The People, Respondent,v.Marcellus Johnson, Appellant.BriefN.Y.Feb 16, 2016Appeal No. 2015-00070 COURT OF APPEALS State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- MARCELLUS JOHNSON, Defendant- Respondent BRIEF BY LEGAL AID SOCIETY as AMICUS CURIAE THE LEGAL AID SOCIETY Criminal Practice 199 Water Street, 6h Floor New York, New York 10038 (212) 577-3387 STEVEN B. WASSERMAN Of Counsel September 10, 2015 TABLE OF CONTENTS Table of Authorities Introduction . Interest of Amicus Inmate Telephone Recording and Monitoring . Prosecutorial Use of Recorded Inmate Calls . Argument . The right to counsel of pre-trial detainees is being systematically undermined, by the prosecutor's direct and unregulated access to all their telephone conversations with family and friends. U.s. Const. amend. VIi N.Y. Const. art I, §6 Conclusion . Appendix: Affirmations on Misuse of Recorded Calls Affirmation of Kenneth Finkelman, Esq. Affirmation of Karen Faraguna, Esq. Affirmation of Pauloma Martinez, Esq. i 1 2 3 5 8 16 17 TABLE OF AUTHORITIES U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . .. 1 N.Y. Const. Art. I, §6 1 40 RCNY § 1-10 (h) . 3 FEDERAL Massiah v. United States, 377 U.S. 201 (1964) Miranda v. Arizona, 384 US 436 (1966) Moulton v. Maine, 474 U.S. 159 (1985) United States v. Henry, . 12 . 11 2, 12 447 U.S. 264 (1980) ................. 11, 12 Depree v. Thomas, 946 F.2d 784 (11th Cir. 1991) ................ 15 United States v. Birbal, 113 F.3d 342 (2nd Cir. 1997) NEW YORK Matter of Terry D., 81 N.Y.2d 1042 (1993) People v. Bethea, 67 N.Y.2d 364 (1986). People v. Cardona, 41 N.Y.2d 333 (1977) People v. Dunbar, 14 9 2 15 24 N.Y.3d 304 (2014) ................... 2 People v. Gissendanner, 48 N.Y.2d 543 (1976) . . . ............. 9 11 People v. HuntleYI 15 N.Y.2d 72 (1965) 2 People v. Lopez I 16 N.Y.3d 375 (2011) · .................... 2 People v. Natali 75 N.Y.2d 379 (1990) · .................... 9 People v. Velasquez I 68 N.Y.2d 533 (1986) 11 People v. West l 81 N.Y.2d 370 (1993) · .................... 2 Jordan v. Schriro l 96 A.D.3d 574 (1st Dept. 2012) ................ 1 People v. Corsel 73 A.D.3d 1208 (2nd Dept. 2010) ............... 13 People v. Fernandez I 23 A.D.3d 317 (1st Dept. 2005) ................ 13 People v. Johnson I 120 A.D.3d 1154 (1st Dept. 2014) ............... 1 People v. Koonce I 111 A.D.3d 1277 (4th Dept. 2013) ............... 1 111 INTRODUCTION The Legal Aid Society submits this amicus brief for the Court's consideration in People v. Johnson, 120 A.D.3d 1154 (1st Dept. 2014). The Appellate Division's decision in Johnson raises a question that affects every pre-trial detainee in New York: Whether the Right to Counsel of pre-trial detainees is being systematically undermined by direct and unregulated prosecutorial access to all their non-privileged telephone conversations, routinely recorded by the NYC Department of Correction for security reasons. Johnson holds that spontaneous, non-privileged statements "routinely recorded by the Department of Correction" [are] "clearly admissible, notwithstanding that defendant's right to counsel had attached." Johnson, 120 A.D.3d at 1154. The Appellate Division has also held that "[the defendant has] no expectation of privacy in those phone calls," if he is notified that his calls are subject to being recorded, Jordan v. Schriro, 96 A.D.3d 574, 575 (1st Dept. 2012). Moreover the admissibility of the defendant's recorded calls does not require notice to the defendant that they may be turned over to prosecutors for that purpose. People v. Koonce, 111 A.D.3d 1277, 1279 (4th Dept. 2013) i Iv. den. 24 N.Y.3d 1085 (2014). 1 INTEREST OF AMICUS As the primary defender of indigent criminal defendants in New York City since 1963, the Legal Aid Society has been a principal advocate before this Court in upholding the defendant's right to counsel at every stage of the criminal process. See People v. Dunbar, 24 N.Y.3d 304 (2014); People v. Lopez, 16 N.Y.3d 375 (2011); People v. West, 81 N.Y.2d 370 (1993); People v. Bethea, 67 N.Y.2d 364 (1986); People v. Huntley, 15 N.Y.2d 72 (1965). The Society has extensive experience with the issue before this Court, having represented the majority of defendants whose recorded telephone calls to relatives and friends were reviewed by District Attorneys and introduced at their trials since the inception of inmate telephone recording in 2008. The Legal Aid Society has a strong interest in a prosecutorial practice that may circumvent or compromise constitutional protections of defendants who cannot afford to post bail. "The prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Moulton v. Maine, 474 U.S. 159, 171 (1985). Direct and unregulated access to all of a pre-trial detainee's telephone conversations with family and friends does just that. 2 INMATE TELEPHONE RECORDING AND MONITORING NYC Department of Correction Operations Order 01/09, (3/9/2009) which implements 40 RCNY § 1-10(h), authorizes the recording and retention of all telephone calls by or to detained defendants, except for calls from or to certain numbers that are on a "Do Not Record List." 40 RCNY 