Civil Practice At Legal Aid Helps Clients Suffering From Collateral Consequences Of Arrest
THURSDAY, JANUARY 29, 2015

Tina Luongo, the Attorney-in-Charge of the Criminal Practice at The Legal Aid Society, testified before the New York City Council that civil legal services attorneys are needed to stem the role poverty and the lack of access to justice plays in recidivism by advising clients on civil collateral consequences relating to an arrest or a plea. Luongo said that until providers can guarantee civil legal services, "the better thing to do is mandate it for us, in our contracts."

Read full testimony below.




The New York Law Journal
Evaluation of Indigent Criminal Defense
By Andrew Keshner
January 28, 2015

New York City officials are testing a number of methods to assess the quality of indigent criminal defense, which, they say, is part of a broader attempt to make for a fairer criminal justice system.

Though the city now tracks conviction rates, incarceration rates, case duration, charge reduction and disposition at arraignments, officials in Mayor Bill de Blasio's Office of Criminal Justice told New York City Council members on Monday that they were developing a "more robust evaluation system to ensure effectiveness of indigent defense provision."

The broader evaluation would apply to both institutional providers such as the Legal Aid Society, Bronx Defenders and the Brooklyn Defender Services, as well as assigned 18-B counsel. After a lengthy legal fight, de Blasio's predecessor, Michael Bloomberg, significantly cut the number of cases assigned to individual 18-B attorneys where a conflict existed with the primary defense organization and reassigned them to the institutional providers.

According to a city council briefing paper, discussions between city lawmakers and mayoral officials on indigent defense evaluations beyond cost per case go back several years to the Bloomberg administration.

Kara Dansky, special advisor in the Mayor's Office of Criminal Justice, told the council's Committee on Courts and Legal Services and Committee on Public Safety that while gauging the caliber of indigent defense is difficult, the administration would incorporate the National Legal Aid & Defender Association's 10 standards of effective indigent defense. Those standards analyze responsiveness to clients, attorney qualifications, workloads and resources in comparison to prosecutors.

Dansky said the office would also look to recent evaluations in North Carolina and Texas, which examined matters like attorney access, case outcomes and pretrial release. The North Carolina study included a client satisfaction survey and the Texas study interviewed judges for feedback on attorney performance. Dansky said both things could be used as part of the city's evaluations.

The de Blasio administration "will not only strive to bring more sophisticated methods to our measurement of effectiveness in this arena," said Dansky, "but will also pursue reforms that reduce unnecessary arrests, reduce case processing times and divert people to programs and services in cases where those interventions are appropriate."

Sarah Solon, a spokeswoman for the mayor's criminal justice office, said in an interview that there was no timeline to implement the broader evaluation method.

Other speakers at the hearing Monday included William Leahy, director of New York state's Office of Indigent Legal Services and Paulette Brown, president-elect of the American Bar Association.

Protesters briefly interrupted the hearing, denouncing the "broken windows" style of policing being used in the city.

Representatives for a number of the city's institutional providers said they were open to a broader report card, noting that a defense attorney's role had changed from fighting a particular case to addressing collateral consequences and underlying problems.

Justine Olderman, managing director of the Bronx Defenders, said at the hearing that she welcomed evaluations that included "our ability to address the causes and consequences of criminal justice involvement."

Lisa Schreibersdorf, the founder of Brooklyn Defender Services and its current executive director, said standards in indigent defense were used "as a sword and a shield."

For her colleagues outside the city handling indigent defense with limited funding, Schreibersdorf said the standards were used to say the organizations were falling short.

But she said that in the city, there are caseload caps and an administration and city council "that really cares about us."

"If we have standards, we can use them affirmatively to show what we want to do, or what we should be doing … so I welcome them, only because it's New York City," she said.

Rory Lancman, D-Queens, chair of the Committee on Courts and Legal Services, said council members would be advocating in the future for more "wraparound services" to give individuals representation on a wider range of legal issues, not just the accused crimes.

But he pressed the organizations on whether "reinventing the wheel" was necessary when a number of organizations already offered civil legal services.

Tina Luongo, attorney-in-charge of the Legal Aid Society's Criminal Practice, noted that her organization did have a civil practice but most groups did not.

She said that until providers can guarantee civil legal services, "the better thing to do is mandate it for us, in our contracts."




