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Blog

Court Closures Due to Coronavirus

It seems like everything is shutting down in the wake of the coronavirus crisis, to an extent never before seen in modern history. Some services, however, are essential, such as grocery stores, medical treatments, and the court system. Even the New York court system, however, has cut its operations down to “essential services” on the order of Governor Andrew Como, and the federal courts sitting in New York have followed suit.

The following is a rundown of which services are and are not being offered by courts in New York. Be aware that the situation is rapidly evolving, and that as a consequence, some of this information may have changed by the time you read this.

New York State Court System

As of March 16th, all “nonessential” court functions are suspended. See below for which functions are considered non-essential. Please note that, to the extent that the court enjoys discretion in determining whether a matter is “essential” enough to be handled, the court will attempt to minimize the necessary court appearances.

Pending Criminal and Civil Trials: Pending civil trials (lawsuits, for example) and criminal trials will continue without interruption until they are concluded.

New Criminal and Civil Trials: No new criminal or civil trials will start until further notice from the courts. Keep in mind that, in the case of criminal trials, some of the defendants awaiting trial are currently incarcerated because they are being held without bail or because they cannot afford bail.

Special Courtrooms: Within New York state but outside of New York City, special courtrooms have been established in designated courthouses to handle essential matters in a consolidated manner (multiple similar cases, for example, may be handled in a single proceeding for the sake of efficiency). Inside New York City, courthouses will remain open, but only to handle essential matters.

Essential civil matters: New York state courts will handle essential civil matters such as guardianship applications and civil commitments. The court enjoys discretion in determining which matters are considered “essential”.

Evictions: As of March 16th, all eviction proceedings are suspended throughout the state until further notice.

New York City Housing Court: The NYC Housing Court will continue to handle essential matters such as landlord lockouts, repair orders, serious violations of the housing code, etc.

Non-trial criminal matters (Superior Court): The court reserves the right to handle applications concerning essential matters in its own discretion. In addition:

  • The resolution of criminal matters (motions, petitions, etc.) involving a felony defendant who is not currently in custody will be postponed until further notice from the courts.
  • If a felony defendant is currently in custody, the matter can either be postponed or resolved through a video hearing if the location has access to video technology. Video hearings are available throughout New York City.

Criminal matters (lower courts): In New York City, essential criminal matters handled by the lower courts will proceed through video hearings, while outside of New York City, these matters will proceed to the extent that available local technology allows. The same applies to other criminal matters handled by the lower courts, such as petitions for orders of protection.

Arraignments: In New York City, arraignments will proceed through video hearings, while outside of New York City, arraignments will proceed by videoconferencing to the extent that available local technology allows. In New York City, two arraignment sites (the Midtown Community Court and the Red Hook Community Court) have been designated for video hearings on behalf of people thought to be at particular risk for COVID-19 infection.

Family Courts: The family courts will hear only essential matters such as those involving the welfare of a child,  juvenile delinquents, family offenses such as domestic violence, and child support matters.

The Surrogate’s Court: The Surrogate’s Court will handle only essential matters as determined in the court’s discretion.

Court of Claims: The Court of Claims will handle only essential matters as determined in the court’s discretion.

Toll-Free Hotline: The courts will establish a toll-free hotline, open 24/7, to answer questions about court operations during the coronavirus crisis.

Federal Courts (United States District Court for the Northern District of New York)

The US federal courts operate on a completely different system than the New York state courts do, since they answer to federal authority rather than to state authority. Nevertheless, many of the same decisions have been made concerning the scope of the courts’ operation during the coronavirus crisis.

Jury Trials: All jury trials are suspended until April 30th. This suspension applies to both civil matters (lawsuits, for example) and criminal matters. Jury selection procedures have also been suspended for the same length of time. The court may order exceptions to these suspensions on a case by case basis.

Criminal trials: Criminal trials are suspended until April 30th, including bench trials (non-jury trials).

Criminal matters before magistrates: Criminal matters before magistrates such as initial appearances, arraignments, the issuance of search warrants, etc., will continue as usual. Nevertheless, the court may, in its discretion, decide to hear certain matters over the telephone or through video conferencing.

All courtroom activities not related to an ongoing case are suspended until April 30th (group tours, bar association meetings, naturalization ceremonies, etc.).

The District Court Clerk’s Office hours will be restricted to 10:00 am to 2:00 pm Monday to Friday.

Courthouse entry restrictions: As of March 16, 2020, no one will be allowed to enter a courthouse if they:

  • Have traveled abroad within the last two weeks;
  • Live with or have close contact with anyone who has traveled abroad within the last two weeks;
  • Have been asked to self-quarantine by a healthcare professional;
  • Have been diagnosed with COVD-19;
  • Have been in contact with anyone diagnosed with COVID-19; or
  • Has a fever, cough, or shortness of breath.

If you have an appointment to appear in court but are unable to enter because of the foregoing restrictions, please contact your attorney, the Court, your probation officer, your pretrial services officer, the jury department, or the Public Defender’s Office as appropriate according to the nature of your case or concern.

