NYCLU challenge to public defender system: one story behind the case

Clarence Gideon, a second story man, wrote out by hand a petition for writ of habeas corpus.   He had been denied his constitutional right to counsel, guaranteed by the United States Supreme Court.  He was one step ahead of the court, which appointed Abe Fortas to present the constitutional argument which spawned Gideon v. Wainwright (1963). It declared that a defendant facing jail has the right to a lawyer, and that if he cannot afford one, the court will appoint one.  The Supreme Court soon clarified that the 6th Amendment right to counsel meant the effective assistance of counsel.


Across the country Public Defenders carry that burden.  Kimberly Hurell-Harring was told by a public defender to plead guilty to a felony that wasn’t even a felony.  The PD had problems - he suffered from bouts of depression and had neglected civil clients.  None of that was known when the County commissioners accepted his bid for the annual $50,000 contract.  It was the low bid, the New York Times reports HERE.


The New York Civil Liberties Union has used Kimberly Hurell Harring as the poster child for a system that, it alleges in a class action suit, fails to provide effective assistance of counsel.  The New York Court of Appeals will soon hear the case, in which the defendant State of New York asserts that the trial judge Eugene P. Devine,  the former Albany county Public Defender, is biased in favor of the challengers and should recuse himself.    Devine denied the motion.


The State's defense is made difficult by the 2006 conclusion of a commission to study the problem, which reported to the Chief Judge of the Court of Appeals that "[t]he amount of monies currently allocated within the State of New York for the provision of constitutionally-mandated indigent defense is grossly inadequate".


For the gold standard of adequate defense by public defenders, look to the New Jersey Public Defender's capital defense unit.  Over 25 years, in 228 capital trials, and 60 death sentences, none was executed.  Finally - in December 2007 the Legislature repealed the death penalty and replaced it with life without parole for aggravated first degree murders.  See my essay Herald of Change and the proceedings of the symposium at which it was presented.

Effective Assistance of Counsel for Immigrants: Change you can believe in

Last August the Blog of Legal Times reported that 2d Circuit Judge Robert Katzmann

and the 9th Circuit's M. Margaret McKeown had described as a "tsunami" the flood

of immigration cases which had gone from 4% to 39%! of the Court of Appeals docket.

BLT reported: "By the time we get the case, it's often too late," said Katzmann. "It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good." The surge in cases began, panelists said, after then-Attorney General John Ashcroft streamlined the removal process in "post 9/11" 2002 measures. That, McKeown said, had the effect of giving the attorney general "a clean plate and a clean desk".

In the Compean case another AG - Michael Mukasey - made things worse on January 7, 2009. He set aside the 20 year-old Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), which allowed immigrants a new chance if they could prove their attorneys had been ineffective. Immigrants have no right to counsel, Mukasey affirmed, unless charged with a crime. True enough if the only foundation for "effective assistance of counsel" is in the 6th Amendment, which establishes the adversary nature of the criminal justice system.

Immigration lawyers of the American Immigration Law Foundation (AILF) sounded the alarm in a brief urging Attorney General Eric Holder to reverse the policy. Circuit court decisions like Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) held that 5th Amendment due process demands fundamental fairness - which is undermined if a lawyer in a removal proceeding fails to meet the standards of competence demanded by rules of professional conduct.

Now Holder has responded by vacating the Compean ruling and directing immigration judges to apply existing standards.

Once before in my career have I seen this kind of response by courts to repudiate executive policy - that in protest of the Reagan administration's policy of "non-acquiescence" in court rulings in Social Security disability cases. SSD cases swelled the federal court dockets. As a practitioner I found myself often before U.S. District judges angered by the United States policy, disposed to reverse denials of benefits, and ready to award benefits and approve Equal Acccess to Justice Act counsel fees under 5 USC 504.