Gideon Alert: AG Holder & North Carolina; NY Governor Patterson's proposal for reform; American Constitution Society panel; and opinion pieces

BY David Carroll on Monday, June 21, 2010 at 10:44 AM

Over the past three days, a flurry of activity occurred on the indigent defense crisis at both the federal and state level. 

New York

On June 18th, New York Governor David Patterson sent the legislature a proposal to begin the overhaul of the state’s public defense system, as part of the Public Protection General Government budget bill. According to the Governor’s press release, the bill creates a statewide public defender commission to: 1) examine and monitor the services provided to indigent defendants in the state’s 62 counties; 2) collect information from the counties in order to study and recommend measures to enhance the quality of representation provided; 3) establish criteria for the provision of conflict defender services in the counties; and, 4) target grants to counties in support of innovative and cost-effective solutions to enhance the quality of indigent legal services.  

Perhaps more importantly, the bill provides new sources of funding to create an office of Indigent Legal Services, including: 1) new fee of $95 to be paid by plaintiffs (banks and credit card companies) in consumer credit transactions; 2) a new $500 "credentialing" fee to be paid by persons who sit for the bar examination who were educated outside the country; 3) a new fee of $190 to be paid at the time the index fee is paid in a foreclosure action; and 4) criminal history search fee, which is paid when the Office of Court administration performs background checks, will be raised from $55 to $65.

Though a state as large and as populated as New York will necessarily need reform to be implemented over time, critics of the plan charge that no more study is needed in New York.  Moreover, the make-up of the statewide committee does not meet national standards for independence.  Not only does the bill allow active judges to serve on the commission, but the Chief Justice is made the chair.  That may work well with the current Chief Justice, but what occurs to the system ten or fifteen years down the road?  And, undue judicial interference is not the only problem with independence in the proposed legislation.  The bill also gives the Governor veto power over the selection of the Director of the new system. The New York Assembly passed the bill on the same day Gov. Patterson announced it.

North Carolina

June 18th also marked the latest public speech by United States Attorney General Eric Holder on the indigent defense crisis before the North Carolina Advocates for Justice convention.  He observed that, despite nearly five decades having elapsed since Gideon v. Wainwright, the case has “yet to be fully translated into reality,” and that “the Sixth Amendment right to counsel is, quite simply, not a right of all.”

The Attorney General spoke on the specific problems facing North Carolina, including that “a lack of staff” and “increasingly limited resources” is the rule, not the exception.  North Carolina is 100% state funded and services are overseen by a model statewide commission and directed by a central staff.  The state spends approximately $85.5 million per year (or, $9.85 per capita – 19% less than the national per capita average of $12.09).  One of the flaws with North Carolina’s system is that, despite a statewide commission, the legislature never dealt with undue judicial interference at the local level.  The Indigent Defense Services Act requires the Commission to consult with the “senior resident superior court judge and chief district court judge” – in addition to the local bar -- before recommending to the Legislature that a public defender system be created.  Since judges have a vested interest in keeping the system the same, the expansion of the public defender model has been very slow despite reports by the Commission on the cost efficiencies of implementing a public defender office model.  To be clear, NLADA is not saying that public defender models are better than assigned counsel models, just that public defenders are more cost-effective than assigned counsel if both systems adhere to national standards.

Attorney General Holder called on all criminal justice stakeholders to get behind indigent defense reform.  He noted that the new Access to Justice Initiative team has "met with prominent officials across the legal profession, from Chief Judge Lippman of New York to circuit judges on both coasts to the White House Domestic Policy Council, in order to form partnerships that will begin to open the doors of justice to all – regardless of income.” 

American Constitution Society panel

The Access to Justice Initiative, Senior Counsel Laurence Tribe, participated on June 18th, 2010 in an indigent defense panel at the American Constitution Society’s annual meeting.  According to the Legal Times, Mr. Tribe said part of the answer is to challenge private law firms to do more pro bono cases. “We have an incredibly wealthy private bar in this country that hasn’t done as much pro bono work for indigent clients as it could,” Tribe said. “In the wake of the economic crisis, firms are finding that the lockstep promotion of associates no longer makes sense and are beginning to promote them based on core competencies.  Well where are they going to get those competencies?  Why not by working on pro bono efforts?”

AEDPA

On June 21, 2010, the Washington Post published an opinion piece calling on Congress to seriously reconsider the impact of the Antiterrorism and Effective Death Penalty Act of 1996 on the representation of poor people in state death penalty actions.  Noting the provisions for attorney qualification are so “lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test” in the fast-track appeals process, the Post op-ed ends with a call to “ditch” the portions of the law truncating the time within which people under a death sentence can file Federal appeals.

Harris County (Houston), Texas

Finally, the Houston Chronicle joined the many voices calling for independence of the Harris County public defender office – including The Spangenberg Project and the Constitution Project.  The op-ed also references an NLADA letter to the County Commissioners that details the need for independence in Texas.