Equal before the law?

By TRACY FRISCH
Contributing writer

HUDSON FALLS, N.Y.

 

Michael Mercure took over as Washington County’s public defender about five years ago after two of his predecessors in the office were disbarred. Now he’s working with the state to carry out the terms of a settlement in a long-running class-action suit that accused the county of failing to provide adequate legal representation to the poor. Joan K. Lentini photo

Sitting in a folding chair in the busiest criminal court in Washington County, a young man in a striped polo shirt waited anxiously to be called up to the bench.

In his hand, he clutched a form letter from the county public defender’s office. The name of his designated public defender was circled, but they had yet to meet or even talk by phone.
“I was hoping to speak to the attorney before I went to court,” said the young man, who was facing a felony charge. “I called about 18 times to try to talk to him, because this is the first time I’ve ever been to court.”

Another man whose case was being handled on the same spring day in Hudson Falls Village Court expressed the same frustration. He said his case kept getting adjourned because he hadn’t been able to speak with his public defender. He tried to set up an appointment by phone, but all he got was a card with a new court date.

“I have to take it upon myself to call him, and he’s never there,” he explained.
No one had informed him that the seven assistant public defenders don’t have offices, desks or even voicemail at the small office of the Washington County public defender in Fort Edward. They are all part-timers who generally have private law practices elsewhere. Often they meet their clients for the first time in court.

That could soon change. Michael Mercure, the first full-time public defender in Washington County’s history, said the county is renovating new office space in basement of its annex building near the county Municipal Center in Fort Edward, where he expects the assistant public defenders will have offices. Mercure said he also expects the assistants to be upgraded to full-time status, though he did not offer a timeline for this.

Mercure took over the county’s troubled public defender office in 2009, at first on an interim basis, after his predecessor resigned amid allegations he’d forged a judge’s signature on court documents. That lawyer was one of two recent public defenders in the county who wound up being disbarred.

Now Mercure is working with the state Office of Indigent Legal Services to carry out the terms of a settlement in a long-running court case that accused Washington and four other New York counties of failing to provide adequate legal representation for the poor. The class-action suit, brought by the New York Civil Liberties Union and a private law firm in 2007 and settled late last year, claimed public defenders in the five counties were so overworked and poorly prepared that they effectively provided no real legal defense to many of their clients.

To settle the suit, the state has agreed to provide new funding and oversight to help the five counties upgrade the quality of legal representation they provide. In March the five counties signed the final settlement.

 

Lawsuit forces change
The difficulty that defendants in Hudson Falls Village Court reported in contacting their public defenders is hardly unusual in upstate New York, and reams of studies document the frequency of this type of grievance.

In 2012, for example, nearly one-third of the 10,000 defendants in public defense cases in Onondaga County never met their lawyer outside of court, according to the New York Civil Liberties Union’s 2014 report “State of Injustice: How New York State Turns Its Back on the Right to Counsel for the Poor.”

The repercussions of lawyers first meeting their clients in the hallway a couple minutes before going to court are far more serious than causing a defendant to be nervous. In many instances, the lack of communication with their lawyers changes the outcome of their cases for the worse, resulting in weightier convictions and harsher sentences than they would have received if they’d had better legal representation.

For lawyers who represent so-called indigent defendants – those judged unable to afford private lawyers – the status quo has come to include impossibly large caseloads, lack of support services, inadequate supervision and non-existent performance standards. In many New York counties, there are rock-bottom expectations of what a legal defense should entail, even though a large majority of defendants in criminal cases are represented by public defenders.

The class-action suit that’s forcing changes in the public defender system was known as Hurrell-Harring v. State of New York. It named 20 plaintiffs prosecuted in five counties, including Washington County, who it contended had been gravely harmed as a result of poor legal representation.

“This case is really the first of its kind to bring a systemic challenge to the way a state delivers its defense services,” said Corey Stoughton, the NYCLU’s lead lawyer in the litigation.
In preparing the lawsuit, the NYCLU sent teams of lawyers to observe local courts and to interview defendants, jail inmates and other sources.

The woman who wound up being the lead plaintiff in the case was Kimberly Hurrell-Harring, a 31-year-old nursing assistant and mother of two who got caught trying to sneak a small amount of marijuana to her husband, who was a prison inmate in Washington County. The appropriate charge for this crime was a misdemeanor that rarely leads to a jail sentence, and it was her first offense.

But the Washington County public defender – one of those who was later disbarred – urged Hurrell-Harring to plead guilty to a felony. Hurrell-Harring, who met the lawyer for only a few minutes before the court hearing at which she entered her plea, spent four months in jail before her conviction was overturned in an appeal brought by a NYCLU lawyer. In the meantime, she lost her job, her nursing-assistant license and her home.

