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The Right to Counsel: Is it Being Denied?

Published: April 6, 2010

The New York State Court of Appeals is considering a case that goes to the heart of the values we hold dear--—the right of indigent defendants to be represented by competent attorneys.

And the legendary former District Attorney of Manhattan, Robert Morgenthau, has aligned himself strongly with the lawyers bringing this action against the State of New York.

“This case,” Morgenthau told me, “is about whether we believe in fairness--—and it’s aimed at getting the state to accept responsibility.”

Morgenthau concedes that it’s not usual for prosecutors to call for better defense services. “But the quality of defense for the poor in many parts of our state has reached a crisis level.”

The lawsuit the high court is considering challenges the way the criminal justice system treats defendants too poor to hire their own attorneys. The case, filed by the New York Civil Liberties Union, describes the system as dysfunctional, charging that many lawyers who act as public defenders are ill-trained, poorly supervised and over-worked.

The case is a class action brought in the name of a Rochester woman, Kimberly Hurrell-Herring, and 19 others. Ms. Hurrell-Herring charges that a public defender did nothing but pressure her to plead guilty after she was arrested for allegedly sneaking marijuana to her husband, who was in an upstate prison.

Edward Kaminski, a retired auto mechanic facing larceny charges, told the New York Times: “I was just a number, a docket number” and he related how he was represented by a series of lawyers from the Suffolk County Legal Aid Society.

A commission appointed by New York’s former Chief Judge, Judith Kaye, found, in 2006, that the state’s defender system failed to provide adequate representation to “a large part of those entitled to it.”

Yet, in the current proceedings, the Solicitor General, representing New York State, argued that the state couldn’t spend money to upgrade the system because it “would improperly intrude on the authority of the Legislature and the Governor.” She didn’t deal with the question of what to do if these institutions weren’t acting.

I asked Corey Staughton, lead attorney for the NYCLU, what was at the core of this case. “Fundamentally,” she said, “it’s about whether we believe in a fair system or not. We’ve known for decades that indigent defendants are not treated fairly. Under a U.S. Supreme Court decision, every defendant is entitled to competent counsel.”

Donna Lieberman, executive director of the NYCLU, says: “Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet.”

Robert Morgenthau, the former Manhattan DA, put it this way: “Any responsible prosecutor would sleep better at night if he knew that the people he was prosecuting were defended by competent lawyers.”

It’s all about fairness. And it would seem that every citizen has a stake in that value. It’s fundamental to our basic rights as Americans.

Read this article on NBC New York.