Criminal Law for the Civil Practitioner

Criminal Law for the Civil Practitioner:

Understanding and Navigating NYC's Criminal Justice System

2015 LEAP Conference

Presenters

Mary Beth Anderson, Urban Justice Center

Christa Douaihy, The Bronx Defenders

Outline

1. Introduction (Mary Beth)
2. Context
3. Growth of mass incarceration in the U.S. and New York
4. People who are likely to become involved in the criminal justice system
5. NYC criminal court system

(a)Most common arraignment charges

(b)Breakdown of dispositions

1. People with mental illness: Increasing numbers in criminal justice

(a)Special considerations in working with people with mental illness in criminal justice system

1. Impact of trauma on people in criminal justice system

(a)Gender and Trauma

1. New York State Attorney and Judicial Ethics:Working or Interacting with People with Mental Health Issues (Mary Beth)
2. People with mental health issues are present in our civil and criminal courts every day. Some are litigants; some are witnesses; some are lawyers, judges, or other court personnel. Courts are not always accommodating to people with mental health problems. If a person has serious mental illness, and is symptomatic, the person may have difficulty sitting quietly in court, have difficulty understanding the proceedings, or communicating. Some people with mental illness may display emotion in ways that are inappropriate or too intense; others may seem to be flat or emotionless, completely detached from the proceedings. It is essential – for ethical and other legal and practical reasons – that people who work in the courts understand how to better work or interact with people who are experiencing mental health challenges.
3. Common Court Proceedings for Litigants with Mental Health Issues
4. People with mental health conditions may be litigants in any sort of court proceeding, but there are some proceedings where a person’s mental health condition might be the subject of the court proceeding, or may have led to the litigant’s appearance in the particular court.

(a)For example, a person with mental illness may be subjected to civil court proceedings under the New York State Mental Hygiene Law. Such proceedings include those in which medication over a patient’s objection is sought, where a hospital seeks to commit a patient involuntarily, assisted outpatient treatment proceedings, and commitment or civil management proceedings for individuals with histories of sexual offending. Sometimes, when a person is so unwell that the person is unable to manage the needs of daily life in any minimal fashion, the person may be subjected to guardianship proceedings.

1. There are some criminal proceedings that may have a direct relationship to a person’s mental health status, including those related to capacity to proceed to trial (governed by Criminal Procedure Law Article 730) or proceedings pursuant to section 330.20 of the Criminal Procedure Law, related to a finding of that the accused is not responsible for the charge criminal act, due to mental disease or defect.
2. In criminal courts, there is additional focus on mental health in many of the alternative-to-incarceration treatment courts. Legal staff who work in treatment courts need to be familiar with their ethical obligations in this court setting; most of these ethical obligations are similar to those that guide lawyers and judges in other court settings.
3. What follows is a guide to some of the ethical concepts that provide guidance to lawyers representing people with mental illness, to prosecutors who encounter witnesses or defendants with mental illness, and to judges who preside over courtrooms where people with mental health conditions appear. This guide deals generally with ethics and also includes a section relevant to those who practice in problem-solving court settings. The section on problem-solving court settings includes information about the ethical obligations of treatment professionals who appear in these courts.

