Independence Key To Indigent Defense, Speakers Insist

March 27, 2007
New York Law Journal
By Joel Stashenko

ALBANY - Chief Judge Judith S. Kaye's proposal to standardize indigent legal services across New York is doomed if the agency presiding over the new system is not fiscally independent, experts agreed yesterday.

Members of a panel assembled by the New York State Bar Association for a discussion of the future of indigent defense in New York insisted that a proposed indigent defense commission could not function effectively if it is not insulated from fiscal and partisan politics.

"The concept of independence is critical," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. "What we do in indigent defense has no natural constituency. We are defending what the public regards as a bunch of bad guys."

Mr. Reimer and other experts complained that the current indigent defense system often leaves legal services providers at the mercy of their government employers, who play groups of providers against each other when they are seeking the best-priced contracts. Legal services agencies are often jockeying for the same public dollars as their adversaries in litigation, the prosecutors, said Lisa Schreibersdorf, executive director of Brooklyn Defender Services and president of the New York State Association of Criminal Defense Lawyers.

She called the competition for public money among defenders, police and prosecutors "almost a conflict of interest."

Seymour W. James Jr., attorney-in-charge of the criminal practice of the Legal Aid Society of New York, said his office is subject to questioning from New York City agencies looking to cut contract costs about its staffing arrangements and other in-house procedures.

"Failing to have that independence leads to a race to the bottom," Mr. James said.

'Radical' Reform Urged

An indigent defense commission, if it is free of influence from the executive and judicial branches and the Legislature, would operate a system where standards can be imposed and enforced on the delivery of legal aid services throughout the state, said Jonathan E. Gradess, executive director of the New York State Defenders Association.

"We're talking about a radical reform of a system that is broken," Mr. Gradess said.

The system for defending the indigent was established in New York in 1965 in response to the 1963 U.S. Supreme Court ruling in Gideon v. Wainwright, 372 U.S. 335, which, concluding that lawyers were necessities rather than luxuries, found that poor people charged with a crime were entitled to legal representation by the U.S. Constitution.

In response, the state enacted Article 18-B of the County Law, requiring each county to establish a plan for providing indigent defense. However, the article provided little guidance on exactly what counties were to do.

The result has been what critics have called a patchwork system that varies widely from county to county in funding, personnel and in the effectiveness of counsel provided to poor clients.

Chief Judge Kaye, who made opening remarks yesterday at the conference at bar association's headquarters in Albany, said she remembered the landmark Gideon ruling well. It came down the week she was admitted to the bar, she said.

She has "carried that obvious truth" that lawyers are necessities "in my heart for 44 years and eight days" since the Gideon ruling, the chief judge said.

Some agencies providing legal services to the poor in New York do a "terrific" job while others "much less so," the chief judge said. Twenty-eight other states have a state commission or a statewide public defender responsible for their indigent legal services.

"It makes a lot of sense, doesn't it?" she said. "It surely makes a lot of sense to me."

'Grievous' Lack of Funding

Others speaking at the forum to about 75 attendees were Robert D. Lonski, administrator of the assigned counsel program in Erie County, Robert L. Spangenberg, president of The Spangenberg Group and Michael Breslin, Albany County's executive.

None of the experts had anything good to say about the current, county-based system. It has been increasingly under fire for being grossly underfunded, which, in turn, has led to crushing case loads in some areas of the state.

State Assemblywoman Helene Weinstein, D-Brooklyn and chairwoman of the Assembly Judiciary Committee, who was not at the forum, said in an interview that the 2004 increase in assigned counsel fees has not had the intended effect in most places of attracting more attorneys to perform 18-B work, as sponsors had hoped at the time. Instead, the increase of the rates to $60-$75 per hour from $25-$40 per hour prompted some counties to stop hiring outside attorneys for assigned counsel work and to try to handle the caseload in-house.

Ms. Weinstein said she has talked with defenders' groups and Chief Administrative Judge Jonathan Lippman about Chief Judge Kaye's proposal to overhaul the system.

"Something needs to be done," she said yesterday. "Whether this is the answer, I'm not sure."

In 2006, a commission appointed by Chief Judge Kaye co-chaired by retired state Supreme Court Justice Burton B. Roberts and Brooklyn Law School Professor William E. Hellerstein described a system laboring under a "grievous" lack of funding that is failing to deliver adequate legal services to a "large portion" of defendants who are entitled to them.

One particular worry is the town and village courts, where the commission said defendants infrequently received the legal assistance they have a right to and where justices often did not know when the assignment of counsel was warranted, the commission found.

The commission said a statewide indigent defense commission should be established to coordinate legal defense services, create regional defender offices, better train and educate public defenders and set performance and compensation standards for defenders. Panel members during yesterday's discussion said it would be imperative to have members appointed to the commission's board who are expert at indigent defense and influential enough to gain the commission the independence it needs.

"Someone on that commission has to be able to pick up the phone and talk to the governor," Mr. Gradess said. "Someone has to be able to talk to the chief judge."

Chief Judge Kaye said she is continuing to talk with the Legislature and Governor Eliot Spitzer about overhauling indigent legal services, including creation of an indigent defense commission.

The state bar, the state Association of Criminal Defense Attorneys and the ad hoc committee for an independent public defense commission have also called for a standardized, statewide approach to delivering legal services to the indigent. State bar President Mark H. Alcott said events like yesterday's forum are designed to build momentum the bar and Chief Judge Kaye believe has been created since the Kaye committee report last year and other declarations seeking reform of the system.

"I think there's interest and I think there's skepticism," Mr. Alcott said.

Judge Lippman has asked all county executives in the state to provide him with their assigned counsel plans and to advise him on making the system better. Town and village courts are receiving case management software and recording equipment to modernize their operations, Chief Judge Kaye said.


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