1-10(h). (A.384) The "do not record" exemptions apply to calls to agencies that oversee the Dept. of Correction, to defense attorneys, physicians and clergy. All other calls are to be recorded and retained. (A. 384-85) The Department of Corrections (DOC) is charged with the "implementation of appropriate procedures" for monitoring or listening to inmate telephone calls. DOC procedures specify certain situations that give rise to a need to listen to the recordings: interdiction of contraband, prevention of a disturbance, criminal activity or corruption by staff, or "any information which may compromise the safety and security of the department or the public." (A. 386-87) All internal applications for call monitoring must be approved in writing at the command level. Otherwise, listening to inmate calls by DOC personnel is prohibited. (A.385-86) Despite these strict internal limits on listening to inmate conversations, however, DOC sets no limits on interagency applications: disclosure of the defendants' recorded calls to 3 prosecutors and police. DOC regulations require no subpoena or explanation for requisition of an inmate's calls, and establish no criteria for granting or refusing requests by prosecutors. The regulations simply require a prompt response: Applications by prosecutors should be decided in three days, and processed Uas soon as possible" (A.390) Upon the delivery to the prosecutor of an inmate's telephone recording disk, DOC requests prosecutors and other law enforcement agencies to notify them uif their monitoring of the recorded inmate telephone call reveals any information that may be of interest to the Department, including but not limited to safety and security (e.g. escape plans, drug smuggling, sexual abuse, bullying, and talk or plans of suicide." DOC Operations Order No. 01/09, Attachment C. (A.390, 395) Thus, the sharing of pre-trial detainees' phone calls with prosecutors is a mutually beneficial arrangement. DOC supplies prosecutors with the defendant's potential admissions and other impeachment material for their pending criminal trials; Prosecutors supply DOC with intelligence concerning escape plans, acts of violence, suicide, or drug or weapons smuggling. Neither agency and no court passes on the legal propriety of presenting prosecutors with every word that a defendant has said to his friends and family while awaiting trial. 4 PROSECUTORIAL USE OF INMATE TELEPHONE CALLS DOC regulations alert the prisoner that his calls may be monitored by his jailers - not that they will be shared with his prosecutor. A sign posted next to every telephone used by inmates at Rikers Island reads: "Inmate telephone conversations are subject to electronic recording and/or monitoring . An inmate's use of institutional telephones constitutes consent to this recording and/or monitoring." (A.391) A similar notice is contained in the Inmate Rule Book, and in a prerecorded message that plays on the inmate's personal recoding disk, when the inmate inserts the disk into an institutional telephone to make a call. Prosecutorial review of the conversations of pre-trial detainees is a staple feature of criminal prosecutions in New York City. Prosecutors preparing for trial routinely requisition the personal audio disks of telephone calls made by incarcerated defendants to family and friends over the course of months and years of pre-trial detention. Student interns are frequently assigned to listen to and to digest the numerous calls contained in the defendant's audio disk. This fishing expedition for admissions and impeachment casts a net in abundant waters: Prosecutors have sought to introduce an incarcerated defendant's telephone conversations in approximately half of the 300 felony trials that the Society 5 conducted in 2014-15, as well as at post-trial sentencing proceedings. The damaging information gleaned from the defendants' telephone conversations is not confined to admissible evidence. As three illustrative cases appended this brief show, much of the information that prisoners unwittingly share with prosecutors implicate defense strategy that is and should remain within the confines of the attorney-client relationship. Prosecutors learn whether a defendant will accept a plea offer, what sentence he is willing to accept in exchange, what witnesses he will call, and what gefense he will raise. (Appendix: Three Illustrative cases) One defendant's telephone calls supplied his prosecutor with premature disclosure of the defendant's psychiatric and alibi defenses, as well as the identity of other potential defense witnesses, - before the defense had an opportunity to discharge its responsibility to consult with psychiatric experts, to investigate the alibi, or to speak to· potential witnesses. (Affirmation of Kenneth Finkelman, Esq) Defendants' conversations with their parents and spouses have also supplied the prosecution with pleas for forgiveness for their criminal acts, as well as the reactions of the parents and spouses. Family conversations of this nature have been 6 offered and introduced by prosecutors at trial and at sentencing. (Affirmation