Three More Counties Get Failing Grades On Public Defense Services

ALBANY, NY (05/21/2008)(readMedia)-- FINDINGS UNDERSCORE NEED FOR GOVERNOR, LEGISLATURE TO ENACT LEGISLATION CREATING AN INDEPENDENT PUBLIC DEFENSE COMMISSION

Three more 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 has called “an on-going crisis.”

Jefferson, Lewis and Sullivan counties were only the most recent counties to be 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 public defense clients. 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.

A report to Chief Judge Judith S. Kaye, which was based in part on studies of 22 other counties in the state, 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 national standards, including the ABA Ten Principles. A bill to create a more limited independent public defense commission, along with reversing actions by the state denying several counties additional financial support from a special state fund, is currently under discussion among legislators and Governor Paterson.

“Stakeholders in Jefferson, Lewis and Sullivan Counties appear to understand and appreciate the importance of the right to counsel to protecting its residents and the integrity of its criminal justice system,” said David J. Carroll of the National Legal Aid and Defender Association, which prepared the reports on the three counties. “However, these counties will need to take significant steps to meet nationally-recognized public defense standards at costs that they will be hard-pressed to bear. NLADA looks forward to making concrete recommendations to assist all three counties in their struggles in our forthcoming report.”

All three counties in the current reports were graded F for the workload imposed on lawyers providing public defense services through a variety of programs: a public defender office in Jefferson, a public defender and conflict contract attorney in Lewis, and two legal aid programs in Sullivan, with individual private lawyers being assigned in all three counties when the defense programs have a conflict. Each county also scored F on resource parity between prosecution and defense, a critical standard for fairness unmet throughout New York State.

Lewis and Jefferson were graded F as to the independence of their public defense systems, which are subject to the whims of local elected officials who either shortchange the system out of budgetary concerns or are antagonistic to the constitutional imperative of providing an adequate defense to all criminal defendants regardless of their ability to afford a private lawyer. While Sullivan’s program scored a C on its independence, in large part because the legal aid programs have independent boards, that independence has been challenged through severe financial pressures from the county legislature which resulted in the near closure of one entire program in the last decade.

Lewis and Sullivan counties scored an F on training for public defense attorneys, while Jefferson scored a D, based on a recently-inaugurated program by the current Public Defender who has new attorneys “shadow” more veteran attorneys before appearing in court on their own. But Jefferson County’s legislature will not authorize payment for overnight stays for training, which for areas of law relevant to public defense occur far from the county, meaning that public defense attorneys take whatever training is available locally – usually in real estate, bankruptcy or even prosecutor-oriented courses – to meet professional requirements for Continuing Legal Education.

The problems in Jefferson, Lewis and Sullivan counties mirror findings for six other counties – Cattaraugus, Niagara, Ontario, Schuyler, Tioga and Washington – that were released last fall, as was a full report on Franklin County that found lawyers performing public defense services had caseloads far above the national guidelines. The report cards and Franklin County report were prepared by 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, Legislature, and others. NYSDA is a member of the Campaign for an Independent Public Defense Commission, which supports implementation of the recommendations of the Kaye Commission.

Other groups support creation of an Independent Public Defense Commission as part of much needed public defense reform, including the New York State Bar Association. Vincent Doyle III, of the Buffalo law firm of Connors and Vilardo and chair of the State Bar’s Special Committee to Ensure Quality of Mandated Representation, had this to say about the new report cards. "Unfortunately, I am not surprised to hear that there are counties in this state that lack the resources and funding to meet the ABA’s Ten Principles.” Doyle, who also is a member of the Committee for an Independent Public Defense Commission, went on to say, “The State Bar recognizes that counties of all sizes face great challenges in trying to meet this underfunded State mandate. That is why our President, Kathryn Grant Madigan, wrote Governor Paterson in March that passage of legislation restructuring the delivery of public defense services, including an Independent Public Defense Commission, is of vital importance.”

The Legislature’s Black, Puerto Rican, Hispanic and Asian Caucus has also made creation of the IPDC a priority. Assemblyman Darryl Towns, D-Brooklyn, the caucus chairman, has written to Governor Paterson urging him to join in support of a proposal by the Assembly to create an IPDC to carry out detailed studies of how a state takeover of operations and funding of the current failed county-based system would proceed.

“This is the time to finally bring New York State in line with its professed commitment to equal justice by creating an Independent Public Defense Commission,” said Towns. “It should come as no surprise that it is the communities that those of us in the legislature’s Black, Puerto Rican, Hispanic and Asian Caucus serve who suffer most from the injustices that result from the state’s failed system of public defense services.”

The New York Civil Liberties Union last year 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, three of which also received failing grades from NLADA – but indicated the problems in those counties are mirrored across the state. A judge in Albany is currently weighing the NYCLU’s request for emergency relief in the case.

The report cards are available on the NYSDA website: www.nysda.org.

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Posted Wednesday May 21, 2008 at 11:24 am by Campaign for an Independent Public Defense Commission