Making Sure Justice (or at least the Defense) is Blind

Blind Justice Circle.jpgImage: Thomas Nast [Public domain], via Wikimedia Commons

Defense attorneys know the value of confidentiality and discretion – and the damage that can be done when information isn’t kept confidential and discretion isn’t exercised. It’s a constant irritation, for instance, that newspapers announce our clients’ arrests to the world, when our clients have been convicted of nothing – and in many cases, will be convicted of nothing. The papers sometimes kindly publish a defendant’s address, as well, in case wing nuts don’t know how to find the defendant.

In other English-speaking countries, by the way – countries with justice systems equivalent to ours, and with a free press – things are handled differently. In New Zealand, as pointed out by, a judge can order the defendant’s name suppressed in certain cases, including those where publishing the name may “cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person.”

Anyway, the bottom line here is that if you want to know what your client might have done – what your client’s charged with now – all you’ve got to do is read the papers. Try to find out what he or she’s has done (or at least been convicted of), and that can be a different story, in upstate New York.

Courts treat criminal histories (more commonly referred to as ‘rap sheets’) as highly confidential. This is as it should be. Rap sheets, which are prepared by the state’s Division of Criminal Justice Services, have all kinds of information (including social security numbers, etc.) that shouldn’t be given out to the general public.

But rap sheets do contain information that a defense attorney’s just got to have – like the client’s criminal history.

Yet certain (though by no means all) courts in our part of the state seem to feel that – although the defense attorney might be permitted under limited circumstances to have a peep at this important information, an actual copy of the document is out of the question.

The law – and the court system as a whole – disagree. We’d like to thank Al O’Connor and the New York State Defenders Association for providing us with a copy of a memorandum issued more than 20 years ago by New York State’s Office of Court Administration. This memorandum reminded judges that under the Criminal Procedure Law “the defense must receive copies of the rap sheet when the court receives copies.”

This same attitude – that certain information is just too hot for the defense to handle – can sometimes be found when it comes to the pre sentence investigation report prepared by county probation departments. This document is of vital importance, as it can determine – literally – your client’s fate. Yet once again, certain (though by no means all) courts in our area tend to feel that although a defense attorney might, under the watchful eye of a clerk, have a look at the report, the attorney can’t be trusted with a copy.

And, again, that’s not what the law says. Section 390.50 of the Criminal Procedure Law requires that the pre sentence report be made available to the defense attorney (or to the defendant, if there’s no defense attorney involved) for inspection and copying, at least a day before sentencing.

We are now done complaining, for the moment.