Op-Ed: Indigent Defense Reform Benefits Defendants, Counties (New York Law Journal)

One of New York’s worst-kept secrets is the abject failure of its public defense system. Fifty years ago, in Gideon v. Wainwright, the U.S. Supreme Court ruled that states must provide a competent lawyer to poor people accused of crimes.

New York State’s response was to abdicate its responsibility to county governments. As with so many unfunded state mandates, counties face enormous political and economic pressure to keep costs down, especially given that the immediate beneficiaries of the Gideon mandate are disenfranchised indigent criminal defendants.

A recent ruling from the New York Court of Appeals highlights how the pressure to contain costs results in violations of the constitutional right to counsel in one particular county. The administrators of Onondaga County’s Assigned Counsel Plan promulgated a series of rules governing the qualification, assignment, conduct and compensation of attorneys who agree to represent indigent criminal defendants. In Roulan v. County of Onondaga, the Court of Appeals considered a challenge to three of those rules brought by an attorney who claimed that they existed for the purpose of controlling costs at the expense of his own rights and the rights of his indigent clients.

Each of the challenged rules was deeply problematic. The first rule denied counsel to persons under 21 who could not produce evidence of their parents’ indigence. This rule acted as a barrier to the right to counsel for persons who lack connection to their parents or the ability to produce evidence of their estranged family’s financial circumstances. Restrictive eligibility rules like this one are often used by counties to limit the caseloads of their public defense services providers and, thereby, to control costs.

The second rule prohibited persons who become indigent in the course of a criminal proceeding from retaining their defense lawyer as assigned counsel. This rule infringed on indigent defendants’ right to continuity and choice of counsel, a right recently affirmed by the Court of Appeals in People v. Griffin.

The third rule prohibited representation of a non-incarcerated client prior to a final determination by plan administrators of the client’s financial eligibility. Because these eligibility determinations could take days or weeks, many indigent defendants effectively had no lawyer to counsel them through critical initial stages of the prosecution and undertake a timely investigation of their charges. Both the Court of Appeals and the U.S. Supreme Court have emphasized the importance of the right to counsel beginning from a defendant’s first appearance in court. By limiting lawyers’ ability to represent clients in early stages, this rule operated to limit the costs by encouraging early, un-negotiated guilty pleas at the expense of investigation of or meaningful advocacy on indigent clients’ cases.

In Roulan, the Appellate Division, Fourth Department struck down this third rule as unconstitutional, agreeing that it “requires attorneys to violate the indelible right to counsel that attaches at arraignment.” As to the first two rules, however, the Fourth Department found no constitutional violation.

The Court of Appeals took issue with the Fourth Department on this latter point, reversing its decision insofar as it upheld any of the specific rules of the Assigned Counsel Plan. The court held that no endorsement of those rules should have happened, because the petitioner did not have standing to challenge those two rules, never having pled that he or any of his clients were affected by them directly.

As to the rule regarding delayed representation for clients whose financial eligibility was not yet finally determined, however, the Court of Appeals left undisturbed the Fourth Department’s order declaring that rule unconstitutional, noting that the respondents had failed to cross-appeal from that part of the order. Indeed, except as specifically modified by the court’s ruling vacating the declaration of the validity of the first two plan rules, the Court of Appeals affirmed all other aspects of the Fourth Department’s order.

By leaving in place the Fourth Department’s rejection of the delayed-representation rule, the Court of Appeals preserved Roulan’s victory for indigent, presumptively innocent people who find themselves stranded and alone when facing a prosecutor’s accusation of crime. And, by reversing the Fourth Department’s endorsement of Onondaga County’s restrictions on eligibility and continuity of counsel, the court neutralized what otherwise would have been a defeat for the right to counsel for the poor.

The final outcome of Roulan leaves Onondaga County, and other counties like it, vulnerable to future challenges to their assigned counsel rules. It also leaves open broader questions about the constitutionality of New York’s public defense system. Generations upon generations of legal and political luminaries have issued reports and speeches lamenting New York’s broken system and urging reform. Most recently, in 2006, a commission convened by former Chief Judge Judith Kaye declared New York’s patchwork, county-based public defense system unconstitutional and broken. Shortly afterwards, a class action lawsuit, Hurrell-Haring v. State of New York, was initiated to compel the state to institute reforms. That suit remains pending in Albany County. (Disclosure: this author is lead counsel in that litigation.)

As the Kaye commission report found, Onondaga County’s rules are but one of myriad examples of counties’ attempts to cope with the financial pressures created by the largely unfunded state mandate of public defense by restricting the scope of that right. Until the State of New York accepts responsibility for reforming the public defense system, counties will continue to be vulnerable to legal challenges that place yet more financial burdens on strapped local governments.

More importantly, reputation and reality of justice in New York’s criminal courts will continue to suffer under the shadow of uncertainty and unfairness created by our broken indigent defense system.

Corey Stoughton is senior staff attorney and upstate litigation coordinator at the New York Civil Liberties Union.