Thursday, April 23, 2009
In previous issues I have written about the broken public defender system and called for reform. One of the problems is that each county has its own public defender system and thus there is no statewide oversight or means of quality control. In addition, there is a vastly uneven economic playing field between the District Attorney and public defenders’ offices. District attorneys have huge staffs and financial resources which permit them to hire experts to assist in reviewing evidence and preparing cases; whereas public defenders have much smaller staffs and often must resort to
asking judges to allocate discretionary funding in order to hire experts. Often such requests are denied by judges who feel pressure to keep the costs of trials down.
In addition, public defenders usually carry way too much caseload. In The Bronx, for example, it is not unusual for one public defender to simultaneously represent 120 defendants. With an overwhelming case load such as that, just how much attention can actually be paid to each case?
Because of the time constraints due to their excessive caseloads, public defenders frequently do not meet often enough, or long enough, with their clients, and thus enter court ill-prepared. Often during preliminary, though important, pretrial proceedings, attorneys can be seen outside of the courtroom, and sometimes even inside of the courtroom, quickly thumbing through a file five minutes before their case is before
Beyond the pretrial implications, the inadequate time spent on cases and on meetings with clients amounts to inadequate investigation of the facts, evidence helpful to the Defense, and possible defenses. The end result is often that the best defense is not put forward on behalf of the Defendant; and, a harsher than necessary sentence may be imposed as a result of a court not having all of the facts in front of it that could have been brought forward by a competent attorney. Often Defendants plead guilty out of a realization that their court-appointed attorney is not that good, and/or well equipped to fight the case; and, often wrongful convictions result.
There is also a pay disparity between prosecutors and public defenders. As I see it, both sides should receive equal pay so that all the best legal talent
does not go to the prosecution side, or into private practice. The difference in the quality of defense that a poor person receives as compared with that of a wealthy and/or politically-connected person is like night and day.
In 2005, the Spangdenberg Group, at the behest of New York State Court of Appeals Chief Judge Judith Kaye, studied the quality of public defense in New York. They released a final report in June 2006 entitled “The State Of Indigent Defense In New York State.” In addition to noting the broken public defender system and its failings, one of the solutions proposed involved having one statewide system of public defense, one which would provide oversight and quality control, as well as promulgate standards.
As yet, no reform has occurred legislatively, and poor defendants often do not receive quality representation. This past March 18, however, a major effort was undertaken to both raise legislators’ awareness of this issue and the public’s support for reforms in this area, while raising public awareness.
The Campaign For An Independent Public Defense Commission
An organization called Campaign For An Independent Public Defense Commission [referred to hereafter as “The Campaign”] has been put together to improve the state of indigent defense. They have a website page on Facebook which states, “Money should not buy justice. We need a public defense system that works for everyone. It’s time to stand up and call for a commission to oversee defense services in New York as well as
a fully state-funded system. We cannot wait for the system to change itself. We want the Independent Public Defense Commission.”
Their concept is to have the state legislature fund the Independent Public Defense Commission, at a rate of three million dollars per year, for three years. The Commission would figure out how to implement the changes advocated by The Spangdenberg Group and to promulgate standards on
effective attorney representation. The money was already present; and The Legislative Gazette reported that the group said, “because funding was already set aside from the Indigent Legal Services Fund, under state finance law … to be used to improve the quality of public defense services.”The
funds went unspent. The organization is a coalition of over 220 organizations and scores of individuals. Members include faith-based organizations, bar associations, good-government and social justice groups, and many others.
In addition, individuals who have dealt first-hand with the tragedies created by the current deficient system, along with others committed to justice, are calling for public defense reform now and are in support of the Independent Public Defense Commission.
Gideon Day was celebrated on March 18th, commemorating the landmark United States Supreme Court decision in the immortal case Gideon v
Wainwright, which established that under the 6th Amendment of The United States Constitution, all states and the federal government have to provide to poor defendants an attorney, free of charge, if they cannot afford to hire their own.
The Campaign chose Gideon Day as the day in which a major push would be made to establish The Independent Public Defense Commission. In order to pave the way, there had been, of course, a lot of preparatory work. Outreach had successfully been made to all of those organizations and people described above.Many newspapers had written articles urging the implementation of public defense reform, including: the Post Standard of Syracuse, The New York Times, Newsday, Press Republican of Plattsburgh, Times Union of Albany, Democrat and Chronicle of Rochester.
