Proposed 2005 Budget for the Schenectady County Office of the Public Defender and of the Conflict Defender

My name is Melanie Trimble. I am the Executive Director of the Capital Region Chapter of the New York Civil Liberties Union (NYCLU). I am joined by Dawn Yuster, staff attorney at the NYCLU.

As you know, for almost a year the NYCLU has been examining and monitoring Schenectady County’s public defense system based on reports of serious deficiencies in the provision of legal services to indigent criminal defendants in the County.

On behalf of the NYCLU, we present testimony today in strong support of granting the 2005 budgetary requests by the Public Defender Mark Caruso to provide adequate staffing and resources for the Office of the Public Defender.

We also present testimony in support of granting funds additional to those requested and recommended for the Office of the Conflict Defender’s 2005 budget, if cases that involve defendants whose representation would create a conflict of interest for the Office of the Public Defender will not be handled by private attorneys on the Assigned Counsel Plan.

Recommendations

We offer the following recommendations:

1) Office of the Public Defender: We highly recommend that the county legislature approve Mr. Caruso’s proposed budget adjustments for 2005 to provide essential staffing and resources for the Office of the Public Defender, including:

• Hiring a new assistant public defender position to cover the new, third full-time city court;
• Converting the part-time assistant public defender position covering family court to a full-time position;
• Converting the part-time investigator position to a full-time position;
• Converting one of the assistant public defender positions from nine-tenths time to full-time;
• Allocating overtime pay for investigative staff to investigate crime scenes and locate witnesses in the evenings and weekends, when necessary;
• Hiring three legal interns to assist staff; and
• Paying for dues and subscriptions, attorney training and seminars, voice mail for assistant public defenders, and necessary office supplies and equipment.

  2) Office of the Conflict Defender: We highly recommend that the county legislature:

• Create a mechanism to ensure that the vast majority of cases that cannot be handled by the Public Defender due to a conflict of interest will be handled by skilled private criminal defense attorneys on the Assigned Counsel Plan,

  and if not, then

• Provide the Office of the Conflict Defender with the adequate staffing, funding, and resources necessary to ensure quality representation for all indigent defendants who have a conflict of interest with the Office of the Public Defender.

Background on Mandated Representation and Indigent Defense Funding in Schenectady County

As you know, New York State is under a federal and state constitutional mandate to provide adequate counsel to indigent defendants. However, as you are also well aware, New York State has deferred to its 62 counties, including Schenectady, its responsibility to fund and provide constitutionally adequate representation to poor criminal defendants. Indeed, in calendar years 2002 and 2003 Schenectady County received only about $27,000 and $23,000, respectively, in state funding to offset expenditures for providing legal representation to individuals who were financially unable to afford counsel, whereas Schenectady County carried the burden of expending about $1.5 million and $1.7 million, respectively, during those years.

These figures expose the crux of the problem, which raises fundamental issues of law and public policy: Unless and until the state is held accountable for its responsibility to provide constitutionally and statutorily adequate indigent defense services to criminal defendants by adequately funding indigent defense services (as well as setting and monitoring compliance with standards to govern the provision of quality defense services to poor people accused of crime), New York counties retain the obligation to meet this unfunded mandate.

Since winter 2003, the NYCLU has been examining and monitoring Schenectady County’s indigent defense system. Early in our investigation, we informed the county legislature, county manager, and county attorney that we had learned of practices in the Schenectady County public defense system that raised serious concerns about the quality and constitutional adequacy of representation provided to indigent defendants in Schenectady.

Office of the Public Defender

County officials urged us to give them a chance to make improvements, and in particular, to give Mark Caruso, the new Public Defender beginning in February 2004, whom the legislature unanimously voted to appoint, an opportunity to remedy severe deficiencies in representation. At Mr. Caruso’s appointment, many members of the legislature spoke in high praise of Mr. Caruso: his reputation for performing high quality work, his commitment to straightening out the Public Defender Office, and his plan of action. Some of you also articulated that as controllers of the purse strings you have the power to provide Mr. Caruso with the necessary resources, staffing, and funding to effectively perform his job.

In April, we expressed deep dismay over the proposed local laws to reorganize the Office of the Public Defender and to establish the Office of the Conflict Defender. We respectfully submitted that, contrary to our recommendations, Mr. Caruso’s proposal for reorganization and the County Attorney Christopher Gardner’s proposal for creating a Conflict Defender’s Office fell woefully short of requesting the staffing, funding, and resources necessary to remedy the serious deficiencies in the County’s indigent defense program. We testified that these combined proposals requested no additional funds at all, but rather took funds allocated to one area of public defense and gave them to another.

In fact, the large backlog of appeals dating back to 2002 and 2003 that Mr. Caruso inherited caused the Appellate Division to contact him to urgently address the problem. Unable to handle the appeals caseload without additional staff, the vast majority of appeals have been, at least temporarily, reassigned to attorneys on the assigned counsel panel.

In the absence of additional funding, Mr. Caruso has successfully instituted some fundamental changes to the Public Defender Office, in part by reshuffling existing resources. For example, felony cases are generally handled by one attorney from start to finish rather than the previous assembly line method whereby each attorney performed a particular duty and then passed the client along to the next attorney. Mr. Caruso negotiated with the county judge and district attorney to modify the plea bargain system so that defendants have time to decide whether to accept a plea offer. He also created Jail Night, a program at the county jail where the public defense attorneys regularly meet with clients to discuss their case.

Nevertheless, even with his deep commitment and intense efforts, Mr. Caruso is not a magician. Without additional staffing and resources he and his staff simply cannot effectively perform their job.

Office of the Conflict Defender

As for the Office of the Conflict Defender, we continue to harbor some of the same concerns we voiced in April and May. In particular, there is no mechanism for monitoring caseloads or workloads and for preventing the Office of the Conflict Defender from being overburdened. Moreover, when the office was created, county officials reassured us that the vast majority of conflict cases would continue to be handled by private attorneys on the Assigned Counsel Plan. And yet we have recently been informed that the Office of the Conflict Defender has been handling all conflict cases: that is, two part-time conflict defenders have been handling all criminal conflict cases in city, county, and town and village courts, while one part-time conflict defender has been handling all conflict cases in family court.

The Conflict Defender Steve Kouray has informed us that he and county officials have an understanding that there is a 500 caseload cap per year on the number of cases that his office will handle at its current staffing and resource level in order to ensure the provision of quality representation. However, there are clear indications that the Conflict Defender Office will reach the cap before the end of the year. Indeed, in 2003, assigned counsel in Schenectady handled 875 cases that the Public Defender could not take on because of a conflict of interest. According to nationally recognized standards, a Conflict Defender Office would need five full-time attorneys to handle this magnitude and composition of cases. Therefore, the county legislature must either allocate additional funding to the Office of the Conflict Defender or institute a mechanism for private attorneys on the Assigned Counsel Plan to handle the additional conflict cases.

Conclusion

Other counties that continue to skimp on funding, staffing, and resources for indigent defense are paying a dear price. For example, the former Essex County Public Defender recently resigned after county officials refused to provide his overworked office with the necessary staff and resources for him to fulfill his ethical duty to afford every defendant zealous representation. And in Greene County early this month, a former client of the Public Defender Office filed a case seeking to overturn her conviction on the basis that the overworked, under-resourced, and understaffed Public Defender Office denied her of her constitutional right to effective and meaningful counsel.

In conclusion, the NYCLU urges you to allocate sufficient funds in the 2005 budget in order for the Office of the Public Defender and the Office of the Conflict Defender to provide constitutionally adequate representation to all poor persons accused of crime.