Chief Judge Jonathan Lippman Announces Proposal for New Youth Court and New Safeguards Against Wrongful Convictions As Top Legislative Priorities

A new youth court handling the cases of 16 and 17 year olds and new safeguards against wrongful convictions are among the top priorities which Chief Judge Jonathan Lippman will be presenting to the Legislature, he announced Tuesday in his State of the Judiciary address. The Chief Judge's wrongful conviction safeguards are broader than proposals focused only on DNA collection and include requiring the videotaping of interrogations.

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told The New York Times that failing to link wrongful conviction reforms to proposals to expand the DNA collection would be “to essentially turn a blind eye and focus only on one part of the problem involving DNA.” Banks told The New York Law Journal that "we have grave concerns about a piecemeal approach to wrongful convictions that only focuses on DNA and doesn't also focus on discovery reform. Every day, wrongful convictions result from the fact that we still have trial by ambush in New York State. Discovery reform has to be on the table."

The New York Times
In Albany, Top Judge Seeks to Curb False Convictions
February 14, 2012
By John Eligon

ALBANY — Instituting new safeguards against wrongful convictions and raising the age at which criminal defendants are considered adults should be top priorities of legislators and the legal community in New York, the state’s chief judge said Tuesday.

Delivering his annual State of the Judiciary address from the wood-paneled, red-carpeted Court of Appeals chamber, the chief judge, Jonathan Lippman, laid out several proposals that he planned to deliver to the Legislature. One would create a new youth court that would treat 16- and 17-year-olds convicted of nonviolent crimes as juveniles. Another would call for videotaping interrogations of criminal suspects.

Preventing wrongful convictions needs to be included in the discussion over expanding the state’s DNA database, Judge Lippman said, putting his weight behind those who said a State Senate proposal did not go far enough toward meeting that goal.

“Even one wrongfully convicted person is one too many,” he said.

The Republican-led Senate recently passed a bill that would require all convicted criminals to submit a DNA sample for the database, attaching no other provisions to it. Now, all convicted felons and some, but not all, people convicted of misdemeanors must give DNA samples.

Members of the Democratic-majority Assembly — led by Judge Lippman’s childhood friend, Speaker Sheldon Silver — have been reluctant to pass a database expansion bill unless it included provisions that would give defendants greater access to DNA tests, which can exonerate innocent people.

“This is a grand opportunity to put together legislation that really directly impacts what I do believe is a stain on the justice system,” Judge Lippman said after his speech. He stopped short of saying a DNA expansion bill must include protections against wrongful convictions.

“There could be nothing more horrible than an innocent person being convicted of a crime while the perpetrator is free to commit more crimes,” he said.

The Senate majority leader, Dean G. Skelos, a Republican from Long Island, said he would “look at all the judge’s proposals,” but cautioned that many small communities would have difficulty videotaping interrogations.

In addition to videotaping interrogations, which Judge Lippman said would reduce coerced confessions and violations of suspects’ rights, he called for legislation that would loosen the restrictions on allowing eyewitness photo identifications into evidence and give judges the authority to order DNA evidence from a crime scene to be compared with the state’s database.

While commending Gov. Andrew M. Cuomo’s push for database expansion, Judge Lippman said that was just part of a larger effort to prevent wrongful convictions.

Steven Banks, the attorney in chief of the Legal Aid Society, said that failing to link database expansion to wrongful-conviction reforms would be “to essentially turn a blind eye and focus only on one part of the problem involving DNA.”

Judge Lippman also called for legislation that would essentially raise the age at which defendants in nonviolent cases are considered adults, to 18 from 16. To keep from overburdening Family Court, which hears such cases involving juveniles, his proposal calls for judges in adult-offender courts to act as Family Court judges when presiding over the cases of nonviolent 16- and 17-year-olds. Those found guilty under this arrangement would be eligible for less-severe Family Court adjudications, which often include treatment; the cases would also be sealed and the defendants would not be saddled with criminal records.

“Treating 16- and 17-year-olds as adults flies in the face of what science tells us about adolescent development,” Judge Lippman said.