Except for the suspensions listed above, the business of the Court will proceed as usual. The Court will continue to be reachable by telephone and mail, and electronic filings will still be accepted. The April 30th deadline may be extended if circumstances so demand.

Unresolved Issues

At this point, important issues have not been specifically resolved, including the status of court-ordered personal service of process (notices of court hearings delivered in person to defendants).

Mediation and Arbitration

If you are involved in a civil case, you might prefer to resolve your dispute through mediation or arbitration rather than to wait a long time for a trial. Even mediation and arbitration have been affected, however.  The American Arbitration Association, for example, will not hold arbitration hearings in its facilities until at least April 17th, and many of the nation’s mediation organizations have followed suit.

Of course, depending on the nature of your dispute, it may be possible to resolve your dispute by videoconferencing and mail, rather than by a physical hearing. Otherwise, you might consider moving the venue of the arbitration or mediation to an alternate location where it is easier to practice social distancing.

Legal Effects of Long Trial Backlogs

The suspension of all trials during the coronavirus crisis makes sense, but it will have cascading effects that endure even after the crisis ends. The 6th Amendment grants criminal defendants the right to a speedy trial. That right applies whether the defendant is being prosecuted by a state or a federal court, and whether the defendant is out on bail or in jail awaiting trial.

For the moment, the coronavirus crisis can be used to justify a two-month postponement of a defendant’s trial, notwithstanding his right to a speedy trial. The real problem will come once federal courts become overwhelmed with a backlog of cases due to the suspension of trials during the coronavirus crisis. If the courts cannot catch up within a reasonable time, the charges against many criminal defendants might simply have to be dismissed.

Plea Bargaining

Another more disturbing problem involves defendants who are in jail waiting for trial during the coronavirus crisis. Even though these defendants have not been convicted of the crimes they are charged with, they are still incarcerated – perhaps in crowded conditions that are ideal for the spread of a virus. If their trial is delayed for long enough, they might agree to plead guilty to a crime they didn’t commit just to get out of jail sooner.

Lawsuits

The effect of the coronavirus crisis on civil matters, such as lawsuits, is not expected to be nearly as serious. Nevertheless, the inevitable backlog is likely to encourage parties to settle rather than to stand in the back of a long line for a trial.

We’ll Be Here When You Need Us

If you have a concern or a question, there is no need to wait until the crisis is over to inquire about it. Contact E. Stewart Jones Hacker Murphy, through our online contact page or by telephone, to schedule a free initial consultation. The consultation can be done by phone – there is no need to come to our office during the quarantine period.

For future reference, our offices are located in Albany, Colonie, Latham, Saratoga, and Troy.

John F. Harwick, Esq. has been elected to the Board of Directors.

John F. Harwick, Esq. has been elected to the Board of Directors for the Albany County Bar Association for 2020. Formed in 1900, the bar association is  one of the oldest in the country. It currently has approximately 1200 members. Each year it hosts the highest court in the state, the Court of Appeals, at a black-tie gala event. This year’s dinner took place at the Albany Convention Center. Mr. Harwick pictured here with the Court of Appeals in the front row and the ACBA board in the back.

Amid Coronavirus Crisis, Nursing Homes Asking Family Members Not to Visit

Visits to Nursing Homes to be Temporarily Restricted Nationwide

About two and a half million Americans live in nursing homes and assisted living facilities. Unfortunately, the coronavirus is particularly deadly to the elderly – so much so that about 80 percent of all COVID-19 deaths occur among the over-65 age group. The danger to people 80 and older is even more acute, with an overall mortality rate that has been estimated as high at 18 percent.

The high death rate among octogenarians (and the elderly in general), is dramatically higher than any other age group for two main reasons:

  • The elderly typically suffer from weakened immune systems due to the natural effects of aging; and
  • The elderly often suffer from underlying conditions such as diabetes which, when combined with coronavirus symptoms, prove particularly deadly. Elderly patients with respiratory conditions such as emphysema are particularly at risk.

Nursing Homes Take Action

Nursing home residents are among the most vulnerable people in society right now. As a consequence, hundreds of nursing homes have been restricting visitors or even banning them altogether. Although this measure may seem harsh, its logic is impeccable during a time when merely hugging your grandmother could kill her. With the exception of staff, relatives are the people most likely to transmit the virus to residents.

On March 10th, the American Health Care Association, an organization representing over 13,000 nursing homes and similar care facilities, issued a joint recommendation together with the National Center for Assisted Living, urging nursing homes to impose severe visitation restrictions to protect against the spread of COVID-19.

Although these recommendations are non-binding, the Department of Veterans affairs announced the same day that at least 134 nursing homes throughout the nation had already implemented a “no visitors” policy. It is likely that the number of nursing homes implementing such a policy was far greater than 134. The situation has already changed, however.

National State of Emergency Guidance on Nursing Home Visits

On March 12th, President Trump, acting on a recommendation from the Centers for Disease Control and Prevention (CDC), declared a national state of emergency, which not only freed up billions of dollars to fight the COVID-19 virus, but also provided the following guidance to nursing homes:

  • Suspend all visitation, even from relatives, except for extraordinary situations such as when the resident is facing imminent death;
  • Screen everyone who comes into the facility, whether or not they are coming to visit a resident;
  • Temporarily ban all volunteers and non-essential healthcare personnel (HCP);
  • Suspend all group activities;
  • Suspend communal dining; and
  • Frequently screen residents and staff for coronavirus symptoms.

