Lippman Delivers State of the Judiciary Address

Lippman Delivers State of the Judiciary Address
The New York Law Journal by John Caher  -  February 15, 2012

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 as outlined in a State of the Judiciary message couched in a theme of fundamental fairness.  Judge Lippman, in his Feb. 14 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 said mandatory e-filing of some court documents will be expanded to Western New York next month.  The spotlight issues of juvenile justice and DNA expansion echo broad themes in Governor Andrew M. Cuomo's criminal justice agenda, but the chief judge's proposals, especially with regard to DNA, are markedly different than the governor's.  For example, while the governor proposes requiring DNA from everyone convicted of a Penal Law felony or misdemeanor, Judge Lippman would require a genetic fingerprint following a conviction for Penal Law misdemeanors and all felonies, not only those included in the Penal Law.  At the same time, however, under the rubric of preventing wrongful convictions, the chief judge is calling for enhanced post-conviction access to DNA, mandatory videotaping of certain interrogations of suspects in certain felony offensses and legislation that would permit the admission at trial of of an eyewintess' pretrial identification of a defendant's photograph, 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 supect or, where that is not practical, does not know that the supsect's photo is in the photo array examined by the witness.

"[W]e 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's 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.  The proposal announced Feb. 14 seeks to combine alternative options available in Family Court, such as probation, with the procedural protections of criminal court, while building on a pilot program initiated last month 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.  Under the initiative, cases involving non-violent 16- and-17-year-old girls and boys would be adjudicated in a hybrid court. Initially, youth would be placed under probation supervision for a period of "adjustment."  If the prosecution continued, a specially trained judge would preside in a criminal-like court 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.  "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."

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.  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 Association 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 any 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."

• Announced a new Task Force on Commercial Litigation in the 21st Century, 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 that 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 practicioners" to supplement the commercial division's roster. "[I]t 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, urged the passage of legislation to extend mandatory e-filing to all cases statewide. He noted that mandatory e-filing has been instituted for some cases in Manhattan, Westchester and Rockland counties and will be extended to surrogate courts in Erie, Monroe and Chautauqua counties, effective next month.  "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."  John Caher can be reached at jcaher@alm.com