Testimony
Before
The Council of the City of New York
Sponsored by:
Committee on Public Safety
and
Committee on Courts and Legal Services

Examining How the City Evaluates the Effectiveness
of the Provision of Indigent Defense

January 26, 2015
City Hall
New York, New York

Submitted by:
The Legal Aid Society
199 Water Street
New York, NY 10038

Presented by:
Justine Luongo, Attorney In Charge, Criminal Defense Practice

Good morning. My name is Justine Luongo and I am the Attorney in Charge of the Criminal Defense Practice of the Legal Aid Society. On behalf of The Legal Aid Society, I would like to thank Council Members Lancman and Gibson for inviting us to participate in this important hearing.

The Legal Aid Society is the nation’s largest and oldest provider of legal services to low-income families and individuals. From offices in all five boroughs in New York City, the Society annually provides legal assistance to low-income families and individuals in some 300,000 cases and legal matters involving civil, criminal and juvenile rights problems. The Society operates three major practices: the Criminal Practice, which serves as the primary provider of indigent defense services in New York City: the Civil Practice, which improves the lives of low-income New Yorkers by helping families and individuals obtain and maintain the basic necessities of life – housing, health care, food and subsistence income or self-sufficiency; and the Juvenile Rights Practice, which represents virtually all of the children who appear in Family Court as victims of abuse or neglect or as troubled young people facing charges of misconduct.

Our Criminal Practice is the oldest and largest public defender in New York City representing nearly 230,000 low income clients in trial, appellate, and post-conviction matters. Our long history of providing indigent defense to millions of New Yorkers places us in a unique position to testify to the ever changing role of public defense. We recognize that with this unique position comes a responsibility to address the evolving needs of the clients that we serve. This means, not only providing highly effective defense services, but also addressing the root causes of criminal behavior so as to reduce recidivism.

Trial Advocacy and Zealous Representation:

The cornerstone of any successful public defense is trial advocacy and zealous litigation. As the primary defender in New York City, we represent low-income New Yorkers from the very start of their criminal case, at arraignment, in over 220,000 trial-level cases annually. We have offices in all five boroughs that consist of staff attorneys, supervising attorneys, paralegals, investigators, social workers and other support personnel who work collaboratively to provide high quality, client-centered representation. Our training program has been nationally recognized and focuses on building strong legal and litigation skills, as well as educating staff on the many issues our clients face that cause them to enter, and remain, in the criminal justice system.

While hearings and trials have significantly decreased over the years, the importance of insuring that attorneys continue to litigate important legal issues on behalf of their clients still remains paramount. Just this past month, our DNA Unit successfully completed a complex, eighteen month Frye hearing challenging the use of low copy DNA and OCME’s Forensic Statistical Tool in Kings County. Also, this past summer, prior to this City’s change in ICE detainer policy, attorneys in all of our offices filed writs of habeas corpus on behalf of low income, immigrant clients believed to be held in violation of the Fourth Amendment. Many of the clients were released to return to their families and communities.

Early investigation is critical to litigation and occurs well before a trial ever happens. This investigation will often lead to information that assists a client’s case. Recognizing the importance of having field investigators ready and able to quickly investigate facts, we staff each office with one investigator for every ten attorneys. [1] Our investigators scour the city to locate witnesses, take statements and find video footage to insure that the attorney has information to help determine the strategy of the case. Last year, due to the increased use of digital forensic evidence, such as cell phones, tablets and laptops, the Criminal Defense Practice created a new Digital Forensic Unit. This Unit, comprised of experienced IT investigators, team with our field investigators and attorneys to assist in case preparation- often finding evidence to support that a person has been wrongfully accused of a crime. In one of the first successes, the unit used their expertise to analyze the GPS of an iPhone to prove that our client was out of New York State when the prosecutor claimed he committed the crime. The client was acquitted of all charges.

Litigation is Simply Not Enough- Client Advocacy Requires More

While litigation and investigation are indeed paramount defense functions, we must recognize that the nature of the role of the public defender continues to broaden beyond mere litigation. Immigration advice, once thought to be a collateral matter to a case, is now a defense attorney’s obligation. We believe strongly that there are other issues still viewed as “collateral”, that we must address in order to effectively represent a client fully.

