Judges Concerned With Role in Criminal Defense Plan

, New York Law Journal

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A new initiative to provide criminal defendants upstate with a lawyer at their initial court appearance has sparked ethics inquiries from local judges questioning their role in administering the program.

The inquiries came after some judges were asked to determine which criminal cases most needed a public defender, such as when defendants are facing incarceration, and others wondered if defenders and judges could discuss the program without the district attorney present.

In a joint opinion issued Dec. 26, four days before the counsel-at-arraignment program began, the Advisory Committee on Judicial Ethics said the judges:

• Cannot accept invitations from public defenders to hold private discussions about the program without the consent of the district attorney (13-125).

• May attend an open forum on implementation of the counsel-at-arraignment program provided the district attorney is expressly invited (13-125).

• May speak ex parte to a defendant to determine if the individual is financially eligible for the program (13-124).

• May conduct an arraignment after assigning counsel and in the absence of a prosecutor if the district attorney's office is on notice and fails to participate (13-128).

• Cannot assist the public defender in deciding where to deploy staff by predetermining which defendants are facing incarceration (13-129) and, therefore, are most in need of representation.

William Leahy, director of the state Office of Indigent Legal Services, agreed with the advisory committee.

"I think the way it will be handled is as a resource decision by the defender, which is where it properly resides, and not a decision by the judge on which defendant will have a lawyer," he said.

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