Criminal Law News Report

As provided by the New York State Association of Criminal Defense Lawyers:


by Craig P. Schlanger

Onondaga County District Attorney William J. Fitzpatrick recently continued his efforts to control the local judiciary by filing an Article 78 proceeding against two Syracuse City Court judges, Langston C. McKinney and Kate Rosenthal, seeking to restrain them from such “unlawful” arraignment practices as scrutinizing felony complaints for legal sufficiency and refusing to consider, for purposes of sufficiency or bail, information that the District Attorney had labeled “confidential” without providing that information to defense counsel.

On April 1, Supreme Court Justice Donald Greenwood heard oral argument on the Article 78 proceeding while some 300 spectators filled the courtroom and spilled out into the hallway. Both judges were present with their counsel from the Attorney-General’s Office. It should also be noted that the NYSACDL submitted an amicus memorandum of law, authored by Scott Greenfield, on behalf of the judges.

The orderly crowd, which Fitzpatrick later characterized in comments to the media as “mob violence”, consisted largely of community activists, including representatives of the NAACP, and concerned citizens who have been increasingly outraged at Fitzpatrick’s public criticism of McKinney, a well-respected and experienced judge and, with the exception of one part-time village justice, the only African-American in the Onondaga County judiciary. The oral argument was generally confined to the threshold issue of subject matter jurisdiction. Judge Greenwood reserved decision.

The ongoing controversy came to a head one week before the argument of the Article 78, when Brian Shaw, a Syracuse University student, was arrested and charged with murdering his estranged girlfriend. At Shaw’s Friday morning arraignment, McKinney called Chief Assistant District Attorney Patrick Quinn and defense attorney Thomas Ryan into chambers in order to discuss his concern that the factual allegations in the felony complaint tended to support a charge of manslaughter but not murder in the second degree. According to Ryan, Quinn agreed to cure the defect by filing supplemental papers, and McKinney continued the arraignment to the afternoon for that purpose.

Fitzpatrick fired off a letter to James C. Tormey, the Administrative Judge of the Fifth Judicial District, complaining about the ongoing struggles between the District Attorney’s Office and McKinney over the sufficiency of felony complaints. In his letter, Fitzpatrick asserted that McKinney had “completely overstepped his bounds” and asked Tormey to intervene immediately “to prevent a total miscarriage of justice” by asking Syracuse City Court Supervising Judge Jeffrey Merrill to arraign Shaw or by appointing another judge to do so.

In an “unusual–and astonishing and dangerous” move, (Syracuse Post-Standard editorial, April 7, 2005), Tormey immediately granted Fitzpatrick’s request and then some: He relieved McKinney of his arraignment duties for the rest of his arraignment term, which ended the following Sunday, and assigned Merrill to take his place. Merrill completed the arraignment of Shaw that afternoon and held him without bail on the basis of the original accusatory instrument.


Assembly Committee Kills Death Penalty Bill


Associated Press

The Democratic-controlled state Assembly’s powerful Codes Committee voted 11-7 Tuesday not to let the full house vote on legislation aimed at reinstating New York’s death penalty, a move that may kill the effort for this year. Such legislation has been pushed hard by Republican Gov. George Pataki and the state Senate’s Republican majority leader, Joseph Bruno. In March, the GOP-led Senate voted, 37-22, in favor of an almost identical bill to the one rejected Tuesday. Pataki called the committee’s decision “outrageous.”

New York’s death penalty was reinstated in 1995 by the Legislature and the newly elected Pataki who had vowed, as part of his successful campaign to oust then-Democratic Gov. Mario Cuomo, to bring capital punishment back. Cuomo, in 12 years as governor, had routinely vetoed death penalty legislation. A ruling last year by the state’s highest court effectively declared the 1995 statute invalid. Since the law took effect, no person in New York has been executed although seven people were sentenced to death. “I’m very pleased,” said Albany’s Roman Catholic bishop, Howard Hubbard, after the committee vote he witnessed. “I think the death penalty has not proven effective and is morally repugnant.”

