Testimony: New York State Commission On The Future Of Indigent Defense Services

Testimony Of Barrie Gewanter, Director Of The Central New York Chapter Of The New York Civil Liberties Union Before The New York State Commission On The Future Of Indigent Defense Services Regarding The Need For Indigent Defense Reform In New York State My name is Barrie Gewanter. I am the Director of the Central New York Chapter of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union. From a regional office in Syracuse, the Central New York Chapter serves seventeen counties extending north to the Canada, South to the Pennsylvania border, west to Auburn and east to Utica and Rome. The mission of the NYCLU is to protect and defend the rights and liberties embodied in the Bill of Rights and the United States and New York State constitutions. Accordingly, we are deeply concerned about the provision of adequate legal representation for criminal defendants who “cannot afford an attorney,” as required under the Sixth and Fourteenth Amendments of the Federal Constitution and Article 1, Section 6 of the New York State Constitution. As you know from testimony delivered to this Commission in New York City on February 11, 2005 by NYCLU Executive Director Donna Lieberman and ACLU Senior Staff Attorney Vince Warren, and then on March 11, 2005 by Barbara Williams DeLeeuw, Director of our Genesee Valley Chapter Office, the NYCLU is deeply concerned about a system of indigent defense services in New York State that is broken and in need of careful repair. It is our contention that there are serious and systemic deficiencies in indigent defense services throughout the State, with little consistency, no accountability, and no real guarantee of fundamental fairness. Poor defendants frequently languish in jail because of inadequate representation, without lawyers who act as adversarial checks upon the prosecution these indigent defendants are often coerced to plead guilty and are sometimes tried and convicted for crimes they did not commit. Longstanding & persistent problems of inadequate and ineffective representation For the past year and a half, the NYCLU has been conducting investigations of public defense systems in selected counties. As the Director of our Syracuse office, I have been involved in our examination of related issues in Onondaga County. I will speak today mainly of concerns identified in that county through interviews with local lawyers, judges, civil liberties advocates, and a few referred defendants. Although our investigations are not complete, we have already seen troubling indications of inadequate and ineffective representation including:

• lack of assigned attorney contact with clients before and after key steps in the legal process, including: failure to visit clients in jail, repeated failure to accept or return client phone calls, failure to respond to client letters, failure to engage in meaningful communication with clients prior to scheduled court proceedings
• lack of timely action by assigned attorneys on behalf of their clients, including: repeated postponements and failures to appear in court, which can and has resulted in additional and unnecessary weeks or months of pre-trial detention,
• failure of assigned attorneys to investigate the circumstances of an alleged crime including exculpatory information, or to pursue any legal options beyond the unquestioned acceptance of a plea deal offered by the prosecution,
• failure of assigned attorneys to present mitigating evidence that might encourage a reduced sentence, or to pursue the potential for sentencing alternatives - even when free services are available to investigate and present such alternatives.
• actions taken by attorneys on behalf of clients without consultation or consent, including waiving preliminary hearings and engaging in plea negotiations against the client’s wishes,