Although the federal ban is not mandatory, New York Governor Andrew Cuomo announced a similar, mandatory ban on nursing home visitation that took effect the next day. The New York ban is arguably even more restrictive, since it requires nursing home staff to wear masks.

How Long Will the Restrictions Last?

Unfortunately, it is impossible to say with confidence how long the coronavirus restrictions on nursing home visitation will remain in place. Ultimately, that depends on how long it takes to contain the virus, and epidemiologists are uncertain as to how long that will take. Estimates of the length of time that social distancing measures, including nursing home visitation restrictions, will remain in place range from a few months to over a year.

Background: The Seattle Outbreak and Its Consequences

Early in the US epidemic, the Life Care Center of Kirkland, a Seattle-area nursing home, became Ground Zero for the coronavirus outbreak in the United States after staff members worked while ill and spread the virus to nursing home residents. At least 35 deaths have been traced to this one nursing home, representing the first cluster of infections anywhere in the United States.

All told, 129 COVID-19 cases linked to the Life Care Center of Kirkland have been identified so far – 81 residents, 34 staff members, and 14 visitors. The Life Care Center enjoys the unenviable distinction of serving as the country’s largest single source of coronavirus deaths, and the ultimate source of about one-quarter of all coronavirus deaths nationwide.

Just How Contagious Is COVID-19? The Percentages

The numbers at the Life Care Center, already shockingly high, look even worse when you take into account the size of the establishment. The Life Care Center housed only 120 residents at the time of the outbreak – two-thirds of whom became ill and over a quarter of whom died.

The grim numbers provide a reminder of just how infectious COVID-19 really is, as well as the necessity of containment measures that might seem draconian under ordinary circumstances. The rate of contagion among the elderly, however, is likely to somewhat exceed the rate of contagion among the general public, because of the weakened immune systems often suffered by the eldelty.

Why It Happened: Lessons from the Life Care Center Tragedy

A number of factors combined to create the “perfect storm” of COVID-19 infections at the Life Care Center. Most prominent among these are:

  • No paid sick leave: Failure to offer paid sick leave to staff meant that nursing home staff members were likely to work while ill because they had no sick leave and would face financial difficulties if they took time off, suggested Dr. Jeff Duchin, public health officer for Seattle and King County. The outbreak represents an unintended consequence of the limited availability of sick leave throughout the United States.
  • Slow response time: Although staff noticed an outbreak of respiratory illness by February 10th, it wasn’t until February 26th that Life Care Center notified Washington state officials. After reviewing 911 call logs, the Seattle Times suggested that staff may have noticed the outbreak even before February 10th. That amount of time is virtually an eternity in epidemiology.
  • Bureaucratic disorganization: Confusion reigned among both nursing home administration and Washington state health officials over whose responsibility it was to test patients for the coronavirus. This “passing the buck” delay wasted valuable time.
  • Lack of access to testing resources: It wasn’t until March 7th, nearly a month after the outbreak had first been noticed by staff, that the Life Care Center obtained enough testing kits to test all of its residents. The testing of residents and staff wasn’t complete until March 14th.
  • A lack of protective gear.

The Nursing Home Crisis Spreads Nationwide

It gets worse. The CDC has concluded that Life Care Center staff members worked at other nursing homes during the same period, spreading COVID-19 to other nursing homes in the Seattle area.

Chicago

By mid-March, 46 people, including 33 residents and 13 staff members, had tested positive for COVID-19 at the Chateau Nursing and Rehabilitation Center in DuPage County, Illinois, in the Chicago metro area.

Florida

The COVID-19 virus is now suspected (and in some cases confirmed) to have infected people in no less than 19 long-term care facilities in Florida. A Florida nursing home coronavirus epidemic is even more threatening than epidemics in other states, because Florida’s nursing home population exceeds that of any other state due to its popularity as a retirement destination.

New York

Apparently, no similar disaster has affected New York nursing homes – yet. Even here, caution is in order because of COVID-19’s long incubation period – you can carry the virus for up to two weeks before you get sick.

Legal Issues

New York State has granted nursing homes and hospitals immunity from civil liability related to COVID-19, except in cases of gross negligence which may be difficult to prove.  Hospitals and nursing homes remain liable for other forms of neglect and abuse.

We’re on Your Side

It is not always obvious when you have a genuine nursing home abuse or wrongful death claim, because you might not know yet whether your loved one’s illness can be traced to the fault of the nursing home or one of its employees. We can help. Contact E. Stewart Jones Hacker Murphy as soon as you can, either online or by calling us directly, to set up a free consultation.

We maintain five offices in Albany, Colonie, Latham, Saratoga, and Troy.