Often the criminal case is not the most pressing issue for our clients. Mental illness, substance abuse, unemployment, homelessness and other poverty driven issues are often the obstacles that create barriers for our clients. Indeed, in many instances these issues are the root causes of why our clients have found themselves with a criminal case. Because of this, much of our work goes beyond the criminal case. In each of our trial offices immigration attorneys, forensic social workers and mitigation specialists are part of the defense team assisting clients with myriad issues that need to be addressed. Our criminal defense teams also work closely with our Civil, Juvenile Rights and Pro Bono Practices to assist clients to reduce the devastating and life-altering consequences that arrests and convictions have on such things as immigration, housing, employment, education, and other important aspects of our clients' lives. Here is an example of how important this team approach is:

Our client, WC, was arrested for several burglary charges that could have resulted in several years of state prison and deportation if he was convicted. When our staff attorney met WC in arraignments, it was clear that WC was suffering from substance abuse and that the theft related crimes he was charged with were due to his addiction. Working together, his attorney and social worker, reached out to our immigration unit to assist in creating a plan to address WC’s issues and try to convince the Court that WC needed treatment and not prison. Thanks to their hard work, the Court agreed. After eighteen months of intensive substance abuse treatment, the client graduated treatment successfully and was not sentenced to prison. Our immigration attorneys continued to work with WC to insure that his arrest and sentence did not cause him to be deported.

This broadening of our role allows us to create opportunities to help clients literally change their life’s trajectory. Our work with victims of human trafficking through our Trafficking Victims Advocacy Project is one such example of “thinking out of the box”. Several years ago, with the generous financial assistance of the Novo Foundation, we established the Trafficking Victims Legal Defense and Advocacy Project, an innovative interdisciplinary pilot project with an attorney and social worker, to address the comprehensive needs of victims of human trafficking who are arrested and prosecuted for prostitution in New York County. Now in its sixth year, expanded to include all our trial offices and renamed the Trafficking Victims Advocacy Project, staff attorneys work with a supervising attorney, a mitigation specialist and a paralegal to represent clients on pending criminal cases, file motions to vacate prior convictions where the person was trafficked, and assist with civil legal services to aid clients to establish independence from their trafficker. Here is an excerpt of an email from the unit’s Director detailing such a success:

Our client came to us for post-conviction relief primarily because the Department of Education had denied her security clearance for a job as a school bus matron. The denial was based on her two misdemeanor prostitution convictions from over 5 years ago, from a time when she was trafficked into prostitution. Once we started working on her case for vacatur of these convictions, we partnered with a law firm and our Civil Practice’s Employment Law Unit to represent her in a potential action against the DOE for wrongful denial. Together with Amy Hong and Karen Cacace of our Employment Law Unit, they drafted a strong letter to DOE urging reconsideration of the denial. Last week, we were successful in vacating the client's first conviction in New York County, leaving her with one conviction in Queens County to vacate. We immediately advised the DOE of the partial vacatur. In response to this advocacy, DOE notified us late Friday afternoon that they were overturning their initial determination. They cleared our client for work immediately. What was great about this case is the client was connected to us by a paralegal at 49 Thomas who was on general intake when this client called, unaware of the vacatur law or her eligibility, merely to see if anything could be done about her old convictions. The paralegal knew the work TVAP was doing in this area, and reached out to me to see if I would be willing to speak to the client.

The work of the project has reached beyond New York City. This year the project was invited to give a briefing at the United Nations Human Rights Committee (UNHRC) periodic review of U.S. Compliance with the International Covenant on Civil and Political Rights on how the United States handles people who are trafficked. The advocacy of TVAP and its partner organizations led to a powerful conclusion by the UNHRC, in its published observations, expressing concern about the “criminalization of victims on prostitution-related charges,” and urging specific reforms.

Lack of Services for People with Mental Illness Increases Our Role

The New York City Office of the Criminal Justice Coordinator (now known as the Mayor’s Office of Criminal Justice) has reported that serious mental illness has been documented in 14.5 percent of men and 31 percent of women in jail settings, which is three times higher than in the general population. Last year, Mayor DiBlasio asked Seymour James, former Attorney in Charge of the Criminal Defense Practice, now Attorney in Chief of the Society, to represent the defense bar on a task force commissioned to reduce the number of people with mental illness in the criminal justice system.

Long before the call for a commission, The Criminal Defense Practice has been addressing this staggering reality by developing a broad range of services for our clients with mental illness. Our social workers and mitigation specialists provide an essential element of effective, comprehensive representation for our clients. In the past year, we have significantly increased the scope of our social work practice, which provides assessment, evaluation and program placement, oral advocacy, and support services at all points of the criminal justice representation from arraignment to re-entry.

