While others have taken up arms following the New York Times article on the action by the New York Civil Liberties Union heading to the Court of Appeals, I’ve been (strangely?) silent. It’s not for lack of caring. I care. But the use of the anecdotal evidence of how contract indigent defender Patrick Barber failed, and failed miserably, to properly represent Kimberly Hurell-Harring, “a nobody in the courts,” proves nothing of the system. It proves that lawyers, on the whole, can be great, awful and everywhere in between.
The NYCLU brought suit to reform the New York indigent defense system, currently managed county by county, with vastly differing benefits and detriments. Taken from Gamso’s post on this matter:
“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. . . .
The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer.
Sounds good, but tries wraps up a plethora of problems with too neat a bow. The delivery of indigent defense in upstate rural counties is quite different than downstate counties or more urban areas. New York State isn’t just Manhattan, or Washington County. The problems encountered by Hurell-Harring in Washington County are quite different from those suffered by her counterpart in the Bronx.
There is no question that every defendant is entitled to “competent, qualified and timely representation.” The first two are supposed to be covered by the requirement that the law-talking guys who stand next to defendants are lawyers, duly admitted to practice law in the courts of the State of New York. Lawyers should not require someone sitting on top of them every second of the day to fulfill their professional responsibilities to their clients. They are supposed to be competent, qualified professionals, whether they represent the indigent or the wealthiest corporation in the world.
The reality, of course, is that it doesn’t quite work this way. Some are hacks. Some are just awful. Some don’t care and some do drugs or drink alcohol such that they fall down, literally. This isn’t an indigent defense fault, but a lawyer fault. Contrary to common wisdom (which I define as facile assumption), hacks are all over the place, and not limited to the ranks of indigent defense.
What the NYCLU suit is really all about is forcing the creation of a statewide indigent defender system, an idea which should be implemented and which has, if properly crafted, the potential to resolve many of the faults in the existing system. But this isn’t the way to do it.
The 3d Department was right to conclude that this was a political issue, and not one that the courts could fix under separation of powers. It involves many interests and concerns, with many difficult choices. While I trust the legislative process no more than anyone else, it’s still the means by which such things are supposed to be decided. For better or worse, and I anticipate the latter.
As for Kimberly Hurell-Harring, she got screwed by bad lawyering, or as we like to call it, ineffective assistance of counsel. The bad news is that no “system” will ever eliminate IAC, and anyone who believes that it will is living a fantasy. Only we, individual lawyers and judges, can take responsibility for the quality of our own representation and those around us. If we were to spend as much of our professional capital on quality rather than marketing, perhaps improvement can be achieved.
As for improving the system for indigent defense, I’ve no doubt that the NYCLU is right that we can do far, far better than we do now. But the solution won’t be found in some pathetic case from Washington County.
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Way off base on this one, Scott. The State is constitutionally obligated to provide defense services – adequately funded, properly trained and qualified, to those who are indigent. While individual attorneys (18-B), or individual public defense offices (LAS or PD or Alt. defenders or conflict defenders)may be adequately funded, trained and provide constitutionally mandated representation, the ‘system’ as a whole, does not; This is particularly evident in some of the non-urban counties – not practicing in NYC I will limit my comments to what I know more about, from first hand experience – the hodgepodge approach to public defense, reliant on the generosity or lack, of local government, does not, and perhaps cannot meet the State’s obligation. Such programs are subject to enormous political pressure, resulting in underfunding – low salaries, non-existent staff, no funds for training, etc. My personal experience and observation is that some local legislatures lack the political will to adequately fund public defense offices. The state legislature, long aware of this situation, has failed to take the necessary action to correct it. In conjunction with the 18-B rate increase several years ago, the Legislature provided funds for indigent defense to be paid directly to counties. The legislation required the counties to use the funds to supplement, not supplant, their indigent defense programs. When some counties did not do that – using the funds elsewhere, they were in jeopardy of losing their funding – the legislature solution – change the rules. So, litigation, the means to make the State do what it is supposed to do in the first place, is a proper method to address it’s own mis- and malfeasance.
18-B rates did not increase (whether you agree with it or not) during more than 7 years of efforts to have the legislature address the issue – they increased the rates AFTER both a Federal Judge AND a State Judge issued rulings suggesting that $100 per hour was the appropriate rate of compensation. Even then, politics raised its head (ugly or not) so that the powers that be settled on $75 per hour.
Efforts to get the State to address this issue has not resulted in appropriate action. The NYCLU litigation may not offer the perfect solution – if there is one, but it should force the State to do what it was supposed to do in first place – address the deficiencies in the public defense system.
That it has ‘political’ implications, so what – it’s supposed to.
There’s no disagreement as to the myriad problems, but your penultimate sentence shows the problem:
Only the state can address the deficiencies. The courts can’t provide a comprehensive solution to all these problems, nor would we want it to impose a system on the state. Raising 18b rates was easy. A new system to provide indigent defense won’t be so easy.