Prosecutorial Misconduct and Preservation
As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct. As a soon-to-be new attorney, I am admittedly no exception. Of course, some comments are so egregious that their impropriety is unmistakable. In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote “Prosecutors play a distinctive role in the search for...
read moreUnless a defendant is advised of post-release supervision before pleading guilty, the conviction cannot later be counted as a predicate felony.
If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes — even if the conviction preceded the Catu decision. At least, this is now true for courts within the First Department. In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence...
read moreAnother successful challenge to denial of Parole Release.
We’ve discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board’s imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent’s release in the Matter of Caufield...
read moreFederal Venue: Keeping it Close to Home
By William T. Easton As criminal defense attorneys, we are inclined to think of venue as something we want to change. Thus, we occasionally make a motion for a change of venue based on prejudicial pre-trial publicity. To preserve our client’s right to due process, we want to get out of Dodge– preferably as far away as possible–to avoid the pervasive publicity generally concentrated in the locale where the crime occurred. As a result,...
read moreNACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review
(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous...
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