Testimony: The Need For Indigent Defense Reform In New York State

My name is Barbara Williams de Leeuw. I am the Director of the Genesee Valley Chapter of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union. The NYCLU protects and defends the rights and liberties embodied in the Bill of Rights and the United States and New York State constitutions.

The Genesee Valley Office of the NYCLU serves the nine counties from Lake Ontario to the Pennsylvania border and is one of seven regional offices.

As you know from testimony delivered to the Commission in New York City on February 11, 2005 by Donna Lieberman, Executive Director of the NYCLU, and Vince Warren, Senior Staff Attorney in the National Legal Department of the ACLU Foundation, we are deeply concerned about the broken indigent defense system in New York State.

As you heard from Donna Lieberman, for a year-and-a-half, the NYCLU has been conducting investigations of public defense systems in various counties, including Albany, Onondaga, and Schenectady, based on complaints and reports of serious deficiencies in the provision of legal services to indigent criminal defendants throughout the state.

In the Genesee Valley, we have yet to undergo such investigations. Nevertheless, during my tenure as Director of this regional office, we have received numerous calls and letters from poor people accused of crime in the counties surrounding Rochester who have requested our help. In fact, the quality and quantity of complaints indicate troubling patterns similar to those that precipitated our county investigations conducted thus far, which have revealed that indigent criminal defendants are being starved of adequate, effective representation.

When I first began my job as Director after working as a public school teacher for thirty years, clients called from all over this region indicating that they had not had a lawyer present at legal proceedings or that they met their counsel only minutes before the start of a proceeding or that legal options had not been explained to them or that their attorney had insisted that they “cop a plea”. Truthfully, I did not believe many of our callers . . . in the beginning.

However, I was taught and later as a teacher I taught my students that in the United States, the Constitution and the Bill of Rights are the essential documents that distinguish American Democracy from other kinds of governance. I taught that these documents provide legal protection for all who reside in America and that individuals accused of a crime are:

1. Entitled to legal counsel; and
2. Entitled to be provided with free legal counsel if they are unable to afford to pay for counsel on their own.

As Director of the Genesee Valley Office of the NYCLU, over the course of two years of listening to the continuous battery of callers and reviewing letter after letter detailing horrendous stories, I have become convinced that the system designed to protect the legal rights of poor people accused of crime is in grave condition.

My office has regularly received calls and letters from poor people accused of crime in Steuben, Livingston, Yates and Ontario counties who report egregious experiences, including that their public defense lawyer has, among other things:

• Failed to question witnesses or investigate allegations of wrong doing;
• Exerted excessive pressure on the client to accept a guilty plea, often because the accused is “black and won’t get a fair trial anyway in this county”;
• Failed to consult with the client in a meaningful manner about the case;
• Refused to answer client phone calls or letters;
• Neglected to pursue a bail hearing while the client sits in jail for months;
• Misrepresented facts in court to the client’s detriment; and/or
• Refused to represent the client at subsequent stages of the proceeding.
  These stories are unforgivable in the Twenty-first Century.
  I would suggest that the patchwork of inadequate indigent defense services in New York State disproportionately falls on the backs of Blacks, Hispanics, limited English speakers and poor Whites that are often harassed, detained or falsely arrested, particularly in outlying communities of this section of the state. They languish in jail, inadequately represented, and are sometimes tried and convicted of crimes they did not commit.

  Forcing counties to maintain responsibility for indigent defense is irresponsible. It has created a disjointed system with serious and systemic deficiencies, and with no accountability, consistency, or fundamental fairness.

  The State of New York must remedy the woefully underfunded, understaffed, and underresourced public defense system to ensure that indigent persons are afforded qualified counsel who are capable of providing a constitutionally adequate defense. That means, as you have heard from others and will undoubtedly continue to hear, the state must sufficiently fund indigent defense services, and set and monitor compliance with standards governing the provision of quality indigent defense services. And as you have heard from Donna Lieberman, while we are hopeful that the state will implement essential reform, if the state fails to act, the NYCLU is prepared to bring litigation to vindicate the constitutional rights of indigent criminal defendants.