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Op-Ed: New York State is at Fault for Onondaga County’s Wrecked Public Defense System (Syracuse Post-Standard)

By Donna Lieberman

This fall, New York state is going on trial for its failure to provide legal services to poor people accused of crimes. It will be the first trial of its kind in the nation.

The lawsuit, Hurrell-Harring v. New York, brought by the New York Civil Liberties Union and our co-counsel at Schulte, Roth and Zabel LLP, has been ongoing for seven years. But the state’s failure to provide public defense has been ongoing for 50 years. It is finally time for change.

Under the U.S. Constitution, the New York Constitution and the laws of New York, if you are accused of a crime, you are entitled to an attorney. Fifty years ago, the U.S. Supreme Court held in the landmark Gideon v. Wainwright case that for those too poor to afford an attorney, one must be provided to them by the state. It was an “obvious truth” that no one benefits from a two-tiered system where the wealthy have a leg up in court and innocent people go to jail just because they are poor.

But almost as soon as New York state was given responsibility for providing public defense, it dumped the task onto its 62 counties and more or less washed its hands of it. That’s when the promise of justice for the poor disintegrated.

Onondaga County is a devastating example of what happens in a wrecked public defense system. A report released Wednesday by the NYCLU reveals some of what we’ve learned about public defense in Onondaga County over the course of our lawsuit, and it shocks the conscience.

Pressure to keep costs down mean that good public defense attorneys in Onondaga County are prevented from doing their jobs, and bad ones are allowed to keep representing clients. As one program administrator put it, to take on misdemeanors, all you need to represent the poor “is a pulse and malpractice insurance.” No prior criminal defense or trial experience is required, and no supervision occurs after cases have been assigned. Because there are no caseload limits, public defense attorneys can carry as many as three times the recommended maximum numbers of cases. Even if lawyers had the time and experience to do right by clients, they might not get paid for it; payments to attorneys are held up for things like talking to clients or filing motions on their behalf.

As a result, poor defendants don’t get anything like the kind of representation we expect from a fair justice system. They don’t even get to talk to their lawyers. In almost one-third of cases in 2012, attorneys never met with clients outside of court appearances. More than 1,600 people in jail awaiting trial waited over a month to see their attorney outside of court. One defendant, Robert Kulas, waited two months to hear from his attorney, who after minutes left to go feed his parking meter and never came back.

The poor don’t get their cases researched or investigated. Attorneys spent less than an hour on legal research in 99 percent of misdemeanors or on investigation in 98 percent of cases. In 2011, attorneys paid a professional investigator in fewer than 50 out of more than 14,000 cases. In an era where criminal cases turn on complex issues like DNA and when mental health issues are so often a factor, attorneys consulted expert witnesses in only 22 of those 14,000 cases.

It’s easy to see why: In 2011, for example, the county spent $28,161 on investigators in public defense cases while the District Attorney’s office was given almost $1 million — 35 times as much. That ends up costing taxpayers down the line. For example, one defendant, Ray Robinson, could have avoided six months of costly court proceedings if his attorney had just checked the one piece of evidence at the center of his case — a text message on his phone.

The state of injustice in Onondaga County cannot go on. Poor people are losing their families, homes and jobs to the broken justice system, and the rest of the county bears the heavy social and moral cost, not to mention the financial cost as taxpayers.

New York state and Gov. Andrew Cuomo can fix this crisis. The call for a state-managed public defense system as the only way to stop failing vulnerable defendants, overcrowding jails and violating New Yorkers’ fundamental rights is getting louder. Already, at least 14 counties have formally passed resolutions asking the state to take over public defense and settle the Hurrell-Harring lawsuit. But our elected officials are running out of time. With the case going to trial next month, the courts are poised to do what the state refuses — provide a competent attorney and equal justice for all New Yorkers, as they are entitled to under law.

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

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