NYCBA Members Newsletter

Welcome to the May 2006 issue of our Newsletter.

President's Message:

As we approach late May and early June’s whirl of professional events, graduations, weddings, etc., and the end of the Spring federal and state legislative seasons, here is some development of key importance to us. In the legislative arena:

1) NSA Domestic Eavesdropping: 5/18/06 was the NACDL's last call-in day to Congress concerning domestic wiretapping of Americans by the National Security Agency without court authorization and the recent disclosure about NSA’s enormous database of innocent Americans’ phone records. You do NOT have to be an NACDL member to use NACDL’s CAPWIZ software to contact your representative about these issues; click here for link to CAPWIZ (put in your zip code; in the middle of the page and hit “go”; this will bring up a form email which you may adapt to personalize your input); the call-in week ended 5/19 but NACDL’s “action alert” (via CAPWIZ) will be available through next week and perhaps longer;

2) Judicial Selection: As noted in our February, 2006 Newsletter, on January 27, 2006, Judge Gleeson issued a lenghty decision discussing, inter alia, how judicial district nominating conventions are effectively controlled by local party leaders. Judge Gleeson issued a preliminary injunction requiring direct primary elections for NYS Supreme Court (including re-election of sitting judges). This decision - Lopez Torres v. New York State Bd. of Elections, 411 F. Supp. 2d 212 (E.D.N.Y. 2006) -  has been appealed to the Second Circuit and is currently in the briefing stage. Meanwhile, various legislative solutions are being considered, including changes to the convention system which would address some of the problems discussed in Judge Gleeson’s decision. Larger issues about electing vs. appointing judges are being debated, as are the role and rules for judicial screening committees, in which bar associations and lawyers would play an important role;

3) Indigent Defense Reform: the final NYS Indigent Defense Commission report is expected out shortly. Some of us are concerned that a state-wide indigent defense system may effectively eliminate a significant role for the private bar in providing indigent defense;

4) collection of DNA from all people convicted of misdemeanors, including Class B misdemeanors; we know how minor such offenses may be; on 5/15/06 State Senator Thomas K. Duane (who cast the lone vote against the NYS Senate bill), the Innocence Project at Cardozo Law School and the New York Civil Liberties Union urged that legislation be deferred until a pending study is completed, noting that many counties are collecting DNA from innocent people and that much stricter controls should be in place before DNA data banks are expanded;

5) elimination of the statute of limitations for Class B felony sex offenses (first degree rape, criminal assault, aggravated sexual abuse and course of sexual conduct against a child), not only where DNA evidence is available but in all cases; the Assembly bill would apply to civil claims as well and is being presented as giving victims an opportunity to get justice “forever”, which would permit prosecutions to be brought decades after the alleged event;

What do you think about these issues? Whatever your views, I urge you to express them to our representatives on this vitally important subject. If you would like to work with me to take further action, please email me.

As for what’s happening in the courts,

1) Congratulations to NYCBA member Jim Roth on a favorable decision from SDNY Judge Gerald Lynch based on prosecution failure to disclose Brady material. Judge Lynch held that the failure of two prosecution witnesses to admit committing additional crimes after cooperating and pleading guilty justified a new trial, using the “no reasonable likelihood that the result would have been different” standard rather than the “probable” acquittal. The decision in the case (U.S. v. Peter John and Billy Duc, No. 04 CR 739 (S.D.N.Y. Mar. 29, 2006) was published in the N.Y. Law journal on 3/29/06, pg. 23, col. 1 and is available on WestLaw at 3/29/2006 NYLJ 22, (col. 1);

2) on 5/1/06, it was announced that SDNY CJA Panel applications are being taken through 6/30/06; click here for the court website to get the application form and additional information; if you want more federal experience and would like to second-seat a federal trial, please email me and I will try to arrange it;

3) the new Manhattan Integrated Domestic Violence (“IDV”) court has entered the final planning stage and is scheduled to open in Fall 2006; it will take misdemeanor domestic violence cases which overlap with Family Court and/or matrimonial proceedings; input from defense lawyers on implementation is welcome; the challenges include training defense lawyers to appear before a judge who will have two or three separate proceeding before her (each case will remain in a separate file, which will be in an overall IDV case jacket); plea discussions will apparently be affected by related proceedings; apparently not yet decided is the calendar system, including whether to give lawyers a specific time to appear; if you would like work with me on providing input on this new and important court, please email me;