Our Defender Services Program is the largest component of social workers in the Criminal Practice. Operating out of our Bronx, Brooklyn, Manhattan, Queens and Staten Island offices, social workers interview clients and their families; gather life history records; and ultimately present mitigation evidence, both oral and written, on misdemeanor and felony cases in our trial offices. Our Defender Services social workers put our clients’ contacts with the criminal justice system into context by telling their stories. Social workers prepare Pre-Pleading or Pre-Sentencing Memoranda, letters to Court, psychosocial reports and affidavits in support of motions. These social workers also provide oral testimony in an effort to persuade the court that our client is more than the sum of his/her alleged criminal acts. An example of this crucial work is illustrated in the case of our 25 year old female client:

Until an arrest for Burglary in the Second Degree, our client had a very minimal criminal history, had been living with her wife and caring for her five year old stepdaughter while attending college. What became apparent to the assigned social workers was that our client was struggling with mental health issues that had been not formally diagnosed, and was self-medicating with alcohol. Right before the arrest her drinking had spiraled out of control to the point where her wife demanded a separation and our client's life began to unravel. She was also the victim of a recent sexual assault, which occurred while she was drinking, and she had seen many of her relationships and other opportunities disappear as a result of her chronic binge drinking. The social worker and the social work supervisor worked together interviewing family and friends of our client, getting the mental health history, meeting with the attorney, and attending a meeting with the District Attorney to discuss the client’s issues. The social worker explained the extenuating circumstances and made a case for how jail and a felony would be not only be traumatizing after her recent sexual assault, but counter-productive towards her getting much needed substance and mental health treatment and leading a better life. In the end the District Attorney consented to a treatment alternative to jail, and a full dismissal once treatment was successfully completed. In the end the client was provided the needed mental health treatment to regain control of her life.

Similarly, our MICA Project is comprised of four attorney/social worker teams that represent clients who suffer from both mental illness and substance abuse. The mitigation specialists help secure alternatives to incarceration for clients who can be diverted into community-based treatment. Many of these clients are participating in the Mental Health Treatment Courts. Once our client is engaged in community-based treatment, we provide essential support to our MICA Project clients for 18 to 24 months to assist them in completion of treatment services.

For example, during this past year, our MICA team represented a 21 year-old Latino male who is diagnosed with Bipolar Disorder and Polysubstance abuse. He has a history of sexual trauma and neglect during his early childhood, and received special education services for his cognitive and emotional problems. Prior to his involvement with the MICA Project, he had extensive criminal justice involvement including an open warrant on a violation of probation from New Jersey. He was now in custody for a Robbery 2nd Degree charge. After assessing the client, determining his treatment needs, and advocating to the Court and District Attorney’s office for approximately 6 months, the MICA Project was able to work out and alternative-to-incarceration disposition where the client would enter into treatment designed to address both his significant mental health issues and chronic substance abuse. Additionally, the MICA Project worked with the New Jersey public defender's office to get the warrant on the violation of probation lifted. The client was released on the New Jersey matter entered long term treatment.

Advocacy and Representation Beyond the End of the Criminal Case

Historically, and in more traditional criminal defense practices, representation of a client ends at the point of a plea, dismissal or trial verdict. A comprehensive approach to representation includes advocacy way beyond the trial level. For decades, The Legal Aid Society has provided post-conviction defense advocacy and representation through our Parole Revocation Defense Unit and our Criminal Appeals Bureau

Our Parole Revocation Defense Unit represents individuals released from prison to community supervision who are charged with violating the conditions of their supervision. Many of the clients represented by the parole defense staff attorneys face enormous obstacles in reintegrating back to the communities they and their live in after being in prison. Lack of employment, housing and health care, particularly mental health treatment, often place these people back into the criminal justice system. Our trained attorneys and social workers work tirelessly to try to prevent the cycle of recidivism by connecting clients to treatment and services after parole violations. Our client RR’s story demonstrates the importance of this vital representation.

