Take Politics Out of Search for Public Defender
      January 25, 2008
      Rochester Democrat and Chronicle
      By Daniel Arshack


      Defending the poor has always been the highest calling for an attorney in our courts and in our community. There is no more important job in our entire criminal justice system.

      Obviously essential to the person who stands accused of a crime, the public defender also has a critical and often unrecognized, role in protecting the rights of us all — rich, poor and middle-class.

      Given the difficulty of the public defender's job, its often unpopular nature and its importance to our entire community, it is therefore critical to insulate the public defender from political influence.

      Many of the rights we take for granted, and as emblematic of our freedom, have their origins in public defense. Our entitlement to Miranda rights, our protection from warrantless arrests in our homes, our right to have a jury determine facts essential to punishment: All have their origins in public defense.

      In fact, in 1979, the public defender from Monroe County, Ed Nowak, traveled to the U.S. Supreme Court in Washington, D.C., to defend the rights of Irving Dunaway.

      Prevailing for his client, Nowak, convinced the Supreme Court to issue a landmark decision, Dunaway v. New York, protecting us all from being swept up without probable cause and taken "downtown" for interrogation.

      While defending the poor has an intrinsic moral value, it also confers an undeniable public benefit to the entire community.

      Public defense, though, does not come without a public price — especially when the client is accused of a high-profile crime. Advocating on behalf of a publicly scorned criminal defendant who is bereft of economic resources is never politically popular.

      So too, asking for resources to pursue a costly but crucial defense, or requesting public funds for an expensive investigation, remain politically unpopular — especially when our counties' resources are stretched thin.

      Yet this is the battleground where the rights of us all are at stake, where our freedoms are preserved — or where they're lost. And during a time when the expansion of executive and prosecutorial powers proceeds apace, a public defender standing in the way of this expansion will invariably incur political repercussions.

      Monroe County stands poised to select a public defender to succeed Nowak who has stepped down, having honorably served for 30 years.

      Before Nowak's appointment, Monroe County had a public defense system rife with cronyism and incompetence. It was a system that rewarded politically connected attorneys with sinecures and, in return, provided economically deprived clients with tepid advocacy.

      As a result, community groups in 1974, and again in 1977, worked to ensure that the Monroe County Bar Association was vested with the responsibility for selecting the public defender candidates and for providing a list of highly qualified candidates to the County Legislature.

      This process proved effective in insulating the position from direct political influence and yielded, in succession, two public defenders who discharged their duties vigorously and without regard for political consequence.

      This process also proved so beneficial that the county adopted it, in its charter, as the accepted mode of selecting the "conflict public defender" — a position created to handle the much smaller volume of cases that the public defender could not handle.

      In recent weeks, Wayne Zyra, president of the Monroe County Legislature, has demonstrated an insensitivity to the importance of the public defender position, as well as an unfamiliarity with circumstances that gave birth to the Bar Association's role in the selection process.

      First, he proposed a committee that was neither nonpolitical nor independent of the legislature; indeed, he actually assigned himself to sit on this committee.

      Then, after meeting resistance to this ill-founded scheme, he tried to dispense entirely with any selection committee and select the public defender through backroom deal-making, entirely excluding the public.

      When this, too, met resistance — including the courageous actions of Assemblyman David Gantt, D-Rochester — Zyra proposed to have the Bar Association screen the limited number of candidates who have agreed to submit applications under such a politically infected process.

      It is abundantly clear by Zyra's partisan words and actions that he has abdicated any role in either the selection or appointment of the public defender. The county should adopt completely a merit-based selection process, and that process should be turned over, from beginning to end, to the Monroe County Bar Association.

      The Bar Association can once again organize and conduct a transparent, accountable and inclusive process, just as it did in 1974 and 1977.

      Only by entrusting the entire selection process to the Bar Association — including a nationwide search for candidates — can the public be assured that the process is nonpolitical.

      From its experience prior to the Bar Association's involvement in 1974, Monroe County knows firsthand the disastrous results of mixing politics and public defending. As Monroe County learned then, and as some of its political leaders have now forgotten, if there is no justice for the poor in the community, there is no justice in the community.

      The New York State Association of Criminal Defense Lawyers, including its many members who live and practice law in Monroe County, urge the citizens of this community to contact their legislators and demand that the public defender be selected just as in the past — without regard to politics.

      It's too important a job for anything less.



    National Association of Criminal Defense Lawyers (NACDL)
    1660 L St., NW, 12th Floor, Washington, DC 20036
    (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org