Ruling in Karen Atala v. Chile

Posted on Friday, Mar 23, 2012 - 11:17am by Administrator

The government of Chile must pay damages to a judge who was denied custody of her children because she is a lesbian, ruled the Inter-American Court of Human Rights in a case in which the Cyrus R. Vance Center for International Justice coordinated the drafting and submission of an amicus curiae brief signed by the New York City Bar Association and over a dozen other organizations.

The ruling, in the first case regarding sexual orientation to be heard by the Inter-American Court, which is part of the Organization of American States, calls on Chile’s government to pay Atala $50,000 plus $12,000 in court costs.

The case arose from a decision of the Supreme Court of Chile in 2004 forcing Atala to cede custody of her children to her ex-husband on the ground that her sexual orientation made her an unfit parent. The matter was taken to the Inter-American Commission on Human Rights in 2006, to which the Vance Center coordinated the drafting and submission of an amicus brief as well. In 2009, the Commission issued a finding rebuking the Chilean Supreme Court for its decision and calling on Chile to make reparations to Atala and adopt legislation making discrimination based on sexual orientation illegal. When the Chilean government failed to heed the Commission’s directives, the Commission took the matter to the Inter-American Court. A spokesperson for the Chilean government has said Chile would respect the latest ruling.

The amicus brief, prepared by attorneys at Morrison & Foerster, the International Women’s Human Rights Clinic of the City University of New York, and the International Gay and Lesbian Human Rights Commission, argued that the Chilean Supreme Court’s decision had violated Judge Atala’s human rights, pointed out that the weight of international authority holds that discrimination on the basis of sexual orientation violates human rights, and set out facts rebutting the contention that lesbian and gay parenting is incompatible with the best interests of a child.

The Atala case has been closely watched throughout Latin America because several countries in the region have constitutions that place a ruling by the Inter-American Court above even rulings of their own courts.

Read the amicus curiae brief in English or Spanish.

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Criminal Justice — by Samuel W. Seymour

Posted on Monday, Mar 19, 2012 - 9:21am by Administrator

The New York City Bar Association was established in 1870 to press for improvements in our justice system, and since then it has been dedicated to ensuring that we have a justice system that is accessible to all. In no instance is the effectiveness and integrity of our system more important than in criminal matters, where the stakes are so high for individuals and communities.

The work of the City Bar is influential in large part because of the quality and makeup of the committees responsible for our reports, programs and public comments. Like the Association as a whole, our committees are comprised of a cross-section of lawyers, and the work of our committees reflects that balance. Notably, for my purposes today, our committees devoted to criminal matters are made up of both defense attorneys and prosecutors.

On March 15, 2012, the New York State Assembly and Senate passed legislation that will expand collection of DNA from a wide range of felony and misdemeanor offenders. The City Bar applauds the passage of this legislation, because we believe DNA can be powerful evidence both to help prosecutors identify and convict the guilty and defense attorneys exonerate the wrongfully accused or convicted. For collection of DNA to serve both purposes, though, care must be taken to ensure that defendants as well as prosecutors have reasonable access to the collected evidence.

While the DNA legislation will be an important step toward decreasing the incidence of wrongful convictions in New York, more can and should be done. In that vein, the City Bar supports increasing the use of recorded interrogations, clarifying ineffective assistance of counsel claims, and ensuring complete disclosure of exculpatory material.

Recently, the City Bar’s Committees on Criminal Justice Operations and Criminal Courts authored a report proposing amendments to C.P.L. § 440(1) to codify actual innocence claims in New York. The report highlights four key points: 1) The defendant should be required to prove “actual innocence” by clear and convincing evidence; 2) the court should be required to consider all reliable information, without regard to its admissibility under the rules of evidence; 3) actual innocence claims should be available to defendants who have pled guilty; and 4) when a defendant can show a reasonable probability of innocence, he or she should not face procedural bars to having an actual innocence claim heard on the merits.

Besides issuing reports and comments, our committees’ other major public service is in producing panel discussions designed to educate the public and the profession and to stimulate debate on vital legal matters. Several events in March alone address criminal justice matters, with panels on “supermax” confinement (accompanying a report on the same topic), oversight of post-9/11 law enforcement counter-terrorism operations, and vacating prostitution-related convictions for victims of sex trafficking. On April 18th, a panel that will include Manhattan District Attorney Cyrus R. Vance, Jr., will address proposals for formalizing Brady disclosure.

Finally, one of our newest committees, the White Collar Criminal Law Committee, will present the City Bar’s First Annual White Collar Crime Institute on May 14th, a day-long CLE program examining the critical developments that have characterized this new era of white collar enforcement, including changes in enforcement in response to the financial crisis and mortgage meltdown, violations of the Foreign Corrupt Practices Act, Ponzi schemes, and insider trading. New York State Attorney General Eric Schneiderman and the United States Attorney for the Southern District of New York, Preet Bharara, will be keynote speakers, and panels will include senior government enforcement officials, judges, academics, general counsel of leading corporations and financial institutions, journalists, and top practitioners in the field.