Jacqueline Winbrone, another of the 20 named plaintiffs, was innocent, but she spent 50 days in the Onondaga County Jail awaiting trial because she couldn’t get in touch with a lawyer. While she was held in jail, her seriously ill husband, who depended on her to drive him to dialysis, died. Unable to get her bail lowered, she also missed his funeral. She had been mistakenly arrested for criminal possession of a weapon, as the gun belonged to her husband, who admitted he had put it in their car. When she finally made contact with a lawyer, the case was dismissed.

Stoughton stressed that the lawsuit targeted the five counties because they were typical, “not the best and not the worst.” The counties also represented a diverse sample, with different systems for indigent defense, widely varying demographics and locations stretching from Long Island to western New York.

 

New state oversight
The state first attempted to get the suit thrown out and then brought the five counties in as co-defendants. It ended up settling last October, just before the case would have gone to trial.
The final settlement was signed in March, with all five counties agreeing to upgrade their public defense services in four areas: providing lawyers at arraignments, reducing lawyers’ caseloads, improving quality of services, and setting better eligibility standards for representation.

The state has agreed to pay for these improvements and has allocated $4 million for the first year of carrying out the settlement.

Of that sum, three-quarters will go to the five counties for quality improvement and to provide lawyers at arraignments. The rest is destined for the state Office of Indigent Legal Services, which will support and oversee the upgrades as well as develop statewide standards. The state agency is planning to add 8 more staff members to its 10-person team.

For now, the settlement only covers the five counties that were named in the lawsuit, although there is talk of legislation to extend the standards of the settlement statewide.

Stoughton pointed out that the county-by-county system of providing legal representation to indigent defendants has a lot of inefficiencies, and taxpayers currently are footing the bill to put people in jail who in some cases shouldn’t be there.

“The thing is, the costs are already borne by the system,” Stoughton said.
Providing better legal representation should be seen as an investment that will result in outcomes that are fairer and in some cases less costly, she suggested.

Jonathan Gradess, the founder and executive director of the New York State Defenders Association, said the Hurrell-Harring settlement has created momentum for urgently needed reforms, but he contends it was a mistake to settle with the five counties rather than holding out for a “global” statewide settlement.

“I see it as five down with 57 to go,” he said.

Having significant improvement in five counties creates an equal protection issue, he said.
“If you’re Nassau, Warren, or Otsego County, you can look over to a neighboring county” that was part of the settlement, Gradess said, explaining that these counties are likely to feel that “the state of New York just created a Christmas present for them, and we get coal in our stocking.”
Stoughton agreed but said this disparity is the wedge to propel statewide reforms forward. In early May, her group held a lobby day at the Legislature and found lawmakers were receptive to extending the terms of the settlement to all counties.

“Legislators understand the inequity argument,” she said.

 

Dysfunctional system
The Sixth Amendment to the U.S. Constitution guarantees anyone accused of a crime “to have the assistance of counsel” for defense. But for much of the nation’s history, that guarantee was not honored.

The U.S. Supreme Court put more force behind the constitutional right to legal defense when it ruled unanimously in 1963, in a case known as Gideon vs. Wainright, that anyone accused of a crime was entitled to lawyer even if they could not afford one. The court left it to the states, however, to figure out how to meet that requirement.

By some measures, New York has one of the more dysfunctional public defender systems in the nation. A report to the state’s chief judge in 2006 identified several crippling structural problems. At that time, New York was one of only six states that exercised no statewide responsibility or oversight for indigent criminal defense. And while 28 states bore full responsibility for funding indigent defense, New York was one of a handful that pushed most or all of that burden onto local governments.

William Leahy, who led Massachusetts’ statewide public defense agency for a quarter century and was brought out of retirement in 2011 to head New York’s new Office of Indigent Legal Services, said the structure of the New York system makes no sense.

“What are the counties doing being the funding source and the setters of standards?” Leahy asked. “That’s crazy.”

What makes the Hurrell-Harring settlement historic, he added, is that New York’s state government has finally accepted that it bears the responsibility for fixing the system.

Gradess said the state’s patchwork of public defender services dates back more than 40 years to the Rockefeller administration’s decision to delegate this function to the counties. He said he has been wrestling with the resulting problems for his entire legal career.

“The counties didn’t have adequate resources and structures to perform the services,” he said. “It became a gigantic underfunded mandate.”