Assembly Speaker Sheldon Silver, a Manhattan Democrat, has supported the death penalty in the past but cooled to the policy in recent months. Some former Democratic supporters, including Codes Committee Chairman Joseph Lentol, have gone even further and come out against the death penalty. Lentol told his fellow Codes Committee members Tuesday that advances in DNA technology have shown innocent people are too often convicted of murder. The Brooklyn Democrat said New York’s life-without-parole sentences are sufficient. But Republican members of the Codes Committee argued the issue was too important to let it die without a vote by the full chamber. State Assemblyman David Townsend, a central New York Republican, said the legislation was needed “to protect the innocent people of New York from these monsters.” “Once again the Assembly leadership is failing New Yorkers by refusing to enact tough criminal justice legislation that will reduce crime, save lives and protect our families,” Pataki said. “The Assembly leadership’s `So what’ attitude toward criminals … is simply shameful,” Pataki added. “They need to stop protecting criminals and start protecting New Yorkers.” Lentol told his colleagues they would likely be revisiting the issue, although probably not this year. “I don’t think this issue will die today,” Lentol said. “The nature of politics being what it is, it will be brought up again and again in years to come.” In fact, Republicans may try to attach the death penalty to other legislation in the Assembly as an amendment. Such backdoor efforts, however, routinely fail on almost straight party-line votes.

There are currently 103 Democrats and 46 Republicans, with one vacancy, in the 150-member Assembly. Calling it “the democratic thing to do,” a disappointed Bruno said, “I would have thought, minimally, they would allow that bill to go the floor.” But death penalty opponents, including the brother of convicted Unabomber Ted Kaczynski, praised the action. “It was a great day,” said David Kaczynski, who turned in his brother in 1996 after 16 explosions between 1978 and 1995 that killed three people and injured 29 others. “I think this is a giant step along the path to abolition of the death penalty” nationally, said David Kaczynski, executive director of New Yorkers Against the Death Penalty. His brother was sentenced to life without parole as part of a plea agreement in 1998.

In June, New York’s Court of Appeals effectively placed a moratorium on executions with a 4-3 ruling that jury-instruction provisions in the 1995 statute could coerce some jurors into voting for death even if they opposed the penalty.


Probe Examines Judges’ Actions In Plea Process

New York Law Journal

The State Commission on Judicial Conduct has opened an investigation that could end up drawing lines as to how far and in what manner judges can involve themselves in the plea bargaining process.

The commission is looking into a complaint against Acting Justice Rena K. Uviller to determine whether her involvement in a plea negotiation was coercive, according to several sources.

David Bookstaver, a spokesman for the court system, declined to comment.

Though the details of the complaint are unknown, the commission is reportedly looking at a practice that, in one version or another, is used by many judges to encourage pleas.

Indeed, because judges’ involvement in the plea process is widespread, sources said, the commission’s action has touched a raw nerve among some judges who sit with Justice Uviller on the Criminal Term of the Supreme Court in Manhattan.

The most potent form of a judge’s participation in the plea bargaining process, several defense lawyers said, was developed by Acting Justice Harold W. Rothwax, who died in 1997.

It is common for the prosecution to issue a one-time-only offer of a lenient sentence early in a case. Justice Rothwax would commit to the prosecution’s suggested sentence but warn defendants that if they did not accept the offer, the sentence they would face if they later pleaded guilty would increase by a set amount.

Defense lawyers said judges have adopted the Rothwax approach in different iterations. In a far less pointed version, a judge might tell defendants that based on their criminal histories and other factors they would face a longer sentence if they go to trial.

The commission’s administrator, Robert H. Tembeckjian, declined to answer any questions about whether a probe of Justice Uviller is under way. But, speaking generally of the commission’s work, he said, “Over the years, we have appropriately adjudicated gross abuses of judicial discretion — such as presuming guilt, coercing guilty pleas, misusing the summary contempt power and disregarding statutory mandates for setting bail — as violations of the Code of Judicial Conduct, which requires all judges to be fair, impartial and faithful to the law.”

Those investigations, and subsequent proceedings, he added, have “always been sensitive to a judge’s independence and exercise of discretion.”

Before an investigation can be opened it must be approved by the 11-member commission.

