Broad Cross Section of Legal Community Lauds State Bar for Summit on the Future

ALBANY, NY (03/26/2007)(readMedia)-- Leaders of the Committee for an Independent Defense Commission today lauded the New York State Bar Association Special Committee to Ensure Quality of Mandated Representation, which is hosting a summit meeting in Albany to consider Chief Judge Judith Kaye's call for a state takeover of the current county-based system of public defense services.

The current system was described as "an on-going crisis" in a report last year to Judge Kaye by the Commission on the Future of Indigent Defense Services. That report called for the creation of an Independent Public Defense Commission to develop enforceable statewide standards for defense caseloads and other requirements to ensure defendants in New York State receive effective defense services mandated by federal and state constitutions.

The Commission also called for a state assumption of the costs of public defense over a three-year period. The current system amounts to an unfunded mandate that costs counties a collective quarter of a billion dollars annually -- $245 million in 2005 alone.

Judge Kaye, in her annual State of the Judiciary address last month, said the current county-based system is "in severe disarray and should be replaced with a statewide system governed by consistent regulations and standards."

Michael Whiteman, the chair of the Committee for an Independent Public Defense Commission, urged the State Bar to lend its voice to leading members of the defense and civil Bar in urging Governor Spitzer and state legislators to add $6 million to the FY2007-2008 state budget for start-up costs.

"This month marks the 44th anniversary of the United States Supreme Court's decision in Gideon v. Wainwright which enshrined for all defendants the right to effective counsel regardless of ability to pay," said Whiteman. "Judge Kaye has produced the roadmap to allow New York State to embrace its progressive history and make Gideon's promise a reality at last for all of our citizens."

Ray Kelly, Immediate Past President of the New York State Association of Criminal Defense Lawyers and a member of the Committee for an Independent Public Defense Commission, stated, "New York is at the best moment in the last 40 years. We have a 'perfect storm' of events -- an ongoing crisis addressed by the Chief Judge and her Commission, consensus in the defense bar that something must be done immediately, a motivated client community, the evolving support of others, and the winds of change blowing in Albany with the new Governor. The time for action is now."

The Committee for an Independent Public Defense Commission has joined with a broad coalition of national, state and local groups -- including leaders of the New York State Defenders Association and its Client Advisory Board, the National and New York State Associations of Criminal Defense Lawyers, and New York's Chief Defenders -- in urging adoption of the Kaye Commission's recommendations.

"We are standing at the watershed moment for equal justice in New York," said Jonathan Gradess, Executive Director of the New York State Defenders Association. "We applaud Judge Kaye's leadership on this issue and are excited that the New York State Bar Association is poised to join in urging our state's elected leaders to create an Independent Public Defense Commission and state defender system to honor the spirit of Gideon."

Judge Kaye was clear in her State of the Judiciary address why the overhaul is necessary, and why now is the time to move ahead on the recommendations of the Commission, which was chaired by Brooklyn Law School Professor William Hellerstein and former Bronx County Judge Burton Roberts: "Although most defenders are dedicated and diligent, the Commission documented how the system is so poorly designed, so badly fractured between the State and localities, and so overburdened that only a complete overhaul would suffice," Judge Kaye said. "With the Commission's recommendations to guide us, we are currently working with the Governor's Office, with county governments and indigent defense providers, to achieve consensus on a framework for a new indigent defense system in New York State."

Among the critical findings by the Kaye Commission are:

-- There is a disproportionate availability of resources between prosecution and defense, and among the various counties. This extends to support services.

-- The county-based and primarily county-funded myriad of defense systems exacerbates those disproportionalities and undercuts a poor defendants ability to receive quality representation and, by logical extension, a fair trial.

-- The current system, with its state-mandated provision of services without commensurate state funding, results in an unfunded state mandate leading many counties to shortchange defense services in the interest of budgetary savings. Increasing the mandated hourly fee for assigned counsel left counties with additional costs without sufficient additional state funds to cover them. The uneven availability of resources and the dependence upon county funds additionally serves to undercut the independence of defense services.

-- With the increase in mandated hourly fees to assigned counsel lawyers traditionally handling conflict cases (e.g., family court, multiple defendant, past representation conflicts), some counties replaced their assigned counsel systems with lower-cost conflict defender offices, driven by cost savings at the expense of the quality of defense services.

-- Those resource shortfalls are most egregious in the failure of overworked, underpaid and sometimes ill-prepared defense counsels' abilities to fully prepare defenses, investigate case histories, interview witnesses, file motions and independently assess the quality of evidence. In the case of non-citizen defendants, a defense attorney's inability to explain collateral issues incorporated into a plea arrangement could have a dramatic effect on a defendant's ability to avoid wrongful deportation.

-- All of these problems are far worse in the town and village courts where many judges are not lawyers, and where many defendants are denied or not told about their right to counsel.

-- Ultimately, there are no state standards for who qualifies for public defense services, or performance standards for the attorneys or the public defense systems providing those services.

-- There is also no mechanism to enforce the professional standards that do exist.

Among the Kaye Commission's recommendations are:

-- Creation of the office of a permanent Independent Public Defense Commission, a chief defender, regional defenders and deputy defenders for appeals and for conflict defense.

-- Creation of a state-funded public defense structure throughout the state, with regionally-based public defenders or contracts with competent existing providers.

-- Establishment of statewide standards, and an enforcement mechanism for assessing compliance with those standards.

-- A three-year phase-in for the creation of the new public defense system, including state assumption of county costs.

-- Establishment of a regimen of data collection to assess the effectiveness of defense services for poor defendants and compliance with the standards.

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Posted Monday March 26, 2007 at 01:20 pm by Malkin & Ross