 

New York State’s Hospital Quality Ratings Are Abysmal

doctor talking to male patient

New York City’s performance is even worse than the statewide average

Statistically, New York has the fifth-highest per capita income of any US state. It also enjoys the advantage of the fourth-highest population and the third-highest aggregate GDP. You might conclude that with such a large tax base, the state of New York would offer some of the nation’s best health care services. Unfortunately, however, reports indicate that the truth may be closer to the opposite – at least with respect to the quality of the state’s hospitals.

Although New York spends more on health care than almost any other state does, throwing money at a problem doesn’t always solve it. The unfortunate reality is that, as of 2019, New York’s hospitals were collectively rated the worst among all major urbanized states (states with a population of at least six million population with an urban/rural ratio of 70 percent or higher) by the US federal government.

New York: A New “Lone Star” State?

Slightly over one-third of New York hospitals, a total of 48 hospitals, received the lowest possible “one-star” rating by the federal Centers for Medicare and Medicaid Services. Most New York City hospitals received this rating. In other major industrialized states, anywhere between 4 to 20 percent of all hospitals received one-star ratings. Florida, at 20 percent, is the only state that comes even close to matching New York’s dubious distinction.

These ratings are not arbitrary; they are compiled using data that hospitals are required to report to the federal government such as treatment complications, readmissions, patient satisfaction, and mortality. Obviously, some of these factors are vulnerable to outside influences. People in low-income neighborhoods, for example, being unable to afford doctors’ visits, might allow a minor malady to develop into a condition requiring readmission.

Code Blue

It is widely accepted that hundreds of thousands of preventable deaths occur every year in US hospitals.  In response to this sobering reality, in 2019, the New York Public Interest Research Group (NYPIRG ), a private sector, Ralph Nader-style consumer watchdog group, issued its Code Blue Report that details the failures and inadequacies of private and public hospitals in New York state. New York’s performance average across all hospitals, it noted, is only 2.18 stars.

The five-star rating system is based on several factors, among which New York’s performance was variable but utterly unimpressive:

  • Safety: Most New York hospitals ranked below average, although this was not true for upstate hospitals.
  • Readmissions: Almost all New York City hospitals were ranked below average, and half of all upstate hospitals were.
  • Patient satisfaction: Most New York hospitals ranked below average, along with almost all New York City hospitals
  • Timeliness of care: Most New York hospitals were rated below average, including a stunning 100 percent of New York City hospitals.
  • Mortality: New York’s performance was average among the large industrialized states.
  • Overall: Among the nation’s worst hospitals, as rated by the foregoing standards, more than half are located in the New York City area alone. Disturbingly, Jacobi Medical Center in the Bronx was rated the worst hospital in the United States.

Two generalized conclusions that might be drawn from this data are that highly-ranked hospitals are nearly impossible to find in New York City, and that the quality of state hospitals drops off rapidly outside the upper echelon. The Hospital for Special Surgery, located in New York City, is currently the only five-star hospital in the entire state of New York. The state of Ohio, by contrast, hosts 20 five-star hospitals.

Medicare and NYPIRG Aren’t Alone in Their Assessments

It is not only Medicare and NYPIRG that share this damning assessment of New York hospital care. Hospital Compare, for example, gave the state of New York the lowest quality ranking in the entire nation, while Leapfrog Hospital Safety Grades found New York’s performance to be much worse than the national average.

Reasons Why

The following is a list of only a few reasons that have been proposed for New York’s poor performance:

  • Financial mismanagement and underfunding. New York is in the midst of a budget crisis that is driven largely by Medicare costs. It is becoming increasingly difficult to shuffle funding among various priorities when there isn’t enough to go around in the first place.
  • An insufficiently institutionalized safety ethic among New York healthcare professions might be contributing to the problem. This subjective factor is difficult to quantify, however.
  • The disadvantage faced by teaching hospitals (since student doctors often make mistakes).
  • The disadvantage faced by hospitals located in low-income neighborhoods. In the eyes of some skeptics, this could mean that the gloomy statistics represent unique factors affecting the state, rather than poor performance by health care professionals. But using statistical methods to account for factors such as income, as NYPIRG did, doesn’t make New York look much better.
  • Some highly publicized hospital rankings systems, such as the US News and World Report’s, focus almost exclusively on performance in difficult or specialty tasks, rather than routine care for the chronically ill patients who make up the bulk of the hospital population. This practice could provide hospitals with a distorted set of incentives.
  • Relatively small fines against hospitals whose policies put patients at risk. Although state law allows the Department of Health to issue fines against non-compliant hospitals, this power has not been used aggressively. Only $14,000 in penalties were assessed against New York hospitals in all of 2018, for example – an amount that a hospital could generate from the hospitalization of a single patient for a few days, at most.
    California, by contrast, routinely fines individual hospitals several times as much as New York’s statewide annual total.
  • Some New York hospitals have failed to implement “best practices” (industry standards arising from general consensus such as 24-hour nursing rounds, color-coded armbands, etc.)

Ultimately, a state-funded investigation is probably going to be required to get to the bottom of the problem – or to conclude that the “problem” is actually nothing more than a statistical mirage.

