Justice Impaired is Justice Denied

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ALBANY, NY (10/11/2007)(readMedia)-- JUSTICE IMPAIRED IS JUSTICE DENIED

POLL SHOWS OVERWHELMING SUPPORT FOR STATE TAKEOVER OF DEFENSE SERVICES FOR DEFENDANTS UNABLE TO PAY FOR PRIVATE LAWYERS

NEW YORK STATE DEFENDERS ASSOCIATION RELEASES REPORT ON STATE OF PUBLIC DEFENSE SERVICES IN FRANKLIN COUNTY – FIRST IN SERIES OF REPORTS DETAILING PROBLEMS IN COUNTY PUBLIC DEFENSE SYSTEMS

Franklin County fails to meet its constitutionally mandated obligation to provide poor defendants with fair and effective representation in criminal cases and is in gross violation of nationally recognized legal standards, according to the first in a series of reports on the woeful condition of mandated legal services across the state.

The report to the New York State Defenders Association, performed by the National Legal Aid and Defender Association (NLADA), is entitled “Justice Impaired: The Impact of the State of New York’s Failure to Effectively Implement the Right to Counsel.” Its findings echo those of a report last year to Chief Judge Judith Kaye by the Commission on the Future of Indigent Defense Services that called for a state takeover of the public defense system.

The Kaye Commission report, the findings of which have been endorsed by Governor Spitzer, declared the state’s current county-based system “an on-going crisis” and called for creation of an Independent Public Defense Commission to oversee a new state funded statewide defender system and to promulgate standards. The report described a fractured and underfunded system so unworkable that where a defendant is tried can determine whether he or she gets a fair trial.

Bills to create an Independent Public Defense Commission have been introduced into the State Senate and Assembly – S.4311-A introduced by Senator Dale Volker (R-C-I, Depew) and A.9087-A by Assemblyman Joseph Lentol (D-Brooklyn). The bills take a giant step toward ensuring that the promise of effective counsel to all defendants – as enshrined in the 1963 Gideon v. Wainwright decision in the U.S. Supreme Court – can become a reality instead of a promise.

The report also comes as the New York State Defenders Association released a poll showing three-fourths of respondents agreed when asked if New York State “should create an independent agency to administer the public defender system in order to guarantee that every person accused of a crime, regardless of income and location, is provided with experienced legal representation.” The poll found 73 percent agreeing with that statement – which echoes the call in the Kaye Commission report – and 22 percent disagreeing.

Asked further whether they support shifting the funding for the public defender system from the counties to the State, respondents said yes by a margin of two to one, or 58 percent to 29 percent.

Counties last year paid a collective $264 million for public defense services, bearing the burden of an unfunded mandate imposed – but not fully reimbursed – by the state.

“Leaving the task of funding public defense to the counties – even in part – endangers a state’s entire ability to dispense justice fairly,” the NLADA report concluded. “The counties most in need of public defense services are often the ones that can least afford it.”

“The rights of poor criminal defendants are being violated in Franklin County criminal and family courts as a direct result of the State of New York’s abdication of its constitutional responsibilities,” said David Carroll of the National Legal Aid and Defender Association. “The growing backlog means that people waiting for their day in court fill local jails at taxpayers’ expense. And when an innocent person is sent to jail as a result of public defenders not having the time, tools, training and resources to effectively advocate for their clients, the true perpetrator of the crime remains free to victimize others and put public safety in jeopardy.”

“Franklin County is the poster child for the Kaye Commission recommendation for an Independent Public Defense Commission to oversee a new state-funded defender system,” said Jonathan Gradess, Executive Director of the New York State Defenders Association. “As with many poorer counties in the state, Franklin does not have the tax base or the wherewithal to make its public defense system constitutional.”

“This report builds on the findings of the Kaye Commission and underscores the need to create the Independent Public Defense Commission to have the state ensure that all defendants can exercise the constitutional right to an effective defense,” said Michael Whiteman, chairman of the Committee for an Independent Public Defense Commission. “It is time for the Governor and Legislature to step up and move our state towards its proclaimed tradition of equal justice for all.”

In Franklin County, a poor upstate border county with a declining tax base and rising social service demands, defense services have been victimized by underfunding, unacceptably high caseloads for the lawyers who handle the cases, no access to the kinds of investigative resources critical to an effective defense and a fragmented system of county and town courts where few if any standards are applied.

“We have worked within our limited resources to provide the fairest public defense services we can, but it is time for the state to assume its obligation to fund and oversee services it mandates but does not fund,” said Franklin County Manager James Feeley. “Franklin is not alone in its need for an Independent Public Defense Commission.”

Franklin County is the first county in the state to have passed a resolution urging creation of the Independent Public Defense Commission. Other county legislatures are considering similar measures of support.

Specifically, the report found:

-- The five lawyers serving in the public defense system in Franklin County are doing the work of 12 lawyers, as measured by the American Bar Association standards calling for public defense lawyers to handle no more than 150 felonies, or 400 misdemeanors, or 60 Family Court cases per year. In fact, the primary public defender was forced to stop accepting new cases in early 2007 in order to comply with ethical obligations.

-- Public defenders were able to spend an average of just 3.9 hours per case – whether it is a bad check charge or a complex homicide – compared to national ABA standards of 13.6 hours per case.

-- Financial shortfalls prevent poor defendants’ attorneys from gaining access to investigators, expert witnesses and other evidentiary necessities in gross violation of ABA standards calling for “parity between defense counsel and the prosecution with regard to resources.”

-- Low pay, high caseloads and the inability to meet ABA standards have hindered Franklin County’s ability to fill public defender positions. In fact, the county had to scrap its previous system totally because of an inability to fill positions.

-- County taxpayers spent almost two-thirds of the entire public defense budget in the first two months of 2007. On a per capita basis, Franklin County pays $12.88, or 40 percent below the statewide average, on public defense services.

-- Independence of public defense services is severely compromised by local judicial control of the assigned counsel system, especially in the 19 Town Courts and three Village Courts that function within the fragmented county court system. ABA standards call for public defenders to be independent of the judiciary, as are prosecutors.

-- Franklin, which borders Canada, has additional demands placed on its public defense services because of federal arrests prosecuted in state courts, and because of the presence of an Indian reservation with analogous federal-state complications.

Gradess reported that NLADA is finalizing reports on public defense services in nine additional upstate counties. The NLADA reports will augment findings presented to the Kaye Commission by the Spangenberg Group, which focused on 22 counties in its study of the State’s public defense system

NOTE: The NLADA Report is available at this press conference

The Report of the Commission on the Future of Indigent Defense Services is available on-line at http://www.nycourts.gov/ip/indigentdefense-commission/IndigentDefenseCommission_report06.pdf

The Report on Franklin County: Justice Impaired: The Impact of the State of New York’s Failure to Effectively Implement the Right to Counsel is available on-line at www.nysda.org.

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