STATE
OF
INJUSTICE:
How New York State Turns
its Back on the Right to
Counsel for the Poor

“The amount of money someone
makes should not determine how
justice is served.”
DONALD TELFAIR, NEW YORK STATE DEFENDANT

“In all criminal prosecutions, the
accused shall enjoy the right to . . .
Assistance of Counsel . . . ”
UNITED STATES CONSTITUTION, SIXTH AMENDMENT

State of Injustice:
How New York State Turns its Back on the Right to
Counsel for the Poor
September 2014

ACKNOWLEDGMENTS
This report was written by Ujala Sehgal, Helen Zelon and Lauren Alexander. It was edited by Jennifer
Carnig, Christopher Dunn, Donna Lieberman and Corey Stoughton. Additional support was provided by
Sejal Singh, Mariko Hirose, Erin Harrist and lawyers from the firm of Schulte Roth & Zabel LLP. It was
designed by Li Wah Lai, who generously donated her time. Graphics and additional support were provided
by Abby Allender.

ABOUT THE NEW YORK CIVIL LIBERTIES UNION
The New York Civil Liberties Union (NYCLU) is one of the nation’s foremost defenders of civil liberties and
civil rights. Founded in 1951 as the New York affiliate of the American Civil Liberties Union, we are a notfor-profit, nonpartisan organization with eight offices and nearly 50,000 members across the state. The
mission of the NYCLU is to defend and promote the fundamental principles and values embodied in the Bill
of Rights, the U.S. Constitution, and the New York Constitution, including freedom of speech and religion,
and the right to privacy, equality and due process of law for all New Yorkers. For more information, please
visit www.nyclu.org.

CONTENTS

Executive Summary................................................................................................................................1
I.	 The Right to Counsel: From Clarence Gideon to Kimberly Hurrell-Harring................................5
		

New York’s History of Neglect....................................................................................................6

		Hurrell-Harring: A Class Action Lawsuit Intent on Change.......................................................7
II.	 How New York’s Poor Defendants Are Denied Justice...................................................................8
		

Public Defense Eligibility............................................................................................................9

		

Initial Attorney Contact.............................................................................................................10

		Arraignment..............................................................................................................................10
		Attorney-Client Communication...............................................................................................12
		

Research, Investigators and Experts........................................................................................13

III.	 Defense Attorneys: Set Up to Fail.................................................................................................16
		

“Cattle Call Criminal Justice”..................................................................................................16

		Absent Oversight.......................................................................................................................18
IV.	 How Underfunding Created a Broken System..............................................................................20
V.	Recommendations..........................................................................................................................23
VI.	 Endnotes........................................................................................................................................25

EXECUTIVE SUMMARY
“You have the right to remain silent. Anything you say can and will be used against you
in a court of law. You have the right to an attorney. If you cannot afford an attorney, one
will be provided for you.”
If you watch enough television, you’ve probably heard the Miranda rights – your
rights if you’re accused of a crime and arrested. Most Americans know those words
as well as they know the Pledge of Allegiance. Those rights give us a sense of
freedom and security. They define who we are as Americans.
The right to an attorney is guaranteed under the United
States Constitution. In 1963, the United States Supreme
Court unanimously ruled in Gideon v. Wainwright that
everyone accused of a crime is entitled to a competent
lawyer even if he or she cannot afford one.
But more than 50 years later, poor and often innocent New
Yorkers are forced through the criminal justice system and
sent to jail undefended and alone.
Almost immediately after the Supreme Court’s ruling
in Gideon, New York abdicated its constitutional duty by
dumping the responsibility for public defense on its 62
counties. There were no standards and no oversight.1
As a result, today there is a jumble of inadequate public
defense systems across the state. Not until 2010 did the
state create an agency related to public defense, the Office
of Indigent Legal Services, which has been consistently
underfunded and unable to provide meaningful oversight.
Meanwhile, New York has turned its back on decades
of studies and official reports warning that indigent
defendants are consistently denied their right to counsel.

James Adams was arrested for
stealing deodorant from a drug
store in Onondaga County. Without
a lawyer, he was charged with
two felonies and a misdemeanor,
and his bail was set at $2,500 –
an amount he could not afford.
His lawyer did not visit him in jail
for more than 90 days, and did
not show up at court hearings. At
trial, he was acquitted of the two
felony charges and sentenced to
time served. While he sat in jail
for months, he lost his job and his
family was evicted.2

As a result, justice in New York often is available only for
those who can afford it.

