Onondaga, Ontario, Schuyler, Suffolk and Washington. Those are the names of five upstate counties in the blue state of New York that make court administrators in deepest, darkest, Alabama laugh. You see, us New Yorkers pretend to be very sophisticated and enlightened, but then we rarely travel above Duchess County, except to go the occasional swearing of a friend in Albany, after which we leave as quickly as possible. No one ever notices the cows in Troy fields.
The New York Times applauds the “landmark settlement” between the state and the New York Civil Liberties Union (with the muscle of Shulte, Roth and Zabel behind them).
Across the state, many poor people get no legal assistance at all; the lucky ones get an overworked, undertrained lawyer. Often, there is no investigation or money to pay for expert witnesses. Overburdened lawyers frequently have no more than a few minutes with a client before advising him or her to plead guilty.
The broken system is largely a result of a 1965 decision by state officials to pass off the costly job of providing public defense to county governments. Last week’s settlement properly returns that responsibility to the state and its much deeper pockets.
And these five upstate counties gave, essentially, bupkis. Unfunded mandates. Shortage of lawyers. Non-lawyer local judges. And nobody to give a damn, because we were all too busy wondering what to wear to chi-chi cocktail parties.
Among other things, the settlement requires that every defendant be represented by a lawyer at his or her first court appearance, the arraignment, where the judge takes a plea and sets bail. It mandates extensive training and supervision of public defenders, as well as new and enforceable standards for how many cases they can handle. It gives crucial oversight power to the independent Office of Indigent Legal Services, which was created in 2010 but has been severely underfunded ever since. And it commits the state to set new, uniform guidelines for who is eligible to get free legal representation — in some counties, people with incomes barely above the poverty line can be disqualified.
Reading through the terms of the settlement, it’s impossible to ignore how many moving parts are involved in order to make Gideon happen. There are dozens of places where holes, gaps, vagaries and excuses, failures and mistakes, and delay can undermine the accomplishment of any meaningful reform.
And at the same time, there is no way reform can come about without the qualifications and caveats. There is nothing simple about creating a working apparatus to provide a defense for the poor. And this only applies to five upstate counties.
For now, the reforms apply only in the five counties involved in the lawsuit, but the failure of public defense in New York is statewide. Fourteen counties have already passed resolutions pleading with the state to take over their public defense systems. The crisis is so bad that the Department of Justice filed a rare statement of interest in the case to remind state officials of the seriousness of neglecting their constitutional duty.
It’s relatively easy to pick apart the settlement, to highlight the many defendants who will go without counsel in the 30 months it will take for implementation of some parts of the settlement, assuming all goes well, but then, we’re 50 years down the road from Gideon and still thrashing out the details, and doing a pretty poor job of it.
Trying to explain how its possible that our legal system, honored in so many empty platitudes, to a group of non-lawyers the other day, who were trying to wrap their heads around the nuts and bolts of failure that no one ever mentions at their cocktail parties, I described it as a Rube Goldberg machine, where it was tenuous at best, and then subject to pieces being added in all directions, bit by bit, what maybe made a little sense based on highly specific needs.
But when you step back and look at the machine as a whole, it’s the ugliest, craziest, most ineffective and burdensome machine we could possibly have created. And still, it barely works, if at all.
The fact that indigent defendants in five upstate counties in the Empire State, a state that is so taken with itself, its importance, its wealth, its progressive ways of making life perfect, were prosecuted without lawyers to defend them is appalling and disgraceful. I’m ashamed of myself for not having done more to change this situation.
The NYCLU and Schulte, Roth & Zabel deserve our appreciation for their efforts, and our wishes for success in making the Rube Goldberg machine work. As for our progressive governor, Andy Cuomo, and Attorney General Eric Schneiderman, running hard for re-election on his having used money to buy bullet-proof vests for cops, “because nothing is more important,” enjoy the cocktail parties you’ll attend because you hold high office. But you, and me, and all New Yorkers, are still just a bunch of rubes, no better than the worst legal backwater.