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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