Henry T. Berger, a former commission chairman, said one way the commission might deal with a broad question, such as the judicial role in plea negotiations, would be to issue a dismissal, coupled with a private caution to a judge. Then in its annual report, the commission could set forth its views on the issues raised by the case without disclosing the judge’s identity, he said.

According to the commission’s latest annual report, it opened 235 investigations in 2003. During that year it also dismissed 110 complaints against judges after conducting an investigation; issued 30 non-public letters of caution, combined with dismissals; and brought charges against 27 judges which could lead to a public sanction.

Defendants’ Rights

In recent years, the commission has shown a greater willingness to view judges’ disregard of defendants’ rights as a violation of the state’s judicial code, said Gerald Stern, a former commission administrator. Mr. Stern, who was the commission’s chief executive for 28 years, said he has no knowledge of any investigations the commission has undertaken since he left in 2003.

“Coercing guilty pleas was once excused as a judge’s effort to dispose of cases,” he said.

“The present commission,” he added, “appears to be sensitive to complaints that judges have coerced guilty pleas.”

Mr. Stern pointed to the commission’s determination to remove Troy City Court Judge Henry T. Bauer from the bench for setting high bail to coerce pleas and for failing to advise defendants of their right to counsel. The decision was affirmed by a divided Court of Appeals last year.

Mr. Stern also said that in 1998 the commission censured a town justice for threatening defendants with added charges and higher fines to coerce guilty pleas. Also, in 2002, a New York City Criminal Court judge was censured for giving the explicit message that she was using bail to coerce pleas from defendants reluctant to accept an offer.

Clear Lines Needed

Joshua L. Dratel, president of the New York State Association of Criminal Defense Lawyers, called the commission’s examination of a judge’s role in plea bargaining “a positive development.” There is nothing “inherently bad” in a judge’s working with the parties to achieve a plea, he said, but there is “an unfortunate potential” that judges will end up punishing defendants for exercising their constitutional right to a trial.

“Hopefully,” he said, “the commission will demark some lines so judges will know how to conduct themselves in plea discussions.”

John L. Pollok, chairman of the Criminal Courts Committee of the Association of the Bar of the City of New York, also saw the commission’s examination as important to defining lines between “judges who abuse their power and those who use it as an effective tool.”

But Richard P. Swanson, co-chairman of the Committee on the Supreme Court of the New York County Lawyers’ Association, said that the “right way” to review a judge’s handling of plea negotiations is through “the appellate process rather than an investigation, if there is one.”

One senior prosecutor said that “some judges push the defense very hard to get pleas and some push the prosecution. Sometimes its the same judge that pushes both sides, which may be a perverse definition of fairness.”

The prosecutor added that some judges will strongly suggest to a defense attorney to go for a bench trial when the prosecution is holding out for a stiffer sentence than the judge thinks is appropriate. After a bench trial, those judges will make findings that permit the imposition of the same sentence they were urging in the first place, he said.

Another senior prosecutor said the system has an interest in conserving resources. Only a small fraction of felony cases end up being tried, he and others noted.

The rationale for giving defendants a better break the earlier the plea, he said, is that the system saves more resources.

Not Bound by Confidentiality

Kevin L. Wright, district attorney of Putnam County and president of the New York State Attorneys Association, claims in his March 11 letter that two attorneys who publicly disclosed the details of their disciplinary complaints against two prosecutors (March 4) violated the confidentiality provisions of Judiciary Law §90(10) and Code of Professional Responsibility Dr l-1-2 (sic)

Mr. Wright’s claim, presumably based on Dr 1-102 (22NYCRR §1200.3 [Misconduct]), might have merit but for the fact that complainants before departmental disciplinary committees are not bound, with respect to their complaints, by the confidentiality provisions of §90(10); the committee and the Appellate Division are so bound. A client complaining of his attorney’s theft may tell the world, though he risks a defamation action by the attorney. If the client relates his complaint to the committee, he enjoys an absolute privilege with respect to what he has laid before the committee. An attorney who complains about a prosecutor’s prejudicial misconduct is, with respect to confidentiality, in no lesser place than the allegedly victimized client. Indeed, it is hard to grasp Mr. Wright’s claim that it is prejudicial to the administration of justice for attorneys to state that they have filed complaints before a disciplinary committee in connection with prejudicial extra-judicial statements that were publicly made by prosecutors in violation of the Code of Professional Responsibility. In an ideal prosecutorial world, Mr. Wright would be right. In an ideal Constitutional world, however, Mr. Wright would be wrong.

