As criminal defense lawyers, and especially as public defenders, we are often a unique combination of optimism and pessimism.  We become convinced that we will prevail at trial under impossible circumstances – and often we do.  We are certain that the judge is out to get us, the prosecutor is holding back, or the police are not being truthful – and too often we’re right. 

Yesterday and today news organizations touted the settlement of a lawsuit concerning provision of indigent defense services in New York, in Hurrell-Harring v. New York, as a cure for what ails the indigent defense process.  “How New York is Finally Helping Poor Defendants” was the headline of a Newsweek article.  The New York Times headline stated, “In New York, Cuomo Pledges More Aid for Lawyers of the Indigent.”  The Washington Post blog announced, “New York Agrees to Major Reforms to Provide Public Defense to the Poor.”  But as those cynical optimists, or optimistic pessimists, that we are, perhaps we should slow down before popping the corks. 

A press release issued by the Chief Defenders Association of New York, while praising the relief obtained by the five counties, sounded a cautionary note:

The settlement between the plaintiffs and New York state benefiting Ontario, Onondaga, Schuyler, Suffolk and Washington counties is a welcome first step in the long recognized need for the state to fully fund its constitutional responsibility towards indigent defense. But it is only a first step, and the state must ensure that the citizens in the remaining 57 counties in New York State are not forgotten.
The Chief Defenders Association of New York applauds Governor Cuomo and Attorney General Schneiderman's recognition that effective representation of the indigent is ultimately a state responsibility, requiring:

  • The dedication of additional state resources to ensure that every indigent criminal defendant has a lawyer at their first court appearance.
  • The dedication of additional state resources to ensure that indigent defense programs have the resources they need to hire sufficient lawyers, investigators and support staff to ensure that all poor criminal defendants have lawyers with the time and support necessary to vigorously represent the defendant.
  • The implementation of caseload standards, as they are a necessary component of effective indigent defense.

CDANY also applauds the governor and attorney general in recognizing that additional resources provided to improve public defense should be implemented through a strengthened, independent Office of Indigent Legal Services.

However, the settlement provides no resources for the indigent defense providers in the rest of the state. New York cannot continue a system of justice that deprives dedicated public defenders the resources they need to effectively represent all of their clients, in every area of the state.
CDANY calls on the governor and the New York State Legislature to immediately implement a plan to provide for the dedication of additional resources to all the remaining counties in New York state so that the indigent defense providers in those counties may implement the improvements mandated in the Hurrell-Harring settlement.

So why are we raining on the parade?

First, a little (and very abbreviated) background. 

In order to understand why we might not want to celebrate just yet, we have to take a look at the history of this case, and the role that the state had in it.
New York is made up of sixty-two counties.  Indigent defense in New York is provided by one of three methods – not for profits, such as Legal Aid, public defender offices, or assigned counsel attorneys.  Each county determines how to provide defense services to the poor.  Each county is responsible for paying for its indigent defense services.  County executives complain, perhaps rightfully, that this is an unfunded mandate they cannot afford and do not want to pay for.  Spending lots on folks charged with crimes is not likely to win them any elections.  They seek state funding.  The state provides some funding for services in the form of grants and other assistance, but the lion’s share of costs are borne by the counties.  Because counties do not want to pay for indigent defense, the money allotted is not nearly enough to cover what we all believe is necessary.  As a result, depending on the county, caseloads for defenders may be well over guidelines, payments to attorneys may unfairly limited by judges, investigative services can be denied by judges, training and supervision may be inadequate or non-existent, and attorneys may split their time between their own private cases and assigned cases, with little payment for the assigned cases.  In 2006 a Commission appointed by Chief Judge of the Court of Appeals (New York’s highest court), Judith Kaye, determined that there were many inadequacies in provision of indigent defense services.  The report is here

In 2007, several indigent defendants living in five of New York’s sixty-two counties, represented by the New York Civil Liberties Union and a private firm, filed a lawsuit.  They alleged that due to the insufficient staffing and other inadequacies of the public defense system, they could not receive competent defense.  Initially, they sued the state.  The state moved to recuse the trial judge, claiming that the judge’s prior employment as the Albany County Public Defender, as well as his public support for improvement in the indigent defense system, disqualified him from hearing the case.  The judge declined to step down.  The state then moved to dismiss the case on numerous grounds.  The governor at the time was then impleaded (remember that term from law school?) and the judge denied dismissal provisionally, requiring that the counties be added to the suit. 

The state appealed the denial of dismissal, prevailing in the Appellate Division – the intermediate appellate court in New York.  That Court agreed that defendants could seek to address their grievances in post-conviction proceedings.  The plaintiffs appealed to the highest court in New York, the Court of Appeals.   Ultimately, the Court of Appeals, in a decision by Justice Lippmann – a strong proponent of quality representation for the poor – denied dismissal.  See Hurrell-Harring v. State of New York, 15 NY3d 8 (2010). 

In 2011, after denial by the trial court, a class was certified for defendants within the five counties. 

So just to score it a bit – New York initially sought to recuse the judge who supported quality services for indigent defendants, then moved to dismiss the complaint, then appealed the denial of the dismissal, fighting for dismissal all the way to the Court of Appeals. 

Fast forward.

Yesterday, the case was settled.  In the settlement found here. The state entered an agreement that addressed a process for establishing uniformity of eligibility determinations throughout the state. That was the only statewide provision.  The rest of the agreement focused on the provision of services in the five counties which were the subject of the lawsuit.  Not sixty-two, but five.  And in those five counties, public defender corks should be popping all over the place. 

But here’s the part that brings out my inner Eeyore (and the diplomatic concern expressed by the Chief Defenders):

1.  There is no indication about where the funding will come from, whether it will come from the same source that indigent defense funding comes from for the entire state, and what will happen to make up the amounts the rest of the counties may lose if it is from the same pot;

2.  There is no requirement that the really significant improvement in staffing, caseload caps, and support services will be extended to offices around the state;

3.  There is no promise from New York (the party that sought recusal and dismissal up to the highest court) to continue to work toward implementing these standards across the state.

I hope that the state truly recognizes that it has an obligation to ensure that all indigent defendants receive what it has agreed to provide in five counties.  But until we see where the money is coming from and whether it will have a negative impact on the remaining fifty-seven counties, I’m going to be keeping that cork in the bottle. 

"Good morning, Eeyore," said Pooh. 
"Good morning, Pooh Bear," said Eeyore gloomily. "If it is a good morning, which I doubt," said he. 
"Why, what's the matter?" 
"Nothing, Pooh Bear, nothing. We can't all, and some of us don't. That's all there is to it." 
"Can't all what?" said Pooh, rubbing his nose. 
"Gaiety. Song-and-dance. Here we go round the mulberry bush."
      –  Winnie the Pooh