The Bright Spots

There are a few bright spots in this dismal picture. The 2019-20 US News and World Report list of Best Hospitals, for example, named three New York hospitals among its top 20 US hospitals – Presbyterian Hospital, NYU Langone, and Mount Sinai Hospital.

Criticisms of the Ranking System Itself

Numerous criticisms have been leveled at the ranking systems of various organizations. Most of these criticisms take aim at their objectivity in terms of legitimate patient expectations, and the  Association of American Medical Colleges has been a particularly vocal critic.

A few of the most common criticisms of the hospital ranking system appear below:

  • In some cases, the rankings reflect issues that are relatively trivial or at least not very serious, such as noise levels and the average wait time to receive pain medication for a fractured bone. This could provide a distorted impression of the hospital’s overall level of care.
  • Rankings fail to take into account differing conditions faced by different hospitals in different communities. Jacobi Medical Center in the Bronx, for example, rated the worst hospital in the US, defends itself in part by noting that over 150 languages are spoken in the surrounding community, greatly hindering the smoother communication upon which effective treatment relies. The heart of this criticism is the claim that the rankings take very different hospitals, and then improperly place them in a single category, and then judge them against each other.
  • The ratings are biased against New York City hospitals that serve economically disadvantaged populations, because the health of these populations tends to be worse to begin with. The argument is that, if you place a five-star hospital in an economically disadvantaged area of the Bronx, they would lose four of their stars immediately.

What Turns a Bad Experience into a Medical Malpractice Claim

Not every bad medical outcome justifies a medical malpractice claim. Under New York law, you have a medical malpractice claim if:

  • A doctor-patient relationship was formed between you and the defendant (nurses and other healthcare professionals can also commit medical malpractice, however). Normally, this is a matter of course. However, it might become an issue if, say, the passerby who rendered first aid to you after a car accident just happened to be a doctor.
  • During the course of treatment, your healthcare provider failed to meet a professional standard of care. This standard, although much higher than the standard of care required for a non-professional, is generally determined by expert medical testimony.
  • Your healthcare provider’s failure to meet the standard of care directly caused you some sort of physical harm – an undiagnosed disease went untreated, for example; a doctor operated on the wrong body part; or your healthcare provider gave you an infectious disease by failing to properly sterilize the medical instruments used to treat you, etc.

Ultimately, you are more likely to receive an insurance company settlement rather than to have to go to trial.

You Need to Move Quickly

You may not always know when you have a medical malpractice claim because, sometimes, establishing a claim requires an investigation combined with significant scientific and legal expertise. If you suspect that you might have a medical malpractice claim, contact E. Stewart Jones Hacker Murphy immediately, either online or by calling us directly, to set up a free initial consultation. Our offices are located in Albany, Colonie, Latham, Saratoga, and Troy.

Local Attorneys Recognized as “Super Lawyers”

Twelve attorneys from the Capital Region law firm E. Stewart Jones Hacker Murphy LLP were recently selected as 2019 Upstate New York “Super Lawyers” and “Rising Stars” honorees.

E. Stewart Jones, Jr., Founding Partner, was ranked number one in Upstate New York. Managing Partner, James E. Hacker was ranked in the Top 10. John F. Harwick, Partner, was ranked within the Top 25 in the Hudson Valley for Personal Injury.

Partner James C. Knox and Associates Julie A. Nociolo, David I. Iversen and Brett T. Williams were also recognized as “Rising Stars” by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations, and each candidate is evaluated on 12 indicators of peer recognition and professional achievement.

The following E. Stewart Jones Hacker Murphy LLP lawyers, who practice in Upstate New York, were selected for inclusion in the 2018 New York Super Lawyers list:

James E. Hacker – Personal Injury: Plaintiff
E. Stewart Jones, Jr. – Personal Injury / Medical Malpractice: Plaintiff
David R. Murphy – Property Tax Litigation and Disputes
John F. Harwick – Personal Injury: Plaintiff
Michael W. Kessler – Personal Injury / Medical Malpractice: Plaintiff
Thomas J. Higgs – Business Litigation
Meghan R. Keenholts – Personal Injury: Plaintiff
James C. Knox – Criminal Defense
Julie A. Nociolo – Criminal Defense
Patrick L. Seely, Jr. – Real Estate Litigation
David I. Iversen – Personal Injury: Plaintiff
Brett T. Williams – Real Estate Litigation

The firm has offices in Albany, Latham, Saratoga and Troy.

College Student Title IX Defense

Under pressure from the federal government, colleges have been responding aggressively to sexual harassment and sexual assault allegations made by students against other students. Although many of the recent reforms may have been well-intended, some schools have simply gone too far by denying accused students a fair chance to defend themselves. It is situations like these where an experienced Title IX defense lawyer can help.

Background: What Is Title IX, and How Does It Apply to College Student Sexual Misconduct Allegations?

Title IX is a federal civil rights law, signed into law in 1972, that was designed to prohibit gender discrimination in educational institutions receiving federal financial assistance. In April 2011, the US Department of Education interpreted this law as giving the federal government the authority to determine the procedures used by colleges to resolve sexual assault complaints filed by one student against another.