Additionally, the following people had written op-ed pieces which appeared in newspapers: Senator Antoine Thompson, Assemblyman Darryl Towns, President-Elect of the Puerto Rican Bar Association Roberto Ramirez, Senator Schneiderman and Senator Ruth Hassell Thompson, former NY Court Of Appeals Judges Stewart F. Hancock, Jr., Joseph Bellacosa, and George Bundy Smith, as well as Ron Waterman, who is a Montana Attorney.
Concerned citizens from all parts of the state were bussed in for the purpose of laying peaceful siege to the Legislative Office Building. Their presence at the rotunda gathering was to demonstrate how high a priority this issue is for citizens. Additionally, lobbying visits had been scheduled between the citizens and their local elected officials.
More than 250 people came. Folders were given out which contained information regarding the Independent Public Defense Commission, the most
important piece of information being that the citizens were to ask their local official to write a letter to both the Senate and Assembly leadership asking them to write The Commission For An Independent Defense Commission into their budget itself.
There was also an informational packet which was to be left at the various Senate and Assembly offices upon the conclusion of the visit by the delegation’s coordinator.
All of the participants were asked to sign in as a means of tracking who came, and complimentary tee shirts were given out which read “Campaign
For An Independent Public Defense Commission.”
The event kicked off at approximately 9 AM. Many organizations which were in solidarity with the Campaign had tables set up at The Well, forming a kind of huge circle with plenty of sitting and walking room in the middle. There were various social justice organizations, including those which worked on prisoner re-entry issues and The Innocence Project. Jay Salpeter, the investigator who helped to clear Marty Tankleff, was present, as was Tankleff. They were seated at a table together, which had copies of the book A Criminal Injustice by Salpeter and Rick Firstman.
They also had a sign up in the front of the table regarding the organization which they formed together called “Fortress Innocence” which is designed to help others who are wrongfully convicted that cannot pay for their legal assistance. The manger of The Campaign, Jonathan Gradess, who is also the executive director of the New York State Defenders Association, addressed the gathering. He spoke of the broken public defender system and how The Independent Public Defense Commission would remedy much of the ills of the present system. He pointed out the link between ineffective representation and wrongful convictions. He referenced my case as well as that of Tankleff. He encouraged the audience to “speak truth to power”, and further encouraged them to ask their representatives to write the Senate and Assembly leadership.
Noted wrongful conviction expert and author Scott Christianson, whose works have been cited by the United States Supreme Court, and who is the
author of the book Innocent: Inside Wrongful Conviction Cases, was on hand for the event. His exhibit, which also goes by the name of “Innocent”, consisting of tall wooden frames which contain news stories of wrongful convictions, each one covering a different cause of wrongful convictions along with a case example, was displayed in The Well. The cases mentioned included that of Betty Tyson and her co-defendant John Duval, whose convictions were overturned because a buried report contradicting trial testimony of one of the two witnesses against them was unearthed, and the second witness stated that he had been coerced by the police to implicate them, along with the Pedro Morales and Reuben
Montalvo case, in which the real perpetrator confessed to a priest who then informed the court once the perpetrator died; and the still ongoing wrongful conviction of Frank Sterling, who was convicted after a false confession spanning several hours while a hypnotist was trying to hypnotize him. Six of the twelve cases Christianson had documented have, since the book came out, had their innocence established. Christianson spoke several different times at the podium, and was also available to answer questions as different people examined his art exhibit.
Starting between 10:30 AM and 11 AM lobbying visits began and the citizens moved out for their first two meetings. At 12 PM a press conference was held in the press room of the L.O.B. Press Conference Chairman Eric T. Schneiderman, D-Manhattan, said the right to representation is “the right that guards all other rights.” When people are denied adequate representation, he said, “the consequences are devastating: ruined communities,
ruined families.” “is absolutely clear that there are people going to prison for crimes they did not commit due to problems with indigent defense.”
