Associate Darren LaVerne recently took his pro bono criminal case all the way to the New York State Court of Appeals — the State’s highest court. Darren was assigned the case, People v. Curtis Mitchell, through the Legal Aid Society’s pro bono appeals program. The client had been indicted based on a single burglary, but at trial the jury heard evidence regarding two burglaries (of the same building) occurring at different times. The judge instructed the jury, with no objection by defense counsel, that it could convict based on either burglary or both, and the jury convicted without indicating the basis for its decision. Taking on the case for appeal, Darren concluded that the trial court had violated Mr. Mitchell’s right to be indicted by a grand jury for any crime forming the basis of a conviction, generally a non-waivable jurisdictional defect. Darren thus argued on appeal that the jury may have improperly convicted Mr. Mitchell for a crime for which he had never been indicted. The Appellate Division affirmed, but Darren petitioned the Court Appeals for leave to appeal, which was granted — an unusual event in a criminal case. Darren then had the rare opportunity to argue his case in the Court of Appeals. Although the result was again affirmed, Darren gave his client the best chance for reversal in a difficult case. Partner Eric Tirschwell assisted Darren in the preparation of the appeal.

In another Legal Aid appeal, Jeremy Saks represents a prisoner challenging his New York state trial court conviction for criminal possession of a weapon in the third degree. The Appellate Division, First Department ruled for appellant, holding that he was wrongly denied a pre-trial suppression hearing that was constitutionally required under Mapp v. Ohio, and that it was error for the trial court to require the appellant to admit personal possession of the evidence he sought to suppress in order to obtain standing for the suppression hearing. The Appellate Division granted the appellant his requested relief by holding his appeal in abeyance and remanding the matter to the trial court to conduct the hearing. Kramer Levin and The Legal Aid Society continue to represent the prisoner as he pursues additional relief at the trial and appellate court levels.

Representing an indigent prisoner on appeal, Kramer Levin sought Supreme Court review of the scope of its recent string of landmark decisions holding long-established sentencing procedures to be unconstitutional. Former partner Paul Schoeman was appointed by the U.S. District Court to provide pro bono representation to Hector Soto, a prisoner serving a federal sentence of more than 24 years. Paul supervised the preparation of a petition for certiorari by associate Keith Donoghue, with assistance from associate Darren LaVerne. Mr. Soto seeks a reduction of his prison term on the ground that mandatory sentencing guidelines caused his punishment to be increased on the basis of a fact never found by a jury beyond a reasonable doubt. In 2005, following Mr. Soto’s sentencing, the Supreme Court held the mandatory guidelines unconstitutional in Booker v. United States. Kramer Levin’s petition for certiorari presented the question of whether federal prisoners whose prosecutions concluded before Booker should have the opportunity to challenge their sentences under the rule it announced. Among other arguments in favor of such “retroactive” application, Kramer Levin invited the Supreme Court to clarify the scope of a prominent 1989 decision constraining federal courts’ authority to remedy constitutional error in habeas corpus proceedings. A leading professor and commentator on sentencing law highlighted the petition on his popular blog. Although the Supreme Court declined certiorari review, Kramer Levin successfully obtained further relief for Mr. Soto in the district court.

Matthew Keller represented an indigent defendant in Queens County Criminal Court charged with two felonies and two misdemeanors resulting from her alleged involvement in a drug sale. Our client was in the back seat of a car when one of the two individuals in the front seat allegedly sold a bag of cocaine to a third individual. A police officer observed the sale and arrested the purchaser and all three individuals in the car. A bag containing remnants of cocaine was found in the back seat near our client. Our client was charged with criminal possession of a controlled substance in the 3rd degree, criminal sale of a controlled substance in the 3rd degree, criminal possession of a controlled substance in the 7th degree, and unlawful possession of marijuana. Following numerous negotiations, we convinced the Queens County District Attorney’s office to offer an Adjournment in Contemplation of Dismissal, and dismiss all four charges against our client at the end of six months. Robin Wilcox and Adam Ford assisted in this case.

Home: 2007 Pro Bono Report