New York and North Carolina are the only states that try 16- and 17-year-olds as adults. Court officials say the proposal would apply to most defendants of those ages — about 87 percent of the roughly 46,000 16- and 17-year-olds charged with crimes in 2010 were accused of nonviolent offenses.

“We just know from too much experience that violent criminals start out as nonviolent offenders,” said Richard M. Aborn, the president of the Citizens Crime Commission, who has worked with Judge Lippman on the issue. “The goal is to intervene with those kids early and steer them away.”

New York Law Journal
Youth Court, DNA Top Lippman's Agenda
February 15, 2012
By John Caher

ALBANY - A new "youth court" to deal with non-violent 16- and 17-year-old offenders, and an expanded DNA databank with novel protections against wrongful convictions, highlight Chief Judge Jonathan Lippman's legislative agenda.

In a State of the Judiciary address delivered Feb. 14, the chief judge said he will submit legislation this month to create special youth courts combining the rehabilitative elements of Family Court—such as sealed records—and the procedural safeguards of Criminal Court.

He also proposed the collection of genetic fingerprints from all persons convicted of felonies and Penal Law misdemeanors, similar to legislation supported by Governor Andrew M. Cuomo.

However, the chief judge would link DNA expansion with several initiatives designed to eliminate wrongful convictions.

Judge Lippman (See Profile), in his address at Court of Appeals Hall, also called for enhanced civil and criminal legal services, announced a special court part to handle foreclosure-related settlement conferences, named a new task force on commercial litigation and urged the expansion of mandatory e-filing of court documents to all cases.

His youth court proposal, which Chief Administrative Judge A. Gail Prudenti alluded to during budget testimony late last month (NYLJ, Jan. 31), is based on the premise that "prosecuting adolescents charged with non-violent conduct in the criminal courts does not improve public safety or the quality of life in our communities."

New York and North Carolina are the only states that prosecute 16- and 17-year-old offenders as adults.

Under the initiative, 16- and 17-year-old youths charged with relatively minor offenses such as petit larceny, low-level drug crimes, trespassing and vandalism would be adjudicated in a hybrid court.

Initially, they would be placed under probation supervision for a period of "adjustment."

If the prosecution continued, a specially trained judge would preside in a court like that for adults with all the mandatory procedural safeguards of Criminal Court, coupled with the Family Court protections.

For example, a youth found guilty in the special court would not have a criminal record, records would be sealed and the sentence would be based on the "least restrictive alternative available," the Family Court standard. Simultaneously, however, they would be afforded the speedy trial, bail and other due process rights of Criminal Court.

"This approach puts first and foremost an emphasis on rehabilitation for adolescents, rather than incarceration," Judge Lippman said. "The present punitive approach turns children into hardened criminals and must be changed if we are to ensure a meaningful future for kids who find themselves in the throes of the justice system."

Last month, pilot youth courts were established in the five boroughs of New York City, Nassau and Westchester counties and the cities of Buffalo and Syracuse (NYLJ, Feb. 2).

Judge Lippman said he will submit legislation later this month to create a full-fledged youth court within the Supreme Court in New York City and county courts outside the city.

DNA Databank Expansion

Judge Lippman's proposal to expand the state's DNA databank is part of a package of initiatives to eliminate wrongful convictions.

Currently, a DNA sample is required only following a conviction to a Penal Law felony or one of 35 Penal Law misdemeanors.

Mr. Cuomo and the state Senate would expand the databank to include all Penal Law misdemeanors and all felonies.

Judge Lippman would go several steps further in linking all-crimes DNA to enhanced post-conviction access to DNA, mandatory videotaping of certain interrogations of suspects in certain felony offenses and legislation that would permit the admission at trial of an eyewitness' pretrial identification of a defendant's photo, which is currently barred.

The admission of photo identification evidence would come with an "important safeguard"—the identification procedure would have to be administered by a person who does not know the identity of a suspect or, where that is not practical, does not know that the suspect's photo is in the array examined by the witness.

