Parental Legal Representation Committee Releases Interim Report
In her third “ State of Our Judiciary ,” Chief Judge DiFiore delivered the long anticipated Interim Report from the Commission on Parental Legal Representation. The Commission was created last year to examine ways to improve the current system of mandated parent representation in Family Court. The Hon. Karen K. Peters chairs the Committee, whose members include several family defense providers: Barbara Kelley (Allegany County Public Defender); Linda Gehron (President & CEO, Hiscock Legal Aid Society); and Michele Cortese (Executive Director, Center for Family Representation). Advisors to the Commission included three members of the ILS Office, Angela Burton, Lucy McCarthy, and Cynthia Feathers.

In its Interim Report , the Commission recommended six major changes to improve the quality of parental representation:

  1. “[T]hat parents be timely provided with relevant information about the right to counsel, and that parents be granted access to counsel during a child protective agency investigation and sufficiently in advance of the first court appearance”;
  2. “[T]he establishment of a State Office of Family Representation to … oversee representation in child welfare cases by institutional offices and well-resourced attorneys to ensure the delivery of client centered, interdisciplinary, holistic parental representation throughout the state”;
  3. Development by the new State Office of “uniform standards of eligibility” to apply in all Family Court proceedings, including a presumption of eligibility in all child welfare cases;
  4. “[A] study to determine appropriate maximum caseload standards for attorneys representing parents in Family Court proceedings,” and an interim caseload cap of 50 to 60 pending clients;
  5. Assumption by the State of “all costs associated with parental representation in child welfare proceedings to ensure quality representation and eliminate disparities among localities”; and
  6. An increase in hourly rates for assigned counsel to $150 per hour, with a mechanism for periodic review and adjustment.  

As noted in the Executive Summary: “the Commission has determined that decisive remedial action is needed most urgently in the child welfare range. While we defer, for now, our recommendations about how to improve all parental representation mandated under Family Court Act § 262, we are mindful that child welfare cases are often interconnected with other types of Family Court cases. As explained by one witness, parents’ attorneys represent people , not cases ….”

NYSDA looks forward to working on the various issues addressed in the Interim Report and continuing to help improve the quality of all family defense representation in New York State through our training programs and the other legal and technical support services we offer to family defenders. As noted in the Association News item below, NYSDA is pleased to announce that Kimberly Bode has joined the Backup Center as a Family Court Staff Attorney.

Recent Practice Tips from the Center for Appellate Litigation

Challenging Prosecutors' Use of the "Wrong" Witness
Among the questions that defense lawyers need to ask themselves when analyzing the presentation of prosecution evidence are these: "(1) did this witness personally observe the event or generate the data? and (2) does this witness have the necessary expertise to opine as they do?" This advice is found in the January 2019 edition of Issues to Develop at Trial from the Center for Appellate Litigation (CAL). Focused on scientific or technological evidence, the article sets out examples, with case citations: DNA test results offered through a witness who "did not witness, perform, or supervise the generation of the DNA profile, or … independently analyze the raw data." Breathalyzer evidence presented by a witness who "neither personally participated in nor observed your client's test." And Cell Site Location Information given by a witness who is not an expert on how cell towers operate.

Argue That Corroboration Does Not Bar Expert Testimony on False Confessions or Misidentification
The March 2019 edition of Issues to Develop at Trial recommends that trial counsel argue that Holmes v South Carolina (547 US 319 [2006]) “invalidates New York’s illogical rule that a court can block a defense expert (misidentification or false confessions) because the prosecution’s ‘corroborating’ evidence seems— if credited —strong.” The publication includes practice tips on the pretrial proffer of an expert and dealing with the corroboration issue.

Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial . NYSDA thanks CAL for sharing this resource.

The Legal Aid Society Posts CAPstat Database
CAPstat , a searchable database of federal civil rights lawsuits against police in New York City, can now be accessed online. A demonstration project of The Legal Aid Society (LAS), CAPstat currently includes data from 2015 to June 2018. Visitors to the site can "search by officer name, shield number, lawsuit, plaintiff name, or atto rney," and sort by settlement amount or county and filters for, e.g. , "types of allegations, force detail, county, year, the types of charges underlying the arrest, etc."

A March 6 article in the New York Law Journal indicates that the project began as in internal database for LAS lawyers. Then, according to Julie Ciccolini, who has been project manager for the database, LAS " realized that the data being gathered would be valuable to policymakers, the broader public and 'anyone whose rights have been violated by the police.'” The Patrolmen's Benevolent Association decried the database as "'anti-cop,'" claiming that many lawsuits against police are meritless nuisance claims.

