Oral argument was held yesterday before the Court of Appeals in Hurrell-Harring v. State of New York, where the NYCLU seeks reinstatement of its action on behalf of 20 plaintiffs to hold that “the current system for representing poor defendants creates an unacceptably high chance that defendants’ constitutional right to adequate legal counsel will be violated.” 

Under persistent questioning by Judge Robert S. Smith, New York Civil Liberties Union attorney Corey Stoughton conceded that lawyers for plaintiffs in the case do not know how much it would cost to significantly improve the effectiveness of counsel assigned to indigent defendants.

 “That’s absolutely true, I have no idea,” Ms. Stoughton replied.

“Isn’t that a problem with systemic failure questions?” Judge Smith persisted. “What you’re really doing…by upholding the complaint, you’ve signed a blank check that someone is going to have to fill in later?”

That’s all it is?  Money? 

From the standpoint of  Gideon, my favorite public defender, yes, money is the answer.  Not an answer.  Not part of the answer. The answer.  “We’re only as good as our funding.”  I know it’s meant with the best of intentions, but money is a false god.

There is no public agency/service that doesn’t say it could do better with more money.  That should be engraved over the door of every government building.  I’ve no doubt that it’s true, particularly when it comes to indigent defense, where lack of funding has been a perpetual problem.  But there’s another view of the big picture that can’t be ignored.

The NYCLU is seeking class action status for the plaintiffs, who contended their counsels did not appear in court, failed to keep them apprised of the status of their cases, did not properly investigate their cases or otherwise provided inadequate representation.

In the case of lead plaintiff, Kimberly Hurrell-Harring, her lawyer had her plead guilty to a felony, when it should have been a misdeamnor.  How much money would it cost to correct that incompetence?  Her public defender was informed by a lawyer from NYSDA in advance of sentence of the problem.  He still didn’t bother to raise the issue.  How much money for that?

It’s not to say that adequate funding isn’t critical to the functioning of indigent defense.  It most assuredly is.  But funding a broken system doesn’t fix the system.  It just makes it a more costly broken system. 

The Chief Judge, Jonathon Lippman, asked an incisive question of New York’s Solicitor General, Barbara Underwood:

“Do we have a particular role to play here, given that this is about the justice system, the court system—that it works?” he asked at one point. “Or can we take just a hands-off approach and say, ‘Listen, there is no real controversy here, just have the individual cases go through to completion [and correct mistakes post-trial]. It doesn’t matter that this is about the justice system, about the courts.’ Should it matter to us?”

There’s no way to answer that the courts shouldn’t have a role to play in making certain that the court system works.  And Underwood acknowledged that, but added that concern alone doesn’t make a claim justiciable.  While Judge Lippman pressed on whether the only thing the court could do is correct mistakes afterward, Lippman argued that there was no assurance that allowing this case to proceed would prospectively produce effective assistance of counsel for anyone.

In tacit acknowledgement, the NYCLU told the court that it would drop the suit if the state forms a “statewide independent indigent defense commission.”  This is what’s really needed, together with funding.  And it’s something the court can’t order.  There must be money available to pay the cost of indigent defense.  There must be a system that assures that the money spent will result in an indigent defense system that serves poor defendants by providing effective representation.  It’s not just money.

It’s heresy within the criminal defense community to question any action that would produce more funding for indigent defense, and to the extent this suit will do so, and I’ve no doubt that increased funding will help to provide effective assistance of counsel, it’s hard not to support it.  But if the goal is true effective assistance for indigent defendants, then the system for delivering effective representation must be improved, and neither this case, nor even a blank check, will fix a broken system.