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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.

Bail Reform in New York State

Beginning in 2020, New York will allow most criminal defendants charged with misdemeanors and non-violent felonies to remain free until their trial date without posting bail. The Bail Elimination Act of the New York Criminal Procedure Law takes effect in January 2020, and it will operate as a major reform that affects not only the defendants who will be released without posting bail, but also defendants for whom bail will still be required.

Every single day, over 12,000 people languish in New York jails without having (yet) been convicted of the offense for which they are being charged. Imagine the following scenario: A suspect is arrested and charged with a crime, and bail is set at $50,000. Since the defendant is too poor to make bail, he remains in jail until trial. At trial, the jury acquits after 20 minutes of deliberation – after the defendant has spent several weeks in jail for a crime he didn’t commit.  

It is this scenario that New York’s bail reforms are designed to avoid. The law is highly controversial, with proponents touting its enlightened approach to criminal justice and jail overcrowding, while critics predict disastrous consequences. 

How Bail Works

Under the U.S. Constitution, a defendant is presumed innocent until proven guilty. But if a defendant is presumed innocent, how can incarcerating that person in jail pending trial be justified? The traditional justification is that, since it is possible that the defendant will miss his trial date out of fear of prosecution, the defendant needs to be detained to ensure his presence at trial.

Under most circumstances, an alternative to detention until trial is bail – the defendant deposits a certain amount of money with the court, which he loses if he fails to show up for his trial (regardless of whether he is ever convicted). If the defendant cannot post cash bail, he can seek the assistance of a bail bondsman who might use the defendant’s property as collateral or seek the assistance of the defendant’s friends or family. Some people cannot afford bail, however.

The Arraignment

An arraignment is a court proceeding in which bail is set for the defendant. Under most circumstances, the arraignment occurs within 24 hours after the defendant’s arrest. This means that, even if he ends up paying bail, he may have already spent the last 24 hours in jail. Under certain circumstances, a defendant may be released prior to his arraignment and the arraignment may be delayed beyond 24 hours after the arrest.

Bail-Free Offenses

As of January 1, 2019, people charged with the following offenses must be released from custody with no bail requirement: 

* Third degree assault

* Bribery

* Coercion

* Criminal possession of a weapon on school grounds

* Criminal possession of a firearm

* Criminal sale of a firearm to a minor

* Second and third degree burglary

* Criminally negligent homicide

* Aggravated vehicular homicide

* Second degree robbery

* Third degree robbery

* Second degree manslaughter

* Aggravated vehicular assault

* Promoting an obscene sexual performance by a child

* Resisting arrest

* Hindering prosecution

* Jury tampering

* Money laundering

According to Critics…

According to estimates, New York’s pretrial jail population will shrink by about 40 percent once the new law comes into force. Critics fear that:

  • Witnesses will be so intimidated by the possibility of retaliation by a non-incarcerated defendants that they will refuse to cooperate with the prosecution, making it impossible to successfully prosecute many guilty defendants.
  • Many crimes will go unreported, because witnesses do not wish to be pressured to cooperate with the prosecution while the defendant is still on the streets.
  • Defendants will simply refuse to show up at trial.
  • Defendants will commit additional crimes while awaiting trial. This concern is particularly acute in the case of someone charged with, for example, vehicular manslaughter (because many such defendants are alcoholics who will inevitably continue driving while intoxicated) and drug dealing (because defendants are likely to return to their former “vocation,” if only to earn enough money to hire a lawyer).
  • The new reforms will increase the proportion of law enforcement resources that must be devoted to tracking people down who skip their court dates.
  • Prosecutors will charge people with crimes that are more serious than the crimes that the prosecutor believes they have committed in order to allow them to be subject to bail requirements.    
  • Courts will dilute the effect of bail reform by holding more defendants under “remand” (detention without bail) where the law allows this.
  • The deterrence effect of the criminal law will be reduced, since the only immediate consequence faced by many defendants will be the functional equivalent of a traffic ticket, followed by ample opportunity to flee the jurisdiction.

