Reporter Shadows Legal Aid Criminal Defense Lawyer; Legal Aid Chief Attorney Says Caseloads Exceed Standards
MONDAY, APRIL 27, 2009

National Public Radio and WNYC Radio ran a segment today featuring Christine Gau, a staff attorney in the Brooklyn Criminal Defense office. Reporter Ailsa Chang shadowed Christine for a day to see what it is like to be a criminal defense lawyer at The Legal Aid Society . . . Read more.

Steven Banks, Attorney-in-Chief, said that 81 percent of the criminal defense attorneys now have caseloads in excess of standards adopted by the Appellate Division, First Department. The problem is exacerbated by the fact that The Legal Aid Society, under contract with the City, cannot refuse any cases it is assigned.Read more On April 6, it was announced that as part of the State budget agreement, the State Legislature and the Governor adopted landmark legislation to address caseloads for attorneys representing individuals charged with crimes in New York City . . . Read more.

The new law authorizes the New York State court system to establish caseload standards for lawyers assigned to represent indigent criminal defendants in New York City. Enactment of the law follows landmark discussions between the Unified Court System and The Legal Aid Society on ensuring appropriate caseloads for indigent defense attorneys. The new caps represent "an historic breakthrough to make sure that New Yorkers who are charged with crimes are represented by lawyers who have appropriate caseloads and can therefore provide the constitutionally mandated representation to which indigent New Yorkers are entitled," Steven Banks, Attorney-in-Chief, said in interviews with The New York Law Journal and The New York Times . “We extend our sincere thanks to Chief Judge Jonathan Lippman for his leadership and dedication in helping to devise a solution to this critical problem.”

Christine Gau has been a public defender at the Legal Aid Society for three years and has already collected more than 2000 clients. The average public defender in New York City now handles 592 cases per year.


You Have the Right to an Attorney, But What About the Quality?
by Ailsa Chang
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NEW YORK, NY April 27, 2009

Everyone, no matter how poor, has a right to a quality lawyer. That’s what the Supreme Court said in 1963. But staggering caseloads for public defenders in New York and other cities have made it almost impossible to provide quality representation for people who can’t afford lawyers on their own. New York just became the first state to pass a budget bill that will limit the number of cases any one court-appointed lawyer can handle. WNYC’s Ailsa Chang spent the day with a public defender in Brooklyn to find out how a crushing workload can affect the kind of representation some people get.

REPORTER: A cup of coffee and one cigarette. That’s all Christine Gau has before her day as a public defender begins. Today, she’s got a man who stiffed a cab driver, another with fake license plates and a woman who threatened to beat up another woman interested in the same guy. When you follow Gau around for the day, the first thing you notice is how much she walks …and walks, and walks. There are courtrooms on the third floor, fifth floor, sixth and eighth floors of the New York City Criminal Court in Brooklyn.

GAU: It’s running back and forth. And there are days where I sweat … Back and forth, back and forth, back and forth, back and forth.

REPORTER: And that’s just when she’s doing misdemeanors. Felonies are in the Supreme Court – several blocks away. So on days with felonies and misdemeanors, this reed-thin woman is sprinting – and hoping the judge won’t mind the sneakers still on her feet.

GAU: I think I’ve lost, um, two pant sizes since I started this job?

REPORTER: Right now, she’s defending about 100 the same time. And that’s typical among her colleagues at The Legal Aid Society, which handles about 90 percent of the public defender work in the city. The state courts say that no public defender should ever have more than 70 pending cases to do a decent job, but she and her colleagues are handling almost 50 percent more than that. The top judge in the state of New York says this is a travesty. A lot of people have known there’s been a shortage of public defenders for the past 40 years.

LIPPMAN: Everyone pays lip service to it.

REPORTER: Jonathan Lippman is the Chief Judge of the New York Court of Appeals. He’ll be one of the five judges approving the caseload standards that will be phased in starting 2010.

LIPPMAN: Because who’s against a fair trial? Who’s against indigent representation? Where are your priorities?

REPORTER: A lot of people standing in this Brooklyn courthouse don’t look like anyone’s priority. The hallway is swarming with defense lawyers and their clients, paired off in hurried, last-minute caucuses. Some look like they’ve just met for the first time, minutes before appearing in front of the judge. And for many of these pairs, court appearances will be the only time they will ever meet. Inside the courtroom, some defendants are waiting for lawyers who never show up. Even Gau, who prides herself on remaining close to her clients, has trouble recognizing some of them.