In contrast, both Vermont and Massachusetts created statewide public-defender systems several decades ago. These unified, state-funded systems each have a single top lawyer responsible for service design and delivery, and eligibility standards and other policies are consistent throughout each state.

In New York, however, each county gets to choose how to provide mandated legal representation to indigent defendants. Most have appointed a public defender who works directly for the county, but some counties contract with a legal services organization like the nonprofit Legal Aid Society. Others use an assigned counsel system, drawing from a list of private lawyers available to take cases, with the list maintained by the county bar association.

If this isn’t complicated enough, public defense programs must have an alternative source of lawyers for “conflict cases.” When a criminal case has multiple defendants, for example, the public defender’s office or other legal services provider is only allowed to represent one of them. Other defendants in the case must be assigned to outside lawyers.

Another feature that distinguishes New York from its neighbors is its court system. The state has more than 1,000 town, village and city courts – most run by judges who are not trained lawyers – that handle criminal cases as well as traffic tickets. The existence of so many courts seriously complicates the task of assigning lawyers to criminal defendants.

Vermont, in contrast, has a unified judicial system with no municipal courts, and all of its judges are state employees. Massachusetts has a system of district courts that cover multiple towns.

 

Covering arraignments
One of the stipulations of the Hurrell-Harring settlement is that, by late next year, every criminal defendant who is eligible for a publicly funded lawyer must have a lawyer present at his or her arraignment. Arraignment, the initial court appearance when someone is accused of a crime, is where a judge sets bail and may send a defendant to jail for pre-trial detention.

Defendants who are arraigned without a strong advocate are more likely to be sent to jail while awaiting trial, often because a judge sets bail that’s beyond their means.

Like many other counties, Washington County does not provide defendants with a public defender at arraignment, regardless of their financial ability. One of the barriers to this is that the county will not assign a public defender until a defendant’s financial eligibility is determined through a detailed application.

Another challenge is that, as in most New York counties, arraignments may be scheduled at all hours of the day and night at village and town courts spread across the countryside. Washington County has 24 separate municipal courts.

Robert Linville, the Columbia County public defender, said one of the goals of having a defense lawyer present at arraignment is to avoid having defendants sent to jail unnecessarily.

 

Columbia County Public Defender Robert Linville, left, is seen meeting with his staff to discuss pending felony cases. In contrast to most area counties, his office now has lawyers on call around the clock to represent defendants at arraignments. Scott Langley photo

“There are profound effects,” Linville said, explaining that defendants with marginal incomes may lose their jobs and might even lose custody of their children. “The social costs are enormous, though often very subtle. What’s the cost of a family getting blown apart? It causes trauma all over.”
Linville said he got to see the effects of incarceration earlier in his career, when he ran the Westchester County Jail as the county’s deputy commissioner of corrections.

Last year, Linville obtained a grant from the state Office of Indigent Legal Services to hire an on-call attorney for night and weekend arraignments. After this lawyer left for a job in northern New York, Linville hit on a solution: He got permission to move the grant funds to the paychecks of two of his assistant public defenders, augmenting their duties to include arraignment coverage.

Now, every day of the month in Columbia County, a public defender is on call around the clock to respond to arraignments. The office provides in-person coverage at most of the courts in the county, including the busiest one, Hudson City Court. As soon as a judge learns he has an arraignment, he calls the on-call phone so the public defender on duty can jump in his or her car.
For those courts that are too far to travel to, the public defender at least provides representation by phone. Across the county, there might be three or four people arraigned one week and none the next, but sometimes there are as many as a couple dozen arraignments in a week.

 

Reducing caseloads
Reducing the number of cases that each public defender has to juggle has long been a priority of reform advocates. Lawyers with too many cases can’t give their clients and their cases the attention required.

But according to the NYCLU’s “State of Injustice” report, in 2012 the Washington County public defender’s office did not track caseloads at all.

“Assistant public defense attorneys were asked twice a year about their caseloads; the number was written down on a Post-it note that was not kept,” the organization reported.

The five counties covered by the Hurrell-Harring settlement will be expected, by September, to accurately track and report the actual caseloads of each defense lawyer. The lawyers’ private-practice workloads must also be tracked.

At the same time, the Office of Indigent Legal Services will be creating standards for appropriate defender caseloads and determining the additional staffing requirements needed in each county. After these standards are developed, the state will have six months to “take tangible steps” to enable the counties or their providers to comply.

Guidelines from the New York State Bar Association and national legal experts suggest capping a lawyer’s workload at 150 felony cases or 400 misdemeanor cases per year. But establishing a firm caseload limit is difficult because so many factors are involved.