Assembly Codes Committee Chairman, Joseph R. Lentol, D-Brooklyn, spoke on the plight of his fellow lawyers in the state, saying he hears stories in his community of “dedicated lawyers, counselors of law that are reduced to assembly-line representation of clients” because they are assigned too
many defendants at once. Assembly Corrections Committee Chairman Jeffrion Aubry, D-Queens, spoke from another angle, saying, “Lots of folks in my neighborhood contend that they are not able to receive the kind of defense that they deserve as citizens of this state,” and “it’s not a mistake” the “prison population is overwhelmingly black and brown” and poor. “If we were to create a system that provides adequate defense, we would see those numbers lessen,” Aubry said. Michael Whiteman, chairman of the Committee for an Independent Public Defense Commission, said the proposed commission would work to create new “standards on case loads, training and experiences,” giving more access to resources for investigators working for the defense and updating management systems “to make sure things don’t fall between the cracks.”
Whiteman also said the three years before a state takeover would allow the commission adequate planning time to identify other areas where savings and efficiencies can be found. The campaign is proposing the commission get its funding — $3 million a year over the next three years —
from the Indigent Legal Services Fund, a fund Jonathan Gradess, who manages the campaign, says “exists under state finance law … to be used to improve the quality of public defense services.”
Reservations had been made for me to meet with Sen. Andrea Stewart-Cousins. At the same time, another Westchester County resident, who refers
to remain anonymous, would meet with another Westchester Legislator. Following that, all of us would meet with Assemblyman Adam Bradley and,
then after lunch, we would meet with Assemblyman George Latimer. The resident stated that a relative of his had been wrongfully convicted of rape, and that it had emotionally devastated the entire family. That conviction, he said, was caused by ineffective representation by a private attorney who had never before tried a criminal case. He indicated that it was particularly hard for relatives to visit the convicted relative in prison
and then leave him behind at the conclusion of the visit knowing that he was innocent.
The citizen was nervous about his meeting, and so I quickly gave him tips on what to expect and how to utilize his personal story and then make the connection between ineffective representation that his relative received and the issue of seeking the implementation of an independent public defense commission. After the first two meetings, during the lunch period, I spoke for about fifteen minutes in the Rotunda, and then had the group meeting with Assemblyman Latimer. While still in the L.O.B. I was able to set up a number of unrelated lobbying visits on other wrongful conviction issues.
District Attorney DiFiore
On April 2, 2009, Westchester District Attorney Janet DiFiore published an op-ed piece in The Journal News regarding Gideon Day. In the article she stated that, as District Attorney, it was not just her duty to prosecute the guilty but to ensure that justice is done. She further stated that the Public Defender system was “under-funded, overburdened, and without uniform standards to measure and enforce quality representation.
Under the present system, the quality of counsel was determined by the happenstance of where one was tried. To correct this fractured system, the Kaye Commission called for the creation of an Independent Public Defense Commission (Defense Commission) to operate and finance the provision of defense counsel for the indigent uniformly throughout the state.
The Defense Commission would issue statewide standards for caseload limits, training and availability of investigatory resources.”
There is indeed a great need for an Independent Public Defense Commission, and I am proud to add my voice in support to the movement. I salute the legislative leaders who supported and continue to support the initiative. The relationship between quality legal representation and justice is obvious. As the quote on one of the informational sheets that The Campaign handed out stated, paraphrased “Without an attorney, Gideon was convicted. With an attorney he was acquitted in an hour.”
Although The Commission was not written into the budget and it should have been, I do believe that a big impact was made and that there is a good
chance that legislation can be passed this year if enough concerned citizens reach out to their elected officials and prevail upon them. It is critical that efforts not cease now after this momentary setback; rather, there is a need to intensify our efforts because although a battle may have been lost, clearly the war can still be won this year.
I believe that we need more people in the movement who are employed in law enforcement, who do not simply pay lip service to the need for change, but whose actions in the discharging of their job responsibilities support it. In the recent case of Kian Khatibi, that was not what The Westchester County District Attorney’s Office did, nor was it what happened in other recent Westchester cases where wrongful convictions were ultimately overturned.
Instead, the Westchester DA took an unreasonable, win-at-all cost position in seeking to preserve those convictions which judges later determined
should, in fact, be overturned. Frankly, I believe that actions speak much louder than words, and what I see and hear are not the sounds of a real reformer who is truly interested in preventing and correcting wrongful convictions.