Saturday, May 8, 2010

New York Rocks

Not all wins are created equal.

Take Kimberly Hurrell-Harring.  I've written about her case before.  It's the class-action lawsuit, brought by the New York Civil Liberties Union, challenging the provision of public defender services in five New York counties.  When the case was filed back in 2007, the NYCLU described it this way.
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.
The claim, stripping away the details and linguistic blubber, was that in five New York counties, public defender services were so deficient that the indigent accused might as well have had no lawyer at all.  And sometimes, the lawsuit claimed, they actually did have no lawyer.

There's no legal question that people accused of crimes have a Sixth Amendment right to what the courts call the "effective assistance of counsel."*  In practice, that "at least minimally" language has far more sticking power than the "effective" does, but that's to argue about the force of the right.  The right itself is now such well-settled law that even Justice Thomas has not suggested he'd be open to revisiting whether it's proper.  (Don't tell him I wrote this.)

That's the right Hurrell-Harring and her co-plaintiffs said was violated.

The case was filed in 2007.  The State asked the New York Supreme Court (which is the lower court in New York) to dismiss the case.  They made two relevant arguments.  

  1. The problem really requires a legislative fix, not a judicial one.
  2. Determinations of effective assistance can only be raised after a conviction, as part of a post-trial process, because they are necessarily case specific.

The Supreme Court, which is the trial court in New York, denied the motion to dismiss.  The state appealed that to the Appellate Division which reversed, granting the motion.  Then the Court of Appeals (which is the high court in New York) agreed to hear the case.  Thursday, in a split decision, the court said the case could go forward.  More precisely, part of it could.

To understand that, you need to understand that the right to counsel has a couple of parts.  There's the right to counsel itself (Gideon v. Wainwright) and there's the right to have that counsel be at least minimally effective (Strickland v. Washington).  A Strickland claim requires showing a reasonable likelihood of a different outcome.  A Gideon claim doesn't require any showing of prejudice because it's considered a violation of the structure of the system.

Hurrell-Harring raised Gideon and Strickland issues.  She and her co-plaintiffs argued that the system in those five counties was so bad that they weren't getting counsel at all at what the courts call "critical stages" of their cases (Gideon).  And they claimed that when they did have lawyers, they were so grossly incompetent that they weren't even minimally effective (Strickland).

Got that.  In his opinion for the Court of Appeals, Chief Judge Jonathan Lippman parsed it out.
Strickland's approach is expressly premised on the supposition that the fundamental underlying right to representation under Gideon has been enabled by the State in a manner that would justify the presumption that the standard of objective reasonableness will ordinarily be satisfied (see Strickland, 466 US at 687-689, supra). The questions properly raised in this Sixth Amendment-grounded action, we think, go not to whether ineffectiveness has assumed systemic dimensions, but rather to whether the State has met its foundational obligation under Gideon to provide legal representation.
Inasmuch as general prescriptive relief is unavailable and indeed incompatible with the adjudication of claims alleging constitutionally ineffective assistance of counsel, it follows that plaintiffs' claims for prospective systemic relief cannot stand if their gravamen is only that attorneys appointed for them have not, so far, afforded them meaningful and effective representation. While it is defendants' position, and was evidently that of the Appellate Division majority, that the complaint contains only performance-based claims for ineffective assistance, our examination of the pleading leads us to a different conclusion.
He concludes this way.
Assuming the allegations of the complaint to be true, there is considerable risk that indigent defendants are, with a fair degree of regularity, being denied constitutionally mandated counsel in the five subject counties. The severe imbalance in the adversary process that such a state of affairs would produce cannot be doubted. Nor can it be doubted that courts would in consequence of such imbalance become breeding grounds for unreliable judgments. Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases. Wrongful convictions, however, are not the only injustices that command our present concern. As plaintiffs rightly point out, the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon's guarantee to the assistance of counsel does not turn upon a defendant's guilt or innocence, and neither can the availability of a remedy for its denial.
That's terrific and pretty ringing.  If New York is systemically denying counsel to indigents, or if it is effectively denying them counsel while pretending to give them lawyers, it's violating their rights and they can sue to change the system.

