NYS Court of Appeals should rule that the public defender system is broken

When I was a boy I put my hand over my heart every school day and all ninety-eight pounds of me pledged allegiance to a Republic that stood for "liberty and justice for all." For most of my life I believed in the romantic vision that the United States was, in the words of Ronald Reagan, JFK and John Winthrop (borrowed from Jesus), a city upon a hill--a beacon to the shipwrecked peoples of the world.

But about ten years ago things began to trouble me. Things like the unpatriotic Patriot Act. Things like one out of four prisoners in the world is incarcerated in the US. Things like poor people not getting the same justice as rich people.

America is no longer the shimmering city on a hill. Freedom and justice are chimeras--water on a highway in the dog days, disappearing as you get closer to it.

The prison contraband case of Kimberly Hurrell-Harring

Take the case of Kimberly Hurrell-Harring. On September 29, 2007, 31-year-old Kimberly shoved a condom containing 3/4 of an ounce of marijuana up her vagina before entering Great Meadow Prison in Comstock to visit her husband. She was caught and arrested--her first arrest ever.

Hurrell-Harring was arraigned without counsel. Bail was set at $10,000, which was for Hurrell-Harring equivalent to being held without bail. Hurrell-Harring's court appointed lawyer, Public Defender Patrick Barber, (now disbarred for fabricating a family court order among other things), told her she had no choice but to plead guilty to a felony count of promoting dangerous contraband, which was not true. Another lawyer had called Barber and told him that the New York State Court of Appeals was about to rule on whether or not small amounts of marijuana constituted dangerous contraband. The ruling could potentially affect Hurrell-Harring, but Barber did not change his course of action.

Hurrell-Harring went to prison and lost her job. Meanwhile the Court of Appeals ruled that small amounts of marijuana like the amount Hurrell-Harring had smuggled into Comstock did not amount to dangerous contraband. Eventually an appellate court overturned Hurrell-Harring's conviction based on that decision.

Kimberly Hurrell-Harring v the State of New York

Now with the help of the New York State Civil Liberties Union, Hurrell-Harring and nineteen other people have brought suit against the State of New York, alleging they received inadequate legal representation in five counties. The lawsuit asks the Court of Appeals to declare the current system of representing the poor in New York State unconstitutional. The court heard oral arguments on March 23 but hasn't yet made a decision.

Prior to the case going to New York's highest court, it went through the lower courts. The state moved to dismiss the suit, but the Supreme Court denied its motion. The Appellate Division, Third Department, however, reversed the lower court's decision and dismissed the complaint in a 3-2 decision.

It seems to me that the two dissenters in the case made the more powerful arguments. The three jurists who voted to dismiss the suit were concerned about separation of powers, saying that the issue belonged in the legislature. The dissenters argued that the plaintiffs adequately showed that the state had failed in its constitutional duty to provide adequate representation for the poor.

The dissenters said, "[W]idespread and systemic instances of deficient performance caused by an ill-equipped assigned counsel system will not be cured through a case-by-case examination of individual criminal convictions." They also said that while the costs and difficulties involved in remedying the situation cannot be ignored they "cannot be sufficient to require us to turn a blind eye to constitutional compliance..."

Oral arguments before the New York State Court of Appeals

Unfortunately, when I watched the oral arguments on the internet, several of the justices on the Court of Appeals seemed to be concerned only about the remedy and its cost, as if their job was to protect the state's treasury. As Justice Peters said in his dissenting opinion in the appellate court's decision, "the majority's lengthy analysis of potential remedies is patently premature at this juncture."

In seemingly rhetorical questions raised during oral arguments, justices of the state's highest court also trotted out a parade of horribles, just as the US Supreme Court did in Dred Scott v Sandford. "If we decide for the plaintiff, all of these bad things will happen."

Justices asked if they ruled for the plaintiffs wouldn't it mean they would be giving public defenders a blank check (as if prosecutors don't have one now), and wouldn't it mean that defense attorneys would have to be on 24 hour stand-by.

Before making their decision, I hope the justices read carefully the amici curiae briefs filed by the NYS Bar Association, NYS Association of Criminal Defense Lawyers, NY County Lawyers' Association, the National Association of Criminal Defense Lawyers, and one by 62 former New York state prosecutors.

More importantly I hope the court reads or re-reads the final report of The Commission on the Future of Indigent Defense Services presented on June 18, 2006 to Judge Judith Kaye who commissioned the report, which suggests remedies and funding.

If something is unjust, let's declare it so. We don't need a perfect remedy or a complete cost analysis beforehand. In the end, the cost of injustice is usually higher than the cost of justice. A quick historical review of Dred Scott and the Civil War proves that beyond a reasonable doubt.

For more info: Read an opposing viewpoint by Scott H. Greenfield. Esq.