Harold Reynolds of Scarsdale, New York is a member of the NYSACDL.


The Benefits of Public Disclosure

New York Law Journal

Note: This Letter to the Editor was written by NYSACDL Vice President Daniel N. Arshack, Secretary of the Association’s PJCC Committee.

It is unfortunate that Putnam County District Attorney Kevin Wright complains, (“Disclosure of Complaints Is Troubling,” March 11), when District Attorney Jeanine lairro, who overstepped the strictures of the Trial Publicity Rule DR 7-107, became the subject of an investigation. (“Pirro’s Comments Prompt Action by Defense Group,” March 4). Where was Mr. Wright when his colleague’s rhetoric filled the media and compromised the due process rights of those accused of crimes?

There is no proscription on members of the public describing the fact that a complaint has been made to a disciplinary committee concerning the behavior of a public official. Judiciary Law 90.10 imposes a confidentiality requirement only upon the disciplinary authorities. It does not restrict the conduct of the third parties. This view is supported by a plain reading of the rules within the First and Second Departments. For example, 22 NYCRR 691.6(c) and 22 NYCRR 605.24(b) make plain that the confidentiality obligation is to the disciplinary committee itself, not to the complainant, respondent or third parties. Thus the New York State Association of Criminal Defense Lawyers acted properly and within its First Amendment rights in disseminating its complaint against Ms. Pirro.

In fact, resort to protests about the criminal defense lawyers’ release of its complaint is not only ironic, considering that Ms. Pirro’s unauthorized disclosure precipitated the grievance, but also seeks to mask the fundamental issue: Prosecutors are high elected officials, given extraordinary power whose ethical, professional, and constitutional duty is to do justice.

Poisonous publicity that prejudices the jury pool against defendants is often a major contributing factor in wrongful convictions, which not only damages the integrity of the criminal justice system, but also jeopardizes community safety because, in the rush to judgment fueled by inappropriate prosecutorial public statements, the wrong person may be imprisoned while the real offender remains at large.

Moreover, transparency in government is the hallmark of an effective democracy, as it provides the electorate a window on the performance of its elected representatives. When the behavior of elected officials is called into question,. .it is incumbent on our institutions to publicly investigate and report on their findings.

Indeed, there is a strong argument for amending the Judiciary Law to authorize, if not require, that even the disciplinary cominittee’s investigation and findings with respect to public officials be publicly available: Only then will prosecutors be fully accountable to those whom they serve. It is disturbing that a publicly elected prosecutor does not appear to understand that public discourse is the bedrock of our country’s greatness.


Advocates Call for Statewide Public Defense

By John Caher – New York Law Journal

ALBANY — On one of the biggest lobbying days of the year, defense advocates converged on the Capitol Tuesday hoping to garner legislative attention for a statewide independent public defense system.

The advocates are seeking legislation that would establish a state overseer of indigent defense programs to ensure that standards are met and that defenders are adequately supported. It has been their goal for several years.

Although the proposal has majority sponsorship in both houses, advocates find themselves in the familiar position of attempting to stand out in the crowd of lobbyists.

Jonathan Gradess, executive director of the New York State Defenders Association, said the situation was actually worsened when, after years of lobbying by him and others, the Legislature voted in 2003 to increase assigned-counsel rates. He notes that while the state mandated the higher rates, the pledged funding will not become available until the end of this month — which means the counties have been paying for the increase even though the state promised not to impose an unfunded mandate on localities. Mr. Gradess said roughly half the counties have consequently changed the way they provide indigent legal services to criminal defenders. Some, he said, are contracting with not-for-profit organizations, others have set up conflict defender offices and some rely more heavily on their own public defenders. The result, he said, is a largely unregulated hodge-podge of defense programs that are underfunded and which operate without the benefit of any standards or guidelines.

