NYCBA Members Newsletter

Welcome to the October 2007 issue of our Newsletter.

President's Message:

For the past several months I have had the honor of serving as the President of our organization. I am presently away from New York City on trial in a federal death penalty case United States v. Jelani Solomon in the United States District Court for the Western District of Pennsylvania in Pittsburgh. Notwithstanding my work on that case, as learned counsel, I have had the opportunity to address several matters of critical importance to our membership.

First, the Judges of the Southern District are proposing a mentoring program for the Southern District to serve as a training ground for participation on the Southern District Panel. The Mentoring program has been developed by Peter Quijano with critical input by Edward Wilford, Bobbi Sternheim, Fred Cohn, Gary Villaneuva and myself. We have also had the active participation of Xavier Donaldson, the President of the Metropolitan Black Bar Association. The goal of this program is to increase diversity on the C.J.A. panel by providing intensive training for anyone interested in participating. Many of you will be approached to lend your years of expertise to mentor young attorneys interested in developing federal practice skills.

On Friday, October 12, 2007, I was asked to accompany Judge John Gleeson down to Washington, D.C. to make a presentation before key staff members of the House and Senate Appropriation Committees and other senior budget analysts. The purpose of the meeting was to inform key decision makers of the need for an increase in C.J.A. compensation in capital and non-capital cases. Judge Gleeson delivered a moving presentation, which traced the history of the C.J.A. back to the 1963 Supreme Court decision in Gideon v. Wainwright. Judge Gleeson and I were also joined by Kathleen Williams, Federal Public Defender from Miami, Florida, Ruben Cahn, Federal Public Defender from San Diego, California, Jeffrey "Chip" Frensley, in coming Chief Criminal Justice Act Panel Attorney and Ted Lidz, Assistant Director, Office of Defender Services. It was a powerful presentation which we are all confident will result in an increase of the C.J.A. hourly rate.

I have also been approached by the Metropolitan Black Bar Association, which has expressed an interest in participating in a joint program during Black History month. Several interesting programs are on the drawing board and we look forward to improving our relationship with other Bar Associations which share our interest in providing excellent legal representation for indigent defendants.

Finally, I want to recognize Richard Jasper, Michael K. Bachrach, Kenneth Kaplan (for Ronald Mallay); Ephraim Savitt, Steve Zissou, Doric V. Sam and Ying Stafford (for Richard James) for their outstanding dedication, hard work and commitment which resulted in life verdicts for both defendants in United States v. Ronald Mallay and Richard James before Judge Johnson in the Eastern District of New York. Our membership has responded mightily to the increase in federal death penalty prosecutions both here in New York City and around the country.

Yours for a better defense,

Tony Ricco,
President
email: tonyricco@aol.com

Upcoming Events:

Federal Death Penalty Strategy Session - November 9-10, 2007:

The annual Federal Death Penalty Strategy Session is scheduled for Friday and Saturday November 9-10, 2007 in Baltimore Maryland at the Marriott Inner Harbor at Camden Yards, 110 South Eutaw Street. 

The training itself is free of charge.  This training is intended for CJA attorneys, Federal Defenders, mitigation specialists and investigators assigned to represent persons charged with or convicted of federal capital offenses and will cover, among other possible topics, review of legal and case related developments as well as other issues relevant to federal death penalty litigation.  There will also be presentations related to developing and presenting mitigation evidence as well as mental health issues.

Annual Holiday Party:

Our annual Holiday Party will be held on Thursday, December 12, 2007, 5:30 p.m. – 9:00 p.m., at SPQR Restaurant, 133 Mulberry Street in Manhattan.Mark your calendars for what will be another fun event.  This year’s honoree will be Judge Michael Obus, and as always there will be an open bar, buffet dinner, and live jazz.  Invitations will follow in the mail shortly and we hope you all will be able to attend. 

NYCBA Web Site Features:

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:

• We have posted on the "Decisions" section of our website a copy of Judge Koeltl's opinion and order in Washington v. Poole, No. 06 Civ. 2415 (JGK) (S.D.N.Y. Aug. 27, 2007),in which Judge Koeltl concluded that New York State's persistent felony offender statute (N.Y. Penal Law § 70.10) (PFO) violates a criminal defendant's Sixth Amendment right to a jury trial because it allows judges to find facts that can lead to a sentence beyond the statutory maximum. This decision comes five months after Eastern District Judge John Gleeson made a similar ruling in another habeas case, Portalatin v. Graham, No, 06 CV 5002 (JG) (E.D.N.Y. March 22, 2007). (See the March 2007 edition of the NYCBA Newsletter). For a summary of Judge Koeltl's ruling, see "State Persistent Felon Law Held Invalid by U.S. Court - Mixed Federal Rulings Puts Statute in Play," by Mark Hamblett, New York Law Journal, August 29, 2007.
  
  
  
• We have posted on the Legal Research section of our Website a copy of a noteworthy, 127-page Report on the impact of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on habeas corpus litigation in the United States. The Report, entitled “Habeas Litigation in U.S. District Courts,” was published by Vanderbilt University School of Law and the National Center for State Courts, and was authored by a team of people led by Prof. Nancy J. King.
  
  The two-year study was the first to examine empirically the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court. The authors examined nearly 2,400 non-capital cases, randomly selected from among the more than 36,000 habeas cases filed in federal district courts nationwide by state prisoners during 2003 and 2004, and more than 360 death penalty cases filed in 13 federal districts between 2000 and 2002.
  
  Among other things, the Report (which was partially funded by the National Institute of Justice) made the not-surprising finding that, since the enactment of the AEDPA, the rate at which Federal district courts have granted writs of habeas corpus has declined from approximately one in every one-hundred habeas cases filed to one in every three-hundred cases. An executive summary of the Report can be accessed by clicking here.
  
  

Member News:

• Congratulations to Edward V. Sapone who has been elected to the Board of Directors of the NYCBA to fill the unexpired portion of the term of Michele Maxian, who passed away on November 14, 2006.
  
  
  
• Congratulations to NYCBA Director Dan Hochheiser for his outstanding work on an amicus brief in the Second Circuit's recent amended decision in U.S. v. Cavera, No. 05-4591-cr (2nd Cir. Oct. 11, 2007). Dan was appointed as amicus curiae counsel in this case by the panel; and, in rendering its revised decision, it commented that Dan had exhibited "comendable candor" in his brief.

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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
Peter Schmidt