Monday, March 22, 2010

The Right to Effective Assistance of Counsel - or Something

At the urging of her public defender, Kimberly Hurrell-Harring entered a guilty plea to a felony for smuggling a small amount of marijuana into a New York prison to deliver it to her incarcerated husband.  She was caught.  She lost her job and any reasonable prospects.  After four months in custody, she was released for good behavior and placed on five-years probation. She lost her home and, with her kids, moved in with her mother.  They were living on food stamps.

Yeah, yeah.  Happens all the time.  If you can't do the time, don't do the crime.  (I first heard that on Baretta, I think.  My clients never say it.)

Except, see, the crime wasn't a felony.  It was a misdemeanor.  Less serious.  Almost certainly no prison time, no probation, no loss of job, no loss of housing.  Her lawyer should have known that, of course.  In fact, he was told.  But he apparently ignored the information.  That's pretty clearly ineffective assistance of counsel, a denial of Ms. Hurrell-Harring's rights under the Sixth Amendment.  

You can read all about Ms. Hurrell-Harring in last Friday's New York Times.  The Times is reporting the story now because she's one of the named plaintiffs in a class-action case brought by the New York Civil Liberties Union.  The case was filed in November, 2007, dismissed by the intermediate appellate court, and tomorrow the Court of Appeals (the high court in New York) will hear oral argument as to whether the case can go forward.  

Oh, about the case.  Here's the NYCLU's take from back when it was filed.
“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. 
I'm not licensed to practice law in New York.  I haven't participated in or even watched the New York system of indigent defense in action.  I have no personal knowledge of the merits of the case.  Nevertheless, I don't doubt for a moment that the plaintiffs are right.  

Indigent defense is problematic pretty much everywhere - even when it's superb - because at some point the system, and in particular its funding, is in the hands of the government.  And indigent criminal defendants don't have a great lobby and don't make big campaign contributions.   

But it's more than cash.  As Mike Cernovich points out today, even those of us who defend the system don't fully trust it.
There isn't a criminal defense lawyer reading this post who would, if charged with a crime, choose to be thrust into the public defense system rather than hire counsel. Sure, you know a guy in the office you'd entrust with your case if he had the time to spend on your case. 
You'd go into the public defender's office if - unlike poor people - you could choose your lawyer, and demand that he not treat you like another piece of meat on the assembly line. Which means, in reality, you do not trust the public defender system.
It's histrionic, maybe, and at some level unfair.  It's also true.

Public defense at its best provides superb representation.  There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis.  But the system doesn't.  Not broadly enough, anyway.

I'm a believer in public defense.  I served on the Ohio Public Defender Commission.  I've worked with the current and past state public defender.  I have taken and continue to take court appointments.  I'm generally supportive of Norm Pattis's movement seeking public defenders for everyone - rich and poor and those in between - a universal public defender system.  I asked permission to sign on to the Public Defender Revolution.

That just makes me more sure that these cases are important.  If standing up for our clients is what we do  (the rest is mechanics and details), if we understand that the clients, rich or poor, are on one side and the weight of the government is on the other, then the Sixth Amendment right to counsel needs constant and vigorous defense precisely because the clients have no lobby and don't make big contributions.

The issue in the Court of Appeals tomorrow isn't the quality of representation in New York.  It's whether the courts can address the quality of representation in more than a case by case way.  It's a predicate to the main event, but lose and the main event doesn't occur.

The New York case is important precisely because it's the New York case.  Oh, there's one in Michigan; and there have been and will be others in other states.  But New York is, well, New York.

As Sinatra didn't quite sing, if it can be done there, it can be done anywhere.

You can read all the major filings in the case here.  You should be able to watch the oral argument here.

And here's where you find the court's own summary of the case, which I'm just reproducing.

