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Op-Ed: End New York’s Two-Tiered Justice System (Newsday)

By Donna Lieberman
Donald Telfair did not meet his public defense attorney until he was standing in front of the prosecutor and judge in a Suffolk County courtroom last year. He had been violently attacked by a group of men, but instead of taking his report, the police charged him with robbery.

His defense attorney didn’t explain that Telfair had been assaulted, or protest when the prosecutor argued he was a flight risk. Still in his hospital gown, with one eye swollen and his jaw wired shut, Telfair, 46, of Medford, was instead forced to address the court himself.

Unsurprisingly, he wound up in jail. Bail was set beyond his means and he was incarcerated until his case was resolved. He accepted a plea bargain of 1 1/2 to 3 years — by then he had served the bulk of the time he anticipated he would have to do.

Telfair is just one of tens of thousands of victims of New York’s two-tiered criminal justice system — one in which poor people who can’t afford to hire a lawyer are forced to rely on the state’s dismal system of public defense. In a few weeks, the state will go to trial in Albany in a class-action lawsuit claiming this system violates the U.S. Constitution.

No one benefits when people go to jail because the state failed to provide effective lawyers. No one benefits when people lose their jobs, homes and children as they languish in jail because their attorneys have too many clients to contact them. And no one benefits when taxpayers pay for the incarceration of innocent people.

The responsibility for what happens to people like Telfair belongs to the state. The U.S. Supreme Court acknowledged 50 years ago in the landmark Gideon v. Wainwright decision what it called an “obvious truth” — that most people don’t know enough about the law to adequately defend themselves. A lawyer is a necessity in criminal court. And for those without the means to hire one, defense services must be provided by the state.

Instead, New York dumped its responsibility on its 62 counties. The hodgepodge of public defense systems is inconsistent, underfunded, subject to no statewide oversight or standards and, in most counties, totally insufficient.

Suffolk is a prime example, and a focus of the lawsuit brought in part by the New York Civil Liberties Union. A report released Wednesday by the group — based on data collected over the course of the litigation — exposes deficits in public defense in Suffolk.

The Suffolk County Legal Aid Society, which carries more than 25,000 cases a year, is underfunded. The State Bar Association recommends that attorneys carry no more than 150 felony cases or 400 misdemeanor cases a year. But in the Suffolk District Court bureau, some Legal Aid attorneys carry as many as 600 cases a year. Out of the tens of thousands of public defense cases in Suffolk in 2010 and 2011, experts were consulted in 17 cases.
Tragically, Suffolk is not an exception. The failure of county-based public defense systems across the state is its own “obvious truth,” as it underscores the state’s negligence.

The state and Gov. Andrew M. Cuomo must replace the disorganized and underfunded arrangement with a public defense system run by the state — that is funded by the state, that establishes statewide caseload limits and standards for client representation, and that provides proper oversight.

Across New York, 14 counties have formally asked the state to take over public defense and settle the lawsuit. While state leaders should not need a court order to provide the fundamental right to counsel, the court is now in a position to end this 50-year shame.

Donna Lieberman is executive director of the New York Civil Liberties Union.

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