Anthony Benedetti, chief counsel for Massachusetts’s public defense system, said he couldn’t generalize about how many cases his state’s public defenders handle. He said a lot depends on the type of case. What an appropriate caseload is also varies by county, because different prosecutors are more or less adversarial in handling the fact-finding phase of criminal cases. In addition, geography affects how much time lawyers have to spend traveling to and from court.
There is a bottom line, however.

“There are no private attorneys taking as big a caseload as we do,” said Mercure, the Washington County public defender.

With support from the county Board of Supervisors and a state caseload reduction grant, Mercure has almost doubled the staffing levels of his office in less than six years. Seven part-time assistant public defenders currently work for him, up from just three in 2007 before he joined the department.

Criminal court is not the main driver of his office’s rising workload, Mercure said. In recent years, for example, the number of felony cases prosecuted in the county has held steady, at 220 to 250 annually.

“Family Court is where we are most challenged,” Mercure explained.
The public defender’s office provides counsel in many custody, neglect and abuse cases where parental rights are at stake, and the increasing demands of these cases on public defenders is part of a statewide trend in New York.

Last year, Mercure’s office assigned a lawyer to 1,022 defendants in criminal cases and 107 people in parole appeals and hearings. Public defenders also represented 242 individuals in Family Court. Nearly 20 outside lawyers were assigned in 180 conflict cases.

Mercure currently has more part-time lawyers in his office than his counterpart, the county district attorney. But the prosecutor employs four full-time assistant district attorneys.

In terms of compensation and support staff, there are major disparities between the district attorney’s and public defender’s offices.

The Washington County district attorney commands an annual salary of $152,500 that is set by the state. The county public defender, also a full-time salaried employee who heads a department, only makes at $81,068.

Similarly, the county’s part-time assistant prosecutors receive between $62,872 and $68,645 plus a benefits package, while assistant public defenders get a flat $48,173 with neither benefits nor opportunities for raises. The district attorney also has more support staff than the public defender as well as a part-time investigator.

Asked what would fix the system, Tucker Stanclift, a private lawyer whose Glens Falls firm handles criminal cases and who has expressed concern about improving legal defense services for indigent defendants, had a ready reply: “More bodies.”

But Stanclift acknowledged that staffing alone is not the only issue.
“The debate about quality is about mentality coupled with financial resources,” he said.

 

Consulting and investigating
The Hurrell-Harring case had attracted the interest of the U.S. Department of Justice, which filed a statement in support of the plaintiffs. The department’s lawyers contended that “when the traditional markers of representation ... are absent or significantly compromised on a systemic basis,” public defense becomes “a form of non-representation.”

The essential features of a sound defense, the department contends, include “timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case.”

A random three-hour session of observing cases in Hudson Falls Village Court suggests that all three elements often get short shrift under the current system in Washington County.
In an effort to ensure better representation in criminal cases by September, the state Office of Indigent Legal Services is developing a written plan for each county to improve the quality of public defense and implement it with state funds.

These plans will address widespread deficiencies such as: supervision and training; access to investigators, interpreters and expert witnesses; lawyers having necessary qualifications and experience; and effective communication with clients.

The counties’ defense lawyers will be expected to conduct in-person interviews of their clients promptly after being assigned and to have access to confidential meeting spaces, both of which a few hours of court-watching revealed were commonly lacking.

Stanclift, who serves on a state bar association committee charged with ensuring the quality of “mandated representation,” which refers to indigent or public defense, said his eight-lawyer firm already sets a higher standard for getting to know clients and their cases.

“I try to avoid at all costs meeting with my client for the first time at the courtroom,” Stanclift said. “Our policy with all of our assigned counsel cases is to have the client come in for the first meeting and meet with them as long as needed. Usually that would be an hour.”

In contrast, it appears that many defendants receiving publicly funded representation have their first encounter with their lawyer for a few minutes before a court proceeding.

“An important thing for lawyers to remember is that 5 minutes may seem OK because there’s the perception that the case is routine,” Stanclift said. “But that’s lawyer-centered. Being client-centered requires getting to know the client and seeing it from their perspective.”

Linville, the Columbia County public defender, said clients deserve the chance to tell their story and be given clear advice and analysis of their choices, the risks they face, and what to expect. In felony cases especially, he said his office tries to take a proactive approach.

“From the moment of arraignment, we try to gain control of the case by digging up front,” Linville said. “I want to have my investigator there before the prosecutor, interviewing witnesses, vacuuming up all the documents, and demanding any videotapes and the CDs of police interviews.”

