NYCBA Newsletter - Vol. 4, No. 3

IN MEMORIAM

Our deepest sympathies to the family and friends of Michele Maxian,
a longtime NYCBA member and a member of our Board of Directors,
who passed away on November 14, 2006.

Welcome to the November 2006 issue of our Newsletter. On behalf of our Officers and our Board of Directors, I send our warmest greetings for a very Happy Holiday Season.

In May 1990, Michele Maxian, Director of Special Litigation for The Legal Aid Society, asked NYCBA to submit an amicus brief on the appeal of rulings that arrestees not arraigned within 24 hours be released unless there was an adequate explanation for further delay in arraignment. Michele had been litigating arraignment delay for several years, obtaining a 24-hour rule from Judge Constance Baker Motley in the Southern District, only to see a reversal in the Second Circuit. Williams v. Ward, 845 F.3d 374 (2d Cir. 1988), cert. denied, 109 S.Ct. 118 (1989).

Despite extensive efforts by judges and bar associations, front page coverage by The New York Times--the air [is] thick with the smell of urine, feces and infection ....” in the holding cells-- and innumerable meetings, monitorings, statistics and studies, people were still being jailed for up to 4 to 5 days before arraignment. And, 72 hours was considered the (unenforced) benchmark, anything shorter having been said by the Second Circuit to be “unrealistic” for NYC.

Prof. Ursula Bentele of Brooklyn Law School and I volunteered to write the amicus brief, which was submitted for the NYSACDL and NACDL as well as NYCBA. We recounted the frustration of private counsel who, unlike institutional defenders, are often involved within a few hours of arrest and are confident that the client will be released at arraignment (either ROR or on bail they can post), but had no remedy for days of delay until Justice Brenda Soloff’s decision granting habeas corpus relief.

The Appellate Division affirmed. Ursula and I, with other volunteers, re-wrote the amicus brief for the Court of Appeals, submitting it for the City Bar as well as NYCBA, NYSACDL and NACDL. The Court of Appeals affirmed. Not only was the case won, but there was an immediate change on the ground. Now, 24 hours was the benchmark, enforced by habeas writs. Fill-in-the-blank habeas forms were distributed to NYCBA members for use in seeking immediate relief. Lawsuits by those held for more than 24 hours without arraignment became viable.

A major, systemic injustice was, if not completely eliminated, reduced by perhaps 2/3, measured in days of traumatic and unnecessary imprisonment. Given the hundreds of thousands arrested in the City each year since 1990, most released at arraignment, it is fair to say that several millions of people have benefitted from Michele’s work, which she continued until recently, e.g., litigation regarding 2004 arrests relating to the Republican National Convention. And, millions more will benefit in the coming years.

This case illustrates the benefits of the private bar and institutional defenders working together and the value of participating in bar association work in general and amicus briefs in particular. It was an immense privilege to contribute in a small way to Michele’s victory. Appropriately, the case will forever be with us under Michele’s name, representing the people of our state: People ex. rel. Maxian on Behalf of Roundtree v. Brown, 77 N.Y.2d 422, 568 N.Y.S. 2d 575 (1990).

Don't forget. Our Annual Holiday Party will be held on Tuesday evening, December 5, 2006 at SPQR Restaurant, 133 Mulberry St., New York.

This party is our winter event, and features an open bar, an Italian hot and cold buffet plus Venetian dessert table, Dixie Land Jazz by Judge Herbert Adlerberg’s “Canal Street Jazz Band”, and, of course, catching up with friends and colleagues.

The honoree this year will be Hon. Laura Ward,whom we will honor for her dedicated service on the bench.

Payments may be made by check or credit card. Checks should be made payable to the “New York Criminal Bar Association,” and sent to our treasurer, Michael K. Bachrach, Esq., 276 Fifth Ave., Suite 501, New York, NY 10001.

To pay by credit card, fax your credit card number, expiration date, and billing address to Michael K. Bachrach at (866) 328-1630. You may also call or email him directly at (646) 797-2776 or michael@mbachlaw.com.

For further information, contact Dinner Committee Co-Chairs Genay Ann Leitman, Esq. at (212) 687-4499 or Mathew J. Mari, Esq. at (212) 227-5335.

BROOKLYN LAW SCHOOL’S ANNUAL UPDATE ON CRIMINAL LAW, PROCEDURE AND EVIDENCE TO BE HELD THIS SATURDAY, 12/2/06

Professor Robert Pitler of Brooklyn Law School is putting on his annual seminar on New York Criminal Law, Procedure and Evidence Seminar on Saturday, 12/2/06, which was not held in 2005. This very popular program may be sold out, so you may wish to check with Brooklyn Law School to see if seats are still available and whether you can pay at the door. If you can still register by mail, send your check for $100 with your contact information to CLPE, Brooklyn Law School, 250 Joralemon St., Brooklyn NY 11201. The check should be made out to CLPE, Brooklyn Law School. The fee for full-time defenders is $90. The registration fee includes lunch and an outline of cases decided between November 2004 and October 2006.

On January 8, 2007, NYCBA will present an ethics program led by Hal Lieberman, former Chief Counsel for the First Department’s Departmental Disciplinary Committee, who was the principal speaker at our ethics program last May. NYCBA Board Member Fred Sosinsky will serve as the moderator for this program and participate in the discussion regarding fees and retainer agreements. Maranda Fritz, who participated with Hal Lieberman in the May 2006 program and was the speaker at the followup ethics program in July, will also be speaker at the January 8, 2007 program, which will be held at 100 Centre St. in the 15th floor central jury room, starting at 5:30 p.m. The program is co-sponsored by the Legal Aid Society.

We have had a number of responses to prior newsletters and emails about trials wanted for second-seaters; as you know, Andrea Hirsch is coordinating NYCBA efforts to match trial lawyers with second-seaters; if you have a trial date in any of your cases, especially a short trial--federal or state--please contact her at aghirsch@rcn.com.

Our last newsletter notes that David Feige, formerly of Bronx Defenders, has written a book entitled " Indefensible: One Lawyer’s Journey into the Inferno of American Justice" (published by Little Brown & Co.). For the prosecution experience, you may wish to look at "Bronx D.A.: True Stories From the Sex Crimes and Domestic Violence Unit", written by former Bronx ADA Sarena Strauss, and reviewed in the New York Law Journal of 11/24/06, pg 2, by Eleanor J. Bader, who describes the book as “gripping, and repulsive, terrifying and dramatic.” If you read this book, please let us know what you think of it.

Recently the Judiciary’s Criminal Rules Advisory Committee has proposed legislation seeking to amend Rule 16 of the Federal Rules of Criminal Procedure, by adding a new Rule 16(a)(1)(H). The amendment would codify the requirements of Brady v. Maryland, Giglio v. United States, and their progeny. The Judiciary’s proposed amendment is as follows:

In response to this proposed new Rule, the United States Attorney’s Office has modified its internal guidelines (click here to view) with respect to Brady/Giglio material in an effort to mollify their critics. While the Government’s new internal guidelines do not create an enforceable right as would the proposed amendment to Rule 16, it should prove useful for all defense attorneys practicing in Federal court to be aware of the Government’s new procedure, and to make certain the Assistant United States Attorney assigned to your case is aware of the policy shift as well.

Each month, we try to point out some of the latest resources that we have posted on our Website at www.nycrimbar.org/. In keeping with that tradition, we note the following items:

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@tulmanlaw.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
Peter G. Schmidt