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Op-Ed: Set Public Defender Standards (Albany Times Union)

By Donna Lieberman

Public defense attorneys are often the only thing standing between poor, vulnerable New Yorkers facing criminal charges and the series of misfortunes they suffer if they’re wrongfully stuck in jail — unemployment, homelessness, losing their kids, not to mention the loss of freedom itself.

But across most of New York state, well-intentioned defense attorneys are too often prevented from adequately representing their clients, creating a two-tiered system of justice in which the poor are second-class.

In Syracuse, a man accused of stealing deodorant sat in jail for four months, losing his job and home. A Rochester mother of two lost her professional license, job and home after her attorney told her to plead guilty to a felony when she only committed a misdemeanor. A Suffolk County man languished in jail for more than two years without being found guilty of a thing, bounced between a rotating cast of six different attorneys.

The onus for this crisis falls squarely on the state. New York has no statewide public defense system, but rather a patchwork system that varies from county to county. There are no enforceable standards, caseload maximums, adequate resources, or sufficient training and oversight. Funding and resources are grossly inadequate.

A new report by the New York Civil Liberties Union exposes the dysfunctional system.

For example, in Onondaga County, where there are routinely more than 10,000 public defense cases a year, poor defendants never met with an attorney outside of court almost one-third of the time in 2012.

In Suffolk County, out of the tens of thousands of public defense cases in 2010 and 2011, experts were consulted in 17 cases — effectively zero percent of cases.

In some counties, caseloads have spiraled out of control. Public defense attorneys can carry up to three times the recommended felony caseload maximums a year. In Washington County in 2012, caseloads were not formally tracked at all. Assistant public defenders were asked twice a year about their caseloads; the number was written down on a Post-it note that was not kept.

Resources are scarce, putting public defense attorneys at a huge disadvantage compared to prosecutors. Onondaga County spent $28,161 on investigators in public defense cases in 2011, while the Onondaga County District Attorney’s Investigations Bureau spent 35 times as much — almost $1 million dollars. In Washington County in 2011, seven public defense attorneys shared one computer.

Training and oversight are so inconsistent that one former Legal Aid Society attorney in Suffolk described his experience as “being thrown out there without any proper training.” In Schuyler County, no written policies or procedures exist for defense lawyers.

But there is hope. Seven years ago, the NYCLU and Schulte, Roth & Zabel LLP sued New York over its failure to uphold the Constitution and provide effective attorneys to poor people accused of crimes. In just a few weeks, the state will finally stand trial for this violation, the first trial of its kind in the nation.

Trial should not be necessary. The state and Gov. Andrew Cuomo can settle the Hurrell-Harring lawsuit by providing proper funding, caseload limits, and professional standards and oversight for lawyers. New York shouldn’t need a court order to ensure that public defense attorneys can carry out their fundamental and essential role — to protect poor and vulnerable members of the community and vindicate the rights of all New Yorkers.

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

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