GAU: All right, let me see who this guy is, who’s calling my name. Hey! How are you, Mr…..?

CLIENT: Jackson….

REPORTER: Gau often sees 20 clients in a single day. So efficiency is key. But even some easy cases don’t get squared away quickly. Like this client, who’s facing charges for making threatening phone calls.

GAU: So what they offered you is that you won’t have a criminal record, so a one-day anger management class that you do have to pay for, and then to stay away from her two years.

CLIENT: Two years?

GAU: It’s a two-year order of protection.

CLIENT: Why two years? They offered me six months back there. I went six months without bothering the girl, and now I keep – f**k this sh**!

REPORTER: The woman storms off, and Gau looks really annoyed. She’s got several more clients to go before the court breaks for lunch. If she can’t get to all her cases in time, she may have to hand off some of them to her colleague, who’s been assigned to catch all the cases the other lawyers need to drop for the day.

BLOOM My name is Jeffrey Bloom. Today I’m assigned to the position of catcher, or traffic.

REPORTER: Overflow cases are so expected everyday, there’s a position solely devoted to absorbing them. By midday, the number of cases Bloom is “catching” can be staggering.

BLOOM: At times, a hundred. Usually between 50 and 75, but sometimes a hundred.

REPORTER: In one day?

BLOOM: In one day, yes. And it’s a very mechanical kind of thing. And it’s very difficult. These are human beings …. It’s an individual, whose life, whose family, everything is affected by this case. And when we only have 45 seconds to talk to them and make decisions, it’s very difficult.

REPORTER: When Gau gets back to the office, other work is just beginning – legal research, motion-writing and answering voicemails.

Gau says she’s proud of the work she does because she’s protecting the rights of people so many have already written off. But she says everyday is triage – you *have* to let some things go. She’s better than many of her colleagues – she tries to call everyone back within 24 hours. But for some of her cases now, she knows she just won’t have the time to investigate fully, to find enough witnesses, or make certain pre-trial motions. And she’s already skipping lunch most days and working nearly every weekend.

GAU: So last week, I had six cases on for trial, all in misdemeanor courts. And really, there’s no way you can be absolutely ready on all of them …. I ended up picking two cases where I was really ready and I wanted to do the trials .… The other four, I just sort of decided there’s no way I’m going to be ready, I’m going to have to go in there and when the judge asks me if I’m ready, say “No, I’m sorry, it’s just not possible.”

REPORTER: One of her cases has been waiting to go to trial since 2006. The longer you wait, the harder it is to gather witnesses and evidence. But what she feels most guilty about are the times when her busy schedule pressures clients to plead guilty to minor infractions.

GAU: Sure maybe in a perfect world, I could spend 15 hours investigating your marijuana possession case, and we could fight this and we could win this, but frankly it’s going to take a year and a half of both of our time. They’re offering you something much better, they’re never going to believe you over a police officer anyway….There’s a lot of things that happen in that sense. “Do you really want to fight this? Are you sure? I don’t know if you’re going to win anyway.” And a lot of that is because you don’t have the time to commit to the case to know.

REPORTER: Rushed guilty pleas is one of reasons the New York Civil Liberties Union is suing the state for failing to provide effective counsel to indigent defendants. The organization says caseload limits are a good start, but they only apply to the city, and the rest of the state’s public defenders are overloaded, too. Meanwhile Mayor Bloomberg plans to cut funding to public defenders by 13 percent starting July 1st. For WNYC, I’m Ailsa Chang.



New York Law Journal
Overworked Defense Lawyers Advised to Turn Away Cases
Marcia Coyle

WASHINGTON - Many studies have documented nationwide problems with indigent criminal defense, but a new report, saying reforms are more urgent than ever, recommends that defenders reject new cases when faced with excessive caseloads; lawsuits seeking systemic reforms should be filed when other options fail; and appellate advocates and others should press the courts for a new test for determining ineffective assistance of counsel.

The Constitution Project's National Right to Counsel Committee, formed in 2004, Tuesday released its examination of whether criminal defendants and juveniles charged with delinquency receive adequate legal representation when they cannot afford to hire lawyers, and its recommendations for achieving lasting reforms.

