A Double Win for Indigent Defense (Inside NACDL)

A Double Win for Indigent Defense

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The New York and Michigan High Courts Clear a Path for Systemic Reform Litigation

Victories in the struggle to reform deficient indigent defense systems are hard to achieve. There is so much resistance to allocating resources for a constituency with little clout that indigent defense is the last thing funded in good times, and the first thing cut in bad times. Persistent neglect by state executive and legislative branches inevitably impels reformers to pursue litigation as a strategy of last resort. Yet litigation is a costly and time-consuming option, and the judicial branch is often loath to intrude when the ultimate remedy requires the expenditure of public funds — a quintessential responsibility of the political branches. Litigation is even more daunting because claims for prospective relief are frequently challenged on the ground that they are premature until an accused has already been convicted, and that the only appropriate avenue for relief is a direct appeal or a post-conviction Strickland claim. However, these obstacles were recently dealt a blow.

Remarkably, in the span of one historic week, the claims that prospective relief is premature and that individual Strickland claims are the only vehicle to challenge systemic deficiency were shot down by the highest courts in two states. As reported in the May 2010 edition of The Champion (page 12), both the Michigan Supreme Court and the New York Court of Appeals cleared the way for systemic reform litigation to proceed. Of course, in the long slog to uphold the promise of Gideon, hopes and realities do not often merge. But, in these cases, they did. Reformers across the nation should consider these cases as they weigh local options.

Michigan: Duncan v. State 

On April 30, 2010, the Michigan Supreme Court in a summary order1 upheld a determination by the Michigan Appellate Court that plaintiffs’ cause of action on behalf of defendants from three counties could proceed.2 The case, Duncan v. State, has statewide implications because the deficiencies in those three counties, which include underfunding, inadequate training, lack of performance standards and overwhelming caseloads, are endemic throughout the Michigan public defense system. In affirming the intermediate appellate court, the Michigan Supreme Court ratified the concept that reliance upon a Strickland post-conviction claim as an absolute requirement is illogical in the face of allegations of widespread, systemically deficient representation where the remedy sought is prospective relief to halt inadequate performance. That case will now proceed at the trial level, enhancing the prospects for broad reform in Michigan.

New York: Hurrell-Harring v. New York 

The plaintiffs in Hurrell-Harring lost in the intermediate appellate court, where a divided court rejected the claim for prospective relief on behalf of plaintiffs in five counties. The appellate court concluded that a Strickland claim is the sole vehicle for challenging ineffective representation and, in any event, the case was not justiciable because courts are ill-suited to determine how to best provide constitutionally mandated representation. New York’s highest court, the Court of Appeals, reversed in a groundbreaking opinion that may provide a roadmap for those contemplating litigation to redress broken indigent defense systems.

The court held that Gideon is broader than Strickland. In noting that many of the specific allegations included both the absence of counsel and the constructive absence of counsel, the court held:

      The questions properly raised in this Sixth Amendment-grounded action, we think, go not to whether ineffectiveness has assumed systemic dimensions, but rather to whether the state has met its foundational obligation under Gideon to provide legal representation.3

As is often the case with chronically deficient indigent defense systems, the New York case featured a familiar pattern of attorney underperformance. Thus, the court premised its ruling not only on the allegations that defendants were arraigned and detained without the benefit of counsel, but, in addition, noted many other instances of what may be viewed as the constructive absence of counsel throughout the proceedings:

      In addition to the ... allegations of outright non-representation, the complaint contains allegations to the effect that although lawyers were nominally appointed for plaintiffs, they were unavailable to their clients — they conferred with them little, if at all, were often completely unresponsive to their urgent inquiries and requests from jail, sometimes for months on end, waived important rights without consulting them, and ultimately appeared for plea offers, some of which purportedly were highly unfavorable. It is ... alleged that counsel missed court appearances, and that when they did appear they were not prepared to proceed, often because they were entirely new to the case, the matters having previously been handled by other similarly unprepared counsel.4

The court acknowledged that assertions of ineffective assistance that seek remedies specifically addressed to attorney performance (such as hiring, training and practice standards) are non-justiciable in a prospective civil claim.5 However, the court took an expansive view of the fundamental right to counsel, holding that when “the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet because of systemic conditions,” a cognizable Sixth Amendment claim is stated.6
The Court of Appeals predicated this conclusion upon the principle recognized in Strickland, that the prejudice prong of Strickland would be presumed in cases of actual or constructive denial of counsel.7 The principle was first enunciated in United States v. Cronic, a case decided the same day as Strickland:

