The assigned counsel programs operating in New York State, in lieu of public defenders’ offices, are having a terrible effect on the lives of those who choose to be represented by them. If you are charged with a crime in one of the 38 counties in New York that operate an assigned counsel program, beware. Choosing assigned representation could deprive you of your rights, and lead to a conviction that ruins your life. New York State has even admitted to the injustices committed by these programs. In June 2006, a state commission concluded that the state’s public defense system is “severely dysfunctional” and “structurally incapable” of providing people effective legal representation. In addition, the Innocence Project found that New York outpaces almost every other state in the number of wrongful convictions overturned by DNA evidence.
Being convicted of a crime is a big deal, and can have long lasting effects on the lives of those accused. The traditional consequences of being convicted of a crime in New York include massive fines, probation, jail, and even prison (where you can be sent if you are found guilty of a felony). However, there are also less known consequences of a criminal conviction, consequences only a qualified, dedicated defense attorney will advise you of, and work to ensure you are not subjected to. These include: losing your driver’s license (in some cases for the rest of your life), losing a professional license (for example if you are a teacher, physician, security guard, or nurse), losing the right to vote, losing the right to own a firearm, and not being able to travel outside the country.
Looking at all the consequences of a criminal conviction as a whole, would you feel comfortable knowing your attorney doesn’t know your name? Would you feel comfortable when after 100 attempts, you cannot reach your attorney, even during an emergency? Would you feel that justice was served when your attorney is advising you not to fight the charges, yet in your heart you know fighting is what you need to do?
These questions represent the desperate position that individuals in New York are put in when they are represented by an assigned counsel program. These injustices will not be cured until New York adopts a unified public defender system. Public defender offices have the resources, training, and staff that assigned counsel programs lack. In 2012, for example, nearly one-third of the 10,000 defendants in assigned counsel cases in Onondaga County never met their lawyer outside of court, according to the New York Civil Liberties Union’s 2014 report.
What Is An Assigned Counsel Program?
Unlike other states New York does not have a unified public defender system. Instead, every county in New York was given the choice of whether or not to adopt a public defender system. Under a public defender system, there is an office, staffed with full time defense attorneys, and their sole job is to defend those accused of a crime. They have vast resources at their disposal, and do not care how long each one of their cases takes, as long as they reach a result that is good for their client. Some counties in New York, including Monroe, Ontario, and Wayne, chose to adopt this model.
The other option for the counties was to adopt an assigned counsel system. Under an assigned counsel system private attorneys within the county sign up on a list and are assigned cases individually by judges within the county. These assigned counsel lawyers must use their own resources to provide representation and are then reimbursed by submitting vouchers (essentially bills) to the county. Currently in New York, out of 62 counties only 23 have full time public defender’s offices, while 38 implement either assigned counsel or some mix between a part time defender and assigned counsel.
Why An Assigned Counsel System Will Always Fail Its Clients
The assigned counsel programs in New York will always fail their clients because of the way the programs are structured. The programs’ structure provides an incentive for attorneys to resolve cases quickly, rather than properly. This is because an attorney cannot submit a voucher to the respective county until the case is closed. Meaning that there are huge incentives for attorneys to have their clients plead to whatever offer the District Attorney’s office makes (this is called plea bargaining), as oppose to going to trial, which takes months. Thus, the faster a case is closed, the faster the attorney gets paid, and the more cases the attorney can then take on.
This structure creates a vicious cycle, almost like an assembly line that you would find in the back of a McDonalds. For those accused of a crime, this is catastrophic. The system provides no reasonable means for attorneys to fight charges by taking a case to trial, simply put, an attorney cannot afford to go to trial because they do not get paid until the end of a case.
As a result, seldom do assigned counsel cases go to trial, clients are usually advised to plead to an offer from the District Attorney’s office. The District Attorneys have a great deal of leverage over the assigned attorneys. The District Attorneys know that it is difficult for an assigned attorney to take a case to trial, and they also know the assigned attorney will not make any money unless they can plead clients out regularly.
The endgame is that the assigned attorneys and their clients are at the mercy of the District Attorneys. Assigned attorneys are reluctant to challenge evidence, or to fight with the District Attorneys due to a fear of being “black listed”, meaning the District Attorney will no longer deal with that assigned attorney. What this means is it is the client who gets screwed out of proper legal representation, and coerced by threats of harsh sentences. If you are told “plead to this crime or else at trial you will lose and get seven years in state prison”, what do you do? Often the fear imposed on clients by assigned attorneys and prosecutors alike ends in a plea of guilty.
Ultimately the assigned counsel system fosters an environment where attorneys are assigned hundreds of cases, with the goal of closing the cases as soon as possible. It is not uncommon for an assigned attorney to never speak to a client outside of court, or even to speak to them on the phone. This leaves clients feeling like they are alone, and that the prosecution and the assigned attorney are essentially on the same team. Clients should feel that way, because they are alone, no one is really fighting for them, they are just being moved through the criminal justice system like a Big Mac assembled at McDonalds.