1. Ethical Obligations for Legal Professionals Who Interact with People with Mental Illness (Mary Beth)
2. Judges
3. Judges in New York State adhere to the Rules of the Chief Administrator of the Courts Governing Judicial Conduct, which is located in Chapter 22 of the New York Code of Rules and Regulations (NYCRR), part 100. There are no provisions in the code that specifically advise judges on how to relate to people with mental illness that appear before the court, other than two provisions that mention that (1) judges "shall not manifest bias or prejudice . . . based upon . . . disability" and shall require staff and others under judicial control "to refrain from such words or conduct" (NYCRR § 100.3 (B) (4)) and (2) judges shall require lawyers appearing before them from manifesting bias or prejudice based upon disability (NYCRR § 100.3 (B) (5)), and one provision that requires judges to weigh the privacy interests of people with mental illness who are involved in proceedings under the mental hygiene law, in order to determine if those proceedings should be open to the public (NYCRR § 109.1).
4. The only other specific guidance provided for judges is that they be "patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom" they deal "in an official capacity," and that they require similar conduct of their staff and lawyers appearing before them (NYCRR 100.3 (B) (3)), and that they give every party appearing before the bench the opportunity to be heard (NYCRR 100.3 (B) (6)).
5. It would seem that the federal Americans with Disabilities Act places additional obligations upon judges to fashion accommodations for people with mental illness who appear before the court in any capacity (litigant, attorney, or witness), when such accommodation can be done reasonably. An example of a reasonable accommodation would be to permit a defendant to have additional time to confer with his attorney, or to coordinate ways for parties to notify the court if they do not comprehend what’s happening in court. For many years, courts have permitted witnesses to take breaks, if the pressure of the court proceeding seemed to be causing the witness too much anguish; similar accommodations would seem to be proper and, at times, required in order to provide a person with mental illness access to the court system.
6. Attorneys
7. Attorneys, including civil attorneys, criminal defense attorneys, and attorneys who represent the government in any capacity, can find assistance with ethical issues in the New York State Code of Professional Conduct as well as in the ABA Guide to the Defense and Prosecution Functions. The ABA Criminal Justice Mental Health Standards provide additional guidelines, to help safeguard the rights of people with mental health challenges who have become involved in the criminal justice system.
8. In general, lawyers must advocate for their individual clients. Government attorneys advocate for the particular branch of government or governmental agency which they represent as well as for the needs of the community.
9. All attorneys are obligated to keep client confidences under most circumstances. Government attorneys sometimes have obligations to reveal information to the opposing party, even if the information came to them in confidential ways. For example, prosecutors must reveal exculpatory and/or mitigating information to the defense in criminal proceedings. All attorneys are officers of the court and cannot hide information from the court (i.e., commit a fraud upon the court by failing to reveal information one has a duty to reveal). All parties have duties to deal fairly with the other parties.
10. Attorneys have ethical obligations to provide their clients with enough information and advice for their clients to be able to make informed decisions about certain aspects of the proceedings. For example, in a civil tort proceeding, the plaintiff has the right to decide whether to accept a settlement offer. Defendants in criminal proceedings have the rights to decide whether to plead guilty or go to trial, whether to testify at trial, whether to proceed with a jury or bench trial, and whether to speak at sentencing. In general, however, attorneys and not their clients have the right to determine trial strategies (including theories of the case or defense, what witnesses to call, and what questions to ask), although these decisions should be made after consultation with the client whenever possible.
11. Lawyers are not confined to advising clients solely based on the client’s legal circumstances. They can also base advice on social or psychological circumstances. Prosecuting attorneys can advocate for treatment, and make offers to less serious offenses, because they believe such is the just and fair thing to do, even though the evidence in their case may be strong and conviction might otherwise require the defendant to serve a sentence of incarceration.
12. Lawyers can consider the ethical obligations of other professionals, but cannot allow those ethical considerations to override their own code of ethics unless such is consistent with their obligations to their clients and the attorney code of ethics.
13. In representing people with mental health or other impairments, attorneys are to follow Rule 1.14. This rule is set forth below.
14. CLIENT WITH DIMINISHED CAPACITY

(a)When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b)When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c)Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

(d)The rule makes it clear that attorneys are to treat clients with mental illness in the same manner they would treat other clients, to the extent that is possible, but an attorney can take steps to protect the client without the client’s consent if this action is necessary to protect the client. In civil cases, guardianship may be an option.

1. The rule also makes it clear that attorneys have an obligation to protect a client’s confidences unless disclosure is permitted under Rule 1.6. Rule 1.6 only permits disclosure under limited circumstances, so attorneys should familiarize themselves with those limits and be prepared to be uncomfortable, at times, with the obligation to maintain a client’s confidences.
2. Attorneys who represent clients in Mental Hygiene Law proceedings may have the most difficult obligations of all attorneys who work with clients with mental illness. These attorneys, who are generally members of the Mental Hygiene Legal Service (MHLS),[1]must advocate for the position chosen by their clients, even when the position seems to be ill advised or even untenable. Respondents in Mental Hygiene Law proceedings are much like defendants in criminal proceedings: They are entitled to make their own decisions. Their attorneys cannot seek to have guardians appointed to make decisions about commitment or medication.
3. An additional obligation of both criminal defense attorneys and prosecutors, as well as of judges in criminal proceedings, is to ensure that the accused has capacity to comprehend the proceedings and to assist the defense attorney. If there is some question as to this, it becomes incumbent upon the party with the concern to raise the issue. The party with concern is generally the defense attorney, but there are times that the court or the prosecutor is made aware of facts that bear on an accused’s fitness to proceed of which the defense attorney is unaware. Once the court is presented with facts that show that the accused may lack capacity to proceed, the court must order an examination pursuant to Criminal Procedure Law Article 730 (CPL § 730.10(1)). Fitness of the accused is a nonadversarial inquiry within the adversarial process. If an accused does not comprehend the proceedings, or cannot assist the defense attorney, the accused is not present, legally, and the court thus has no jurisdiction over the accused’s person.
4. Some of the more common ethical considerations for attorneys are included in Appendix A. Additional information about capacity to proceed is appended as Appendix B.

