Court-Ordered Emergency Action Needed to Address New York State’s Unconstitutional Public Defense System, NYCLU Charges

March 27, 2008 —  The New York Civil Liberties Union today filed a request for immediate emergency relief to address New York State’s broken public defense system.

In November, the NYCLU and the law firm of Schulte Roth & Zabel LLP filed a landmark class action lawsuit that charged the state with failing to uphold its constitutional duty to provide effective counsel to New Yorkers who are accused of crimes and cannot afford to pay private lawyers. The situation is far too dire and the stakes too high to wait for relief, however. There are steps that can be taken now to ease the situation in the short term.

“At this moment there are New Yorkers who are being denied justice simply because they are poor,” said Donna Lieberman, executive director of the NYCLU. “We look forward to a full resolution to this urgent problem, but with lives on the line we can’t afford to sit back and wait. Immediate action is necessary.”

The November class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems, but the lawsuit seeks statewide reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer.

Currently, court-appointed lawyers across the state are overwhelmed by huge caseloads and lack sufficient staff and resources to do their jobs. Some lack the necessary experience and training to competently handle their cases.

As a result of these deficiencies, many individuals facing criminal charges are compelled to appear in court without a lawyer at critical junctures, such as when bail decisions are made. This often results in excessive bail being set and keeps too many people in jail awaiting trial. Studies link high bail to an increased likelihood of conviction.

Many public defense lawyers also fail to: meet or consult with clients at critical stages in their cases; investigate the charges against their clients or hire necessary forensic experts; file necessary pre-trial motions; and provide meaningful consultation before clients accept plea bargains, even when this is a viable defense.

“The public defense crisis in New York is unfair both to defendants and to the lawyers who are charged with representing them,” said lead counsel on the case, NYCLU Staff Attorney Corey Stoughton. “Defendants are unfairly given second-rate justice because they cannot afford to pay private lawyers, and public defense attorneys are not given the resources, tools and training they need to do right by their clients.”

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Today’s preliminary injunction seeks emergency relief in the five counties named in the lawsuit: Onondaga, Ontario, Schuyler, Suffolk and Washington. This relief must ensure that all criminal defendants are appointed a competent, knowledgeable attorney with sufficient time and resources. It must also:

• Implement standards and procedures to ensure that attorneys appointed to represent indigent criminal defendants have sufficient qualifications and training;

• Establish caseload and workload limits to ensure that public defense attorneys have adequate time to devote to each client’s case;

• Guarantee that every eligible indigent criminal defendant is assigned a public defense attorney within 24 hours of arrest who is present at every critical proceeding and has the opportunity to consult with each client in advance of any critical proceeding;

• Ensure that investigators and experts are available to every public defense attorney for every case in which an attorney deems that investigative or expert services would be useful to the defense; and

• Establish uniform written standards and procedures for determining eligibility for the assignment of a public defense attorney.

The failure of the state’s fractured public defense system is widely acknowledged. The inadequacy of the scheme has been well-documented for more than 40 years in dozens of reports by legal advocacy organizations, professional associations and government commissions.

In June 2006, a commission appointed by Judge Kaye concluded that the state’s public defense system is “severely dysfunctional” and “structurally incapable” of providing people effective legal representation. Recently the Innocence Project found that New York outpaces almost every other state in the number of wrongful convictions overturned by DNA evidence.

“A broken public defense system impacts all New Yorkers,” Stoughton said. “When innocent people go to jail, the real criminals continue to roam free.”

New York is one of only six states that have no statewide responsibility or oversight mechanism for public defense and remains among a minority of states, including Alabama and Mississippi, that have failed to join the movement toward full state funding.