After being released from prison in 1998, our client, RR, voluntarily returned to parole custody in February 2014. RR was non-violent drug offender and served about 3 years of parole before absconding from supervision. RR relocated to another state and spent 10 years with no contact with the criminal justice system. A few years ago, RR was diagnosed with a terminal Stage IV cancer. Unable to access public services out of state due to his NYS parole and federal immigration warrant, RR returned voluntarily to NYS parole for a parole violation proceeding. A parole defense staff attorney and social work began a long and involved process of marshalling Legal Aid's vast resources to provide a meaningful outcome for our client that would address RR's very serious medical conditions. Working with our Prisoner’s Rights Project we reached out to administrators at Rikers Island to ensure our client received his much needed medication and to arrange to have RR transferred from a general population facility into the jail's specialized medical unit. Then, through the unit's advocacy for compassionate release, the Administrative Law Judge for RR's case was eventually persuaded to agree to revoke and restore him back to parole supervision once stable housing and medical care was in place. RR's biggest issue, however , was that he had no family in NYS where he needed to serve his parole sentence. Despite this huge obstacle, the staff pushed for release and after sometime RR was released from Rikers and returned home to family and hospice care.

Our Criminal Appeals Bureau represents clients on direct appeals from convictions in Criminal and Supreme Court in addition to providing a wide range of post-conviction services. This year, the Criminal Appeals Unit had major victories on behalf of our clients as well as the overall fairness of the criminal justice system.

Bureau attorneys litigated fifteen cases in the New York Court of Appeals, the State’s highest court, prevailing in eight of them. In addition to winning relief for these clients, CAB successfully challenged long-standing practices that worked to the detriment of all indigent criminal defense clients. In People v. T, for example, CAB asked the High Court to put an end to what, long ago, had become a daily routine of the New York City Criminal Courts in which judges accepted guilty pleas to so-called minor offenses in summary proceedings that entirely failed to explore whether clients understood the significant constitutional rights that they were forgoing. For CAB’s client, CCT, these summary pleas to possession and sale of small amounts of marijuana had landed him in deportation proceedings. In entering these pleas, Mr. T stood before a judge for no more than a minute. The entire proceedings spanned fewer than two transcript pages. The court made no mention of the critical constitutional rights at issue. On CAB’s appeal, the Court of Appeals emphatically declared an end to such proceedings. No longer could a judge accept, or an appellate court uphold, a guilty plea based on a silent record. At minimum, a court must inform defendants that, by pleading guilty, they are surrendering their rights to a trial, to confront the witnesses against them and to remain silent. The Court reversed Mr. T’s conviction and, given the minor nature of the underlying charges, dismissed the case outright, thereby preserving Mr. T’s opportunity to remain in the United States. In the wake of of this case, CAB has won relief for numerous other clients whose lives were being adversely affected by such convictions and Criminal Court practice has changed in a meaningful way.

In People v. Marsha Sibblies, CAB presented the most important question under C.P.L. §30.30, New York’s speedy trial statute, that the High Court had confronted in more than a decade. At issue was the common prosecutorial tactic of declaring “ready” for trial either at or shortly after the initial arraignment, but later repeatedly requesting adjournment after adjournment to further investigate the case. Until Sibblies, this tactic enabled the State to take advantage of 30.30’s post-readiness measurement of delay, a measurement far more generous to the prosecution than the measurement of time before the declaration of readiness. In Sibblies, the Court, though evenly divided in two concurring opinions, unanimously condemned this tactic, deemed the prosecutor’s declaration of readiness “illusory” and reversed the contrary decision of the Appellate Division. As a result, all of the charges against Ms. Sibblies were dismissed and a significant prosecutorial delaying tactic reined in.

CAB’s successes in 2014 were not limited to New York’s Highest Court. After revelations of misconduct by former Brooklyn homicide detective Louis Scarcella became public, the Kings County District Attorney’s office announced its intention to reinvestigate dozens of homicide convictions from the 1980s and 1990s in which Detective Scarcella played a role. In response, CAB, working closely with pro bono attorneys from the City’s largest law firms, launched its own reinvestigations on behalf of clients whom the Society had previously represented. In May, after a year-long effort by CAB and the law firm of Davis Polk and Wardwell, our client, RH had his conviction for second-degree murder vacated and he was freed after 28 years of incarceration. The Brooklyn District Attorney agreed with the defense that the conviction, for which Mr. H had originally been sentenced to life imprisonment, lacked integrity, because it depended on the testimony of an unreliable witness, Theresa Gomez. Ms. Gomez, now deceased, worked as an informant for Detective Scarcella. In this capacity, she claimed, somewhat miraculously, to have witnessed at least six separate homicides in Brooklyn in the course of a short period of time. As a result of its reinvestigation, the District Attorney also dismissed all charges against two of Mr. H's brothers, one of whom died in prison, who were also convicted based on Ms. Gomez's testimony, in an unrelated homicide.

