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Class Action Challenge to N.Y. Public Defender System Moves Forward

By Lisa R. Bliss, Litigation News Associate Editor – July 15, 2010

New York state’s highest court has ruled that a class action claiming the state violates indigent criminal defendants’ constitutional and statutory right to representation of counsel may move forward.

Indigent Criminal Defendants Pursue Class Action
In Hurrell-Harring v. State of New York [PDF], the New York Court of Appeals partially reinstated a class action suit filed by criminal defendants prosecuted in several New York counties. The plaintiffs allege that they were denied their constitutionally guaranteed right to assistance of counsel under the Sixth Amendment to the U.S. Constitution and the U.S. Supreme Court’s decision in Gideon v. Wainwright due to inadequate funding of indigent defense providers and “systemic deficiencies” in procedures to provide such representations.

In New York, the state’s obligations under Gideon are discharged by the counties, using county resources and following local rules and practices. The plaintiffs argued that the arrangement is a “costly, largely unfunded and politically unpopular mandate upon local government.”

According to the court’s opinion, plaintiffs allege that, in specific cases, counsel was not provided at “critical stages” in criminal proceedings and that this system resulted in a deprivation of their constitutional rights. The class action seeks a declaration that the rights of the plaintiffs and the class are being violated and an injunction to prevent further abridgement of their right to counsel.

Plaintiffs further allege instances in which criminal defendants received no representation at arraignments. Although lawyers were eventually appointed for plaintiffs, plaintiffs allege that the lawyers were unavailable to their clients or “completely unresponsive” to client inquiries “sometimes for months on end,” especially between arraignment and trial.

Defendants argued that there is no claim for ineffective assistance of counsel apart from one seeking relief from a conviction, and that plaintiffs could only seek relief within the criminal cases out of which their claims arose. Additionally, defendants claimed that the systemic relief requested by plaintiffs, which involves the allocation of public resources, is more properly a legislative function.

The Court’s Decision
In making its decision to reinstate the class action with “substantial qualifications,” the court viewed the time between arraignment and trial as a “critical” time during which a case must be “factually developed and researched.” The court also noted allegations that counsel made virtually no efforts on their clients’ behalf, except as “conduits for plea offers,” and waived important rights without authorization.

The court analyzed the claim as a question of whether the state “has met its foundational obligation under Gideon to provide legal representation,” rather than one of ineffective assistance of counsel.

The court reiterated that simple ineffective assistance of counsel claims were “a subject not properly litigated in this civil action.” The court concluded that plaintiffs properly pled that they were constructively denied counsel at critical stages of the proceedings by “systemic conditions,” not just by reason of “the personal failings and poor professional decisions of individual attorneys.”

Nominal Representation Not Enough
“Many jurisdictions, even though they are also suffering from funding problems, provide some form of representation that is more than the nominal representation that the court in this decision seems to be concerned with,” says Stacey F. Gottlieb, Phoenix, cochair of the ABA Section of Litigation’s Criminal Litigation Committee. Gottlieb notes that, in this instance, the representation is falling so far below the bar that it amounts to no representation at all.

“This case is a good example of showing just how low the bar has fallen in making sure that the appointment of counsel in criminal cases has substantial meaning and isn’t a nominal exercise,” Gottlieb observes.

Increasing public funding to provide counsel for indigent criminal defendants is “not exactly a winning political issue, especially in these tough economic times,” notes Thomas A. Gilson, Phoenix, cochair of the Section’s Criminal Litigation Committee. Gilson does not find it surprising that criminal defendants are turning to the courts to compel local governments to improve their public defender programs.

“In budget-trimming times, there are certain things that can’t be cut because they are constitutionally mandated, and indigent defense is one of those areas,” says Mark B. Helm, Los Angeles, cochair of the Section’s Pro Bono and Public Interest Committee.

“An important function of constitutional rights is to identify areas in which there is an irreducible minimum of responsibility,” he says.

Helm and Gottlieb agree that it is not necessarily less expensive for the state to rely on post-conviction remedies for systemic violations of the right to counsel.

“The less representation there is on the front end of a case, where a defense lawyer can make sure the process goes properly, the more expense there is on the back end because there are more challenges, which can cause a case to drag out,” says Gottlieb. “How is that justice for the victim or the defendant?” she asks.

Keywords: Litigation, class actions, New York, criminal litigation, right to representation


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