On the defense side, forces are scrambling to come up with both a means and reason to preserve the existence of 18b in New York City in the face of an RFP that, on its face, would appear to spell the death of a mainstay of the financially viable criminal defense practice.  While the posturing pits various interest groups within the defense bar against each other, and today’s president wants only to be loved by all in his effort to offend no one, it took an old-timer, NYSACDL past President Larry Goldman, to spell out the problem.

Of course the City’s goal is to save money.  By shifting the work from 18b to institutional defenders, especially via an RFP that compels them to provide an array of important ancillary services to their clients that suggests that the City has a meaningful concern for defendants and which 18b lawyers are incapable of providing, the City hopes to do right by indigent defendants as well as its taxpayers.  There’s nothing wrong with that.  In fact, from a removed position, it’s quite an admirable goal.

At the same time, the move will have a severely adverse impact on a broad swathe of the criminal defense bar.  Some suggest it’s about time.  Others disagree.  I’m amongst those who disagree, though it would be much better if this opportunity was used to substantially improve the mechanics of 18b to eliminate that segment of the 18b bar that no one wants to admit exists.  That would take strength and honesty, two virtues that are long forgotten.

But these concerns all stem from one side, the defense.  Larry asks why the other side would care.  While today’s President George Goltzer wants to present a stinging rebuke to the City for not caring enough about the welfare of NYSACDL members, it didn’t dawn on him that the City doesn’t care, has no reason to care, and owes its fealty elsewhere. 

Past President Lisa Schreibersdorf called George’s resolution “simplistic”. George called it “simple” in a “stick your head in gravy” sort of response,   George backs up his argument with war stories about himself.  Lisa wins, and Larry’s question remains unanswered.  Why should the City care more about providing a revenue stream for lawyers than providing indigent defense at the lowest possible cost?

The point is made clearly by Ken Lammers, who left the side of truth and justice to work for the dark forces of the Commonwealth of Virginia.

Please, Gentlemen and Ladies of the General Assembly and Mr. Governor, if you are going to cut my pay, just cut my pay. You can give me extra vacation – you can even mandate it if you want. However, a slight cut every two weeks beats a forced furlough wherein I have a significant portion of my salary for that month disappeared and have to figure out how to pay my rent, gas, food, etc. with a weeks’ pay missing.

I understand that packaging it as a furlough allows you to keep everyone’s salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.

I’m not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.

While Ken’s preference as to where they suck the lifeblood out of his personal economy doesn’t quite jive with the fine political distinctions of furlough versus temporary pay cut, or any other variation on a theme, the fact remains that Ken is a prosecutor and the State is going to tap dance on his wallet just like everyone else’s. 

No one needs to convince the Legislature why prosecutors are necessary and important to their law enforcement function.  They would be more inclined to build a shrine to prosecutors than do anything to make their lives unpleasant.  Yet money is tight.  For everyone.  In New York City, criminal defense lawyers fear the loss of their entitlement.  In Virginia, a prosecutor wonders how he’s going to pay for food during the furlough.  The difference is that Lammers understands that he’s a part of the whole in a government that needs to bridge a budget gap, much as it may love and appreciate what he does otherwise.  He’s willing to take the hit, though he would prefer it be done in a fashion less harsh than more.

In New York City, the 18b lawyers worry about their future.  Lofty expressions of purpose are used when reality is too harsh to face.  There is no discussion of how the system can be reformed or improved to both maintain its basic existence (and its positive attributes) while providing greater value and economy to a cash-strapped city.  Such a discussion would require lawyers to admit that things aren’t wonderful, and they aren’t wonderful.  If you want to be loved by all, you don’t concede that there are problems.  Anyone who says otherwise is an enemy of criminal defense.

It’s unlikely that Ken’s complaint about the furlough plan will change the way his pay cut is handled.  It’s unlikely that a stinging resolution that the evisceration of 18b will reduce the number of people who want to pay dues to the NYSACDL will change the City’s RFP.  Of the two, Ken’s position is more persuasive to the government because they care more about keeping their prosecutors happy than about the number of members willing to shell out cash to the Association.  And yet the dialogue remains all about what’s good for criminal defense lawyers who rely on 18b to survive.