To The Readers Of The Metropolitan Corporate Counsel:
The New York City Bar Association was established in 1870 to press for improvements in our justice system, and since then it has been dedicated to ensuring that we have a justice system that is accessible to all. In no instance is the effectiveness and integrity of our system more important than in criminal matters, where the stakes are so high for individuals and communities.
The work of the City Bar is influential in large part because of the quality and makeup of the committees responsible for our reports, programs and public comments. Like the association as a whole, our committees are comprised of a cross-section of lawyers, and the work of our committees reflects that balance. Notably, for my purposes today, our committees devoted to criminal matters are made up of both defense attorneys and prosecutors.
On March 15, 2012, the New York State Assembly and Senate passed legislation that will expand collection of DNA from a wide range of felony and misdemeanor offenders. The City Bar applauds the passage of this legislation, because we believe DNA can be powerful evidence both to help prosecutors identify and convict the guilty and defense attorneys exonerate the wrongfully accused or convicted. For collection of DNA to serve both purposes, though, care must be taken to ensure that defendants as well as prosecutors have reasonable access to the collected evidence.
While the DNA legislation will be an important step toward decreasing the incidence of wrongful convictions in New York, more can and should be done. In that vein, the City Bar supports increasing the use of recorded interrogations, clarifying ineffective assistance of counsel claims, and ensuring complete disclosure of exculpatory material.
Recently, the City Bar’s Committees on Criminal Justice Operations and Criminal Courts authored a report proposing amendments to C.P.L. § 440(1) to codify actual innocence claims in New York. The report highlights four key points: 1) The defendant should be required to prove “actual innocence” by clear and convincing evidence; 2) the court should be required to consider all reliable information, without regard to its admissibility under the rules of evidence; 3) actual innocence claims should be available to defendants who have pled guilty; and 4) when a defendant can show a reasonable probability of innocence, he or she should not face procedural bars to having an actual innocence claim heard on the merits.
Besides issuing reports and comments, our committees’ other major public service is in producing panel discussions designed to educate the public and the profession and to stimulate debate on vital legal matters. Several events in March alone address criminal justice matters, with panels on “supermax” confinement (accompanying a report on the same topic), oversight of post-9/11 law enforcement counterterrorism operations, and vacating prostitution-related convictions for victims of sex trafficking. On April 18th, a panel that will include Manhattan District Attorney Cyrus R. Vance, Jr., will address proposals for formalizing Brady disclosure.
Finally, one of our newest committees, the White Collar Criminal Law Committee, will present the City Bar’s First Annual White Collar Crime Institute on May 14th, a day-long CLE program examining the critical developments that have characterized this new era of white collar enforcement, including changes in enforcement in response to the financial crisis and mortgage meltdown, violations of the Foreign Corrupt Practices Act, Ponzi schemes, and insider trading. New York State Attorney General Eric Schneiderman and the United States Attorney for the Southern District of New York, Preet Bharara, will be keynote speakers, and panels will include senior government enforcement officials, judges, academics, general counsel of leading corporations and financial institutions, journalists, and top practitioners in the field.
Samuel W. Seymour