William J. Leahy, director of the Office of Indigent Legal Services
NYLJ/Rick Kopstein
Fifty years to the day since the U.S. Supreme Court ruled in Gideon v. Wainwright, 372 U.S. 335 (1963), that courts are required under the Constitution to provide indigent criminal defendants with counsel, critics say New York's quirky, county-based system of criminal representation for the poor is hampered by crushing defender caseloads, uneven quality of counsel, lawyer shortages in some counties and shortages of funding everywhere.
The state's shortcomings highlighted in a 2006 report commissioned by then-chief judge Judith Kaye persist, and the primary recommendations for improvement—creation of a statewide public defenders' office and the eventual state takeover of the costs—have gone largely unaddressed.
In the meantime, New York has its own Gideon-related suit awaiting trial in October. In Hurrell-Harring v. State of New York, 8866/2007, a suit brought by the New York Civil Liberties Union, plaintiffs allege systemic failure in the state's indigent criminal defense model and say issues exposed in the Kaye report remain unresolved.
In January 1962, a Florida drifter serving time for felony theft wrote to the U.S. Supreme Court to complain that he had been denied a fair trial because the judge had refused to appoint a lawyer for him. Clarence Earl Gideon's petition caught the court in a receptive mood, ready to expand its precedents on the right of indigent defendants to counsel. In today's Outside Counsel, columnist Paul Shechtman describes how the burglary of a Panama City poolroom led to one of the most significant rulings of the last half century.
If anything, the Hurrell-Harring complaint charges, New York has backslid from 1881, when a provision of the Criminal Procedure Law authorized courts to assign attorneys to represent poor defendants in felony cases (See Court Documents filed in the case).
"Sadly today, more than forty years after Gideon, the leadership and humanity New York State showed in the past have eroded badly," the action claimed in 2007.
"There is progress being made, but it is painstakingly slow and it is not close to being adequate to remedy the deficiencies that were identified in the Kaye Commission report and Hurrell-Harring," said William Leahy, director of the Office of Indigent Legal Services (ILS)."In New York, we've got a very long way to go."
But even harsh critics of the state's approach say that on the 50th anniversary of Gideon, all is not lost.
They point to the creation of Leahy's office as the chief source for optimism after decades of the state's seeming indifference to Gideon compliance. ILS, which began operations in February 2011, recently grew to 10 employees. Its express purpose is to assist localities in complying with County Law Article 18-B, which embodies the state's representational requirement in Gideon (See the ILS' Standards for Mandated Representation in Cases Involving a Conflict of Interest).
"I think we are finally on track," said Seymour James, president of the New York State Bar Association who is also attorney-in-charge of the criminal practice of the Legal Aid Society, "but it's a slow train."
New York is one of 26 states that does not have a statewide public defender system. It relies instead on a hybrid system where New York City and the 57 counties outside the city contract with institutional legal services providers such as Legal Aid; have established public defenders' offices; turn to private attorneys chosen from "18-B" panels; or use a combination of these methods.
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