By contrast, proponents of bail reform point out that:

  • Bail reform will make overcrowded jails less likely.
  • Incarcerating fewer people will save the state a lot of money.
  • Defendants will be able to continue working and supporting their families prior to trial, protecting many innocent family members of some of the harsher aspects of the justice system.
  • Defendants (especially those who are not guilty, or who are guilty of only minor crimes) will be less likely to lose their jobs and/or their apartments. 
  • Low-income defendants will be treated more equally as high-income defendants.
  • The new system is simply fairer than the current system, since criminal defendants are presumed innocent.

How the Law Works

The following are some of the main features of New York’s bail reform law:

Bail-Free Offenses by Type of Crime

  • Bail will no longer be required in misdemeanor cases, except for sex offenses and violations of a domestic violence protection order.
  • Bail will no longer be required for non-violent felony charges, with exceptions for certain charges such as witness intimidation, conspiracy to murder, and sex offenses.
  • Violent felonies will still be subject to bail requirements, except for a very limited number of charges involving robbery and burglary.

When Bail Is Permitted

  • Even when bail is permitted, the judge must consider the defendant’s ability to pay when determining the amount.
  • A judge has three choices when setting bail: (i) secured bail, in which the defendant pays 100 percent up front, (ii) partially secured bail, in which the defendant pays 10 percent up front and forfeits this amount plus the other 90 percent if he fails to appear in court, and (iii) unsecured bail, in which the defendant pays nothing up front but forfeits all of it if he fails to appear in court. Until now, the latter two forms of bail have been rare. However, the new law encourages judges to use them more often.

Restricted Release

  • If bail is not required, courts must release defendants until trial with no restrictions (such as ankle bracelets) unless there is a significant chance that the defendant will flee the jurisdiction before trial (a “risk of flight”).
  • If money bail is not required but the defendant still poses a risk of flight, the court must select the “least restrictive alternative” when setting conditions on the defendant’s release. This might include a prohibition against leaving the state or a ban on possessing firearms, for example. The judge must explain his decision in writing.
  •  Defendants must be reminded of upcoming court dates through various methods such as text messaging.
  • A 48-hour grace period will be instituted when a defendant fails to show up for court, during which time no bench warrant will be issued against the defendant and the defendant can voluntarily return without penalty.
  • Limitations will be placed on the use of pretrial electronic monitoring. 
  • The court may revoke its original release conditions (by requiring money bail, for example) if the defendant commits certain types of misbehavior such as attempting to intimidate a witness, repeated failure to appear in court, etc.
  • Pretrial Services Agencies will be created in every New York county to supervise defendants released under supervision before trial.

Desk Appearance Tickets

Desk Appearance Tickets (DATs) are issued, if at all, by the arresting officer before the defendant’s arraignment (within 24 hours of the arrest). In this case, the arraignment will be set within 20 days and the defendant will go free until the arraignment. The issuance of DATs is expected to dramatically increase in response to the new bail reforms.

 

Two types of defendants are eligible for DATs:

  • Defendants charged with misdemeanors; and
  • Defendants charged with Class E felonies (the least serious type of felony).

Certain types of defendants are not eligible for DATs:

  • Domestic violence defendants;
  • Sex offense defendants;
  • Defendants charged with escape from custody or bail-jumping offenses;
  • Defendants who might be penalized with suspension or revocation of their drivers’ license (such as DUI defendants);
  • Defendants with a history of skipping court dates; and
  • Defendants who cannot prove their identity.

You Don’t Want to Be a Step Too Slow

A New York criminal prosecution is a very deadline-sensitive process, and missing an important deadline could result in consequences that range from the inconvenient to the disastrous. If you have been freed on bail, it may be somewhat easier for us to work with you, but we are perfectly capable of visiting you in jail if you are unable to make bail.
 

If the State of New York is prosecuting you for  a crime, either with or without bail, you are going to need the help of an experienced defense lawyer as early in the process as possible.

Contact E. Stewart Jones Hacker Murphy, immediately, online or call us to set up a free initial consultation. We maintain offices in Albany, Troy, Saratoga, Colonie, and Latham.

If the State of New York is prosecuting you for  a crime, speak with the highly skilled attorneys of  E. Stewart Jones Hacker Murphy today. Call us now!