Gideon Alert: litigation in New York and Michigan may have national effects on indigent defense representation

BY David Carroll on Tuesday, March 16, 2010 at 2:27 PM

The New York Times contains an excellent article about the upcoming oral arguments in a New York Civil Liberties Union class action lawsuit (Hurrell-Harring v. State of New York).  New York's right to counsel system is almost entirely county-funded and administered.  In 2003, the state legislature established the Indigent Legal Services Fund (ILSF) to supplement county expenditures (in upstate NY, approximately 15 - 25% of each county's public defense budget is funded through ILSF); yet representation in upstate New York is defined by all the characteristics of underfunded, locally-administered systems: excessive caseloads; undue judicial influence; no training; poor supervision; and inadequate performance.

The need for effective indigent defense services in upstate New York is exacerbated far beyond that of other states because of the uniquely New York town & village court system (also known as "Justice Courts").  Justice courts have jurisdiction over all misdmeanors and lesser violations committed within the geographic boundaries of the town or village, and they also conduct arraignments and preliminary hearings in all felony matters arising out of the jurisdiction.  They are not courts of records, making appeals functionally impossible (although over the past two years, most justice courts have at least implemented a system for tape-recording their proceedings).  A staggering number -- about 75% -- of justice court judges are not attorneys, and they therefore have a substandard knowledge of the laws they are sworn to uphold and an extremely poor understanding of the Constitutional rights of the defendant.

The sheer number of courts in which public defense services must be provided and the large geography of most of the upstate counties means that public defenders seldom attend justice court hearings and are hardly ever present for the initial arraignment.  By example, in Cattaraugus County there are 32 towns, each of which has one and some having two elected town justices, and an additional four village justices.  Some of these town & village courts hold court more than once a month.  It is more than a two-hour round trip in driving time through the mountains of upstate New York from the public defender office to attend four of the justice courts, and more than one-and-a-half hours to attend an additional ten of the justice courts.  Per national workload standards, Cattaraugus County would need a total of 26 staff attorneys to handle the caseload appropriately, before factoring in staffing all of the Justice Courts.  When NLADA visited the public defender office in 2007, they operated with just five attorneys.

Despite such staggering problems, the state of New York is arguing in Hurrell-Harring that the proper remedy for any perceived failure in assistance of counsel is to address them on a case-by-case basis, after conviction, under the standards of Strickland v. Washington.  One of the problems in applying Strickland in upstate New York is that it presumes states are adequately providing counsel following Gideon and its progeny.  In reality, the attorneys in broken trial-level systems are far too often the same attorneys who are expected to handle the direct appeals, thus the chances of raising ineffective assistance of counsel claims on appeal are slim to none.  This leaves client to try to raise ineffective assistance of counsel claims in state post-conviction, where they are not entitled to have counsel appointed to represent them, and so must attempt to pursue these claims on their own without a lawyer.  The next best chance for a poorly represented client to get relief is often through federal habeas corpus -- an extremely costly procedure to taxpayers.

The folly of thinking a state's indigent defense crises can be addressed in this way was summed up in a recent decision of the United States District Court in the Eastern District of Michigan (Williams v. Birkett).  In Williams, the client was sentenced to 15 years after his probation was revoked for allegedly failing in a "boot camp" program.  The assigned attorney had only tried 200 probation revocation cases prior to Mr. Williams' case, met with the client for only 15 seconds before the case, failed to advise Mr. Williams that he could dispute the allegations in a hearing, and did not raise issues of Mr. Williams' competency despite a record of learning disabilities dating back to the first grade.  The attorney admitted that he had never requested that an actual hearing be held in a revocation proceeding because he did not want to "irritate" the judge who was directly responsible for his financial compensation.  The U.S. District Court cited the ABA Ten Principles in unconditionally granting Mr. Williams his freedom, through the habeas corpus process, even though he had gone through the direct appeal and state post-conviction process without relief.

So, it took one client six years and countless taxpayer dollars to get a federal court to decide what was patently obvious -- that he had received ineffective assistance of counsel because of the structure of Michigan's indigent defense system.  The federal court released Mr. Williams, but it could not fix Michigan's failing indigent defense system, yet the state of New York believes such a review system is fair to poor defendants caught up in its Byzantine court structure?  Fairness in the United States should mean more than just 15-second justice.