4) the “Goodbye to 40 Foley” party was held on 5/11/06, but the Second Circuit is still scheduling arguments in the old building (at least one of mine on 6/5/06); the building will be closed soon for extensive renovation;

5) the N.Y. Law Journal recently published letters to the editor by Robert Gottlieb (4/20/06), regarding jurors being permitted to ask questions, and Stephen Singer, former President of the Queens County Bar (5/16/06), bemoaning the limitations on time for attorney questioning during jury selection, especially in light of the time wasted when judges take breaks.

Yours for a better defense,

Henry J. Steinglass
President
(212) 406-7700
hjsteinglasslaw@earthlink.net

Annual Dinner - June 5, 2006

Tickets are going fast for the New York Criminal Bar Association’s annual dinner, which will be held on June 5, 2006, at Tavern on the Green. As you know, we will be honoring Gerald Shargel as the distinguished criminal defense lawyer of the year. Justice Michael Corriero will be our guest speaker. And, we will present a special award to Donna Newman and Andrew Patel for their work in defending Jose Padilla, in one of the most important "terrorism" cases of our time.

We hope you will attend this event and be part of celebrating the careers of our distinguished honorees. If you have forgotten how great last year’s dinner was, or did not attend, you can check out photos on the NYCBA website (in the “Members” section, go to “Upcoming Events”, where there is a tab for photos).

Reservations may be made by sending a check made payable to the “New York Criminal Bar Association,” to Michael K. Bachrach, NYCBA Treasurer, 1040 Avenue of the Americas, 24th Floor, New York, New York, 10018. Payments may also be made by faxing or emailing your credit card authorization to (866) 328-1630 or mbach2000@yahoo.com. The cost of the annual dinner is as follows:

$150/each for Members and their non-attorney guests and $175/each for Non-Members

Dinner Journal Deadline Extended To May 30, 2006

As previously, announced, this year, we will again have a dinner journal for our June event at Tavern on the Green. Prices are as follows:

$900 for inside front cover
$750 for back cover or inside back
$200 for a full page
$100 for a half page (the minimum size).

This is a great opportunity for you to congratulate the honorees and to make a statement to the roughly 300 lawyers, judges and guests who are expected to attend.

If you want to purchase something in the journal, please

(1) send your check or credit card authorization to Michael Bachrach, Treasurer, at the previously stated mailing address, fax, or email address, and

(2) send the text of your ad at your earliest convenience and so that it arrives no later than NOON on MAY 30, 2006 to Genay Leitman, NYCBA Dinner Co-Chair, preferably by email to galesq@aol.com or, if by fax, to Len Levenson, NYCBA Secretary, at fax no. (212) 587-0570 (which he will forward to Genay). If you need to reach Genay about the ad, please call her cell phone at (917) 797-6887.

In addition, we would like to notify investigators, experts, mitigation specialists, jury consultants and others about the opportunity to advertise in our dinner journal. So, if you wish, please let those you work with know about this way of making known their availability or, if you prefer, provide me with their names (and, hopefully, their email addresses), so that I may contact them directly.

Ethics CLE Program On May 23, 2006

On May 23, 2006, the NYCBA will present a CLE program entitled, "Ethics Update for Criminal Defense Lawyers." The speakers are Hal R. Lieberman and Maranda E. Fritz of Hinshaw & Culbertson, LLP. Mr. Lieberman was formerly Chief Counsel of the Departmental Disciplinary Committee (1st Department). The program will be held from 5:30-7:15 p.m. at 100 Centre St., Central Jury Room (15th floor) and will be co-sponsored by The Legal Aid Society.

Richard Ware Levitt's Annual Second Circuit Review CLE
Seminar To Be Held On June 15, 2006

On Thursday evening, June 15, 2006, the NYCBA will present its annual CLE program entitled, "Recent Developments in the Second Circuit." As always, the speaker will by Richard Ware Levitt, the noted criminal defense attorney and former NYCBA Board Member. The program will be held from 5:30-7:15 p.m. at the new federal courthouse, 500 Pearl St., in the 9th floor ceremonial courtroom, an event that will be co-sponsored by The Legal Aid Society.

