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By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because an informed citizen is always the most successful citizen:

MYTH: New York State has no uniform procedure in place for private and public employees to report sexual harassment by an employer.

REALITY: This statement is not a myth, it is true today.  But it will not be true after October 9, 2018.  New York has released a draft sexual harassment policy for all employers.  The employers must adopt the standards or make them the basic standards, and build up from there. 

The Governor has issued an executive order that moves all such complaints from state agencies to the Governors Office of Employee Relations. 

The new policy includes these requirements, among others: employers must provide forms to employees to use in making complaints, along with information on state and federal law  and remedies for sexual harassment; employers must give definitions of conduct that are considered to be sexual harassment so that everyone will understand just exactly what it is, and what it is not; employers must have a procedure for investigating such complaints;  employers must provide sexual harassment prevention training to each employee by January 1, 2019, and make clear there will be no retaliation against those complaining;  employers must insure confidentiality to the extent possible.  

New York is in the lead on this issue among all the states.

MYTH: An engagement ring given while intending marriage is a gift to the person receiving the ring under all circumstances and (s)he may keep the ring if the marriage does not occur.

REALITY: Under New York law if no marriage occurs and one party says that it will not occur, the ring must be returned.  The reason for the breakup does not matter, and does not permit the person receiving the ring to keep it.  

MYTH: A New Yorker who serves time in prison (major crime) or jail (minor crime) for a crime (s)he did not commit has no recourse against the prosecutor who was responsible for the failure that resulted in criminal conviction of an innocent person.

REALITY: New York is in the process of setting up a State Commission on Prosecutorial Misconduct whose mission is to investigate claims of a prosecutor’s misconduct.  The creation and fairness of the Commission is still in dispute.  District Attorneys argue that the Commission puts blame for a wrongful conviction on only one part of the court system.  

They base this argument, in part, on a study done by the University of Michigan’s National Registry of Exonerations. The study found that there have been twelve exonerations of innocent persons in New York State so far in 2018.  Causes of the miscarriage of justice include five cases of mistaken witness identification, four cases of poor legal defense, seven cases of official misconduct (prosecutorial),  and eight cases of lying under oath or false accusation. 

This Commission will only focus on the official misconduct (prosecutorial) reason for a false conviction. Furthermore, they argue that the guidelines must contain a consequence to lawyers who bring a false and frivolous misconduct allegation that taxpayers and the courts must pay for, and that may harm a prosecutor’s reputation and career. 

They further argue that there must be crafted a way to keep politics out of the process, and that an elected District Attorney should not be able to be removed from office except in cases of gross misconduct.  

Those who like the idea of such a commission argue that twelve cases of conviction of an innocent person in an approximately eight month period is far too many, and that, in fact, one is too many. 

This is especially true in light of the heavy cost to the justice system whenever such a failure occurs both in taxpayer money to bring to trial and jail the innocent, and then to compensate the innocent for the time falsely incarcerated.  It also results in loss of public confidence in the justice system.  The personal cost to a person wrongfully convicted cannot be calculated.  Therefore, , those who favor the commission argue something must be done along the lines of the proposed Commission, even if it is not perfect. 

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

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