Malia Brink, indigent defense counsel for the National Association of Criminal Defense Lawyers, said the state should pay the entire cost of indigent defense. Now, the counties are largely responsible, with the state paying about 10 percent of the total cost of indigent counsel services statewide.

“When you have a system that is dually funded by the counties and the state, there is a constant war for who should pick up the amount of funding that’s needed, ” Ms. Brink said.

While advocates disagree on the exact mechanics of a statewide defender office, they agree that the current system is woefully inadequate and unlikely to reform without leadership from Albany.

Raymond A. Kelly Jr., an Albany attorney and president-elect of the New York State Association of Criminal Defense Lawyers, said New York should have a defender general just as it has an attorney general.

“Why are there no standards for the defense?” he asked. “Why are there no [continuing legal education] requirements in the field of criminal law?”

Mr. Kelly suggested that instead of disbanding the Capital Defender Office this year unless the death penalty statute is redrawn, as Governor George E. Pataki has recommended, the state should convert the office into a statewide defender.


NYSACDL testifies on Friday, March 11 at New York State Commission on the Future of Indigent Defense Hearings in Rochester. Past-President Marvin E. Schechter, Chair of the Association’s Indigent Defense Committee wrote the testimony.


Senate approves death penalty bill

Version would impose life without parole if jury is deadlocked on sentencing; Assembly action unclear

Albany Times Union

The death penalty moved a step closer to being restored in New York on Wednesday, but the law’s fate remains uncertain in the Assembly. The Senate passed a bill, 37-22, designed to address constitutional flaws in the law, but the Assembly isn’t expected to act on the legislation until a report from its five hearings is made public.

Although death penalty supporters said last week the law is essential to keeping the crime levels down, the floor debate Wednesday over the bill was lackluster. At one point, less than a third of the Senate was in the chamber, and just seven Republican lawmakers were listening to the debate.

While senators who oppose the death penalty quoted testimony given earlier this year at Assembly hearings to back up their opposition to the bill, legislators who back the death penalty didn’t mention the hearings and berated the Court of Appeals for overturning the law.

They also mentioned the victims of the seven convicted murderers, who New York juries said warranted the death penalty before the law was overturned. “We need to enact this bill into law to ensure that a capital punishment law is in place and can be used to protect New Yorkers and prevent dangerous, violent criminals from getting back on the streets,” Senate Majority Leader Joseph Bruno said in a statement after the vote.

The Court of Appeals ruled in June that the sentencing provision of the death penalty statute was unconstitutional because judges warned juries that, if they could not agree on either death or life in prison without parole, the murderer would be a given a sentence that included a chance for parole. The court said those instructions might lead jurors to chose death to avoid the possibility of parole.

The Senate bill passed Wednesday gives juries all three sentencing options, but imposes life without parole if the jury is deadlocked.

When the ruling came last year, a quick-fix seemed likely as all three state leaders, Gov. George Pataki, Bruno and Assembly Speaker Sheldon Silver, have supported the death penalty.

But getting a new capital punishment law has proven to be difficult. After nearly a decade, no one has been executed and the cost of the law is estimated between $150 million and $200 million. For opponents and those who did not feel strongly either way, the high cost, waning public support and low effectiveness in executing the worst criminals warranted another look.

The Assembly agreed and scheduled two public hearings, which turned into five as dozens of people showed up to testify. The Senate refused and said nothing had changed since the law was signed in 1995. Hearings, the Senate majority said, were a way for the Assembly to drag its feet and not put the law back on the books.

To increase public pressure for the bill, the Senate created a Web site at http://www.Death where people can register their support for the law. The site does not accept opposition to capital punishment.

The Assembly hearings might have changed some lawmakers’ minds, but that won’t be known until the death penalty comes up for a vote. Several of those who supported the death penalty in 1995 have said their minds might be changed. Some backed capital punishment because there was no option of life in prison without parole, which the state now has.

Pataki applauded the Senate’s vote, and encouraged the Assembly to follow suit. “The Assembly has held hearings,” he said. “Now hold a vote.”