1. Problem-solving courts
2. Problem-solving courts include drug treatment courts, mental health courts, domestic violence courts, veterans’ courts, sex offender courts, and courts that work with individuals charged with driving while intoxicated. Judges who preside over these courts, attorneys who appear in them, and treatment providers who interface with them follow various codes of ethics, specific to their professions. Sometimes the ethical considerations concur with one another; sometimes they conflict. It’s essential for all who practice in problem solving courts to adhere to their roles and their own ethical codes.
3. Judges in problem solving courts

(a)As mentioned earlier in this guide, judges in New York State adhere to the Rules of the Chief Administrator of the Courts Governing Judicial Conduct, which is located in Chapter 22 of the New York Code of Rules and Regulations (NYCRR), part 100. In general, judges who preside over treatment courts are no different than judges who preside over other court parts. Those of us who are treatment professionals hope that treatment court judges have especially keen empathy and ability to connect with the treatment court participants, but this does not impose different ethical guidelines on judges.

(b)One of the most common ethical issues with which judges in treatment courts deal involves ex parte communications. An ex parte communication is one wherein a judge hears from one party to an action without the other party (or parties) present. In that the treatment court forum is often informal, and in that many parties have a need to provide the court with information, ex parte communications happen with some frequency, and thus can pose difficulties for judges. An Office of Court Administration administrative order, 4/08/2003, sets forth the court rule regarding such communications (in general, ex parte communications are prohibited unless the absent party has consented to such communications).

(c)Other ethical issues involving court attendance at community functions, awards ceremonies, and the like; conflicts of interests with former clients from the judge’s prior practice of law; expenditures of excess campaign funds on treatment court awards; and similar issues have generated opinions from the Advisory Committee on Judicial Ethics. These advisory opinions, while not binding, provide guidance to judges. These opinions have been collected and published in a publication: New York State Recommended Practices for Drug Treatment Courts:

(d)Ethical Opinions, Administrative Orders, Statutes and Case Law (2009) (available online at ).

(e)Additional resources relating to judicial ethics include:

of Judicial Conduct)

of the NYS Commission on Judicial Conduct)

University Law School website with focus on judicial ethics)

States Department of Justice, Bureau of Justice Assistance Drug Court Clearinghouse Technical Assistance Project Website)

(Ethical Considerations for Judges and Attorneys in Drug Courts. National Drug Court Institute. (2002).)

1. Attorneys in problem solving courts

(a)Defense attorneys and prosecutors can find assistance with ethical issues in the New York State Code of Professional Conduct as well as in the ABA Guide to the Defense and Prosecution Functions. The ABA Criminal Justice Mental Health Standards provide additional guidelines, to help safeguard the rights of people with mental health challenges.

(b)In general, defense lawyers appearing in problem-solving courts must advocate for their individual clients, and prosecutors advocate for the needs of the community. While most treatment courts employ a “team model” approach, this model does not relieve the attorneys, judges, and treatment professionals from following their respective codes of ethics.

(c)When defendant-participants have difficulties, the defense lawyer will almost always have the obligation to advocate for the client, even if such advocacy may make the defense lawyer seem not to be a “team player.” Similarly, there may be times that the court is willing to give a defendant-participant another chance in treatment, and the prosecutor may have a genuine need to object and advocate for imposition of the alternative sentence.

(d)Lawyers are not confined to advising clients solely based on the client’s legal circumstances. They can also base advice on social or psychological circumstances. Similarly, prosecuting attorneys can advocate for treatment, and make offers to less serious offenses, because they believe such is the just and fair thing to do, even though the evidence in their case may be strong and conviction might otherwise require the defendant to serve a sentence of incarceration.