of Karen Faraguna, Esq.) Prosecutors have also made effective use of moral transgressions by the defendant that are unrelated to his prosecution. For instance, one prosecutor, after reviewing a telephone conversation between a defendant and his paramour, played that conversation for his wife, in order to motivate her to cooperate in a domestic violence prosecution. (Affirmation of Pauloma Martinez, Esq.) These cases demonstrate how an incarcerated defendant's conversations with family, friends, and potential witnesses implicate the right to Counsel, both as an advisor and as a medium of communication between the accused and the government. They also demonstrate a compelling need for judicial regulation of disclosure to the prosecution of the monitored calls of criminal defendants awaiting trial. 7 ARGUMENT THE RIGHT TO COUNSEL OF PRE-TRIAL DETAINEES IS BEING SYSTEMATICALLY UNDERMINED, BY THE PROSECUTION'S DIRECT AND UNREGULATED ACCESS TO ALL OF THEIR CONVERSATIONS WITH FAMILY AND FRIENDS, ROUTINELY RECORDED BY THE NYC DEPARTMENT OF CORRECTION FOR SECURITY REASONS. The prosecution's direct access to detained defendants' conversations with family and friends enables them to engage in an unregulated fishing expedition. Interns are assigned to trawl through all of the defendant's words, and the words of his family and friends, for potential admissions and impeachment material - generally without antecedent reason to believe that such evidence exists. As a result, prosecutors obtain a wealth of informationto which they are not entitled, and which they should not have, about defense strategy and decision-making, and the personal lives of the defendants. Prosecutors are exploiting this information in a way that undermines the role of defense counsel as an advisor, and as an intermediary between the accused and the State. This abuse of the prosecutor's subpoena power speaks to the need for judicial regulation of prosecutorial access to a defendants calls to family and friends. "A subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather, its purpose is 'to compel the production of specific documents that are relevant and material 8 to facts at issue in a pending judicial proceeding.'" Matter of Terry D. 81 N.Y.2d 1042, 1044 (1993) i People v. Gissendanner, 48 N.Y.2d 543, 551 (1976) A prosecutor's trial subpoena duces tecum " is only proper for the limited purpose of obtaining identifiable evidence, rather than engaging in wide-ranging discovery to determine whether relevant evidence might exist." Matter of Terry D. 81 N.Y.2d at 1044 In People v. Natal, 75 N.Y.2d 379 (1990), this Court held that the prosecution abused its subpoena power by directly acquiring a pre-trial detainee's clothing from the Corrections Department: "While by statute it is the District Attorney who issues a subpoena duces tecum (CPL 610.25), the subpoena is nevertheless a mandate of the court issued for the court. It has long been recognized that District Attorneys may not issue subpoenas except through the process of the court, and they exercise the power to compel witnesses to produce physical evidence only before a Grand Jury or a court where a proceeding is pending." Natal, at 384-5 The Court in Natal admonished the prosecution to refrain from obtaining defendants' belongings from the Corrections Department on their own subpoena: CPL 610.25 (1) makes clear that where the District Attorney seeks trial evidence the subpoena should be made returnable to the court, which has "the right to possession of the subpoenaed evidence. It is for the court, not the prosecutor, to determine where 9 subpoenaed materials should be deposited, as well as any disputes regarding production. By circumventing the court, the District Attorney avoided all the protections provided against abuse of the subpoena process, and succeeded in transforming a court process into a function of his own office." Natal, at 384. Thus, prosecutors should not routinely be handed every defendant's personal telephone recording disk. If a defendant's conversations with his family are reasonably believed to be relevant to his pending trial, it is the role of the presiding judge, not the Corrections Department, to pass upon the trial relevancy or discoverability of the conversations. To uphold the defendant's Right to Counsel for purposes of that determination, applications to the Corrections Department to review a detained defendant's telephone disk for use at his trial should be made returnable to the court, upon a proper showing, and with notice to the defense that affords the defense opportunity to be heard on questions of probative value, prejudice, and privilege. There is a compelling need for judicial oversight concerning release of all of a defendant's recorded conversations on the eve of trial. The defendant's right to counsel is implicated by the pre-trial calls, because of the likelihood that a defendant may say something with strategic implications for the impending trial. The U.S. Supreme Court has noted "the powerful psychological inducements to reach out for aid when a person is in confinement. (T)he