Court to Assess Value of Free Lawyers

The NY Times reported last week  that the Court of Appeals, NY’s highest court, would examine the adequacy of the public defender system in the State as a result of a class action lawsuit brought by the New York Civil Liberties Union.   The NYCLU alleges in its complaint that the State violates the rights of those accused who cannot afford a private lawyer by supplying them with below-average counsel who jeopardize their lives and fail to represent them aggressively.  They chose a beauty of a case to showcase  the difference between zealous advocacy and just showing up.  Kimberly Hurell-Harring was a nurse who went to an upstate jail to visit her boyfriend.  At his request, she concealed a small amount of marijuana in her vagina, which was discovered by the guards at Green Meadow Correctional Facility in Washington County (near the Vermont border).  Of course, the contraband was located and she was arrested.  There, the Legal Aid Society was comprised of  a man named Pat Barber who was principally a debt collector until he put in the low bid to be the Chief Public Defender of Washington County.  He said he would do it for $50,000 a year plus a rent-free office. Kimberly was charged with promoting dangerous prison contraband -a felony, as opposed to regular prison contraband , which is a misdemeanor.  The prison system is Washington County’s largest employer by far, as it houses two major correctional facilities. The DA offered her a plea bargain with no reduction in the charge and her lawyer Barber told her to take it. He did not even secure any sentence commitment from the court. But in between plea and sentence, Barber was contacted by Al O’Connor, a sharp experienced criminal defense attorney who had gotten wind of the case. O’Connor is part of the NY State Defenders,a private organization that provides training and assistance to the defense bar.  If you are ever facing an issue that you have no experience with, you can contact them and they will offer you sample briefs and free advice on the phone; its a great resource that I have turned to from time to time particularly when I began practicing criminal defense many years ago.  O’Connor advised Barber that the Court of Appeals was at that very moment considering this legal issue and that the Defenders believed that marijuana cannot and would not be considered “dangerous” contraband.  Barber never asked for the briefs nor did he mention the issue to the sentencing judge at Kimberly’s sentence date.  Instead he stood silent while the judge sentenced this first time offender to four months in prison and five years probation.

As predicted by O’Connor, the Court of Appeals ruled shortly thereafter that marijuana was not “dangerous” contraband.  The Defenders enlisted the white-shoe firm Paul, Weiss to take on the task of overturning Kimberly’s conviction on a pro bono basis. They were successful and the court ruled that “The act of which defendant is accused does not constitute a crime.” Of course, Kimberly had already served her four months in prison by the time the decision came down, but at least she has no criminal record and was spared serving the long probationary sentence. Barber, in the meantime, has since been disbarred for forging a judge’s signature on a paternity order of a client who had paid him to secure one.  Instead of filing the court papers and doing the work, Barber just faked one.  But what is even more disturbing is that prior to his winning the Public Defender bid, Barber had been cited for neglect for leaving over $300,000.00 in settlement checks from a car accident case in the file and never sending them to the client. He was also found by an appellate court reviewing one of his rape cases to have been ineffective, requiring the overturning of his client’s conviction.  The court said: “No legitimate trial strategy existed.”  Other cases of neglect had come up prior to Kimberly’s sentence, yet he remained  on the job.  The forgery of the judge’s signature was the last straw.  In his defense he presented a report from his psychiatrist Koock E. Jung (I kid you not, that’s his name, I guess Craze E. Freud was busy)which said his depression effected his ability to practice, including in his public defense work. How many more Kimberlys did he imprison, you can’t help but wonder? The State should review every single file this man ever worked on as a Public Defender.

The Sixth Amendment guarantees an accused’s right to counsel and in the famous case of Gideon v. Wainwright a unanimous Supreme Court ruled that the Sixth Amendment required states to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. But since then many cases have held you are not entitled to anything more than an “adequate” defense. More and more, States are trimming their budgets and indigent defense is not a high-priority item.  Mayor Bloomberg is trying to eradicate the 18-b Program (which pays private lawyers to pick up cases Legal Aid can’t handle) which will further overburden public defenders.

As someone who has dealt with wrongful conviction cases, I can tell you that a poor defense is the most common cause of a wrongful conviction.  While many lawyers like to blame “overzealous prosecutors” or “biased, jaded judges” the fault much more often lies within ourselves.  What folks need to realize is that when lawyers are over-worked and underpaid they will miss things,they will not be as creative, they will not go the extra mile, they will lose. In the last two such cases I  worked on, both of the defendants’  free, original lawyers had been disbarred for neglect and stealing  client’s money. Their trial transcripts showed incredible incompetence on their parts and complete indifference to what was happening.

The other issue is that a defendant needs all the help they can get when the machinery of the State is turned against them. The State has numerous prosecutors, investigators and the Police Department at its disposal. Standing up to that is a tough row to  hoe and requires aggressive representation and the ability to convey a message to a jury. Even the OJ Simpson Dream Team was  outspent by the State.  So having less than adequate counsel is a dangerous proposition for anyone accused of a crime.

So we will watch and wait to see how the Court rules on the class action.  It could make a dramatic statement about the nature of the system and the need for aggressive advocacy or it can maintain the status quo and leave the poor to their own devices.

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