      If no actual ‘Assistance’ ‘for’ the accused’s ‘defen[s]e’ is provided then the constitutional guarantee has been violated. To hold otherwise ‘could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel.8

For NACDL and its co-amici, the recognition of this principle and its application to situations in which over-burdened counsel cannot provide more than mere form representation was especially gratifying. This theory was forcefully advanced in the joint brief submitted on behalf of NACDL, NACDL’s New York Affiliate, the New York State Association of Criminal Defense Lawyers, the New York State Bar Association, the New York County Lawyers’ Association, several law school ethics centers, and 44 law school professors representing every law school in New York.9
The Court of Appeals also recognized, once and for all, the reason why the concept that a Strickland claim should be the exclusive remedy for a broken indigent defense system is fallacious. The denial of the right to counsel produces an imbalance in the adversarial process that can result in wrongful conviction. While noting that a wrongful conviction is “the ultimate sign of [the] system’s breakdown and failure,”10 the court also recognized that “the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon’s guarantee to the assistance of counsel does not turn upon a defendant’s guilt or innocence, and neither can the availability of a remedy for its denial.”11

Finally, the Court of Appeals brushed aside any notion that a claim grounded in a Sixth Amendment violation could be non-justiciable, noting that “the right the plaintiffs would enforce — that of a poor person accused of a crime to have counsel provided for his or her defense — is the very same right that Gideon has already commanded the states to honor as a matter of fundamental constitutional necessity. There is no argument that what was justiciable in Gideon is now beyond the power of a court to decide.”12 Indeed, based upon that inherent power the New York Court of Appeals then confirmed a judicial prerogative that may ultimately provide a foundation for the most important and enduring impact of the decision:

      It is, of course, possible that a remedy in this action would necessitate the appropriation of funds, and perhaps, particularly in a time of scarcity, some reordering of legislative priorities. But this does not amount to an argument upon which a court might be relieved of its essential obligation to provide a remedy for violation of a fundamental constitutional right.13

Thus, the ultimate objective of this systemic reform litigation may be within grasp. If the evidence proves what is often suspected, namely that widespread deficiency is a consequence of persistent neglect and underfunding of indigent defense providers, fundamental reform may be the indispensable remedy imposed by the courts.

The New York case was remitted to the intermediate appellate court for consideration of the claims set forth in the complaint in light of the decision by the Court of Appeals. For this particular litigation, there is still a long road ahead. But, for the cause of indigent defense reform throughout the United States, litigators and reformers now have a vastly expanded horizon as they consider their options.


  1. Duncan v. State, 780 N.W.2d 843 (Mich. 2010).
  2. The intermediate appellate court decided the case on June 11, 2009; see Duncan v. State, 774 N.W.2d 89 (Mich. Ct. App. 2009). On Dec. 18, 2009, the Michigan Supreme Court agreed to hear the case.
  3. Hurrell-Harring v. State, 2010 WL 1791000, slip op. at 7 (N.Y. May 6, 2010).
  4. Id. at 8-9.
  5. Id. at 17.
  6. Id. at 17-18.
  7. Strickland v. Washington, 466 U.S. 668, 692 (1984).
  8. Hurrell-Harring, slip op. at 14 (citing Avery v. Alabama, 308 U.S. 444, 446 (1940); United States v. Cronic, 466 U.S. 648, 654-655 (1984) (footnote omitted)).
  9. After noting the myriad alleged instances set forth in the complaint in which counsel was absent and either unavailable or unable to consult with clients, NACDL argued in its brief that “[s]uch practices, in a widespread, systemic scale state a colorable claim for the constructive denial of counsel and reflect a current and ongoing deficiency in how the state meets its constitutional responsibility.” See Brief for NACDL et al. as Amici Curiae Supporting Plaintiffs, Hurrell-Harring v. State, 2010 WL 1791000, at 27-28 (N.Y. May 6, 2010).
  10. Hurrell-Harring, slip op. at 21.
  11. Id.
  12. Id. at 19-20.
  13. Id. at 20 (citing Marbury v. Madison, 1 Cranch 137, 147 (1803)).

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