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You Have the Right to an (Adequate) Attorney

Across New York State, poor people accused of crimes are routinely being denied effective representation in their criminal proceedings, and prosecutors have finally begun raising the alarm.

April 8, 2010

Originally published at

If you are poor and charged with a crime in Suffolk County, don’t expect that your court-appointed lawyer will have the time, resources and training to investigate your case — or that you’ll even have the chance to talk with him or her outside of open court. Across New York, poor people accused of crimes are routinely being denied effective representation in their criminal proceedings, and prosecutors have finally begun raising the alarm.

Recently, 62 former prosecutors — including Robert Morgenthau, who was Manhattan’s District Attorney for more than 30 years — joined a brief authored by the Brennan Center for Justice, calling on New York’s highest court to allow a lawsuit to go forward that demands that the state fix how it provides defense services for those who can’t afford to provide for their own defense. In the underlying case, the plaintiffs describe deeply troubling deficiencies in how five New York counties, including Suffolk, defend the poor. The suit — Hurrell-Harring v. State, which was brought by the New York Civil Liberties Union — claims that people often lack counsel at bail hearings and other significant proceedings.

It claims that even when people are represented, their attorneys lack adequate training, supervision and resources. Defense counsel are said to rarely investigate cases, file necessary motions, negotiate plea agreements or even meet with their clients.

Deficiencies of this sort have disastrous results, including wrongful convictions, the wrongful denial of bail, charging defendants with more serious crimes than justified by their conduct, and over-incarceration. In one case, for example, a lawyer never met with his client outside of open court and did not seek to dismiss his client’s indictment, even after the judge questioned its basis. In another, an attorney told her client he had a “dead case” — despite admitting that she had never looked at any files nor conducted any independent investigation of the matter.

The damage caused to poor defendants is obvious. But prosecutors, and the justice system itself, are also harmed by New York’s system. Prosecutors rely on defense attorneys to test theories of guilt and to bring forward evidence of innocence — that’s how the adversarial justice system works. When the system breaks down, prosecutors, and the public, can’t be confident that justice is being done in individual cases.
Although this lawsuit focuses on deficiencies in five counties, the biggest problem lies with New York’s legislature. Rather than provide state-level oversight and funding, New York has left each of its 62 counties to establish, fund and administer their own public defense programs. It’s a structure that simply does not work.

And while fixing New York’s system will cost money, so will not fixing it. Ineffective assistance leads to delays and retrials that burden prosecutors’ offices and the courts, as well as unnecessary or excessive incarceration for which New Yorkers foot the bill. It also leads to less tangible costs, such as the harm to public safety when wrongdoers remain at large when an innocent person is convicted, and the harm to public confidence in our justice system when we can’t trust the outcomes of criminal proceedings.

People knowledgeable about New York’s system have been calling for centralized funding, greater resources and the establishment of a statewide defender office for years. Indeed, a 2006 report commissioned by New York State’s chief judge at the time, Judith Kaye, described a “crisis” in indigent defense services — including widespread violations of defendants’ constitutional rights — and urged the State Legislature to act.

Former prosecutors have now joined this growing chorus for reform. Must the legislature wait for a court order before it ensures equal justice for all?