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Hurrell-Harring, et al. v. State of New York (Amicus Brief)

The Brennan Center co-authored an amicus brief signed by 62 former prosecutors in support of a suit that challenges New York’s indigent defense system.

Published: May 6, 2010

In Brief – The Bren­nan Center, in part­ner­ship with Richards Kibbe & Orbe LLP, authored an amicus brief that was signed by 62 former New York prosec­utors, in support of a suit that alleges New York State’s legal services for the poor are consti­tu­tion­ally inad­equate. The case is now pending before New York’s highest court. Former Manhat­tan District Attor­ney Robert M. Morgenthau joined on as one of the amici, as did former District Attor­ney Joseph Jaffe and former U.S. Attor­neys Zachary Carter, Robert B. Fiske, Jr., John S. Martin, and Otto G. Ober­maier. The under­ly­ing suit, Hurrell-Harring v. State of New York, alleges a troub­ling cata­logue of systemic fail­ures in the provi­sion of defense services to the indi­gent in five New York counties, includ­ing the fail­ure to provide defense coun­sel during crit­ical stages of defend­ants’ crim­inal proceed­ings and the fail­ure to train and super­vise coun­sel that are provided. The former prosec­utors’ brief urges the Court to permit the case to go forward, explain­ing that “the judi­ciary has a partic­u­larly strong duty to act here, where the alleged consti­tu­tional defi­cien­cies threaten the integ­rity of the judi­cial system and its very capa­city to render justice.”  

Proced­ural History – In Novem­ber 2007, the New York Civil Liber­ties Union (NYCLU) filed this class action complaint on behalf of 20 named indi­gent crim­inal defend­ants who are or will be repres­en­ted by public defend­ers, legal aid attor­neys, or appoin­ted coun­sel. The plaintiffs filed a motion for prelim­in­ary injunc­tion in March 2008, which was denied. In August 2008, the State Supreme Court, Albany County, denied the State’s motion to dismiss the complaint for fail­ure to state a claim, but in a 3 to 2 decision the Appel­late Divi­sion, Third Depart­ment, reversed, hold­ing that the plaintiffs’ claims were not justi­ciable. The NYCLU has since appealed the case to the Court of Appeals, New York’s highest court, which is sched­uled to hear argu­ments in March 2010.  The Court of Appeals issued a decision on May 6, 2010 allow­ing the case to proceed in the trial court.

Ques­tions Presen­ted – The Bren­nan Center’s amicus brief speaks to the justi­ciab­il­ity of the plaintiffs’ claims.


In Detail – In this class-action lawsuit, brought against New York State by 20 indi­gent crim­inal defend­ants – repres­en­ted by the NYCLU and Schulte Roth & Zabel LLP – the plaintiffs allege that five New York counties (Onond­aga, Ontario, Schuyler, Suffolk, and Wash­ing­ton) have consti­tu­tion­ally defi­cient systems for provid­ing defense services to the indi­gent.  In 2006, then-Chief Judge Judith S. Kaye commis­sioned a report, prepared by the Commis­sion on the Future of Indi­gent Defense Services, which stated that “noth­ing short of major, far-reach­ing, reform can ensure that New York meets its consti­tu­tional and stat­utory oblig­a­tions to provide qual­ity repres­ent­a­tion to every indi­gent person accused of a crime or other offense.”  The Hurrell-Harring plaintiffs, in their complaint, allege that “despite the Kaye Commis­sion’s unequi­vocal state­ment that the State is now know­ingly and system­at­ic­ally viol­at­ing the funda­mental rights of its poorest citizens to mean­ing­ful and effect­ive legal repres­ent­a­tion in crim­inal cases, more than a year has passed without any action by the State to remedy the prob­lem.”

Among other defi­cien­cies, the complaint alleges that too many attor­neys in these counties lack adequate train­ing and super­vi­sion, fail to main­tain contact with clients, fail to confer with clients to enable them to make informed decisions about their cases, and fail to invest­ig­ate and prepare clients’ cases.  The result, the lawsuit alleges, is an unac­cept­ably high risk that defend­ants in these counties will receive inef­fect­ive assist­ance of coun­sel, lead­ing to, among other things, unne­ces­sary pretrial incar­cer­a­tion, guilty pleas that are not know­ing and volun­tary, and wrong­ful convic­tions.