Public Defenders Office vs. Assigned Counsel: First Hand Prospective
The reality is that as long as counties are allowed to retain their assigned counsel systems then the rights of ordinary people will continue to be prejudiced and trampled on. I have personally seen the difference between a county that has a public defender’s office, and a county that has an assigned counsel program. The difference is that in counties with a public defender’s office, those accused of crimes stand a fighting chance against the government, while in counties that have assigned counsel programs, those accused of crimes are chewed up and spit out, often with life altering consequences.
I began my criminal law experience in Syracuse, which falls inside Onondaga County. My first summer of law school, I worked in the Syracuse University Criminal Defense Clinic, which operates essentially as a small public defender’s office. The Clinic is assigned misdemeanors and violations by Syracuse City Court Judges. Thus I attended Syracuse City Court on a regular basis and saw first-hand how the assigned counsel program worked. It was normal to see attorneys approach the bench with their client to discuss a plea offer. However what shocked me is that many times this was the first interaction between the attorney and their client. Even as a first year law student something did not seem right, I thought “how can these attorneys be assigned cases, never meet with their clients, then approach the bench and advise these clients to plead guilty?”. Often times these attorneys would not even know their clients names. The entire process didn’t look right. As I continued my legal education I realized that the name of the game for assigned attorneys was to close cases quickly. Thus, the faster they resolve the case, the faster they can get paid, and the more time they have for more cases. It is a vicious cycle that in no way takes into consideration the rights of the client. I also realized that many of the assigned counsel lawyers are solo practitioners (meaning they are on their own, not part of a large office or firm) and do not have resources to research and investigate cases thoroughly, which is ethically required by the American Bar Association. As I previously mentioned, this lack of resources makes taking a case to trial almost impossible, and is another incentive for assigned counsel attorneys to simply advise their clients to plead guilty.
During my third year of law school I continued my journey to become a criminal defense lawyer by working at the Monroe County Public Defender’s office. It seemed as though the counties of Monroe and Onondaga were like night and day. The first thing I noticed was the vast amount of resources that are available to the assistant public defenders. I felt as though Onondaga County had been a nightmare, and I had finally woken up to a place where the people, the clients, they mattered again.
The Monroe County Public Defender’s Office (“MPD”) has its’ own team of in-house investigators and also contracts with an outside investigation consultant. This means that an assistant public defender is not limited to the evidence provided by the government, which is usually lacking in important details. Although it is best practice for attorneys to do their own investigations, most assigned counsel attorneys seldom do a very detailed investigation of their own, and derive their defenses from what the client tells them and what materials are provided by the government. Part of the reason for this is due to the high costs in terms of time and money that it takes to either hire an investigator or for the attorney to investigate themselves. However, at the MPD the attorneys are able send investigators to figure out any small detail of the case that they feel could aid in the defense. This aspect of a public defender’s office alone increases the effectiveness and quality of the legal representation dramatically. After all, the government’s job is to convict you, so why then should your attorney rely only on evidence provided by the government? The answer is they shouldn’t. An attorney should always question the government’s evidence.
Along with increased resources for research and investigation, an assistant public defender is free to take a case to trial without the burden of lacking resources to do it. Every week at the MPD there are at least three or four cases that are currently in trial, the office has a giant white board with the current status of each trial. The ability of an attorney or a law firm to take a case to trial is an essential part of responsible legal representation. A system that deprives attorneys of the ability to go to trial is like sending a soldier to war with a pellet gun. The result will always be a slaughter, and in this case it is the client who stands to get slaughtered.
Lastly, another aspect of a public defender’s office that is missing from an assigned counsel program is the amount of training that is received. The MPD has weekly training classes for new attorneys in all areas of criminal defense. These classes directly translate to the ability of the assistant public defenders to provide proper representation because they teach the necessary skills that can only be learned after law school. Assigned counsel attorneys have no mechanism to receive training, and are often put in situations that are above their knowledge and skill. Once again it is the client that suffers because of this.
Conclusion
The current situation regarding assigned counsel in New York is blatantly unjust, inhumane, and corrupt. Clients are funneled into an assembly line where they are assigned a lawyer, advised to plead guilty, do so, and then are left on their own to suffer the harsh consequences. That is not justice, that is not what the founding fathers of this nation envisioned when they added the Bill of Rights to the Constitution. Together the 5th and 6th Amendments to the U.S Constitution provide that everyone has the right to an attorney during a criminal proceeding. The right to an attorney means the right to an attorney who will actually fight for your rights. It is time that New York stops subjecting its citizens to injustice, and provide them with competent, meaningful legal representation, so that those who cannot fight for themselves are given a chance.
Author Bio: Brandon Hellwig, Law Clerk. Born and raised in Syracuse, Brandon graduated from West Genesee High School; he then decided to continue his education close to home, completing his Juris Doctor at Syracuse University, where he co-authored Survey of Criminal Law for the 2015 Syracuse Law Review. Brandon understands the law of DWI defense and how each individual client is unique in their own way, which is why the research and dedication he provides to each of our clients makes him an asset to the team.
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.
