Six Counties Get Failing Grades On Public Defense Services

ALBANY, NY (11/29/2007)(readMedia)--

Findings Underscore Need for Independent Public Defense Commission

Six upstate counties received failing grades this week in an assessment of their public defense services to people who cannot afford a private lawyer, the latest evidence of a failing county-based system that a report to the state’s chief judge last year called “an on-going crisis.”

The six counties – Cattaraugus, Niagara, Ontario, Schuyler, Tioga and Washington – were graded on their compliance with the American Bar Association’s Ten Principles of a Public Defense Delivery System, which lay out fundamental criteria for a system to provide “effective, efficient, high quality, ethical, conflict-free representation” to all defendants regardless of their ability to afford a private lawyer.

Those guidelines call for an independent system of public defense, with reasonable caseload limits, a guarantee of client confidentiality, a parity of resources between prosecution and defense and accountability.

“Now is the time to restore justice to our state,” said Michael Whiteman, chairman of the Committee for an Independent Public Defense Commission (CIPDC) and a partner in the Albany law firm of Whiteman Osterman and Hanna. “It is unconscionable for New York to be so far out of compliance with nationally recognized standards for a fair and effective public defense system.”

The report cards were prepared by the National Legal Aid and Defender Association (NLADA) as part of a series of reports for the New York State Defenders Association (NYSDA). NYSDA operates a statewide public defense support center and is required to analyze the public defense system and make recommendations to the Governor. NYSDA and the CIPDC are members of the Campaign for an Independent Public Defense Commission.

Researchers credited the commitment of public defenders and others who struggle daily under adverse conditions to provide public defense services, but said implementation of the Kaye Commission recommendations are essential to overhaul the entire system to guarantee the kind of quality effective representation mandated by the 1963 U.S. Supreme Court decision in Gideon v. Wainwright.

The six counties studied are not unique. Chief Judge Judith Kaye last year received the report of the Commission on the Future of Indigent Defense Services which assessed New York’s current public defense system statewide and found it falling so far short of national guidelines as to constitute “an on-going crisis.”

That report recommended the creation of an Independent Public Defense Commission (IPDC) to carry out a state takeover of the current county-based system of public defense services, together with state assumption of the costs, and the promulgation of statewide standards for training, experience, allowable caseloads and a variety of other factors that would put the system in compliance with ABA standards.

The current county-based system cost hard-pressed county taxpayers a combined $262 million last year, making public defense services the second largest unfunded state mandate after Medicaid. The result is a shortchanged system, in which defendants who cannot afford a private lawyer find their constitutional right to an effective defense, as well as their liberty, at dire risk. Other costs of inefficiency include court delays and retrials based on initial errors.

A bill to carry out the recommendations of the Kaye Commission and create an IPDC has been introduced in each house of the state Legislature. Governor Spitzer has expressed support for the Kaye Commission recommendations, and is being urged to include start-up funding in his upcoming budget.

NLADA earlier released a report on Franklin County, which found that the lawyers performing public defense services had caseloads far above the national guidelines, and that public defenders were so overworked they could spend an average of only 3.9 hours on each case, whether it was a simple check-cashing case or a complex homicide.

Other counties also face public defense difficulties. In Broome County, private attorneys assigned to handle criminal cases for defendants unable to afford counsel were told by a county official in October that the budget for public defense services had run out, and the attorneys would not be paid until after January 1st.

In Cortland County, a Family Court judge has decried from the bench the inadequacy and lack of independence of procedures for assigning counsel there. Multiple lawsuits have been filed in the wake of Cortland County's creation of a Conflict Attorney office, an effort designed to save assigned counsel costs.

The New York Civil Liberties Union also this month filed a class action lawsuit charging the entire state system of public defense services is so underfunded and so inadequate as to be unconstitutional. That lawsuit singled out five counties – Onondaga, Ontario, Schuyler, Suffolk and Washington – but indicated the problems in those counties are mirrored across the state.

A detailed breakout of report card findings follows. Individual report cards for each county are available at www.nysda.org.

The six county report cards released today show a dismal record of compliance with the ABA standards, with most grades falling in the D, D- or F category.

• For Independence of public defense system from political or other undue interference, three counties – Niagara, Tioga and Washington – got Fs. Cattaraugus (D-), Schuyler (D) and Ontario (C+) did not fare much better.

• When it comes to a Reasonable Workload, three of the counties – Cattaraugus, Niagara and Ontario – scored Fs while the other three scored D-.

• On a guideline requiring a Sufficient allocation of resources and a Fair Method of Delivering Public Defense Services, three counties got D- -- Schuyler, Tioga and Washington – while the other three got a D.

• On the right to a Prompt Appointment of Counsel after an arrest and determination of eligibility for publicly funded defense services, five of the counties scored an F, with Niagara, which provides for a limited screening by public defenders, scoring a C.

• On a guideline requiring appropriate Training and Continuing Legal Education, five counties were given an F. Cattaraugus, where the public defender and contract conflict office pay the cost of staff attorneys' continuing legal education, scored a D+.

• On a guideline calling for Accountability and Oversight of Public Defense Services, all six counties got an F.

• On a guideline for Resource Parity between prosecution and defense, guaranteeing defendants access to investigators and the like, five of the counties score an F, with Cattaraugus scoring a D.

• On a guideline calling for guaranteed Client Confidentiality, including time for meetings with clients to prepare an effective defense, three counties – Ontario, Tioga and Washington – scored a D. Niagara scored a D+, Cattaraugus a D- and Schuyler a C-.

• On a guideline calling for Continuous Representation for a client throughout the court proceedings, Schuyler received an F, Cattaraugus and Niagara each received a D-, Tioga and Washington each received a C, and Ontario received an A, though the NLADA questioned the ability of the county to match the qualifications of the assigned lawyers to the particulars of the case.

• On a guideline requiring a level of Minimum Qualifications for lawyers assigned to public defense services, Cattaraugus and Ontario received an F, Tioga and Washington received a D and Niagara and Schuyler scored Cs. NLADA credited grades above failing to the personal contributions and commitment of individual public defenders facing incredible adversity.

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Posted Thursday November 29, 2007 at 11:23 am by New York State Defenders Association