STATE OF INJUSTICE

1

Undefended and Alone. Every day in courtrooms across New York State, people
accused of crimes who can’t afford a private attorney stand alone. They stand
alone at arraignment, the initial hearing before a judge when bail is set and the
defendant must plead guilty or not guilty. They stand alone while law enforcement
and prosecutors conduct investigations and talk to experts to build cases against
them, using resources the accused will never have access to themselves.
They stand alone as they accept or reject plea bargains, often unaware of the
consequences of their actions.
New York’s public defense attorneys feel alone, too – caught in a system in
which they are forced to carry caseloads that make them violate their own
rules of professional conduct by providing woefully
inadequate representation to their clients.

Jacqueline Winbrone was held
in Onondaga County on $10,000
bail for criminal possession of
a weapon – a gun her husband
admitted he put in her car. She
called her attorney for five days
straight but he did not respond.
Winbrone’s husband died during
the 50 days she was in custody
awaiting trial. Her lawyer failed
to notify her when the case was
ultimately dismissed.3

The impact of this broken system is magnified because it
involves New York’s most vulnerable residents. Children
are needlessly separated from parents and placed in foster
care, even though a competent attorney might have easily
negotiated the parent’s release from custody. Too often, the
sick and elderly who depend on family members for care
deteriorate as their spouses and relatives languish in jail,
awaiting trial. Those who live paycheck-to-paycheck are the
first to lose their homes and jobs when no lawyer is there to
negotiate bail.
The poor may suffer the most obvious effects, but all
New Yorkers pay the price. There are no public safety
benefits to sending innocent people to jail or locking up
minor offenders for too long. Instead, New Yorkers bear
significant moral and social costs, not to mention the
financial burden of funding expensive and unnecessary
incarceration.

In 2007 the New York Civil Liberties Union and the
law firm Schulte Roth & Zabel LLP sued New York State over its failure to
represent poor, or indigent, defendants.4 The class-action lawsuit, HurrellHarring et al. v. New York, focused on five New York counties: Onondaga,
Ontario, Schuyler, Suffolk and Washington (Ontario County has since settled
with the NYCLU).
This report examines the disgraceful state of public defense in New York State,
focused on these five counties. The data and personal accounts in this report were
gathered from testimony, affidavits, budget requests and other materials obtained
through the discovery process in the Hurrell-Harring lawsuit.

2

NEW YORK CIVIL LIBERTIES UNION

KEY FINDINGS
This report reveals how New York’s public defense system routinely fails poor
people accused of crimes.
•	

In Onondaga County in 2012,
where there are routinely more
than 10,000 public defense cases
a year, defendants never met with
an attorney outside of court in
almost one-third of public defense
cases. Most of them ultimately
plead guilty to criminal charges.5

•	

Although effective counsel often
requires a factual investigation and
forensic expertise, defense counsel often fail to consult expert witnesses
in New York.6 Experts were consulted in effectively zero percent of the
tens of thousands of cases in Suffolk County.7 In Onondaga County in
2011, investigators were not hired in 99.7 percent of cases.8

•	

The New York State Bar Association and national legal experts
recommend that attorneys carry
no more than 150 felony cases a
year.9 In New York State, public
defense attorneys have been
known to carry as many as 420
felony cases a year, in addition
to misdemeanor cases and, in
some instances, family court
cases.10

•	

Public defense attorneys have
severely limited budgets for
investigations, paralegals and
workplace basics, including
computers.11 In Washington
County in 2012, the seven attorneys in the Public Defender’s Office
shared a single computer.12

Poor defendants never met an attorney
out of court in almost one in three
public defense cases in Onondaga
County in 2012 – where there are often
more than 10,000 public defense
cases a year.

STATE OF INJUSTICE

3

RECOMMENDATIONS
The time to end New York’s shameful failure to provide adequate public defense
is now. New York’s approach to public defense undermines our state’s historic
reputation as a national beacon of fairness, equality and justice. As a progressive
leader of a politically progressive state, Governor Andrew Cuomo should recognize
the travesty that New York began decades ago and take immediate steps to correct it.
Three broad reforms are essential to advance New York’s commitment to equal
justice for all, ensure fair outcomes in criminal cases and improve the efficiency of
our judicial system. State leaders including Gov. Cuomo should:

4

•	

Immediately ensure that there is a lawyer representing every poor criminal
defendant in New York at the initial court appearance, and ensure that the
lawyer has previously met with the defendant and is prepared to contest the
charges and advocate for pre-trial release or affordable bail.