This Is A Good Time For New Members To Join

Please consider alerting your friends and colleagues that the upcoming trio of events (5/23 ethics CLE, 6/5 dinner and newly announced 6/15 Richard Levitt CLE) (see above) make this an especially good time to become a member of NYCBA. Members get a reduced price on the dinner ($25 saving) and free CLE (savings of at least $20 per program for cost of materials). Annual dues are $100. In effects, for anyone attending these three events, an additional $35 provides all the other benefits of NYCBA membership, including free CLE in the Fall of 2006, access to the NYCBA website (see below for some examples of the useful website features) and a free subscription to Punch & Jurists for NYCBA members and other membership benefits. Click here for more information.

Annual Dues:

As a reminder to those who have not yet paid their 2006 membership dues, annual membership runs from January 1st through December 31st each year, and as such membership payments were due to the New York Criminal Bar Association on January 1, 2006. If you have not already paid your membership dues, please do so immediately. Annual dues are $100, and for your convenience you can click on this link for a copy of our Membership Application/Renewal Form.

Website Features And Highlights From Past Newsletters:

Our Website at www.nycrimbar.org has now been up and running on the Internet for more than five years; and those who use it frequently tell us that it is the most comprehensive and most up-to-date resource center on the Internet for criminal defense lawyers in the Metropolitan New York area.

However, only a small percentage of our Members use the Website on a regular basis - and the most popular day each month is the date on which we mail our Newsletter. For that reason, we thought we would highlight some of the features that we have noted in our past Newsletters and some of the most frequently viewed pages on our Website with the hope that these reminders will encourage our Members to use our Website more regularly - and - far more importantly - to start giving us feedback about, and content for, our Website. With that in mind, and in no particular order, we note the following items:

• Under the "Court Websites" link on the Member's page of our Website, there is a comprehensive collection of information about both the State and Federal courts in New York. For example, there is extensive information about the Criminal Term of the Supreme Court, New York County, which operates 36 courtrooms in two buildings. The 100 Centre Street facility has 20 court parts and is shared with the Manhattan Criminal Court, the Office of the District Attorney and other agencies. The facility at 111 Centre Street has 16 court parts and is shared with the Manhattan Civil Court. To assist our Members in finding their way around that maze, we have listed on our Website the following links:
  
  
  A Department Directory - which contains the complete and current contact information for all of the separate Departments within this court, including: the Appeals Bureau, the Assigned Counsel Voucher Desk, the Calendar and Data Entry Section, the Case Management Coordinators, the Clerks' Offices, the Correspondence/Motion Support Unit, the Court Interpreters, the Court Reporters, the Court Security Services, the Executive Offices, the Indictment Unit, the Law Library, and the Warrant Office.
  
  
  A Courtroom Directory - which lists the different Parts of the Criminal Court in New York County, gives the name, address, phone and fax number of the Justice assigned to that Part, and includes the names of the Court Attorney and the Court Clerk.
  
  
  A Judicial Personnel Directory - which is an alphabetical listing of every Justice assigned to the Criminal Term, and includes their addresses, their phone and fax numbers, and the names of the Court Attorney.
  
  
  There is comparable information about the Federal courts. For example, we have listed the Individual Rules and Motion Practices of all the Judges in both the Eastern District of New York and the Southern District of New York
  
  
  
  
• Also on our Website, under the Telephone Directories link, we have listed a comprehensive and current collection of useful phone numbers. For example, we have listed the current addresses and phone numbers of all the Police Precincts in New York City; the latest available Arraignment Numbers of the Criminal Courts in New York; and telephone directories for the U.S. Attorney's Offices in the Eastern District of New York and the Southern District of New York.
  
  
  
  
• The New York State Library Online (www.nysl.nysed.gov/) now provides free access, exclusively to New York State attorneys, to a huge collection of legal resources - many of which were previously available on a subscription basis only.

  By signing up for a free Attorney's Borrower's Card (details below), you can get instant Internet access to an amazing and growing list of database resources maintained by the Library, including the following legal resources - all of which are free:

  • Loislaw (www.loislaw.com/) provides access to federal law, federal regulations, state law, state regulations, court rules and court cases for all 50 states and the District of Columbia.
    
