Counsel for the Defense: Effective Representation in Criminal Cases

While it has been said that ineffectiveness of counsel is always an issue for appeal, it is only recently that ineffectiveness of counsel has emerged as the issue for appeal. There also seems to be a resurgence of pro se appeals and attacks on Assigned Counsel.

A law school professor advised: “A criminal attorney does not try a case; a criminal attorney makes a record for appeal.” The words of that young professor have never been truer or more prophetic from a man who grew up to be an Associate Justice of the New York State Court of Appeals. When I reminded Joe Bellacosa of these words years later he said “I said that? I really was smart, wasn’t I?”

The initial discomfort of the criminal defense lawyer may never be overcome. Everyone wants to help and more likely than not, your client will be incarcerated. This means that despite receiving a lot of information, it is often inaccurate, passed on like a game of telephone from person to person with unknown or hazy sources. Conversations with your client are anything but spontaneous and – rule one – always in person (all conversations on correctional center telephones are recorded and although conversations between inmates and their attorneys are supposed to be confidential, once they exist, they are forever and efforts have been made to permit such conversations to be used in evidence).

For this review assume that we are called by a distraught client whose child has been arrested for a serious felony charge in Nassau County. Venue is important because different counties begin the process somewhat differently. For example, in New York City, arraignments are conducted 24 hours a day, seven days a week. Not so in Nassau where arraignments are a daytime affair and weekend hours are limited.

The Beginning
First, remember to tell your client – and his or her parent – that we continue to have the right to remain silent and exercising that does not signal to anyone that the person who is now the “defendant” is a bad person. If you believe that having a conversation at the precinct would be useful, speak to your client first and then ask the detective to join you. Do not be afraid to advise that your client will say nothing or to stop the conversation at any point. Do not permit your client to sign anything no matter what.

Next will be the appearance in Arraignment A (Arraignment B is for persons issued appearance tickets and generally only for misdemeanors) and a bail application on behalf of your client. If you believe that your client will be held on substantial bail, have alternatives to present to the court such as a bed in a drug treatment facility. Bail is granted as bond or a cash alternative and whether or not your client is going to make bail will determine your next steps. If your client makes bail, you are in a position to obtain a later return date (again, in Nassau, that date will be in felony Part 9) giving the district attorney more time to evaluate your case. That additional time may or may not be to your advantage. If your client remains incarcerated on a weak or bad case, you do not want your client to languish while you explore an inappropriate plea offer with the district attorney’s office. The People are obliged to conduct a felony exam or indict the defendant within a matter of hours under the Criminal Procedure Law. Both proceedings are to determine if the People have probable cause to prosecute. Neither process prevents a future prosecution of your client, but your client will be released if the court or the Grand Jury, respectively, finds no probable cause for the arrest. CPL 180.80 release does not end the case; the charges will remain pending and the case will be waived to the grand jury for further proceedings. No true bill by the Grand Jury ends the criminal prosecution and does not prevent prosecution in the future with leave of the court under CPL 190.75.

Trouble Spots
The defense attorney has to know the strength of the People’s case to determine whether or not a matter should languish for a time in Part 9, if a felony exam should be demanded or if the matter should be immediately waived to the Grand Jury. Know that in Nassau, once the case is indicted, there is rarely a plea bargain offered. Once a demand is made for a felony exam, the case is almost always presented to the Grand Jury before the time for the demand has expired. That means that the defense attorney must be ready to go to the Grand Jury within a matter of days determining, at the first instance, if his client intends to testify. If you are assigned counsel, you have gotten an order for a private investigator already. If you are retained, you have cajoled your client into retaining a private investigator. It takes very little time to assess the need for an investigator. Get an order. Even if, in the end, you do not need it, the time to prepare the affidavit is minimal and the form provided by Assigned Counsel is readily accepted by the court. All this time your client wants nothing but out. Take the time to explain the consequences of an indictment to your client and take the time now to determine if that is in the client’s best interests. Absent an acceptable plea offer, the case will go to the Grand Jury.

Unless your client is out, no matter should linger for the permitted 120 and 150 days the court now gives for a case to remain in conference status in Part 9. Even if your client is not incarcerated, he or she is entitled to a resolution of a pending felony case. Once the case is noticed for the Grand Jury the first decision is whether or not your client testifies. Rarely is it wise to subject your client to a Grand Jury proceeding. Since almost all indicted cases will go to trial, this is just another statement of your client that can be used against him.