•	

Immediately reduce the huge caseloads of public defense attorneys so they
have the time to communicate with defendants, investigate cases, research
and file legal motions, and be prepared for court.

•	

Replace the disorganized and underfunded county-based arrangement for
public defense with a true system run by New York State with adequate
funding, standards and supervision to assure poor criminal defendants
receive the defense to which they are entitled under the Constitution.13 n

NEW YORK CIVIL LIBERTIES UNION

I.	 The Right to Counsel:
From Clarence Gideon to
Kimberly Hurrell-Harring
More than half a century ago, a poor Florida drifter named Clarence Gideon was
arrested for breaking into a pool hall near his temporary, $6-a-week lodging.
Gideon, who quit school after eighth grade and ran away from home, asked the
court for an attorney to defend him because he could not afford one. But at the
time, counsel for poor or indigent defendants was only provided in death penalty
cases. Forced to defend himself, Gideon was convicted and sentenced to five
years in prison.14
From the prison library, Gideon handwrote a five-page petition to the
Supreme Court, requesting an appeal. The court heard his case and, in
1963, ruled unanimously that the guarantee of counsel, as codified in the
Sixth Amendment, is a fundamental right of all Americans. The court also
made clear that, through the due process clause of the 14th Amendment,
states are responsible for providing counsel when defendants cannot afford
representation.
In the Gideon v. Wainwright decision, the court called the right to counsel
“fundamental.” Justice Hugo Black wrote:
In our adversary system of criminal justice, any person hauled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him. . . This seems to us to be an obvious truth. . .
[L]awyers in criminal courts are necessities, not luxuries.
Since Gideon, a series of Supreme Court cases has established that the right
to counsel requires more than the mere assignment of an attorney. The Sixth
Amendment has been interpreted to require effective assistance.15 In 1972, the
Supreme Court expanded on the duties and purpose of a lawyer: “Counsel is
needed so that the accused may know precisely what he is doing, so that he is
fully aware of the prospect of going to jail or prison, and so that he is treated
fairly by the prosecution.”16

STATE OF INJUSTICE

5

The Right to Counsel in New York State
New York State’s Constitution, like
the U.S. Constitution, guarantees the
right to counsel.17 New York’s Criminal
Procedure Law provides that a defendant
is entitled to counsel for any offense
other than traffic infractions.18 Various
court decisions have made it clear that
the right to counsel encompasses the
right to investigation of your case and
expert review when it is necessary to
mount a proper defense.19 As the state
is bound to provide defendants with
an attorney, these resources must be
provided by the state if defendants
cannot afford representation.
In addition, the rules of the legal
profession in New York also require all
attorneys who represent clients to be
diligent and prompt in their assistance.20
If attorneys have too many clients, too
few resources, too little expertise or
otherwise

unmanageable

caseloads,

they violate their duties as members of
the bar.21

NEW YORK’S HISTORY
OF NEGLECT
In 1965, two years after the Supreme Court
ruled that states were responsible for providing
counsel to people who could not afford it, New
York responded by shifting this burden onto its 62
counties. Each county was required to come up
with its own plan and provide for public defense
itself. By January 1967, the New York State
Bar Association had already detected serious
shortcomings in the state’s provision of indigent
defense.22
Over the next five decades, a series of reports
would go on to document the state’s ongoing
public defense crisis. Most recently, in 2006,
a commission headed by former New York
State Chief Judge Judith Kaye investigated
public defense practices in New York. The
commission concluded that the state is “severely
dysfunctional” and “structurally incapable” of
providing effective representation, persistently
failing to satisfy its constitutional obligations.23
To this day, state funds cover no more than
a small fraction of the cost that New York’s
counties pay to provide lawyers to the poor.
While New York created a state wide Office
of Indigent Legal Services (ILS) in 2010, it is
effectively incapacitated due to underfunding.24
The state has refused to fully fund the ILS since
it first began submitting budget requests.25
As of the 2014-15 fiscal year, the ILS does not
guarantee a single county any amount of money
for public defense. It can only redistribute small
amounts of grant money, which it then cannot
afford to monitor or evaluate.26