Lawyers file grievance against Pirro


Citing a pattern of prejudicial public statements by Westchester District Attorney Jeanine Pirro, the New York State Association of Criminal Defense Lawyers has accused the prosecutor of harming defendants’ chances for fair trials in at least three high-profile cases.

The group filed a disciplinary complaint against Pirro on Wednesday with the grievance committee of the state’s 9th Judicial District. The complaint, by the group’s Prosecutorial and Judicial Complaint Center, focused on a Pirro news conference in January announcing the indictment of Eddie Cordero Sr.

He was charged with kidnapping and rape in the case of a 12-year-old girl who was forced into a car at a Yonkers bus stop. The lawyers’ group said Pirro implied that Cordero was HIV positive, a disclosure that might violate state law. She went on to describe the crime as a classic case why violent sex offenders should be subjected to civil detention once their prison terms are over.

“The number and content of the media reports in the Cordero case make it plain that a reasonable person should know that the dissemination of such comments has a substantial likelihood of materially prejudicing an adjudicative proceeding,” Daniel Arshack, a Manhattan lawyer who is secretary of the complaint center, wrote in the seven-page grievance letter. The grievance was the first filed since the complaint center was formed last year.

The complaint also criticized Pirro for statements she made in recent years when David Ohnmacht was indicted on charges he sexually abused young teenage girls in northern Westchester, and when real estate heir Robert Durst, suspected in the disappearance of his wife two decades ago, was charged with murder in an unrelated Texas homicide.

The defense lawyers’ group complaint comes just a few weeks after Pace Law professor Bennett Gershman, a frequent critic of Pirro, also cited the Cordero case in his own complaint letter to the judicial committee in mid-February.

Individual lawyers have long complained about Pirro’s pronouncements at the outset of criminal cases. But the formal grievances come at a time when she is considering running for higher office, possibly state attorney general in 2006. She has not announced plans to seek a fourth term as district attorney this year.

Arshack said Pirro’s statements in the Cordero case, and not political considerations, drove the lawyers’ group to act. He said Pirro’s statements were “significantly over the top” but that there were many prosecutors who violated the rule barring pre-trial comments offered up only to make public information that could taint a jury pool and harm a defendant’s chance for a fair trial.

The court’s grievance committee does not confirm receipt of complaints or whether it has begun an investigation. The committee can censure lawyers or recommend suspension or disbarment if violations are substantiated.

Pirro’s office defended her outspokeness yesterday in a statement issued by spokeswoman Anne Marie Corbalis.

“It is a district attorney’s constitutional obligation to warn the public of danger, encourage victims and witnesses to come forward, and improve our laws to better protect our children,” she said. “The district attorney stands by her statements and will not be deterred from doing her job because of meritless criticism.”

The defense lawyers’ complaint suggests a special prosecutor be appointed to determine whether Pirro’s Jan. 31 statement amounted to disclosure that Cordero was HIV positive. If so, it would be a misdemeanor under the state Public Health Law.

In an October 2002 news conference, Pirro said the case against Ohnmacht — a lifeguard, camp counselor, youth theater organizer and ice-cream truck driver — involved “some of the most outrageous charges and acts I’ve seen.”

Ohnmacht eventually pleaded guilty and was sentenced to 10 years in state prison.

In the Durst case, Pirro has always been careful to not specifically call the real estate heir a suspect in his wife Kathy’s disappearance from South Salem in 1982. But when Durst was charged with murder in Galveston four years ago, she suggested there were similarities between that case and the unsolved disappearance.


Pirro’s Comments Prompt Action By Defense Group

New York Law Journal

The New York State Association of Criminal Defense Lawyers has filed a disciplinary complaint against Westchester County District Attorney Jeanine Pirro over what it claims is her “pattern and practice of making inappropriate extra-judicial comments concerning defendants and suspects in high-profile cases.”

The Prosecutorial and Judicial Complaint Center of the defense lawyers’ group cited in a letter to the grievance committee of the Ninth Judicial District several comments Ms. Pirro had made to the news media concerning the indictments of two accused sex offenders and an alleged murderer.