"We must tackle the scourge of wrongful convictions—innocent people convicted of crimes they did not commit," said Judge Lippman, who in 2009 appointed the nation's only permanent judicial task force charged with addressing wrongful convictions. "When an innocent person is convicted of a crime, the individual's liberty is irretrievably and unjustly taken while the real perpetrator remains free to continue to prey on the public."

Judge Lippman delivers his State of the Judiciary address at the New York Court of Appeals in Albany. Photo: Hans Pennink

Barry Scheck, cofounder of the Innocence Project at the Benjamin N. Cardozo School of Law, said New York has more wrongful convictions than nearly every state. He said the protections proposed by Judge Lippman would "put New York back in the game."

Assembly Judiciary Committee Chairwoman Helene E. Weinstein, D-Brooklyn, said the additional safeguards are crucial to winning support in her chamber for an all-crimes DNA databank, which is generally opposed by defense organizations.

Steven Banks, attorney-in-chief of the Legal Aid Society, said that while the increased access to post-conviction DNA and other initiatives, such as videotaping confessions, are "steps in the right direction," he will not support expansion unless it also includes discovery reform.

"We have grave concerns about a piecemeal approach to wrongful convictions that only focuses on DNA and doesn't also focus on discovery reform," Mr. Banks said. "Every day, wrongful convictions result from the fact that we still have trial by ambush in New York state. Discovery reform has to be on the table."

Senate Majority Leader Dean Skelos, R-Rockville Centre, said the provision requiring police to videotape interrogations could be problematic.

"I think videotaping in many communities is very difficult to do because they don't have the facilities," Mr. Skelos said. "But we will review all his proposals and see if they work."

Under Judge Lippman's measure, videotaping would be required when a suspect is in custody at a place of detention and is being questioned about a serious felony. Failure to videotape, absent good cause, could be grounds for suppressing a defendant's confession.

Also in the State of the Judiciary address, Judge Lippman:

  • Renewed his commitment to the long-range goal of ensuring that defendants in city, town and village justice courts are provided with counsel at their initial appearance.

    It is greatly troubling and entirely unacceptable that newly arrested defendants can be arraigned before a judge, have bail set, and be incarcerated—all without a lawyer present," Judge Lippman said. "It is so basic to fundamental fairness that criminal defendants are represented, at every critical stage of the process, by qualified counsel."

    The chief judge said monies from the state's indigent legal services fund would be used to help counties work toward the goal of ensuring representation.

  • Announced an initiative in conjunction with the New York City Bar and banks to afford distressed homeowners more opportunity to work out loan modifications.

    Under the initiative, a special court part will be established, with settlement conferences calendared on a specific monthly schedule with each week dedicated to a particular bank's cases and legal service providers available to assist unrepresented homeowner.

    When the case is called…there will be no more excuses, no more delays," Judge Lippman said. "Real negotiations will take place, and homeowners will leave the table with the best available offer."

    Officials said several banks, including Chase, Bank of America, Wells Fargo and Citibank, are already on board.

  • Announced a new Task Force on Commercial Litigation in the 21st Century, co-chaired by former Chief Judith S. Kaye, who in 1995 started the Supreme Court Commercial Division, and Martin Lipton of the firm of Wachtell, Lipton, Rosen & Katz.

    Judge Lippman said the task force would seek new legislation to amend the Court of Claims Act to establish a new class of judges who would be drawn from the ranks of "seasoned commercial practitioners" to supplement the Commercial Division's roster.

    It is time to take a fresh look at ways to enhance our stellar Commercial Division," Judge Lippman said. "We must seek to create an even more hospitable environment for business.

  • Again calling for a "paperless" court system, the chief judge urged the passage of legislation to extend mandatory e-filing to all cases statewide (NYLJ, March 3, 2011). He noted that mandatory e-filing has been instituted for some cases in Manhattan, Westchester and Rockland counties and will be extended to Surrogate's Court in Erie, Monroe and Chautauqua counties, effective March 1.

    It has now been more than seven years since the federal courts of this state mandated e-filing in all cases, both civil and criminal," Judge Lippman said. "It is time for us to do the same.