Though the case survived a motion to dismiss in the Supreme Court, Albany County, the Appel­late Divi­sion, Third Depart­ment reversed the lower court’s ruling in a 3 to 2 decision, hold­ing that the plaintiffs’ claims were not justi­ciable. 

On behalf of 62 former New York state and federal prosec­utors, the amicus brief co-authored by the Bren­nan Center argues that the plaintiffs’ claims are in fact justi­ciable and that the courts “can and must” adju­dic­ate their claims. 

As former prosec­utors, the amici speak to the essen­tial role that defense coun­sel play in the oper­a­tion of the crim­inal justice system.  Prosec­utors cannot ensure that “that justice is done” if defense services are inad­equate.  Such systemic fail­ures also under­cut public confid­ence in the crim­inal justice system, and lead to harms such as over-incar­cer­a­tion, mistri­als, and remands, explain the amici.

The brief argues that the judi­ciary has a partic­u­larly strong duty to act in this case, because the alleged consti­tu­tional defi­cien­cies threaten the integ­rity of the judi­cial system and its very capa­city to render justice.  Courts in New York and around the coun­try have found similar chal­lenges to inad­equate defense services to be justi­ciable, rely­ing in part on their author­ity to ensure that crim­inal proceed­ings are fair.

On May 6, 2010, the Court of Appeals issued a decision reject­ing the State’s argu­ments and ruling that the case could go forward. The Court concluded that the plaintiffs had alleged facts suffi­cient to state a claim for the viol­a­tion of their Sixth Amend­ment right to coun­sel. The Court also acknow­ledged the argu­ments in the Bren­nan Center brief, explain­ing that “[t]his action prop­erly under­stood, as it has been by distin­guished members of the prosec­u­tion and defense bars alike, does not threaten but endeavors to preserve our means of crim­inal adju­dic­a­tion from the inev­it­ably corros­ive effects and unjust consequences of an unfair adversary process.” This case will now proceed in the trial court.

For more details on the case, visit the NYCLU’s website.

Pro Bono Collab­or­a­tion – The Bren­nan Center staff (David Udell, Director, Justice Program, and Alicia Bannon, Liman Fellow) jointly conduc­ted this amicus brief project with Lee Richards of Richards Kibbe & Orbe LLP and a team of lawyers from the firm (Arthur Green­span and Eric Rosen) as well as the firm’s admin­is­trat­ive staff (Katelyn Collins). The firm not only jointly authored the amicus brief with the Bren­nan Center, but also performed a crit­ical role in help­ing to coordin­ate the outreach effort that led 62 former prosec­utors to join the brief as friends of the court. The Bren­nan Center is delighted to have had such terrific pro bono support for this initi­at­ive.

Amici – Nick Aker­man, David Anders, Anthony S. Barkow, Evan T. Barr, Michael A. Battle, Vivian O. Berger, Susan E. Brune, Zachary W. Carter, Don D. Buch­wald, Michael Q. Carey, Jack P. Cooney, Jr., William F. Cough­lin, Thomas J. Curran, Nancy Eraca-Cornish, Michael S. Feld­berg, Robert B. Fiske, Jr., Richard H. Girgenti, Hector Gonza­lez, Paul R. Grand, Michele Hirsh­man, Joseph Jaffe, James E. John­son, Alan R. Kauf­man, Ray Kelly, Donald T. Kinsella, Joshua Klein, Philip Allen Laco­v­ara, Andrew Levander, Lewis J. Liman, David G. Liston, Carl H. Loewen­son, Jr., Mark Loughran, John S. Martin, Richard A. Martin, Robert B. Mazur, Amy E. Miller, Robert M. Morgenthau, James A. Moss, Otto G. Ober­maier, Tai H. Park, Lawrence B. Pedow­itz, Steven R. Peikin, Guy Petrillo, Steven J. Phil­lips, Victoria E. Phil­lips, Henry Putzel, III, Lee S. Richards, Eric S. Rosen, Ellen J. Rosenthal, Stephen P. Scar­ing, Minna Schrag, Paul Shecht­man, Roger L. Stavis, Mark J. Stein, Kate Stith, Howard S. Suss­man, Andrew E. Tomback, Frank­lin B. Velie, Richard Wein­berg, James S. Wolford Michael R. Wolford, and Peter L. Zimroth