Samuel W. Seymour is President of the New York City Bar Association

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City Bar Supports Medical Marijuana Legislation

Posted on Monday, Mar 5, 2012 - 1:41pm by Administrator

The New York City Bar Association has issued a report in support of New York State legislation (A.7347/S.2774) that would create a system for the production, distribution and medical use of marijuana for those citizens who would likely benefit from such use.

“This well-crafted legislation is complex, and seeks to establish a multi-tiered process for certification, oversight and reporting,” states the report. “It also provides an opportunity for the accumulation of relevant data for further evaluation of the legislation’s efficacy. This legislation is among the strictest in the United States. In fact, it is more stringent than the New York laws governing highly dangerous and addictive drugs like morphine, Oxycontin (oxycodone), and Valium (diazepam).”

The report, written by the Association’s Committee on Drugs and the Law and its Committee on Health Law, includes the following recommendations for revisions, if feasible: (1) only physicians and nurse practitioners should be granted the privilege to certify patients for use of medical marijuana; (2) qualified practitioners should be authorized to de-certify a patient provided the patient is currently under their care; (3) “registered producers” should be authorized to dispense medical marijuana directly to patients and caregivers in under-served areas, which areas would be designated by the Department of Health (the “Department”); (4) the viability of allowing personal cultivation of medical marijuana should be explored by the Department; and (5) the legislation should impose confidentiality obligations on all “registered organizations” in order to protect the privacy of certified individuals and their caregivers.

The report addresses the “federal conflict,” which is that despite 16 states and the District of Columbia having enacted legislation permitting the medical use of marijuana, federal law categorizes marijuana as a Schedule 1 controlled substance, which does not permit marijuana use for any purpose. “The New York legislation seeks to protect practitioners from federal and New York State prosecution by allowing them to ‘certify’ that patients may receive a therapeutic or palliative benefit from the use of medical marijuana. This certification would be documented in the patient’s medical record. The legislation would not, however, permit practitioners to prescribe or dispense it to their patients,” states the report.

In conclusion, the report stresses that the proposed legislation “accomplishes the dual goal of providing relief to suffering patients and protecting the public interest in regulating a controlled substance. Furthermore, the reality of our current legal and enforcement environment permits recreational users of this substance to enjoy its broad availability on the black market, and yet criminalizes its use by the sick and desperate. This disparity in treatment is against public interest and results in the needless denial of likely beneficial treatment and palliative relief for those who legitimately seek it. New York State has an obligation to allow people with severe debilitating and life-threatening conditions to access marijuana legally as a means of alleviating their suffering – and this legislation permits it to do so under both medical and governmental oversight.”

The report may be read here: http://bit.ly/xTUPqi

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Statement of New York City Bar Association President Samuel W. Seymour on the Appointment of Anthony Crowell as New York Law School Dean and President

Posted on Wednesday, Feb 29, 2012 - 4:04pm by Administrator

We are delighted to hear that New York Law School has chosen Anthony Crowell as Dean and President. The City Bar worked closely with Mr. Crowell while serving victims and families after the 9/11 attacks, when he did excellent work as counsel at the City’s Family Assistance Center and as director of the Death Certificate Program for WTC victims. A former member of our Government Ethics Committee, he also received our City Bar’s Municipal Affairs Award, which recognizes City Law Department attorneys for their outstanding work. The New York City Bar congratulates and offers our best wishes to Dean Crowell and New York Law School, an important partner in the New York legal community.

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Human Trafficking and Modern Slavery – By Samuel W. Seymour

Posted on Wednesday, Feb 22, 2012 - 3:33pm by Administrator

One of the darkest aspects of globalization has to be the proliferation of human trafficking. The U.S. State Department estimates that twenty-seven million people are victims of human trafficking worldwide, with one hundred thousand of them in the United States.

Trafficking, of course, is just prelude to what often awaits the trafficked at their destination:  a form of modern slavery. “Modern slavery – be it bonded labor, involuntary servitude, or sexual slavery – is a crime and cannot be tolerated in any culture, community, or country,” writes Secretary of State Hillary Rodham Clinton in the U.S. State Department’s 2011 Trafficking in Persons (TIP) Report. To our government’s credit, the latest TIP report for the first time includes an analysis of the state of trafficking in the United States as well as in other countries around the world.

While there is much work to be done, there has been progress on the anti-trafficking front since 2000, when the Palermo Protocols were adopted by the UN and the Trafficking Victims Protection Act (TVPA) was passed in the U.S. The TVPA provided new tools to law enforcement and victims’ advocates to fight trafficking.