The Daily News quoted NYSDA Board Member Cynthia Conti-Cook, of LAS's Special Litigation unit, as to the broad implications of the project. “'With today’s launch, we join a national movement including fellow defenders, advocates, and community members to shed much needed daylight on police departments and their actions.'” More information is available in the LAS press release and on its news page . Conti-Cook has presented information about development of the Cop Accountability Database at NYSDA's Chief Defender Convenings and at forums like the National Legal Aid and Defender Association's 2017 Annual Conference.
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8th Amendment Excessive Fines Clause Applies to the States
The US Supreme Court has held that the Eighth Amendment's protection against excessive fines applies to the States, being "incorporated by the Due Process Clause of the Fourteenth Amendment." The Court stressed that the Clause "guards against abuses of government's punitive or criminal-law-enforcement authority," and is "'fundamental to our scheme of ordered liberty ….'" At issue in Timbs v Indiana (No. 17–1091 [2/20/2019]) was the civil forfeiture of a Land Rover SUV, purchased for $42,000 by the defendant with life insurance funds. In Austin v United States (509 US 602 [1993]), which arose in the federal context, the Court unanimously held that the Excessive Fines Clause applied to the use of civil in rem forfeitures when they are at least partially punitive. No challenge was made in the state supreme court that Austin was wrongly decided; thus, the High Court declined to address the issue.

In two concurring opinions, Justices Gorsuch and Thomas noted that incorporation of Bill of Rights protections so they applied to the States might more appropriately be done through the 14th Amendment's Privileges or Immunities Clause, rather than the Due Process Clause. Neither justice disagreed that the freedom from excessive fines cannot be abridged by the States.

Public Defender Career Fair at Albany Law on April 11- Register Today!
The New York State Defenders Association, the Chief Defenders Association of New York, and Albany Law School are sponsoring a New York State Public Defenders Career Fair on Thursday, April 11, 2019 from 1:00 – 6:00 pm at Albany Law School. This is an opportunity for public defense offices to recruit experienced attorneys, recent law school graduates, and law students for criminal defense and family defense attorney and internship positions. It is also an opportunity for applicants to learn more about a variety of public defense offices from around the state. Twenty public defense offices have already registered and more are expected in the coming days. For more information and to register – as an interested applicant or a public defense employer – visit http://bit.ly/PDSpringFair . Please share this with others who may be interested in this event.

Loan Forgiveness Updates
The application for the state's District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law § 679-e) is expected to be available on the NYS Higher Education Services Corporation (HESC) website on March 25, 2019 . The deadline for filing an application is usually May 1, though the deadline for this year has not been posted yet. The maximum award available is $20,400 or total eligible student debt, whichever is less. Payments are made annually at $3,400 for each year of qualified service or the remaining loan debt, and no payments are allowed after the debt is paid in full. For more information on the state's loan forgiveness program, contact the HESC Scholarship Unit at scholarships@hesc.ny.gov or 888-697-4372.
 
Federal Public Service Loan Forgiveness Program
The U.S. Department of Education has released a Public Service Loan Forgiveness (PSLF) Help Tool . The Help Tool is designed to assist possible applicants understand more about the PSLF program and the eligibility criteria, including whether your employer qualifies for PSLF and whether your loans qualify for PSLF, and navigate the application process. More information about PSLF and a temporary loan forgiveness opportunity is available at https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation/public-service . Equal Justice Works also provides student debt resources, including a guide to managing your student debt, on its website at https://www.equaljusticeworks.org/law-students/student-debt-resources/ .

The Backup Center’s summary of the state and federal loan forgiveness and repayment assistance programs is available here .

Association News

Bryant Named Acting Director of NYSDA
The Executive Committee of the NYSDA Board of Directors has appointed Deputy Director Susan Bryant as Acting Director, effective March 4, 2019. Charles O’Brien has decided, for medical reasons, to step down as NYSDA’s Executive Director; he will continue his work at NYSDA as a Senior Staff Attorney. Susan, Charlie, and the rest of the NYSDA staff look forward to continuing NYSDA’s mission to improve the quality and scope of publicly supported legal representation to low income people and serving the public defense community through our Association, the Public Defense Backup Center, and the Veterans Defense Program. To contact the Association and the Backup Center, please call (518) 465-3524. To reach the Veterans Defense Program, please call the main office in Batavia at (585) 219-4862 or, for cases in Nassau or Suffolk County, the Long Island office at (631) 650-2331.

New Backup Center Family Court Staff Attorney
After 17 years of exclusive practice in the public interest sector, Kimberly Bode is pleased to join the NYSDA team as a Family Court Staff Attorney. More than a decade of Kim's career has been spent as a family court attorney with the Suffolk County Legal Aid Society, where she fought every day to preserve her clients' parental rights. She has represented litigants in virtually all types of family court matters, including neglect proceedings, custody and visitation matters, termination of parental rights, child support violations, and family offense proceedings. Kim is hopeful that her experience will allow her to be a valuable resource to family court attorneys and the clients they represent. Attorneys with family court questions can reach Kim at (518) 465-3524 or kbode@nysda.org .

New Member of the Public Defense Case Management System Team
Asaph Ko has joined the NYSDA Public Defense Case Management System (PDCMS) team as an Information Systems Specialist. He's looking forward to helping support the more than 70 offices currently using PDCMS around New York State. Questions about PDCMS? Contact NYSDA’s PDCMS team at (518) 465-3624 (option 3) or pdcmssupport@nysda.org .