mere fact of 10 custody imposes pressures on the accused." United States v. Henry, 447 U.S. 264, 274 (1980); citing Miranda v. Arizona, 384 US 436, 467 (1966). This is the time when the defendant has a right to counsel for the very purpose of protecting him from unguarded admissions, and for compensating for the disparity in sophistication between him and the State. "The Sixth Amendment right to counsel assures the accused a fair trial by guaranteeing professional assistance in preparing and presenting a case and coping with the intricacies of substantive and procedural criminal law." People v. Velasquez, 68 N.Y.2d 533, 536 (1986). Whether the average defendant ought to be more careful in conversations on the DOC telephones is beside the point. The very purpose of the Right to Counsel is to compensate for the indisputable disparity in sophistication about procedure and evidence between the accused and the State, and to prevent the average defendant from unintentionally making admissions or revealing strategic matters concerning his defense. It is immaterial whether the defendant's words were uttered spontaneously or responsively to questioning, and whether or not he was aware that his words were being recorded. The requirement of a judicial subpoena and pre-disclosure review of the defendant's conversations by the presiding judge is essential for the defendants' protection. The damage to the 11 defense usually occurs before the trial begins, at the point that the conversations are released to prosecutors. A pre-trial motion in limine, which was made at the commencement of trial in this case below, is not an adequate remedy for much of the improperly disclosed information. The U.S. Supreme Court has interpreted the Sixth Amendment Right to Counsel with an eye to protecting defendants, rather than prohibiting or sanctioning particular prosecutorial tactics. The Sixth Amendment generally does not allow the government's "knowing exploitation" of a situation in order to obtain incriminating information from a defendant "without counsel being present" Moulton v. Maine, 474 U.S. 159, at 176. "The prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Moulton v. Maine, 474 U.S. at 176; citing Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980). By this standard, the prosecutors and the Corrections Department are not living up to their affirmative obligation to respect the defendant's right to counsel. Prosecutors are abusing their access to counseled defendants' telephone calls in order to harvest impeachment material and other useful intelligence for achieving convictions and enhancing sentences. Corrections is enabling and acquiescing in this arrangement, because the 12 Courts have yet to set any boundaries on their information sharing with prosecutors. The role of the Department of Corrections in sharing Defendants' conversations is significant, because the New York Right to Counsel frames the issue as whether the person or entity which obtains an uncounseled statement from a counseled defendant was acting as "an agent of the prosecution." People v. Cardona, 41 N.Y.2d 333, 336 (1977). Cardona involved information elicited from a defendant by a fellow prison inmate who mayor may not have been acting on his own initiative. The informant in Cardona, like DOC, had a relationship with the prosecution "of long duration and involving a considerable number of contacts." Id. DOC's ongoing cooperation with the prosecutor in promptly furnishing Defendants' recorded conversations is beyond dispute. Under the New York case law of " agency" , which concerns civilian informants rather than collaborative law enforcement entities, the "agency" relationship generally depends upon whether the monitoring of an individual inmate was undertaken "at the prosecutor's behest." People v. Corse, 73 A.D.3d 1208 (2nd Dept. 2010) i People v. Fernandez, 23 A.D.3d 317 (1st Dept. 2005) In cases involving civilian informants, "[a]n informant becomes a government agent . only when the informant has been instructed by the police to get information about the 13 particular defendant." See United States v. Birbal, 113 F.3d 342, 346 (2nd Cir. 1997) Rather than singling out inmates at a prosecutor's "behest", the practice at issue here is a wholesale gathering and sharing of every defendant's statements, pursuant to an ongoing collaborative agreement. DOC supplies prosecutors on request with all telephone conversations of defendants with pending prosecutions, for potential use against them at trial. Thus, every defendant is an eventual target of the program, whenever they exercise their right to stand trial. The issue is whether an "agency" relationship may arise not only from being "hired" by the prosecution to monitor particular inmates, but also from a reciprocal information-sharing policy, under which requests for any defendant's pre-recorded conversations are routinely granted on the eve of trial, without the need for subpoena or any judicial intervention. DOC's uniform policy of sharing the conversations of all detainees undoubtedly presents a greater threat to Sixth