His full-time investigator is a former police officer with a private investigator license.
“We assemble our reconstruction of what happened,” Linville said. “I’m relying on what can be proven. If the proof isn’t there, we have a conference with the DA and the judge. We move the case toward a disposition or a plea to something less. … The goal is to be more informed than the prosecutor. I want to lean into the case so much that the prosecutor loses heart.”
Linville embraces the adversarial system, but he’s also a pragmatist.

“It’s easily proven that if you make the DA work by filing motions, you pay for it,” Linville said. “You’ll get punished for exercising your rights. So as a defense lawyer, you should be as aggressive as you can without flogging the DA, always balancing the objective of getting the best results for the client.”

 

Changing a culture
Matthew Alpern, the director of quality enhancement for the state Office of Indigent Legal Services, has met with public defenders or their equivalents in all 62 New York counties and done a lot of court watching since he joined the agency’s staff in 2012. Before that he was a lawyer in the public defender office in Washington, D.C., and was involved with criminal defense in other capacities.

He cites three overarching problems in New York’s public defender system.

First, lawyers have too many cases, which creates a tendency to try to resolve everything quickly. Second, some of the lawyers are not “the best trained.” Finally, he said, “the institutional culture is go along to get along.”

These problems all seemed clear to a defendant who recently accepted a plea deal in a misdemeanor drunken-driving case in Hudson Falls Village Court. The defendant, an older man who agreed to discuss his experience on the condition that his name not be published, said he believed his court-appointed lawyer was unwilling to go too far in challenging prosecutors’ view of the case.

“What they had on the table at the beginning is what they ended up with,” he said of the plea offer extended to him. “The DA tells your public defender what the deal is. And the public defender is just going along with the DA, because he doesn’t want to make waves. They’re overwhelmed. They’re not going to fight with the judges, and they’ve got to work with the DA.”
Although more money and staff would reduce caseloads, and better supervision and continuing education could help address the training deficit, the go-along-to-get-along culture may be the most difficult obstacle to effective legal representation for people who can’t afford private lawyers.
Gradess, of the New York State Defenders Association, said he lately has been musing about how to overcome this challenge.

“It’s taken me a long time to appreciate that there’s peer support for poor performance,” he said.

Eligibility barriers
To qualify for a government-appointed lawyer, a person need not be destitute but must be deemed unable to afford to pay for a private lawyer. The American Bar Association estimates 80 percent of people who face criminal charges cannot afford to hire a private lawyer.
Across New York, counties vary widely in their approach to the question of eligibility for public legal services. Their decisions may be subjective, and some have set up criteria or application requirements that are legally questionable.

In Washington County, for example, minors are supposed to submit their parents’ financial information along with their own. Gradess said he questions that requirement both on privacy grounds and because the parental obligation to provide for children to age 21 does not extend to legal fees.

“Some counties actually treat it like an entitlement program, not a constitutional right,” he said of legal representation.

Elected officials in many counties are reluctant to devote resources to what they see as aiding lawbreakers – even though, of course, most of those receiving public legal representation have only been accused, not convicted.

“The last thing that town supervisors want to do is spend more money on criminals,” Stanclift said.
The settlement in the Hurrell-Harring case aims to standardize eligibility criteria across the state. The Office of Indigent Legal Services has a September deadline to issue criteria and procedures to guide courts in every county outside of New York City.

One of the ways some counties have discouraged people from exercising their right to counsel is with detailed applications that require various supporting documents.

In Essex County, for example, a new information verification process for people needing a public defender requires applicants to prove their eligibility with income tax returns, their last four pay stubs and copies of household bills. If they’re divorced, they must submit a copy of the divorce decree to exclude their former spouse’s income from consideration.

The Washington County application includes questions about income, assets, creditors, employment status, monthly budget, and household composition. Applicants must provide items such as summonses and supporting depositions as well as proof of income for themselves -- and for everyone else in their household. Alternatively, a person must submit a notarized statement from the person whose home they live in, explaining their living situation.

Mercure, the county public defender, used to make the determinations of who was eligible for legal representation.

What really matters is a defendant’s ability to obtain a lawyer or represent themselves, he said.
“That depends on the complexity of the charges,” he said.

Those applying for a public defender in Washington County must return a completed application packet in person during the 20 hours per week that the defender’s office accepts them through a sliding window. The office does not have any application hours on Fridays.

When people fail to bring everything they need, the office won’t accept their application.
“I turn away quite a few,” said Marie DeCarlo Drost, the assigned counsel administrator for the public defender’s office. Most of the time, applicants return with the necessary information, she said. When they don’t, proof of income is often the sticking point.

Last year, the office denied 85 completed applications, less than 8 percent of the total. Drost said she does not keep data on incomplete applications.