What they can't do, though, and amid the hosannah's it's worth noting that this is no small loss, what they can't do is bring a civil lawsuit to argue that the indigent defense system is providing incompetent, poorly trained, nearly worthless lawyers.  The Gideon claim can go forward.  But the individually fucked plaintiffs who had lawyers will still have to deal, case-by-case and only after-the-fact with bad lawyering.

Hurrell-Harring had a lawyer who convinced her to enter a plea to a felony.  Except the offense was a misdemeanor.  So she had a lawyer, just one who did an awful job.  The likelihood is that whatever the outcome of this case (and the plaintiffs still have to win at trial), it wouldn't have helped her.

The shame is that the Court of Appeals wouldn't even allow the argument that bad lawyering can be a systemic problem, too.

Still, two steps forward one sideways is a pretty darned good result.

*There's a similar right (maybe somewhat broader) under the New York State Constitution.


  1. Jeff-realistically, what kind of remedy could a court fashion for systemic bad lawyering?

    No matter which way you cut that question the only viable answer ultimately comes down to either funding (most likely) or independence of the indigent defense mechanism.

    The first question can be addressed via the Gideon prong of the lawsuit. The second really is rightly a legislative issue.

    Ultimately, we who practice pursuant to the Gideon operate under a pretty unpopular (in lots of places) part of the Constitution. If the people aren't willing to stand up for and enforce what the Constitution means, than the Constitution ceases to mean that.

    It is a fear I live with constantly, practicing in a well-funded PDs office in an extremely Fox News right county.

  2. It's a real problem. Money can go a long-way toward solving it (by, say, reducing case loads so that there's time to do better work), so can smart-on-crime decriminalization and ending (or even cutting back on) the drug war.

    But the plaintiffs did claim that they were bringing a claim for systemic IAC, not just a Gideon/Cronic claim. Presumably they had some idea of the sort of remedy that could address that and that the courts could provide.

    I just hate to see the argument lopped off, since it's such a serious issue (if true) and the case by case method of addressing it means that lots of people will get screwed.

  3. I suppose the great minds at the ACLU are probably more creative than me, but as a PD, I can't think of what I'd ask for other than money (for more lawyers, investigators, experts, better facilities and technology) or the Board of Sups to stay the hell out of our business (which, again, I'm not sure a court could order).

    The other things you've mentioned that make our jobs hard: dumb-on-crime criminalization, the drug war, overzealous police and prosecutors, bad juries, fascist legislators are neither things that make lawyers incompetent directly nor things a court can order a stop to.

    The hope, in a trickle down sort of way, is that counties or states see the money they spend re-trying cases overturned on Strickland grounds or (rarely) paying monetary settlements to the wrongfully convicted, that they realize it makes sense to try to fix/improve the indigent defense system (by giving us more money, getting out of our way or cutting back the prosecution side).

  4. You're right, of course, that most of that is legislative. Courts can order legislatures to spend money, can even, sometimes, tell them how. But reordering government priorities and the like is pretty clearly beyond what a court can do.

    Still, as Gideon points out today, there's a real problem when people who are being ill-represented must suffer conviction and then perhaps years of post-conviction litigation to get relief. And must do all that with the decks stacked against every granting IAC/Strickland relief. Yet that's precisely the problem with an exclusively case-by-case review of IAC.

    Moreover, no legislative dumping of money into the problem, or even decriminalization, will ease the hardships of those who suffer from incompetent representation. Maybe the number can be reduced, but that's about all.

    What we really need is to reconsider the whole mechanism.

    I'm not holding my breath.

  5. It's so deficient that people don't have attorneys at arraignment. The arraignement day plea on felonies is the norm. Lawyers are overburdened, but they are also just bad.

    Money is a huge issue and I think you can actually fix a huge part of the problem by paying good lawyers good money to do this work. In Albany (where I practiced) you were allowed to be a part time public defender because they just couldn't get experienced lawyers to do it full time. So, this seems like a good fix, but the PD clients still get short shrift. Really, who are you going to give your time and attention to - the freebies (but its not free cause you get state beni's and $) or your paying clients. No matter what, you will always treat your paying clients differently.

    This was really long. Maybe I should just do my own blog post.