One of the first organizations to make use of the TVPA was the City Bar Justice Center of the New York City Bar Association. The Justice Center’s Immigrant Women and Children (IWC) Project has represented immigrant crime victims since 1997 and has   represented victims of human trafficking from all over the world since 2002.

While the Justice Center is able to help many individuals secure their freedom and start a new life, it also does much more to fight human trafficking on a macro level, by training attorneys, law enforcement agents, social workers, and medical providers in how to detect human trafficking and the legal remedies for addressing it. Suzanne Tomatore, the director of the IWC project, has participated in State Department dialogues and trainings with government officials and law enforcement agencies around the world, and she contributes to model state anti-trafficking legislation drafted by the Uniform Law Commission.

The Justice Center is able to accomplish even more by working with the City Bar’s committees. On March 29th, the Committees on Sex and Law, Criminal Courts, Juvenile Justice, and the Council on Children are co-sponsoring a panel on “Vacating Prostitution-Related Convictions for Victims of Sex Trafficking.” The Committees have issued reports and letters to government officials on the topic as well.

All of these activities contribute to increasing public awareness, which is often the first step toward solving a complex legal and social problem. “The fact that a form of slavery still exists in the modern era and that it must be confronted is now spoken of by heads of state and CEOs, at shareholder meetings, in church groups, and around the blogosphere,” states the 2011 TIP report.

“When we first started the project, it was remarkable the number of otherwise well-informed people who didn’t even realize, or couldn’t believe, that human trafficking happens right under our noses,” says Tomatore. “Awareness of the issue really has seemed to reach a critical mass, which leaves no excuse for not dealing with it as a society.”

Indeed, in her introduction to the TIP report, Secretary Clinton marks 2011 as the end of the “decade of development” and the beginning of the “decade of delivery.” She writes, “As we assess ourselves and governments around the world, the true test of a country’s anti-trafficking efforts is not just whether a government has enacted strong laws consistent with that approach, but whether these laws are being implemented broadly and effectively. In short, it’s whether they deliver.”

I am proud that the City Bar Justice Center is at the forefront of the effort to stop trafficking and to bring victims out of the shadows by legalizing their immigration status.  If you or your firm is interested in volunteering to help on a pro bono basis, please email the IWC Project.

Samuel W. Seymour is President of the New York City Bar Association.

 

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FAQs on Lawyer Advertising

Posted on Wednesday, Feb 22, 2012 - 9:06am by Administrator

The Committee on Professional Ethics has prepared a series of common questions and answers regarding New York’s lawyer advertising rules that were adopted within the past few years and included in the Rules of Professional Conduct that became effective in April 2009.

The FAQ’s can be found here in this website’s Ethics section, where you also can find the Rules and the Committee’s ethics opinions dating back to 1986.

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Nominations Sought for Kathryn A. McDonald Award

Posted on Tuesday, Feb 21, 2012 - 12:02pm by Administrator

The New York City Bar is now soliciting nominations for the Kathryn A. McDonald Award for Excellence in Service to Family Court. This award recognizes the vital services of lawyers and non-lawyers who work in the Family Court in New York City. The winners will be honored by the Association at a reception at the City Bar on Monday, May 7, 2012.

Nominations can be submitted to the Office of the Executive Director. Details on the nominating process and a copy of the nomination form can be found on the Association’s website here or by contacting Weintana Abraha, at 212-382-6624 or by email.

Nominations are due by March 21, 2012.

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Statement of City Bar President Samuel W. Seymour on the All Crimes DNA Bill

Posted on Wednesday, Feb 15, 2012 - 12:50pm by Administrator

Last year, the City Bar supported the bill known as the “All Crimes DNA Bill,” which would extend DNA collection to all persons convicted of a misdemeanor or a felony in New York State. The Governor has included this approach in the Executive Budget. We supported this legislation, stressing the value of DNA evidence in helping both defendants and prosecutors since it can be used to assist in the investigation and prosecution of a crime, as well as in the exoneration of the wrongfully accused or convicted.

In order to accomplish both purposes, a DNA regime should afford defendants as well as prosecutors reasonable access to DNA evidence and comparisons. In that vein, we commend the inclusion of provisions in Assembly Member Lentol’s bill, A.5886, which are designed to clarify and expand a defendant’s ability to ask a judge to order DNA comparisons from existing evidence and existing databases, both pre- and post-conviction. We also applaud Chief Judge Lippman’s inclusion of enhanced access to DNA for defendants in yesterday’s State of the Judiciary message. The Senate and Assembly should seize this moment to come to agreement on a DNA bill which effectively serves the needs of both prosecutors and defendants.

While this would be an important step toward decreasing the incidence of wrongful convictions in New York, we note that expanded access to DNA is only one of a number of ways to decrease the incidence of wrongful convictions in New York. We also support increasing the use of recorded interrogations, codifying ‘actual innocence’ claims, clarifying ineffective assistance of counsel claims, and ensuring complete disclosure of exculpatory material.

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