Among the matters cited by the bar group was the case of Eddie W. Cordero, who was charged Feb. 1 with kidnapping, rape, child endangerment and other charges. That day, Ms. Pirro told the 1010 WINS radio station that Mr. Cordero “likes the idea of finding children and treating them like prey.”

She continued, “We’re naive if we think that when we send these predators to prison that they come out and they’re better.”

Ms. Pirro also told The New York Times that she could not by law reveal whether Mr. Cordero was HIV-positive. Asked by the paper if she knew his condition, she said, “Yeah, I do, and that’s what makes me so angry.”

Ms. Pirro’s office released a statement yesterday that said: “The District Attorney is proud of her record leading the fight against child molesters, serial rapists and murderers. She will continue to protect the people of Westchester County despite the rantings of these critics, who should be embarrassed by their callous indifference to innocent crime victims.”

Daniel N. Arshack, a lawyer who is secretary to the prosecutorial complaint center, said Ms. Pirro’s comments went far beyond the prosecutor’s duty to inform the public and would make it harder for the accused to receive fair trials.

“Our view is these sorts of comments serve no real law enforcement purpose,” said Mr. Arshack. “They serve only to increase the public opprobium for those accused.”

The defense lawyers’ complaint says that Ms. Pirro’s comments are in violation Disciplinary Rule 7-107, which states that lawyers involved in criminal matters should not make extrajudicial comments they should reasonably know will prejudice the adjudicative process.

Jeff Fogel, the legal director of the Center for Constitutional Rights, said prosecutors had been pushing the envelope with potentially prejudicial comments for years.

“This is a longstanding problem of prosecutors,” he said, “and they rarely are taken to task by ethics committees.”

Mr. Fogel’s group recently launched an effort to have former Southern District U.S. Attorney and now Deputy Attorney General James Comey disciplined for comments he made in a June 2004 press conference concerning the case of accused Al Qaeda operative Jose M. Padilla.

The center’s complaint alleged that Mr. Comey violated DR 7-107 when he claimed that Mr. Padilla had admitted being a terrorist in the course of his interrogations. The complaint, originally filed with the Disciplinary Committee of the Appellate Division, First Department, was later withdrawn and filed with the Department of Justice’s ethics office.

Disciplinary committee proceedings are generally confidential and can take years to resolve. Committees can censure lawyers, both publicly and privately, and, in extreme cases, recommend suspension or disbarment.

Prosecutors who make statements about defendants that could be construed as prejudicial may also jeopardize their cases with judges who have various measures at their disposal, including gag orders, sanctions and the possibility of charges being dismissed.

But Mr. Fogel said most judges did not see it as their role to enforce ethical rules governing statements that may have been made even before they were assigned to the case.

The complaint against Ms. Pirro is the first referred to a disciplinary committee by the Prosecutorial and Judicial Complaint Center, which was formed last May.

Thomas Cahill, chief counsel to the First Department’s Disciplinary Committee, said disciplinary complaints against prosecutors are rare but could have teeth.

He recalled that Elizabeth Holtzman, the former Brooklyn district attorney, was censured by the Tenth Judicial District’s grievance committee for criticizing a judge in a press conference. She appealed the censure all the way to the Court of Appeals, which unanimously upheld it.


Judge Says Terror Suspect Can’t Be Held as an Enemy Combatant

New York Times

A federal district judge in South Carolina ruled Monday that President Bush had greatly overstepped his authority by detaining an American citizen as an enemy combatant for nearly three years without filing criminal charges.

The judge, Henry F. Floyd, ruled that the government must release the American, Jose Padilla, within 45 days from the military brig in Charleston, S.C., where he has been held since June 2002. That left the Bush administration time to appeal, and a Justice Department spokesman, John Nowacki, said officials immediately decided to do so. Padilla was represented by NYSACDL members Donna Newman and Andrew Patel.

In his opinion, Judge Floyd sharply criticized the administration’s use of the enemy combatant designation in Mr. Padilla’s case “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” Judge Floyd wrote.

