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NYCLU: Justice in New York Is Available Only to Those Who Can Afford It

For many poor New Yorkers, the constitutionally protected right to an attorney is just a pipe dream, according to a civil liberties lawsuit and report.

by Alice Speri
Sep 17 2014, 8:45pm

Photo by Sally Buck

James Adams was arrested for stealing deodorant from a drugstore in upstate New York. He couldn't afford his $2,500 bail, and spent more than 90 days in jail waiting for a court hearing. He was eventually sentenced to time served and released, but by then he had lost his job and his family had been evicted.

His publicly appointed lawyer never visited him and never showed up in court.

Jacqueline Winbrone was held on $10,000 bail after police found a gun that her husband had placed in her car. He died during the 50 days she spent in jail waiting for trial. Winbrone called her publicly appointed lawyer for five days straight with no luck. The lawyer even neglected to inform her when her case was finally dismissed.

Richard Love, who was being held for grand larceny, was never able to leave a voicemail for his publicly appointed lawyer, and met him only once — when he came to visit him in jail to have him sign some paperwork he needed in order to get paid. The lawyer didn't tell Love about a plea deal offered by the prosecution, and he was sentenced to two to four years in prison.

Unfortunately, these cases aren't exceptional — a report released on Wednesday by the New York Civil Liberties Union argues that these problems are systematic, and that New York State's public defense system is broken, underfunded, and unconstitutional.

In an unprecedented case, the civil liberties group sued the state in 2007 over its failure to fulfill the constitutionally protected right to an attorney, which extends to anyone accused of a crime, including those who can't afford legal representation. The class-action lawsuit goes before a judge on October 7.

"Quite frankly, that trial should not be necessary," Donna Lieberman, the NYCLU's executive director, said during a call with reporters on Wednesday. "This is a report more than 50 years in the making, because for more than 50 years New York has been violating the US Constitution, the state constitution, and the laws of New York State by failing to provide adequate defense services to poor people who stand accused of crimes."

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A spokesperson for Governor Andrew Cuomo's office declined to comment on the report and lawsuit, citing the ongoing litigation.

William Leahy, director of the Office of Indigent Legal Services, a state agency created in 2010 to partially address the issue, also declined to comment, citing his upcoming appearance as a non-party witness in the trial.

The NYCLU lawsuit was filed before Leahy's office was established, and before Cuomo was elected governor. The establishment of the office was an important step, the NYCLU said, but hardly enough.

"There was nothing before," Corey Stoughton, the NYCLU's lead attorney on the case, said during the media call. "They have no power or authority to change the way that public defense works at the county level."

"The state needs to accept responsibility for the way public defense is run," she added.

Justice Denied
While nearly everyone knows that someone facing criminal charges will be provided an attorney if they can't afford one, the reality in New York State is very different.

Poor New Yorkers — many of whom face charges for petty crimes, and many of whom are innocent — are locked up every day, and a staggering number of them never have an attorney negotiate their bail, defend their case in court, or inform them about the benefits or consequences of taking a plea deal.

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One of them, Donald Telfair, was assaulted in 2013 by a group of men who thought he had robbed them earlier that day — a claim he denies.

"It wasn't me, but they were looking for a black man and I guess I fit the description," he said. "After I was beaten, instead of taking my report about the assault, the police arrested me for the robbery."

Telfair was hospitalized with a fractured jaw and arraigned the next day, when he met his lawyer for the first time.

"She didn't ask me any questions about what happened to me or my criminal history," he said, adding that the attorney did not intervene when the prosecutor mischaracterized his story in court. "My jaw was wired shut, but when she said nothing I addressed the court myself."

"There are countless others in that same situation, without any advocate," he added.

While they sit in jail waiting for court hearings — often for longer periods than the sentences they face — poor New Yorkers risk losing their jobs and homes, and are unable to care for their families, causing scores of children to be placed in foster care.

That's both unnecessary and very expensive to taxpayers, according to the NYCLU.

"No one benefits when an innocent person goes to jail because the state failed to provide a competent lawyer to defend them," Stoughton said, citing recent cases of wrongful conviction. "New York can't have a two-tier system of justice — one for the rich, one for the poor."

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Part of the problem is that, unlike most states, New York doesn't oversee public defense at the state level, instead deferring responsibility — or "abdicating" it, in Stoughton's view — to individual counties, many of which are poor and underfunded.

Counties with larger tax bases, like the five covering New York City, usually fare better, but as a whole, New York State's system is "one of the worst," Stoughton said.

"Frankly, counties upstate and in Long Island don't have the resources that are needed to support public defense," she added, noting that state funds cover no more than 27 percent of public defense budgets. "Unfortunately, the state doesn't provide much money for that."

"It's that patchwork element of New York's justice system that's part of the problem," she went on, pointing out that the quality of legal counsel shouldn't depend on where you live or where you're arrested. "We're in the company of Arizona and Alabama and states that I think New York isn't really used to being in the company of when it comes to justice issues."

The lawsuit focuses on five counties — Onondaga (where Syracuse is located), Ontario, Schuyler, Suffolk and Washington. The NYCLU called the state of public defense in these counties "disgraceful."

Ontario has since reached a settlement with the rights group, which would welcome similar arrangements with the remaining counties.

In Onondaga, where more than 10,000 defendants a year qualify for public defense, one third of them never met with an attorney in 2012. Most eventually pleaded guilty.

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In 2011, defense lawyers strapped for resources were able to consult expert witnesses in virtually zero percent of cases in Onondaga and Suffolk, and many regularly reported not having the budget to afford investigators.

Overworked and underpaid public defense attorneys in the state take on an average of 420 felony cases a year — almost three times the industry-recommended maximum of 150. In Washington County, the seven attorneys in the public defenders' office all shared one computer in 2012.

The NYCLU has called on the state — and Governor Cuomo in particular — to enact immediate, broad reforms. These include making sure that everyone accused of a crime is actually guaranteed a lawyer in court and gets to meet with him or her prior to the hearing, reducing the caseload on public defense attorneys, and establishing a public defender system overseen by the state to replace the underfunded and messy county-based arrangement.

"New York's indigent defense system destroys the life of New Yorkers and makes a mockery out of our system of criminal justice," Lieberman said.

But a 2013 report by the Office of Indigent Legal Services determined that bringing public defense attorneys' caseloads in line with the recommended standards would cost more than $111 million alone. And that would be just the start of necessary reforms.

Many public defense attorneys ultimately leave defense counseling altogether because of their lack of support and resources.

"I wanted to do something useful that really helped people," Christina Cagnina, who worked as a public defender in Onondaga for 14 years, said of her choice to enter the field. "But in my work in Onondgada County, I was never able to represent people the way I wanted or the way the Constitution requires."

Eventually, she gave up.

"There were times when clients would be arraigned on a Friday, but I wouldn't find out that I was appointed to their case until Monday," she said. "They were often sitting in jail the whole time."

Follow Alice Speri on Twitter: @alicesperi

Photo via Flickr