In support of this interpretation, the Department of Education issued its “Dear Colleague”  letter to over 7,000 colleges receiving federal financial assistance. The letter contained the following demands and “guidance”:

  • College tribunals and investigators should apply the preponderance of evidence standard of proof (something like “more likley than not”) in sexual assault cases.
  • Colleges should allow accusers to appeal “not guilty” findings.
  • Proceedings should be completed within 60 days of receiving a complaint.
  • Colleges should not allow accusers to be cross-examined by the accused or his representative.

Consequences

The “Dear Colleague” letter was widely credited with (or blamed for, depending on your point of view)  an immediate and significant increase in the number of accused students being sanctioned or expelled in response to sexual misconduct allegations. This, in turn, triggered the filing of several dozen federal lawsuits by expelled students, demanding that the schools reinstate them and clear their names. Many of these lawsuits were successful.

Trump Administration Response

The Trump administration is widely perceived to be considerably less friendly to the political climate represented by the Dear Colleague letter than the Obama administration was. In September 2017, the Department of Education released a “Q&A”  designed to clarify expectations for schools receiving federal financial assistance. The Q&A softened some of the harsher elements of the “Dear Colleague” letter in the following ways, among others:

  • Schools now have the discretion to raise the standard of proof above the “preponderance of the evidence” standard.
  • Schools are no longer required to allow the accuser to appeal an adverse ruling.
  • Schools should provide written notice to the accused and allow the accused sufficient time to prepare a defense.

The Potential Conflict of Interest

The bottom line is that, despite the softening of the draconian “Dear Colleague” letter policies, the accused enjoys far fewer rights in a university disciplinary proceeding than in a court of law. Although part of the reason for this disparity is that a university, unlike a court of law, cannot imprison an accused, more cynical reasons might be at work as well.

A student who wins a lawsuit against a university for wrongly expelling him on unsubstantiated sexual misconduct charges can demand reinstatement and perhaps a few thousand dollars in compensation. On the other hand, a student who sues the university for failing to properly respond to their sexual assault complaint might be able to demand millions of dollars from the university.

Meanwhile, a school might calculate that it is more likely to place its federal funding in jeopardy by failing to “vigorously” respond to a sexual assault complaint than by failing to provide the accused with a fair chance to defend himself. Both of these factors provide strong financial incentives for the school to err on the side of the accuser, not the accused.

College Disciplinary Procedures: Two Different Models

Colleges generally choose between the following types of disciplinary procedure models:

  • The traditional model: Under the traditional model, an investigation by administration officials, campus police, or a private investigator takes place first. The accused is then entitled to a hearing, at which he can present evidence and call witnesses. The case is decided by a panel or by an individual hearing officer.

 

  • The single investigator model: Under the single investigator model, a single individual – either a school employee or an outside party – conducts the investigation, hears the evidence, and makes the decision.
  • Hybrid models: Some schools use a system that combines features of the two models listed above. For example, one person might investigate, hear evidence, and make a recommendation to a panel that then decides the case.

Your Rights

The US Constitution guarantees the minimum rights you are entitled to in college sexual misconduct disciplinary proceedings. Your college may grant greater rights than this, and if they guarantee them, then they are required to live up to them. The minimum rights you are entitled to, specified below, differ substantially depending on whether you are enrolled in a public school or a private school. The accused enjoys the following minimum rights:

  1. A speedy, fair, and impartial proceeding.
  2. Confidentiality in the disciplinary process. Records of the proceedings are protected by federal privacy statutes such as the Family Education Rights and Privacy Act (FERPA.)
  3. Access to the institution’s written disciplinary policies and procedures.
  4. Fundamental due process, including sufficient advance notice of the proceedings and the opportunity to speak in your own defense. Only public schools are obligated to provide due process; private schools are bound by no such restrictions. Many private schools, however, do offer due process protections even though they are not required to.
  5. The opportunity to submit evidence and call witnesses.
  6. A proceedings administrator with appropriate training in handling sexual misconduct cases.
  7. An advisor or advocate (even a lawyer), who you select, who may be present with you throughout the proceedings, including questioning by an investigator.
  8. The opportunity to exercise your rights without fear of retaliation.

Limitations on Your Rights

The following is a list of some of the most formidable obstacles you are likely to encounter if you face sexual misconduct proceedings in a college setting:

