Reports & Papers
The Significance of the Hurrell-Harring v. New York Decision
In May of 2010, a divided New York State Court of Appeals reinstated a complaint brought by the New York Civil Liberties Union on behalf of indigent criminal defendants in Hurrell-Harring v. New York, 15 N.Y.3d 8 (2010) that alleged New York’s public defense system was inadequate to ensure the constitutional right to counsel. The Court recognized a cognizable claim for relief based on allegations that the plaintiffs had been denied the right to counsel by reason of insufficient compliance with the constitutional mandate of Gideon v. Wainwright, 372 U.S. 335 (1963). Rather than view the allegations made in the complaint as claims based on ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), they found the allegations supported a claim that the plaintiffs had no counsel or had counsel in name only.
Hurrell-Harring is a truly groundbreaking case which may fundamentally change the way the Sixth Amendment right to counsel is applied. New York has no state-wide system for the provision of indigent defense. Like the majority of states in the country, New York leaves the provision of indigent defense in the hands of individual counties. Even before the NYCLU’s lawsuit, a 2006 report from the New York State Commission on the Future of Indigent Defense Services concluded that “nothing short of major, far-reaching, reform can ensure that New York meets its constitutional and statutory obligations to provide quality representation to every indigent person accused of a crime or other offense.” That report went on to recommend substantially more funding for the provision of indigent defense as well as a statewide defender system.
Efforts to reform these types of county based indigent defense systems through litigation have not been successful in the past. Courts are generally not inclined to find systemic claims of ineffective assistance of counsel to be justiciable. The standard for ineffective assistance of counsel established by the Supreme Court in Strickland v. Washington requires that the defendant demonstrate that an attorney’s performance fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The deference showed by appellate courts to the strategic decisions of trial counsel means it is very difficult to show that trial counsel’s conduct was somehow unreasonable. The requirement to show prejudice to the defendant makes it even more difficult to show that counsel was ineffective since the court is permitted to classify an admitted error by trial counsel as harmless. This individualized approach to the evaluation of the effectiveness of counsel generally precludes claims based on the allegation that a particular system of indigent defense is failing to provide effective assistance.
The strategy adopted in Hurrell-Harring avoids the difficulties associated with bringing an ineffectiveness claim under Strickland. The claim is based on the allegation that the state has failed to effectuate the mandate imposed upon it by the Supreme Court in Gideon v. Wainwright. In other words, it isn’t that assigned counsel is ineffective; it is that there has simply been a failure to assign counsel. Viewed another way, the allegations being made are somewhat similar to those that were made in U.S. v. Chronic, the companion case to Strickland. In Chronic, the claim wasn’t that trial counsel’s performance was defective in a specific way but instead that a number of extrinsic factors rendered counsel ineffective. The claim of ineffectiveness in Chronic was based on the lack of time trial counsel had to prepare, the complexity of the case and counsel’s relative youth and inexperience as well as his lack of familiarity with criminal law and procedure. While the Supreme Court largely ignored these extrinsic factors and focused on counsel’s actual performance during the trial, they did hold that in a narrow set of circumstances inquiry into counsel’s performance at trial would be unnecessary since the surrounding circumstances would justify a presumption of ineffectiveness. This narrow exception was when a defendant was denied counsel during a critical stage of the proceeding so that, in effect, he was without counsel. This type of situation amounts to a breakdown in the adversarial process which would call into question the reliability of the outcome at trial and would therefore necessitate reversal. It is precisely this type of claim that is being made in Hurrell-Harring.