to associate. No one is panning for “diamonds in the rough” on a doc review gig. Lemmings, the law school lottery was already drawn. Your ticket lost, so quit re-checking the numbers. Get over it and slow the fuck down.

I really feel for you “veterans” stuck doing Q.C. on these gigs. Get ready for reams of false-positive “hot docs” where a newbie thinks some corporate sushi order was really an encrypted top-secret message about screwing over shareholders. The “attorney comments” boxes are going to read like mini-Law Review articles for a while, maybe even with footnotes. Relax. Just give them time. Like a tire stuck in the mud, it takes a while for this pent-up legal energy to futilely “spin-off” before finally burying itself in apathy’s quagmire. As Red said in The Shawshenk Redemption, “these doc review gigs are funny, boys. At first you hate ‘em. Then after a while you get used to ‘em. Before long, you start to depend on them.” Indeed.

Look for time and a half rates to finally vanish altogether. 2009 signaled the chest pains for OT, but 2010 will bring the fatal coronary. With the desperation level currently out there, there’s simply no reason for any agency to pony up OT pay anymore. We’ve seen the last of the OT dodo bird. Its extinction is imminent. Hell, even the rates for foreign language gigs are headed straight downhill. A new trend by Peak and esp. Strategic is to post Posse List jobs with an “up to” qualifier, such as “up to $32 an hour” and such. What’s going on is that they’re seeing how many resumes they get and then keying pay based on the response rate. Anyone here remember the last time an agency called them as opposed to the other way around? Enough said. And don’t be surprised to see “junior level” projects popping up in the $16-$20 an hour range in 2010, and probably even lower. (Jursitaff is already testing these waters). Rumor is that Helene Diamond (Peak) and Sean Treadwell (Strategic) both took a real hit in 2009, and as such could only afford to have their Bentleys detailed every other week. Everyone here had better buckle down and get to clicking to make up the slack for them here in 2010.

Expect the market to remain tight and projects few and far between. New software and other “coder-bots” have taken quite a bite out of first-level review. The herd of documents has been drastically culled. And of course the ABA (American Biglaw Association) is hard at work in 2010 sending more licensed attorney work to the cheapest third-world serfs they can find, all while tooting the diversity trumpet like a “rusty trombone”. Their tune sounds a lot like a Cleveland Steamer.

Also look for conflicts and background check forms/processes to become even more invasive and demeaning. With the nefarious corporate behavior of the last 10 years now coming to light in litigation, Biglaw is shitting its pants and subjecting all coders to a virtual anal cavity search before placing them on project. The recent Synergy/Huron debacle with its 12,490 page conflicts forms and invasive requests for SS#s and private info is a trend we predict will continue. You can, of course, kiss internet access goodbye forever. Even SullCrom pulled the browser plug about 3 months ago from all the basement workstations.

BTW, you SullCrommers better mind your P’s and Q’s, because Big Mamma’s Xmas stocking was lighter than usual this year. Paul Weiss already cleaned house and slashed scores of staff attorneys and paras, and SullCrom will be monkey-see, monkey-do once they catch 09’s profit per partner numbers at Paul Weiss. “Big Mamma”, if axed, will first swallow the recently re-opened Burritoville across the street before stampeding thru lower Manhattan and climbing the Woolworth Building a la King Kong. Shit could get ugly real quick.


Keep the horror stories coming, coders. It’s a brand new year…..

Your pal,
law is 4 losers

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