  1. The standard of proof is likely to be low: Many institutions still apply the “preponderance of evidence” standard to sexual assault allegations. Under this standard, you will be found guilty if the totality of the evidence indicates as low as a 50.1 percent likelihood that the allegations against you are true. This can be extremely dangerous in a “he said, she said” situation.
  2. Mediation is disfavored: Where mediation is allowed at all, it is only allowed at the complainant’s option, not yours.
  3. Cross-examination is disfavored: It is unlikely that you will be allowed to directly question your accuser, due to concerns that cross-examination might re-traumatize the accuser.
    Some institutions allow you to present written questions that the accuser can answer outside your presence, while others allow you to pose verbal questions through an intermediary. Even these institutions reserve the right to quash any question or line of questioning.
  4. You can still be found guilty by a college tribunal even if you are acquitted by a criminal court. There are three reasons for this:
  • College disciplinary proceedings and criminal trials are two separate proceedings;
  • Colleges are free to forbid certain sexual conduct that is not illegal under criminal law; and
  • Since the burden of proof in a criminal prosecution is much higher than the burden of proof in a college disciplinary proceedings, acquittal in criminal court doesn’t mean you don’t meet the standard of proof applicable to the disciplinary proceeding.
  1. You may have no protection against double jeopardy: In a criminal proceeding, you enjoy protection against “double jeopardy” – once you are acquitted, it is difficult for the prosecution to mount a second prosecution for the same crime. In campus sexual misconduct proceedings, the accuser often has the right to appeal an acquittal.
  2. You might face a hostile political climate: In the post #MeToo era, you might face a tribunal that is predisposed to believe the accuser and dismiss your denial as simply the attempt of a guilty party to avoid punishment. This kind of political climate is not inevitable, but it is very possible.

What To Do If You Are Accused

Observe the following tips in order to avoid damaging your case:

  1. “You have the right to remain silent…”:  Do not speak about the allegation against you to anyone until you have an advisor to help you prepare a defense strategy and answer questions. Do not speak to your friends and family about your case at all, except perhaps to deny the accusation against you in the most general way. Do not mention your case on social media.

 

  1. Become an expert on your school’s written Title IX policies. At your request, the school administration should either provide these policies to you or tell you where to find them.
  2. Retain a lawyer immediately. You are going to need all the time you can get to prepare a thorough defense.

How an Attorney Can Help You

Under the Campus SaVE Act, you are entitled to the assistance of an advisor of your own choosing, including an attorney. A skilled and experienced Title IX defense attorney can help you in the following ways:

  • Provide you with objective advice. It can be extremely difficult to maintain your objectivity when you are accused of sexual misconduct.
  • Help you formulate an effective defense strategy.
  • Help you prepare for interviews and hearings.
  • Make sure that the school follows its own Title IX procedures.
  • Provide negotiation and advocacy services with the school’s attorneys to achieve an acceptable result behind closed doors.
  • Help you avoid common pitfalls that might damage your case.

We’re On Your Side

If you have been accused of campus sexual harassment or sexual assault, you are going to need to move promptly and decisively. This is because Title IX cases are usually resolved quickly – often within 60 days of the first complaint.

 

If you even anticipate that a sexual misconduct complaint might be filed against you, contact E. Stewart Jones Hacker Murphy immediately, either online or by calling us directly to set up a free initial consultation. We maintain offices in Albany, Troy, Saratoga, Colonie, and Latham.

Reform of the Discovery Process in New York State

On April 1, 2019, the New York state legislature passed a new criminal justice reform bill that, among other reforms, requires significant changes in the pre-trial discovery process. These reforms will be contained in Article 245 of the Criminal Procedure Law.  The new law goes into effect on January 1, 2020, and district attorneys throughout the state are already complaining that they lack sufficient funding to comply with its requirements.

In the discovery process, both sides of a criminal prosecution share information that represents potential evidence for either side. This is done partly to prevent “trial by ambush” – the sudden calling of a witness that the defense didn’t know about and had no time to prepare for, for example. The discovery process is practiced in some form or another in all 50 states.

The “Blindfold Law”: The Current Discovery Process in New York

New York’s current narrow version of the discovery process has been criticized by legal scholars and other jurists because of its “blindfold” approach. Under this approach, the prosecution doesn’t have to notify a criminal defendant of the evidence that will be used against him until the trial actually begins. Only Louisiana, South Carolina, and Wyomng share such restrictive discovery practices. In every other state, information exchange takes place well before trial.

 

The Blindfold Law dramatically affects criminal prosecutions in New York, to the detriment of criminal defendants. Even a completely innocent criminal defendant, for example, might accept a plea deal because he fears that the prosecution’s case is stronger than it really is due to the restrictions imposed by the Blindfold Law. 

The Prosecution’s Obligations under the New Reforms

The new reforms impose the following obligations on the prosecution:

Automatic Discovery

Currently, a prosecutor has no obligation to provide evidence to the defense until the defense issues a written demand for it. Even then, the prosecution must turn over only those materials that are demanded. Under the new reforms, discovery will be automatic. In other words, the prosecution’s obligation to turn over evidence will arise even without a written demand.

 

Both before and after this reform, the prosecution must give the defense an opportunity to inspect, copy, photograph and test all materials relating to the case – as long as the prosecutor is in direct or indirect possession, custody,or control of such materials. 

Evidence of Uncharged Wrongdoing by the Defendant

In some trials, the prosecution will introduce evidence that the defendant committed a crime or other misconduct for which the defendant has not been charged. This typically happens for two reasons:

 

  • It may be a useful means of discrediting the defendant’s testimony at trial, by contradicting a statement made by the defendant or by casting doubt in the defendant’s trustworthiness or reliability; or
  • It may be a useful means of helping to directly prove that the defendant was guilty of the crime for which he was actually charged. 