It is once the client is indicted and arraigned on that indictment that you will finally have some information on the strength of the People’s case through a pleasant perversion of the CPL called “Voluntary Disclosure” (VDFs). An administrative decision was made years ago that eliminating pretrial motions would both streamline the process and save time and expense for Legal Aid and Assigned Counsel. The latter may have been accomplished but certainly not the former. Read the VDFs carefully and do not consider the “Stipulation in Lieu of Motions” as a pro forma exercise. If you have not completely evaluated the case, reserve your right to make further motions should you find them to be necessary. Filing deadlines are short. It is not only the Defendant who needs to be creative at trial. The attempt by the People to introduce evidence at trial with a novel twist must be addressed and failure to preserve the right to move or engage in a pretrial hearing can be costly to the defendant. The VDFs also contain representations about information that is available but not reproduced there, such as information on related but non-codefendant matters. Make sure demand for such information is made immediately so that your investigator can initially follow up and you have every tool available.

Discovery and Pre-Trial Hearings
Read every section of the CPL that relates to discovery for every case (Article 240). It is a check list and we fool ourselves if we think we will remember we are entitled to or should ask for “”anything required to be disclosed … pursuant to the constitution of this state or the United States.” (CPL § 240.20 (h)). When evaluating defects and legal errors in the People’s case go with your gut – if it feels wrong, there might just be a legal challenge available. If not, it might be time to make new law. The most common issues for challenge are identification (the “Wade” hearing)1 statements (Huntley),2 probable cause (Dunaway),3 and physical evidence (Mapp).4 Do not overlook the special rules of home searches (Payton).5 However, especially in this electronic age, the rules of all evidence collection are changing. Do not assume that these are your only options. In co-defendant cases, identify conflicts as soon as possible. If you are ready for trial and your co-defendant is not, getting a severance can mean months to your client. Is there a confidential informant (Aguilar/Spinelli)?6 An absent witness (Mastrangelo)?7

Once the pre-trial hearings have been held and rulings made, the trial for the People becomes clear. But remember to make your record when the pre-trial rulings go against you. Your objection at the hearing does not continue to the trial. If the court found the identification procedure lawful, when that evidence is presented at the trial, renew your objection. Remember, to this point, the Defendant has not offered any evidence at all but merely attempted to limit and define the evidence of the People. It is essential that all objections to that evidence be preserved, particularly if the Defendant will not offer any other evidence.

Trial and Post-Trial
It is impossible in a few hundred words to “try a case.” Instead we return to Judge Bellacosa’s admonition: do not try a case; make a record. Statistically, very few Defendants actually present a defense case. This is not a failure: it is the law. The People have the burden of proof and this only rarely shifts (e.g., affirmative defenses such as duress or alibi). Never shift the burden of proof by your acquiescence to the People’s attempts to introduce evidence which should not be introduced. Make sure your exception is noted for the record on an adverse ruling. Do not be pushed. If you need a break, ask for one.

After the People’s case is concluded, take time before making your final decision on presenting a defense case. Take time before you make your pro forma motions. Although the old adage that your closing argument should be written before your opening argument is true, ask for time to prepare your closing. Should the verdict be against you, ask for time to prepare your post-trial motions.

Closing the Book
The Constitution of the United States and of New York require only “due process” in criminal proceedings. It has taken nearly 300 years to define what that is and the definition changes constantly. Ten years after Crawford v. Washington8 seminars hawk “major developments” in the interpretation of the Confrontation Clause “post Crawford.” All of the proceedings known by the name of the defining case in the area were once not the law and most have been modified since their initial holding. A footnote in Crawford states: “The Chief Justice complains that our prior decisions have “never drawn a distinction” like the one we now draw …. But nothing in these cases contradicts our holding in any way … we disagree with the Chief Justice’s reading of the case.” We are called upon as criminal trial lawyers each day to disagree with the prosecutor’s reading of the case as well as to call for changes in the law. (Many thanks to Chuck Weinschreider for his list of “Legal Issues by Popular Name.”)

Adrienne Flipse Hausch, a member of Carway and Flipse in Mineola, practices extensively in the area of criminal defense in Nassau and the surrounding area in both the state and federal courts; she served as Editor of the Nassau Lawyer from 1989-1990 and again for two years from 1998-2000.