Amendment values than any ad hoc arrangement with a paid jailhouse informant. This Court has adopted a case-by-case approachto identifying an agency relationship: "We decline to subscribe to any ironclad rules as to when agency exists since the niceties of rule-complying form could easily mask the substance of a true agency relationship." Cardona, 41 N.Y.2d at 335. See also Depree 14 v. Thomas, 946 F.2d 784, 793-94 (11th Cir. 1991) "There is, by necessity, no bright-line rule for determining whether an individual is a government agent for purposes of the sixth amendment right to counsel. The answer depends on the 'facts and circumstances' of each case." To establish an agency relationship, New York and Federal Courts simply require "some evidence that an agreement, express or implied, between the individual and a government official existed at the time the elicitation [took] place." Depree v. Thomas at 794. Here, DOC's policy of sharing its entire repository of recordings with prosecutors promptly, within three days of the request, is ample evidence of an "implied agreement," particularly inasmuch as DOC has an ongoing stake in the arrangement, and expects to acquire valuable intelligence from the prosecutors in exchange. 15 CONCLUSION THE DECISION OF THE APPELLATE DIVISION SHOULD BE REVERSED. PROSECUTORS SHOULD BE DIRECTED TO APPLY FOR A JUDICIAL SUBPOENA FOR DEFENDANT'S TELEPHONE RECORDS THAT ARE SOUGHT AS "TRIAL EVIDENCE" Sept. 17, 2015 Steven B. Wasserman Attorney for Defendant The Legal Aid Society Criminal Defense Practice 199 Water Street 6th floor New York, NY 10038 2125773387 FAX 6466164387 16 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE of the State of New York, Respondent - against MARCELLUS JOHNSON Appellant Appeal 2015-00070 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE Kenneth Finkelman, an attorney admitted to the practice of law in the Courts of this State, and associated with the Legal Aid Society Criminal Practice, affirms: 1. This affirmation is submitted in support of a motion by the Legal Aid Society for leave to appear as amicus curiae in People v. Marcellus Johnson. 2. As a defense attorney in the Queens County office of the Legal Aid Society for the past 26 years, I have observed a sharp increase in prosecutions in which the district attorney applies to introduce tape recordings of the defendant's telephone conversations at Rikers Island. 3. The NYC Dept. of Correction directly supplies the district attorneys upon request with all taped conversations of defendants awaiting trial. Telephone conversations with relatives and friends often include disclosure about defense strategy, defense witnesses, and attorney-client communication that are unavailable under the Criminal Procedure Law, and that tends to subvert the defendant's right to a defense with the assistance and mediation of counsel. 4. The problem is well-illustrated by the case of People v. H.P., Queens Ind. 1905/2010, a robbery prosecution that I tried in 2014. Mr. P was charged with robbing a woman at knife point in an elevator of a housing project. 5. Mr. P. has spent almost his entire life coping with mental illness. He has been diagnosed with both schizophrenia and bi-polar disorder as well as depression. He is also learning disabled and did not learn to read until he was an adult. He has been diagnosed with and medicated for a variety of mental health illnesses, including, among other diagnoses, bipolar disorder, schizophrenia, and a seizure disorder. He has been in many different mental hospitals over the course of his life, and was evaluated for a 730 examination. He has a documented history of auditory hallucinations. When he was arrested in this case, according to Riker's records, he was speaking to people who were not present. This was presented at trial through testimony and medical records. 5. Mr. P. denied any knowledge of the crime and said he was elsewhere at the time of its commission. 6. Thus I was obliged to consider whether to pursue a psychiatric defense or an alibi defense in Mr. P's case, both of which require a pre-trial investigation and a professional assessment 7. However, in a recorded conversation with his son, Mr. P. discussed his potential psychiatric defense and alibi defense on the phone. In the first call he stated that his lawyer had spoken favorably about pleading not guilty by reason of insanity. He also told his son that he would be able to get conjugal visits if this plea went through and told him that he would be in a certain psychiatric hospital which he preferred. Mr. P. indicated that all of this sounded good to him. In a separate phone call presented by the prosecution, Mr. P. was again speaking to relatives about a potential alibi defense and urged them to locate two alibi witnesses. No alibi notice was submitted, nor was an alibi presented at trial. Any or all of defendants need to speak to their family about what is happening; it is one of the ways they keep their sanity. But in the calls they often say things for the purpose of trying to keep their family relationships intact. It would be unfortunate