    
  • LegalTrac (1980+) Some full text. Index to major legal publications, including law reviews, legal newspapers, and bar association journals. The legal Trac site also covers case studies, government regulations, statutes, taxation, and international law.
    
    
  • New York Session Laws (current) (full text) Via McKinney's Consolidated Laws of New York.
    
    
  • McKinney's Consolidated Laws of New York Annotated (current and 1995 archival) Contains the New York State Constitution and a complete set of current statutes.
    
    
  • Legislative Retrieval System (LRS) (last ten years) Access to the full text of New York State bills and laws, assembly agendas, daily reports, vetoes and approvals.
    
    
  • New York Supplement 2d (1955+) Includes all reported decisions of New York's courts, 1955 to date (from 141 NYS 2d).
    
    
  • New York Attorney General Opinions (current) (full text) Via McKinney's Consolidated Laws of New York Annotated.
    
    
  • New York City Charter and Administrative Code (current) The charter of the city of New York and the code of rules and regulations enacted by New York City agencies and departments is included. It is annotated with case notes and historical notes. Available online.
    
  • New York Red Book (current) Contains information on New York State government departments, agencies and officials.
    
    

  If you are an attorney admitted to the New York Bar and a New York State resident- you should sign up immediately to receive a NYS Library Borrower's Card. [You can request an application for your card either by telephone at (518) 473-7895 or by sending an email to circ@mail.nysed.gov.]
  
  

• One of the most useful resources available on the Internet is the "Manual of Recurring Problems in Criminal Trials," Fifth Edition (2001), a comprehensive, 191-page document prepared by the Federal Judicial Center. The format of this remarkably helpful digest is a black letter statement of the law followed by case citations.  Thus, a typical entry looks like this:

  Production of government witness’s statements:
  The Jencks Act provides that statements of a government witness are discoverable by a defendant after that witness has testified on direct examination at trial.

  The court may not compel the government to produce Jencks Act material until after a witness has testified. Some U.S. attorneys will, however, voluntarily produce those materials prior to trial or, at the latest, on the first day of trial.
  United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)
  United States v. Algie, 667 F.2d 569 (6th Cir. 1982)
  United States v. White, 750 F.2d 726 (8th Cir. 1984)

  Production of statements covered by the Jencks Act is not automatic. The defendant must invoke the statute at the appropriate time.
  United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995).
  
  

• In one of our Newsletters, we noted that PACER is now offering free access to most federal district court opinions. It is still hard to find district courts opinions - and, thus, this new PACER feature makes available at no cost a broad range of resources that otherwise would require access to costly services such as WestLaw and LEXIS.
  
  
  
• One of the most noteworthy new Blogs that we have noted is the Second Circuit Sentencing Blog - which provides "summaries and commentaries on substantive sentencing decisions in the Second Circuit." This site is particularly helpful because it covers unpublished decisions from the Second Circuit (which counsel will be permitted to cite in all pleadings commencing on Jan. 1, 2007) as well as summaries of and links to key sentencing decisions from the district courts.
  
  

News From The Web:

• Professor Lawrence H. Tribe of Harvard Law School has written an interesting article entitled "Bush Stomps on Fourth Amendment," that was published in the Boston Globe on May 16, 2006.
  
  
  

• On May 17, 2006, the National Law Journal published a noteworthy article entitled "Battle Expands over Attorney-Client Privilege," by Marcia Coyle.
  
  
  
• The Website of the National Association of Federal Defenders contains a variety of useful resources for the criminal defense attorney. In addition to collection of the significant amicus briefs filed in various cases, the NAFD also publishes a quarterly newsletter, called The Liberty Legend, which contains various articles covering new and significant case law and trends in the law. The current and past issues of The Liberty Legend are now available online and can be accessed by clicking here.

Comments and Newsletter Contributions Welcome

Comments on this and future issues of this Newsletter are most welcome, as are your own stories about cases, issues, arguments, events. etc. - whether just a sentence or a paragraph to alert us to a recent development, or a longer piece. Please send your material to Scott Tulman, Chair of the Internet and Newsletter Committee at Tel.: (212) 867-3600 or email: stulman@aol.com - or send your comments by email directly to our committee at: nycrimbar@nyc.rr.com.

Internet and Newsletter Committee:
Scott Tulman, Chair
Harvey Fishbein
Michael K. Bachrach