The committee, whose members share judicial, prosecution, defense, academic, law enforcement, policymaking and victim experiences, reported that although there has been considerable progress since the U.S. Supreme Court's landmark right-to-counsel ruling, Gideon v. Wainwright, 372 U.S. 335, in 1963, the evidence is "overwhelming" that jurisdictions that have done reasonably well in the indigent defense area are in a distinct minority.

Read the committee's report .

"In most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources," the report states.

Among its recommendations for systemic reforms, the committee called for the following:

  • Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.
  • Prosecutors should adopt open-file discovery policies in order to promote the fair administration of criminal and juvenile justice.
  • When indigent defense systems require attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.
  • The U.S. Supreme Court's decision in Strickland v. Washington , 466 U.S. 668 (1984), which established a two-pronged test for determining ineffective assistance of counsel should be replaced by a straightforward test: Has the accused received "competent" and "diligent" representation, as required by the rules of professional conduct adopted by the legal profession? The current test also requires that defendants show that they have been prejudiced by incompetent representation.
  • The federal government should establish an independent, adequately funded National Center for Defense Services to assist and strengthen the ability of state governments to provide quality legal representation.
  • Federal financial assistance through grants or other programs as provided in support of state and local prosecutors should also be provided in support of indigent defense, and the level of federal funding for prosecution and defense should be substantially equal.
  • States should establish a statewide, independent, nonpartisan agency headed by a board or commission responsible for all components of indigent defense services. The board or commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel.

New York Issues

Jonathan Gradess, executive director of the New York State Defenders Association, said the report indicates that 43 other states have statewide or semi-statewide governmental structures that give indigent defense services providers independence from the courts and prosecutors in their states. Mr. Gradess is one of the leading voices for creation of an independent statewide commission to oversee indigent criminal defense services in New York.

New York provides defense services to the poor on a county-by-county basis. Critics say the system is wildly uneven, depending on the services and resources available in each county.

"New York stands out in the report as having done squat," Mr. Gradess said yesterday in an interview.

The Legislature did not appropriate the proposed $3 million in the 2009-10 state budget approved in early April for preliminary funding toward creating a statewide criminal defense commission, but Mr. Gradess and Assemblywoman Helene Weinstein, D-Brooklyn and chairwoman of the Assembly's Judiciary Committee, both said there is an understanding among legislators and Governor David A. Paterson to continue discussions about the issue.

"It got put off-budget with a commitment to work on it by the end of the session," Mr. Gradess said.

Included in the budget was a provision directing chief state Administrative Judge Ann Pfau (See Profile ) to establish by April 1, 2010 caseload limits for attorneys providing criminal legal services for the indigent in New York City by April 1, 2010 (NYLJ, April 6 ).

The caps are to be phased in by 2014.

Steven Banks, attorney-in-chief of the Legal Aid Society of New York City, said 81 percent of his attorneys now have caseloads in excess of non-binding limits adopted by the Appellate Division, First Department in 1995. Mr. Banks said that the problem is exacerbated by the fact that Legal Aid, under its contract with the city, cannot refuse any cases it is assigned.

The New York Civil Liberties Union is pursuing a legal challenge to the criminal legal services system as unconstitutionally inadequate (NYLJ, Nov. 11, 2007 ).

The Appellate Division, Third Department is expected to rule in the next several weeks about whether Hurrell-Harring v. State of New York can proceed. Meanwhile, Supreme Court Justice Eugene P. Devine in Albany County is scheduled to hear arguments next week on whether the plaintiffs in the action should be granted class-action status, along with other issues.

The right-to-counsel committee's honorary co-chairs are former vice-president Walter F. Mondale, who, as the then-attorney general of Minnesota, organized an amicus curiae brief joined by 23 states on behalf of Clarence Earl Gideon. The other is former FBI Director and U.S. District Judge William S. Sessions. The committee's co-chairs are Timothy K. Lewis, a former U.S. circuit court judge; Rhoda Billings, a former chief justice of the North Carolina Supreme Court; and Robert M.A. Johnson, chief prosecutor of Anoka County, Minn., and a former president of the National District Attorneys Association.

Marcia Coyle is a staff reporter of The National Law Journal, an affiliate of the New York Law Journal. She can be reached at . New York Law Journal reporter Joel Stashenko contributed to this story.