Legal View: If not the courts, then whom?

By Scott Forsyth

The Daily Record Newswire

One month ago, the New York State Court of Appeals heard oral argument in Hurrell-Harring v. State of New York.

The NYCLU’s lawsuit alleges that the way in which the state delivers legal assistance to the poor in criminal proceedings violates the Sixth Amendment.

The state moved to dismiss the lawsuit for failure to state a cause of action. The trial court denied the motion, but an intermediate appellate court granted it in a 3-2 decision, Hurrell-Harring v. State of New York, 66 AD3d (Third Dept. 2009). The NYCLU appealed to our highest state court.

The argument of the NYCLU and the dissenters is straightforward and persuasive.

The Sixth Amendment insures, among other things, that each person charged with a crime has a right to the assistance of counsel for his defense.

If a person cannot afford counsel, the state must provide one. Without the “guiding hand of counsel at every step in the proceedings against him,” a defendant, “though he be not guilty, ... faces the danger of conviction because he does not know how to establish his innocence.” Gideon v. Wainwright, 372 U.S. 335, 345 (1963). The danger is compounded by “the awesome power of the sovereign.”

The assistance of counsel means the effective assistance of counsel. “[T]he most critical period” for that assistance to be provided is “from the time of arraignment until the beginning of trial,” when consultation, investigation and trial preparation occur. Powell v. State of Alabama, 287 U.S. 45, 57 (1932).

The NYCLU did not have to go far to find evidence of the rampant ineffective assistance of counsel within the public defender system. In 2004, former Chief Judge Judith S. Kaye created a commission to study the system. In 2006, the commission issued a blistering 300-page report. Deficiencies found included a lack of contact between attorneys and clients at all stages of a proceeding, excessive caseloads, lack of political and professional independence, unqualified counsel and chronic underfunding and undercompensation. The commission concluded the system is “severely dysfunctional and structurally incapable of providing each poor defendant” with effective counsel.

The stories of the plaintiffs and the findings of the Kaye Commission reveal systemic failures that regularly deprive poor defendants of assistance of counsel at critical stages, and create a severe and unacceptably high risk that poor defendants will be denied effective assistance of counsel.

Such a showing compels judicial action. The need for intervention “is even more compelling given that the constitutional right at issue is interwoven with” “the proper functioning of the court system itself.” Hurrell-Harring v. State of New York, supra at 96.

What do the state and the majority judges say to the NYCLU?

They do not deny that some or all of the deficiencies cited by the NYCLU may exist. However, they assert that the NYCLU “fundamental[ly] misunderstands the constitutional dimensions of a defendant’s right to counsel.” Id. at 87.

Effectiveness of counsel is determined on a case-by-case basis, after the fact. A deficiency in representation may occur but is not grounds for reversal, unless the representation as a whole is so inadequate that the result of the trial cannot be considered “just.” Strickland v. Washington, 466 U.S. 668 (1984).

The Sixth Amendment also cannot “support a claim that seeks to compel other branches of government to allocate additional public resources” to legal assistance programs. The funding and administration of those programs somehow are different from the right to counsel, regardless of the former’s impact on the latter.

To intervene, a court would need to “reorder priorities, allocate the limited resources available, and in effect direct how”legal assistance would be delivered, tasks better suited to the Legislature and the Executive. Consequently, the NYCLU’s claims “are not justiciable.” Id. at 88-89.

Other state appellate courts have been willing to take on the issue of the constitutionality of their public defender systems. See, e.g., Duncan v State of Michigan, 284 Mich. App. 246 (2009).

New York’s Legislature and Executive are as dysfunctional as its public defender system. They will not act to correct the unconstitutional deficiencies in the system. To quote Duncan, “[i]f not the courts, then whom?”

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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