Advocacy and Representation to Reduce Violence

Our Anti-Gun Violence Unit (AGVU) is a special City Council-funded anti-gun violence initiative to provide legal services for community residents in neighborhoods impacted by gun violence. We provide legal services/case consults in each of the five boroughs which have been designated by the Council for the provision of anti-violence services through the Ceasefire model (now called “Cure Violence”). This is a public health model that responds to gun violence with services in the community – mediation, social services, violence interrupters, etc. The model works on the theory that if conflicts can be worked out by people in the community, further violence can be avoided. As a part of this program we provide both individual legal assistance and “Know Your Rights” outreach programs.

As a example, one of the Cure Violence partners reached out to us regarding Ms. O, a tenant of NYCHA (New York City Housing Authority) public housing and a mother of four. Someone shot a gun into her apartment one night. She believed her son may have been the target. She immediately applied for a NYCHA safety transfer. NYCHA, however, made her reapply more than once for transfer. She was having extreme difficulties getting a transfer approved and then finding a suitable three bedroom apartment in a location where her family would no longer be in danger. The Legal Aid Society advocated with various heads of departments within NYCHA and elected officials to expedite, first the transfer, then the assignment to a safe and suitable apartment, and, lastly, to rush the repairs to the new apartment so that she could move quickly. Additionally, The Legal Aid Society assisted Ms. O with obtaining one shot assistance to help with moving fees. She and her family are now living safely and comfortably in their new apartment.

We believe that this type of anti-violence work has great potential to help communities that are plagued by violence. The fact that we are trusted in the communities that we serve enables us to play an effective role in reducing violence. We look forward to continuing this exciting work that has such great potential to improve the quality of life not only in the target neighborhoods but throughout the City.

When Policy Must Change and Laws Reformed: Public Defenders Take It On

Our Criminal Practice’s Special Litigation Unit engages in a litigation and law reform practice that seeks solutions to issues that are best resolved by a class-wide or systemic challenge and also provides our front-line criminal defense attorneys in all five boroughs, attorneys at other organizations, and private attorneys with advice, training and litigation support on novel or complex issues. Our major successes have resulted in significant changes in the law whose benefits accrue to all New Yorkers charged with criminal conduct, often wrongfully. For example, the requirement that New Yorkers must be arraigned within 24 hours of arrest was established in litigation filed by our Special Litigation Unit. The Unit also played a significant role in the reform of the draconian Rockefeller Drug Laws.

Currently, our Special Litigation Unit is playing a key role in challenging police practices in New York City that result in large numbers of improper arrests. For example, together with pro bono counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP and the NAACP Legal Defense and Education Fund, we filed a federal class action challenging the wave of illegal arrests for trespass in public housing developments that result when residents and visitors with a legitimate reason to be on the property are improperly stopped, questioned, frisked, searched, and arrested. Just recently, as a result of a proposed settlement with The City of New York we are happy to report that many positive changes in both policing and public housing quality of life will be addressed. One part of the settlement calls for a monitoring period during which community forums involving residents of the New York City Housing Authority, New York City officials and the New York City Police Department will occur. Together with the new rules for police behavior, which emphasize respect for the residents of the NYCHS developments, a dialogue involving youth of color, who are so often the target of over-aggressive policing, has the potential to improve police community relations in a meaningful way.

Another example of the work of the unit centers around working closely with our Prisoners’ Right Project to insure that people housed on Rikers Island and other local jails are free from abuse at the hands of Correction Officers and afforded their due process rights at discipline hearings. Much of this work centers around inmates that are either adolescents, those suffering from mental illness or both. This advocacy led to the end of solitary confinement for young people 21 and younger, as well as the end to keeping people in solitary confinement for months at a time on “old bing time.”

Training and Supervision: Insuring Quality, Client Centered Representation

The Criminal Practice at The Legal Aid Society has a well-developed, hands-on training program for new attorneys.

Our new attorney training involves a combination of lecture, workshop, shadowing, and mentoring by supervisors and more senior attorneys. The first phase of the training program occurs centrally, typically at our 199 Street headquarters, and is followed by intensive borough training for during the full year of an attorneys start us. The borough phase of training is a combination of lecture, workshop/skills training, shadowing, mentoring, and close supervision within each complex or cluster of 20-30 attorneys.

