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N.Y.‘s Poor Get the Short End of the Gavel: Pass a Law to Improve Access to Attorneys

NY Daily News editorial from former Manhattan D.A. Robert Morgenthau on the Hurrell-Harring case and the inadequacy of New York State’s public defender system.

Published: February 11, 2010

Under normal circumstances, prosecutors are not the first to call for better legal defense services. But the quality of defense for the poor in many parts of our state has reached a crisis level.

A lawsuit currently in state court contains disturbing claims that in five counties in upstate New York and Long Island, indigent defendants often proceed to critical stages of prosecution – including bail hearings and arraignment – without counsel. Even when people in these counties are represented, their attorneys regularly lack adequate training and supervision, don’t meet with their clients or answer their phone calls, fail to give them necessary information about their cases and fail to investigate charges and prepare for trial.

The allegations, part of a lawsuit brought by the New York Civil Liberties Union, unnerved me so much that, along with 61 other former federal and state prosecutors, I joined a brief authored by the Brennan Center for Justice in which we are urging the New York Court of Appeals to declare that New York’s courts must hear the claim for better defense services.

These kinds of deficiencies do not belong in 21st century America. As prosecutors, we recognize that ineffective defense attorneys not only hurt poor defendants, but, more broadly, undermine the operation of our criminal justice system.

There’s good reason the Miranda warnings read to someone upon their arrest include the words, “You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.”

Chief Justice Warren Burger, one of the giants of modern American jurisprudence, described our justice system as a three-legged stool, supported by judge, prosecution and defense. When any one of these legs is weak, the entire system wobbles. Deficiencies in defense services for the poor mean that prosecutors and the public cannot be confident that the guilty – and only the guilty – are punished. This shakes the very foundation of our justice system.

Yet despite glaring and growing problems in indigent defense, the New York Legislature has ignored this crisis for years. Most recently, in 2006, a commission of experts convened by New York State’s chief judge concluded that large numbers of New Yorkers are denied effective assistance of defense counsel, a right protected by both the New York and United States Constitutions.

To fix it, the commission called for a number of critical reforms, including establishing a statewide defender office, providing funding for defense services through the state’s general fund rather than through individual counties, and eliminating disparities between prosecution and defense resources. These steps would go a long way toward ensuring adequate representation for defendants. Yet the Legislature failed to respond at all, much less implement any of the reforms detailed in the report.

I would prefer to see this crisis resolved through legislation, rather than by court decree. But constitutional rights cannot wait for a sleeping Legislature, particularly when the constitutional violations undermine our entire system of justice.

This suit should provide the wakeup call for lawmakers to finally do their duty and take on the challenge of providing all New Yorkers equal justice under the law. If not, I am confident that New York courts are capable of addressing this issue in a way that is fair to the state, the plaintiffs, all criminal defendants and ultimately to the cause of justice.