This action, filed as a proposed class action in 2007 by 20 plaintiffs who are or were represented by assigned counsel in criminal cases, seeks a declaration that New York's public defense system, which is primarily funded and administered by counties, fails to assure effective assistance of counsel for indigent criminal defendants as required by the State and Federal Constitutions. They allege that the State's failure to adequately fund, oversee and set standards for the public defense system has resulted in systemic deficiencies that deprive indigent criminal defendants of counsel at critical stages of their prosecution and create a severe and unacceptably high risk that the poor will be denied their constitutional right to effective assistance of counsel. The State moved to dismiss on several grounds, arguing that the structure and funding of public defense systems is a legislative function and therefore not justiciable and that plaintiffs may not use a civil action to challenge the adequacy of counsel provided in their criminal proceedings. 
Supreme Court denied the motion to dismiss, holding that "allegations of systemic deficiencies which give rise to a strong likelihood that plaintiffs' constitutional right to effective assistance of counsel will be violated state a justiciable cause of action seeking prospective declaratory relief without the need to allege or prove actual ineffective assistance of counsel" in a particular criminal case. It rejected the State's claim that judicial review of policy and budgetary decisions regarding public defense would intrude on the roles of the other branches, saying "the complaint merely seeks a general direction that the State provide a criminal defense to the indigent which complies with all constitutional and legal requirements. It does not demand any specific manner of compliance." The court also held the plaintiffs "do not have any effective remedy available within the context of their criminal proceedings."
The Appellate Division, Third Department reversed in a 3-2 decision and dismissed the complaint, ruling the claims were not justiciable. "Justiciability involves the constitutional separation of powers and determines what matters should be resolved by the Judiciary as opposed to" the other branches, it said. "There can be little doubt that what plaintiffs seek in this action -- a massive overhaul of this state's public defense system -- has obvious and ominous implications for the constitutional principle of separation of powers. Their claim, if granted, necessarily involves the judicial assumption of traditional legislative prerogatives." It also said the civil action would improperly impact related criminal cases. "[S]ound public policy requires that severe restrictions be placed upon the ability of criminal defendants to litigate claims in a civil action that can be, and ought to be, resolved in the criminal actions," it said.
The dissenters argued the plaintiffs adequately alleged that the State has failed in its constitutional duty and "the courts have the responsibility to examine the allegations and adjudicate the dispute.... Justiciability of the instant claim is even more compelling given that the constitutional right at issue is so interwoven with, and necessarily implicates, the proper functioning of the court system itself.... Concerns about costs, fiscal impact and the difficulty courts may encounter in fashioning and then enforcing [any remedies], while not to be ignored, cannot be sufficient to require us to turn a blind eye to constitutional compliance...." They said, "[W]idespread and systemic instances of deficient performance caused by an ill-equipped assigned counsel system will not be cured through a case-by-case examination of individual criminal convictions."


  1. I disagree with the point made by Cernovich (who I don't know). I routinely advised friend's who are arrested that might qualify for the public defender that they should try to, particularly because most of them are in the middle spectrum that Norm worries about in his UPD proposal: they can't afford a top flight CDL so they are left with a cheaper hack. I would follow this advice myself if arrested, but for the fact that I couldn't qualify for the PD.

  2. You were actually the first person (OK, besides 3 of my friends down the hall) who asked to join public defender revolution. So early, in fact, that I hadn't created the facebook group yet. Your official invitation is on its way.

  3. So does this mean I actually have to join facebook? Grr. You PD's drive a hard bargain.

  4. Lee,

    I've recommended PDs myself. But the truth is that if I need a lawyer I want to be sure I get a good one. And while I know lots of superb lawyers who are PDs (and I've had to work to undo the damage to some clients who fired their PD and hired an incompetent), I also know that in any office with more than one or two of them, there's likely to be someone who's just going through the motions. The thing is, in the private bar I can choose my counsel and avoid the lazy, the sleazy, and the incompetent. (And, unlike most of our clients, I know generally who should be avoided and who I would choose to hire.) In PD land, I wouldn't have that luxury.

  5. It only hurts a little (joining facebook), and the price is right. You can be an honorary member if FB is too internet-forward for you :) I am trying to get around to forming a nonprofit PD group that will help back up PDs who refuse excessive caseloads, and the FB group is something people can join in the interim. But you can consider yourself a member even without joining the FB Group. Because I say so.