If the prosecution intends to introduce evidence of this sort, it must provide the defense with any such evidence that it intends to use at trial (or earlier if feasible) and it must state whether such evidence will be used to discredit the defendant’s testimony or to directly prove that the defendant committed the crime that he is charged with.

The Presumption of Openness

Sometimes a dispute arises as to whether a particular item or certain information is subject to the discovery process’s disclosure obligations. The material requested doesn’t have to be admissible evidence – it can be, for example, information that is “calculated to lead to admissible evidence.” Under the new presumption of openness, any doubts as to whether certain information or materials is discoverable are resolved in favor of discoverability. 

What the Prosecution Must Provide

At the very least, the prosecutor must provide the following materials, at least to the extent that such materials are within his possession, custody, or control:

 

  • Names and contact information for anyone with relevant information about the case, including law enforcement personnel (regardless of whether they will testify at trial);
  • Electronic recordings such as telephone calls (particularly 911 calls), regardless of whether the prosecutor intends to use them at trial;
  • ”Brady” materials (materials that are favorable to the defense). Brady materials are already discoverable, but the new law specifically lists the different types of Brady materials that are discoverable.

    These include evidence tending to establish the defendant’s innocence, evidence mitigating the defendant’s culpability even if he is guilty, and evidence calling into question the trustworthiness of a witness that will be used against the defendant, etc. 
  • Search warrants and all related documentation, especially anything used to support “probable cause” for a search or arrest warrant; 
  • An inventory of any property seized by the police; 
  • A transcript of all testimony (in depositions, for example) or other oral communication that is relevant to the case; 
  • Electronically created or stored information that is relevant to the case, such as USB files; and 
  • Any other relevant evidence that the defense demands and the court orders the prosecution to provide. 

Timing

The prosecution is also subject to continuing disclosure obligations. It must provide the defense with new evidence as it becomes available – a last-minute witness, for example. And it must do so within a reasonable time. It is the prosecution’s duty to notify the defense of the existence of such evidence.

Plea Bargaining

The following scenario is common in New York: Someone is charged with a crime. The prosecutor offers a plea bargain without sharing with the defense the nature and quality of the evidence against him. When the defence requests the information it needs to make a rational decision on the plea offer, the prosecutor threatens to withdraw the offer if the defendant insists on demanding discovery materials.

Under the new reforms, however, the prosecution must provide the defense with discovery materials:

 

  • At least three days before the plea bargain offer expires, if the crime is a felony and the defendant has not yet been indicted; or 
  • At least seven days before the plea bargain offer expires under most other circumstances.


The prosecutor cannot threaten to withdraw the plea offer unless the defendant waives his right to discovery. 

Grand Jury Proceedings

If the case will be subject to grand jury proceedings and the defendant has the right to testify (which is almost all of the time), in the runup to the proceedings, the defendant may need to decide whether to plead guilty or to testify before the grand jury with no knowledge of the extent of the state’s evidence against him. 

 

Under the new reforms, the defense has the right to the content of any statements made to law enforcement authorities, either by the defendant or by a co-defendant (a confession, for example), at least 48 hours before the defendant’s grand jury testimony.

The Certificate of Compliance

Under the new reforms, the prosecution must submit a Certificate of Compliance before trial and after it has completed its discovery obligations. The certificate must list the items provided, and it must guarantee that the prosecution has (i) exercised “due diligence,” and (ii) provided the defense with all known discoverable materials. The prosecution must file a new Certificate of Compliance every time the prosecution shares new information under its continuing disclosure obligations.

Defense Discovery Obligations

The defense must comply with its own discovery obligations by providing certain materials to the prosecution within 30 days after the prosecution serves the defense with a Certificate of Compliance. These materials are limited to evidence the defense intends to introduce at trial, including:

 

  • Expert witnesses to be called, as well as the content of their testimony;
  • Any payment or other inducement offered to a witness (expert witnesses are typically paid for their testimony, while co-conspirators may be offered immunity from prosecution);
  • Any electronic or other type of recordings;
  • Photographs, drawings, or charts;
  • Scientific reports and data;
  • Tangible property; and
  • Names, contact details, and birth dates of any witnesses the defense intends to call, except for witnesses used to challenge the credibility of another witness called by the prosecution.

Limitations on Discovery Obligations

In some cases, discovery can be restricted by the court – a prosecution witness’s identity might be concealed for safety reasons if the defendant is accused of being a mob boss, for example. The court has the option of denying, restricting, conditioning, or deferring a request for discovery. Many of these restrictions exist under the present system. However, the new reforms outline them in more detail.

Take Action before Time Runs Out

The new reforms, once they take effect, will make things far easier for a defendant charged with a crime – there will be no more “driving while blind” when considering a plea offer, for example. Nevertheless, defending yourself against criminal charges will remain tricky and complex, especially if the prosecution is highly motivated. 
 

A criminal prosecution is an extremely time-sensitive process, and missing a deadline could result in very unfavorable consequences. If you are being prosecuted for a crime, you need the assistance of a defense attorney as soon as possible. Contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation. We maintain offices in Albany, Troy, Saratoga, Colonie, and Latham.