Advancing Reform of New York Criminal Procedure Law as a Committee Member: A Conversation with Michael Pasinkoff

Michael Pasinkoff is an Assistant District Attorney in the New York County District Attorney’s Office and is a member of the Criminal Courts Committee of the New York City Bar Association.  A recently enacted law that he proposed and helped move through the legislative process, gives judges express statutory authority to extend recesses in jury deliberations.  Under the prior statute, judges were required to adjourn deliberations until the next day the court was open for the conduct of trial, unless the defendant consented to a longer recess.  The new law gives judges express statutory authority to extend recesses in deliberations, under appropriate circumstances, for up to three business days.    

What brought you to this jury deliberation issue?

Most of the cases that I handle at the Manhattan DA’s Office are long-term investigations into extremely violent crimes.  As such, the trials of these cases tend to be long, and require the testimony of reluctant witnesses.  Should a judge be forced to declare a mistrial because of a temporarily unavailable deliberating juror, it would be extremely difficult to conduct a retrial.  My colleagues also have had to deal with mistrials caused by a deliberating juror who became temporarily unavailable.  However, there was no case law or research available which would support an argument that a mistrial is not necessary when a recess in deliberations is extended because of a temporarily unavailable deliberating juror.  I decided to develop that research, which eventually evolved into a St. John’s Law Review article entitled “Resolving the Conflict Between the Temporarily Unavailable Juror and New York’s Mandatory 24-Hour Limit on the Separation of Jurors During Deliberations.”   

How did your membership in the City Bar’s Criminal Courts Committee assist you in your efforts to change the law governing jury deliberations?

I’m a relatively new member of the City Bar and I joined the Criminal Courts Committee as an affiliate member in January of this year.  I had presented my proposal to the Committee and, after becoming a member, I was able to work on a report for the committee to review, discuss and decide whether to support.  I understood that if the committee voted to approve the report, which they ultimately did, then the report would be sent to the other criminal justice committees for their respective consideration.  In this case, the Criminal Justice Operations Committee also voted to sign on to the report.  Following that, the report was submitted to the Policy Department and formally approved by the President of the City Bar, making it an official City Bar position.  The proposed law was then sent to both the New York State Assembly and New York State Senate.  

Working with the Criminal Courts Committee was not only enjoyable, the review process improved the language of the bill that was ultimately submitted to the Legislature.  The Criminal Courts Committee has members who represent all aspects of the criminal justice system: defense attorneys, prosecutors, judges and court attorneys.  As such, the feedback that was given both during the presentation, report-writing and approval process was extremely helpful.   

Tell us briefly how this bill was introduced.

After my law review article was published, I met with Assembly Member David Weprin who introduced the first version of the bill.  Assembly Member Weprin, his Chief of Staff Sumeet Sharma and I worked with the Assembly’s legislative counsels to revise the language to ensure that it would be acceptable to both the Assembly and the Senate.

How were you supported by the City Bar in advocating for this bill?

Elizabeth Kocienda, the City Bar’s Director of Advocacy, is extremely experienced with advocating for bills and the process that the bills go through.   She advised me throughout the entire process.  She also facilitated updating the City Bar’s report and getting the committees’ approval for the revisions.  When the bill was amended, she made sure the updated report was distributed to the appropriate people in Albany.  Elizabeth also directly advocated for the bill once the City Bar formally endorsed it.

What was something that surprised you about the legislative process / advocacy / Albany?

Prior to beginning my advocacy, I had no idea that both the Senate and Assembly have a significant number of legislative counsels.  These counsels, who are extremely knowledgeable about a wide range of issues, play a critical role in reviewing the thousands of bills which come before each house of the New York Legislature and were a key part of our advocacy efforts.

What were some challenges you faced?

The biggest challenge was to keep the bill from being put on the back burner, given the major issues that the legislature was dealing with this session.  Especially during budget negotiations and at the end of session, there are hundreds of other bills that are being considered.

What was the most rewarding part of this experience, beyond the bill’s passage?

The most rewarding aspect of the bill was working directly with Assembly Member Weprin, his chief of staff Sumeet Sharma, and learning about the legislative process.  This was an extremely busy session, yet both Assembly Member Weprin and Mr. Sharma set aside time to push this much needed bill across the finish line.  One of our most interesting meetings actually took place on the Assembly floor with two of the Assembly’s legislative counsels.  Being able to discuss the language that would be in the final version of the bill, on the Assembly floor, was an amazing experience.

What advice would you give other City Bar members interested in engaging in policy and advocacy work?

Be prepared to devote a lot of time to your issue.  Also, do not get discouraged if you feel like you are not getting any traction.  Not all emails and calls to legislators will be returned.  Nonetheless, keep pushing forward, keep in contact with Elizabeth and your fellow committee members, and ultimately you can get the job done.

Note:  Mr. Pasinkoff engaged in the above-described activities in his individual, personal capacity and as a volunteer committee member of the City Bar; he is not – and was not – representing any current or former employer.