The judge said he had no choice but to reject the president’s claim that he had the power to detain Mr. Padilla, who was arrested in May 2002 at O’Hare International Airport in Chicago and was later accused of having planned to detonate a radiation-spewing “dirty bomb” in the United States as part of a plot by Al Qaeda.

“To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition,” Judge Floyd wrote, “but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

Judge Floyd, who was nominated to the court by President Bush in May 2003, said that to agree with the president would “be to engage in judicial activism,” a phrase often used by the White House to criticize rulings with which it disagrees.

Although Judge Floyd’s opinion was notable for its sweeping language, its substance was not a surprise because it reflected a Supreme Court ruling last June in a related case involving Yaser Esam Hamdi. Mr. Hamdi, a Saudi who was an American citizen by virtue of his birth in the United States, was arrested on the battlefield in Afghanistan and held as an enemy combatant in the same brig in Charleston.

The justices ruled that Mr. Hamdi was entitled to have his case heard in court, saying “a state of war is not a blank check for the president.” But they declined to rule on the Padilla case at the same time, saying his lawyers had wrongly filed their claims in New York instead of South Carolina, where Mr. Padilla was being held.

Judge Floyd noted, as had many analysts, that Mr. Padilla’s case was the stronger of the two because he was arrested on United States soil. “The differences between the two are striking,” Judge Floyd wrote.

Although the government might well argue that the use of force was needed to capture Mr. Hamdi on the battlefield and prevent attacks by Al Qaeda, the same argument may not be used in the case of Mr. Padilla, who was “arrested in a civilian setting such as a United States airport.”

Mr. Padilla’s “alleged terrorist plans were thwarted at the time of his arrest,” the judge wrote, adding, “There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing.”

If the government loses on appeal, it would have to release Mr. Padilla or charge him with criminal acts. In the case of Mr. Hamdi, when the administration lost the case, officials surprised many people by simply releasing him to Saudi Arabia rather than filing criminal charges even though it had deemed him so dangerous he was held incommunicado for more than two years.

In Mr. Padilla’s case, the Justice Department argued that Mr. Bush had the authority to detain him on several grounds, including the resolution Congress passed after the Sept. 11 attacks that authorized the president to use all necessary force to prevent a repetition, as well as his inherent authority as commander in chief of the military. But Judge Floyd said that “simply stated this is a law enforcement matter, not a military matter.”

The ruling fits a larger pattern of the administration’s winning most of its early legal battles concerning detention policies and suffering defeats in more recent months.

However, Neal Katyal, a professor at Georgetown University’s law school who has sided against the government on the detention issues, said: “The decision is sweeping, probably too sweeping. By shackling the president’s power to detain enemy combatants, it does give rise to the fear that courts may micromanage the president’s war-fighting capacity.”

But he added that the ruling reveals how the executive branch “is overplaying its hand by claiming that it is above the law and courts cannot review government activity in the war on terror.”


Supreme Court Finds Juvenile Death Penalty Unconstitutional

New York Times

The Supreme Court ruled that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out the death sentences of about 70 juvenile murderers and bars states from seeking to execute minors for future crimes. The executions, the court said, were unconstitutionally cruel.

It was the second major defeat at the high court in three years for supporters of the death penalty. Justices in 2002 banned the execution of the mentally retarded, also citing the Constitution’s Eighth Amendment ban on cruel and unusual punishments.

The court had already outlawed executions for those who were 15 and younger when they committed their crimes. Tuesday’s ruling prevents states from making 16- and 17-year-olds eligible for execution.

Justice Anthony Kennedy, writing for the majority, cited the fact that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice.

“Our society views juveniles … as categorically less culpable than the average criminal,” Kennedy wrote.

United States Sentencing Guidelines No Longer Mandatory

January 12, 2005 – In a decision in Booker and Fanfan, the United States Supreme Court struck down the guidelines as mandatory and concluded they are advisory only.

Rockefeller Drug Laws Changed

December 14, 2004 – The Rockefeller Drug Laws have been changed by legislation signed by Governor Pataki. While reform of the Drug Laws in New York have been long overdue, the recent legislation should be a step in the right direction, but still provides for lengthy periods of incarceration.

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