These problems are not new in Onondaga County. A fact-finding hearing conducted by the New York State Defenders Association and New York League of Women Voters in Nov. 1998 revealed a pattern of similar complaints. I myself testified at that Hearing, as did other advocates. These kinds of complaints were also acknowledged and addressed in a newsletter circulated to criminal defense attorneys in the Assigned Counsel Program during the following year. The fact that these problems continue to persist is troubling. Related complaints have and continue to be received by local advocacy groups including the Human Rights Commission, Jail Ministry, and the local Chapter of the NAACP. In some cases, I have learned about particular cases from staff or volunteers of these organizations. Here are two examples: In one case, an assigned attorney promised a female defendant that he would appear in court on her behalf on a probation matter, but told her that she need not appear herself. She tried to contact her attorney for 2 weeks after that court date, but received no response. A few weeks later, she learned that a bench warrant had been issued for her arrest. She again tried to reach her attorney, but again could not get a response. The next day she went to visit her children in foster care and was arrested and placed in the County Jail. 5 days later, she had still not seen nor heard from her assigned attorney. In another case, a man was pressured by his assigned attorney to accept a plea bargain for one charge, even though he insisted on his innocence. The plea deal provided that charges pending against him in another matter would be dropped, and he would face one year in jail instead of a possible seven year sentence. While this man was considering this, a jail deputy discovered that the charges in the other matter had been adjourned in contemplation of dismissal (ACD). The man’s attorney had not informed him of this. Had he known, he never would have accepted the plea deal, and would have insisted on a trial on the one charge. His attorney continued to insist that “it was a good deal.” I know of several dedicated attorneys who represent assigned clients with the same zeal that they would for a retained client. However, I also know that there are attorneys in Onondaga County who are not serving the interests of their assigned indigent clients, and that little or nothing is being done about their failures. If a defendant is lucky enough to be assigned one of the attorneys that zealously attend to their responsibilities in the adversary system, that defendant may receive some measure of fairness. However, if a defendant is unlucky enough to be assigned an attorney who repeatedly postpones court appearances, who fails to show up in court, who takes action without consulting their client, or who does nothing more than pushing prosecution plea deals - that defendant’s experience in the system is likely to be much less than equal justice. The adequacy of indigent defense services should not be like a game of chance. A system that fails to do more to consistently protect the legal rights of poor people accused of crime is a system that demands careful attention and meaningful reform. Systemic institutional & administrative problems affect representation of indigent defendants There are severe obstacles placed in the way of incarcerated defendants in Onondaga County when they attempt to communicate with their attorneys while incarcerated before trial. For instance, the phone system established in the County jail allows inmates to only make collect calls to the outside world. This County facility receives 45% of the revenues from their phone service company for each of these collect calls, amounting to as much as $450,000 per year. (Source: March 18, 2005 newspaper article by John O’Brien on page B-3 of the Syracuse Post Standard) This phone system is set up to allow free phone calls to the City/County Human Rights Commission, to a service and advocacy organization known as Jail Ministry, and to the administrative office of the Assigned Counsel Program, but not to the attorneys who are actually assigned to their cases. When defendants attempt to contact these attorneys from within the jail, some of these attorneys, or their staff, refuse to accept the charges for the collect phone calls. Inmates have also found collect calls from the jail automatically blocked by the phone service companies utilized by some legal offices. As a result, some indigent defendants sit in jail for weeks or months without any way to contact their attorney, besides letters which may be ignored or filed away without response. In Onondaga County, we am very concerned that this has a disproportionate effect on African-Americans who regularly represent 50-60% of the population awaiting trial in the County Jail. In the City of Syracuse, it is common knowledge that African Americans are more likely to be stopped, questioned, harassed, detained, or arrested by the police. (This is also a problem in other upstate cities in my region such as Utica and Binghamton.) Advocates from one local program that provides services to incarcerated youth in the Onondaga County Jail indicate that more than 85% of the 16-18 year olds at this jail are youth of color. The advocates from this program report that many of these youth languish in jail, even on misdemeanor charges, with no idea about what is happening in their case because their lawyers do not visit them in jail or do not accept their phone calls from the jail. The NYCLU is also concerned about strategies employed in the current administration of indigent defense services by the Assigned Counsel Program in Onondaga County. One concern is that eligibility assessment protocols designed to “cut costs” may effectively result in denial of representation to defendants who cannot reasonably afford an attorney. Narrow guidelines are reported to exclude anyone who owns a home or other significant asset while ignoring any consideration of debt, such as child support or an existing mortgage. A system intended to provide representation to the poor should be focused on providing that representation, not denying it. We are also concerned that the application of these eligibility protocols may provide incentive for attorneys to pressure assigned clients to come up with money that they don’t have, to convert defendants into retained clients. There does not seem to be adequate oversight to prevent such abuses. Instead, attorneys assigned cases through this program are strongly directed to automatically seek removal from cases whenever eligibility is at all in question. At the same time, they are strongly discouraged from seeking a motion to continue in the hope that eligibility questions can be resolved in a more careful and compassionate manner. Ultimately, it is supposed to be up to the Judge to determine if a defendant is entitled to assigned counsel. However, when a Judge who is focused on moving the cases on his/her calendar is presented with an assessment that a defendant is ineligible, and an attorney following the Assigned Counsel directive to request removal, I doubt that many City or County judges will take the time to ask questions about the financial dilemmas of a particular defendant. In order to create more consistency in determinations of who “cannot afford an attorney” (as written in State statute), and to avoid the utilization of eligibility protocols that are unreasonably narrow or strict, there should be clearer state-wide guidelines for eligibility assessments for indigent representation. Another serious concern is the lack of adequate standards and oversight for the performance of defense attorneys’ adversarial role. The system of indigent defense services provided by the County should include clear expectations for attorney conduct, and a mechanism to identify and intervene when assigned attorneys engage in misconduct or otherwise fail to perform key aspects of their responsibilities. However, the indigent defense system in Onondaga County has been set up in a way that bypasses any obligation for such intervention. There are currently no established standards for adequate criminal defense representation in Onondaga County. The Assigned Counsel Program steadfastly adheres to the idea that it has no supervisory responsibilities based on the idea that the attorneys on its panel are all independent contractors. An Assigned Counsel Board member or administrator can request that a judge suspend or remove an attorney from the panel, but this is rarely if ever done, expect in cases of gross financial misconduct. There is, in fact, far more oversight of attorney billing practices than of attorney performance. There is a standing “voucher review committee” that carefully reviews billing vouchers, and has been known to alter or reduce the amount of compensation due an attorney for their services. At one time during the 1990’s there was a “complaint committee,” but this process did not continue. Until recently, the office of the Assigned Counsel Program did not even log calls from indigent clients who sought contact with their attorneys or wanted to make a complaint about their representation. An individual judge may cease assigning cases to a particular attorney whose performance in their courtroom has been questionable, but such an attorney can remain on the panel of Assigned Counsel attorneys for years without effective intervention. There should be a more reliable system to address patterns of problematic or inadequate performance of attorneys assigned to represent indigent clients. New York State bears the responsibility for providing an adequate system of indigent defense The State of New York has relied on a system in which each county is expected to bear the financial and administrative responsibility for providing indigent defense services. As a result, indigent defense services differ in form and effectiveness on a county by county basis. Each county is faced with difficult choices about maintaining indigent defense systems and providing resources for what is really a function of the State. These choices became even more difficult after the State Legislature acted on a long overdue increase in the compensation rates for assigned attorneys but did not create an adequate way to assist counties in meeting the increased financial burden. New York State must sufficiently fund indigent defense services in a way that provides adequate resources for effective representation, however this must be accompanied by the establishment of basic standards governing the provision of these services and mechanisms to monitor and ensure compliance. As you have heard from NYCLU Executive Director Donna Lieberman, while we are hopeful that the state will implement such essential reform, if the state fails to act, the NYCLU is prepared to bring litigation to ensure that the constitutional rights of indigent criminal defendants will be protected.