The New Attorney Training Program covers the gamut of substantive and practical skills required for criminal practice. We draw upon the expertise throughout The Legal Aid Society, which is particularly useful given the increasing collateral consequences of criminal convictions. Thus, our civil and juvenile rights practice trainers provide concrete guidance on civil issues that overlap with criminal practice. Outside faculty includes guest speakers, law school faculty, and former clients. The popular ex-client panel and other client-centered training have been featured in national community-oriented defender symposia. Other defender programs have adopted the approach.

Increasingly, our new attorney training is relying less on straight lecture and more on problem-solving, simulations, and small group exercises.

In January, 2009, the Criminal Practice, in conjunction with Hofstra Law School, pilot tested a three-day Suppression Training Program for new attorneys. This was repeated in 2010 and spring of 2011. In 2012, we inaugurated a new and more intensive 3 day Suppression Training Program. The new Suppression program has literally changed suppression practice for the attendees and is now being provided to all staff. Each June, the Criminal Practice, in partnership with local law schools, conducts a week-long Trial Advocacy Program (TAP), followed by day long mock trials in real New York City courtrooms.

In addition to the above, attorneys within the Criminal Practice have available an enormous array of in-house and outside training opportunities. Outside experts and experienced Legal Aid attorneys provide lecture, workshop, and related training programs through our “Lunch and the Law” programs in each office. In addition to this, attorneys attend a variety of programs offered through the headquarters at 199 Water Street (e.g., through the Special Litigation Unit, the Criminal Appeals Bureau). This year, in recognition of the role that bias and oppression play in the lives of our clients, The Legal Aid Society has recently consulted with experts in this field to develop an Anti-Bias/Anti-Oppression training program and an LGBT Cultural Competency training that is mandatory for all staff. We have provided our LGBT cultural Competency training to court personnel, judges, assigned counsel and other institutional defense providers in New York City and across the country.

In addition to training and ongoing CLE, attorneys and non-legal staff are supervised by experienced managers that insure our clients receive high quality representation. Supervising attorneys meet regularly with attorneys to discuss case strategy, including ethical considerations, assist attorneys with case preparation, including: preparation of witnesses for hearings, trials and the grand jury; consultations between a client and the assigned attorney; negotiations with opposing counsel; reviews of motion practice and simulated argument; and reviews of examinations of witnesses and summation; and, observe attorneys in court, including: second seating of junior attorneys or senior attorneys in complex cases; providing critique, feedback and evaluation based on their observations of performance; and file reviews.

Supervising attorneys complete frequent and meaningful case file reviews. Full reviews of an attorney’s caseload are conducted periodically, with felony cases requiring a mandatory review 21 days after criminal court arraignment. Supervisors review all case files, including those which have been adjudicated at arraignment, immediately after arraignment. In addition, all case files are reviewed by supervisors at the conclusion of the case to evaluate the overall thoroughness and quality of representation provided to the client, including pleas.

CAB staff attorneys are currently supervised by five line supervisors. CAB supervisors have two primary responsibilities, monitoring staff attorney caseloads and reviewing staff attorney briefs. Staff attorneys are divided into groups of “monitorees,” and assigned a supervisor who is responsible for monitoring their caseload management and meeting with them on a regular basis to discuss their caseload and any case-handling issues that arise. Supervisors’ second primary responsibility is to review staff attorney briefs, which are assigned for review on a brief-by-brief basis so that each supervisor reviews the work of all staff attorneys over the course of time. As part of the process of brief review, the assigned supervisor will often review pertinent parts of the record and consult with staff attorneys about what other potential issues were investigated and what legal research was conducted.

While ongoing, regular supervision serves as the best means to evaluate staff, the Society also requires a formal annual evaluation be done on each staff person. These evaluations are reviewed by the Attorney in Charge of the Criminal Defense Practice to insure that all staff meet the requirements of their position.

In addition to staff evaluation, caseloads are also reviewed periodically to insure that the Criminal Defense Practice is in compliance with the case cap standard as set forth in the law implemented in 2009.

Recommendations

As the above hopefully demonstrates, the role of the public defender has broadened, as the needs of those we represent need to be addressed. Evaluation tools, funding and resources must also shift. While it is important to track how many trials and hearings an office conducts, it is equally important to evaluate an office on the client successes as we described above. To fully advise clients on civil collateral consequences relating to an arrest or plea, our offices funding to provide indigent legal defense must include civil legal service attorneys if we hope to be able to stem the role poverty and the lack of access to justice plays in recidivism.