The System is Broken: NY Ct. of Appeals Allows Class Action over Indigent Counsel Failings

Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon‘s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.

In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.

In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?

Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.

Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.

Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.

In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.

The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.

“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation.

Apparently, according to the opinion, the main reason for the woeful lack of representation by the public defenders is “inadequate funding and staffing.” This makes sense, to some degree. Most counties in New York look on the state’s application of Gideon as an unfunded mandate, which makes it both unpopular and unlikely to be high on the priority list when budgets are set. Besides, it’s only going to go towards the defense of bad guys, right? So who cares if they get the short end of the stick?

The allegations pertain to five upstate counties, but this is stuff we’ve seen elsewhere and in other states as well, so bizarre as these claims may sound to the unititiated, we can tell you that they ring true to us. Heck, just last month we took over a public defender’s case in New Jersey, where the client had been sitting in jail for a month on $100,000 bail without once even having met his public defender. We got retained, met with the kid, did the work the PD should have done, and got that bail knocked down to $5,000. That kid should have been walking around a month earlier, and would have been if the system there worked, which it didn’t. And just this morning we were in a NY State courthouse, where we saw a public defender round up all the legal aid defendants out in the hallway and harangue them, shut down anyone who tried to ask a question, and otherwise so distress all the indigent clients that one came over and begged me to take her case with the promise that she’d find some way for her family to pay ourfees. (We declined, because we’re really quite expensive, but another less-expensive attorney took her up on it.) Anyway, the point is we see this kind of stuff every day in places outside the five counties named in the lawsuit. The system really is broken, and it’s time to fix it.

One thing that’s really interesting to us is that this case is being brought collaterally, as a civil class action, rather than as a series of individual post-conviction appeals. The defendants in the criminal actions are the plaintiffs in the class action. As the court points out, there is no reason why the defendants should wait until their cases are over, and pursue their claims on appeal. They’re perfectly within their rights to go right to civil court whether or not their criminal cases are still pending. But to be honest, the thought never occurred to us before. And yet, there’s nothing astonishing about the idea apart from the fact that it hasn’t really been done before. “This action properly understood,” explains the court, “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.” There is no reason why the class members here cannot seek to enforce their right to counsel, and compel the state to provide that counsel as is their right.

And a civil court certainly has the power to compel the state to do its job. That’s one of the most beautiful things about our judicial system. It’s one of the main reasons we went into law in the first place. So we’re happy to see the Court of Appeals making the right call here. It remains to be seen whether the class members can prove their case, but at least now they’re getting the chance to make it.