for society to take away this outlet by using their private calls made to close family members as evidence against them. 8. As a consequence, the options for defending Mr. P. were greatly limited, and it became impossible to offer Mr. P. the practical guidance and legal counsel to which he was entitled under the Sixth Amendment, and to assist him in advancing a viable defense or negotiating an appropriate plea. ~Nj~eQ KENNETH FINKELMAN ~ Sept. 11, 2015 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE of the State of New York, Respondent - against MARCELLUS JOHNSON Appellant Appeal 2015-00070 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE Karen Faraguna, an attorney admitted to the practice of law in the Courts of this State, and associated with the Legal Aid Society Criminal Practice, affirms: 1. This affirmation is submitted in support of a motion by the Legal Aid Society for leave to appear as amicus curiae in People v. Marcellus Johnson. 2. As a defense attorney in the Legal Aid Society for more than 40 years, I have observed a marked increase in prosecutions in which the district attorney applies to introduce tape recordings of the defendant's telephone conversations at Rikers Island. 3. The NYC Dept. of Correction is directly supplying the district attorneys upon request with all taped conversations of . defendants awaiting trial. The telephone conversations often include information about trial strategy, defenses, and attorney-client communication which are not available to a prosecutor under the Criminal Procedure Law, and that tends to subvert the defendants I right to the assistance and mediation of counsel. 4. The problem is well-illustrated by a recorded conversation that was played at the trial and sentence of People v. K.D., Kings Ind. 3589/2012, in which the Defendant emotionally apologized to his girlfriend for committing the crime that resulted in their separation: said: I'm sorry, I apologize, I want to cry. I miss you so much I am sorry. I was just trying to get us out of the hood. 5. In the same conversation with his girlfriend, K.D. I know, I'm gonna try and get the smallest offer. Hopefully everything will work out. They just give me six months or something and come home with fresh probation or something, right? 6. In a conversation with another friend, K. D. said: \\ I'm going in there I ike I didn't do nothing, so I see what [is] the best offer I could get." 7. It is not uncommon for district attorneys to obtain strategic information on this nature before trial, which undermines the ability of defense counsel to advocate and negotiate on the client's behalf. DATED: September 11, 2015 ESQ. 2 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE of the State of New York, Respondent - against MARCELLUS JOHNSON Appellant AFFIRMATION Appeal 2015-00070 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE Pauloma Martinez, an attorney admitted to the practice of law in the Courts of this State, and associated with the Legal Aid Society Criminal Practice, affirms: 1. This affirmation is submitted in support of a motion by the Legal Aid Society for leave to appear as amicus curiae in People v. Marcellus Johnson. 2. As a defense attorney with the Legal Aid Society for the past 5 years, I have observed a marked increase in cases where the district attorney utilizes tape recordings of the defendant's telephone conversations at Rikers Island. 3. The NYC Dept. of Correction directly supplies the district attorneys upon request with all taped conversations of defendants awaiting trial. The telephone conversations often include information about trial strategy, defenses, attorney- client communication, and the defendant's personal lives that are unavailable to a prosecutor under the Criminal Procedure Law. 4. The problems that result from unregulated access to a defendant's telephone calls is well-illustrated by the case of People v. P.W., Queens Co. Indictment # 2446/2014, a domestic • violence prosecution in which the complaining witness was the defendant's wife and mother of his three children. 5. There was an issue about whether the alleged assault was felonious - that is, whether the injury and the intent to injure would support a felony prosecution. The defendant's wife told me repeatedly that she was very reluctant to testify to a felonious assault in the grand jury. 6. However, her position changed, after the D.A. told her that her husband had a girlfriend, which she had learned from listening to telephone conversations between the two at Rikers island. 7. The wife's pastor and members of her family told me that the A.D.A. played those telephone conversations for the defendant's wife, in an effort to anger and upset her into testifying in the Grand Jury. Evidently, she succeeded. The defendant was indicted and eventually convicted of felony assault. 8. Based on my conversations with the defendant's wife, I believe that her testimony may have been exaggerated and colored by anger incited by the tape of her husband's conversation with his girlfriend. ~------------~---~~.~ Sept. 15, 2015 Pauloma Martinez, Esq.