Sadly, not much has changed in the 50 years
since Gideon v. Wainwright. According to ILS
director William J. Leahy, persistent, destructive
gaps in county public defense systems are “a result of the state tossing the ball
to the counties in 1965.”27 Leahy added that “most, perhaps all, counties do not
currently comply” with laws requiring indigent representation.28

6

NEW YORK CIVIL LIBERTIES UNION

HURRELL-HARRING: A CLASS ACTION LAWSUIT
INTENT ON CHANGE
Following its own investigations, in 2007 the New York Civil Liberties Union and the law firm Schulte Roth
& Zabel LLP filed Hurrell-Harring et al. v. New York, a landmark class action lawsuit on behalf of poor New
Yorkers denied proper counsel. The lead plaintiff, Kimberly Hurrell-Harring, was a 31-year-old nursing
assistant and mother of two who committed a misdemeanor by trying to bring a small amount of marijuana
to her husband in prison.29 Such a misdemeanor rarely results in jail time, especially as Hurrell-Harring
was a first-time offender. But her court-appointed lawyer – since disbarred – had her plead guilty to a
felony. She spent four months in jail and lost her job and her home.30
The NYCLU’s lawsuit cites long-standing, systemic denials of counsel to poor criminal defendants like
Hurrell-Harring across New York State. The lawsuit originally focused on five counties across the state –
Onondaga, Ontario, Schuyler, Suffolk and Washington – to demonstrate how delegating the responsibility
of public defense to counties is a widespread failure. One county, Ontario, settled with the NYCLU in
September 2014 before the Hurrell-Harring lawsuit goes to trial, after making efforts to enhance public
defense services and pledging further improvements should state funding become available. 31
Hurrell-Harring v. New York is slated to go to trial in the fall of 2014. New York’s counties, fed up with bearing
an impossible burden, are increasing the pressure on Gov. Andrew Cuomo to fix the broken public defense
system. The call for a state-managed public defense system as the only way to stop failing vulnerable
defendants, overcrowding prisons and violating New Yorkers’ fundamental rights is getting louder. As of
July 2014, 14 New York counties have formally passed resolutions asking the state to take over public
defense and settle the Hurrell-Harring lawsuit.32
The data and personal stories in this report, which date from before 2005 through 2014, were gathered from
the collection of testimony, affidavits, budget requests and other materials uncovered through the discovery
process in the Hurrell-Harring lawsuit. n

STATE OF INJUSTICE

7

II. How New York’s Poor Defendants
Are Denied Justice
New York’s criminal justice system has a series of protections built into it that
occur the moment someone is arrested.
Today, if you are accused of a crime, you should retain an attorney as soon
as possible. Your attorney needs time to review facts before your initial court
appearance – your arraignment – that might persuade the judge to release you
from custody, such as your ties to the community and
your criminal history (or lack thereof). The earlier a
defense attorney enters your case, the better chance
Robert Kulas was charged with assault
he or she has to protect your rights and provide
and evidence-tampering. After nearly
effective representation.
You must be brought before a judge in your local
criminal court for arraignment within 24 hours of
being arrested, and your lawyer must be present
during arraignment to advocate on your behalf.33
During arraignment, the judge will determine whether
or not you can be released from custody on bail or
whether you must be remanded to jail while you await
the resolution of your case.

two months of waiting, he finally spoke
to his Onondaga County public defense
attorney. Without investigating his side
of the story, the attorney advised him
to take a plea bargain for five years in
prison. The attorney then left to feed his
parking meter and never returned.

After arraignment, your case can be resolved through
a plea bargain, dismissal or trial. Your attorney should
meet with you to discuss and evaluate the merits of
plea bargaining and to keep you apprised of hearings,
plea bargain offers and other procedures affecting your case and your life. Your
attorney should also continue to investigate your case throughout its resolution.
Investigation includes interviewing witnesses, collecting physical evidence and
consulting experts. Public defense attorneys should work with investigators to help
gather and analyze evidence. Experts are often necessary to present an effective
defense (e.g., insanity or battered woman’s syndrome) or to provide an opinion
independent of the prosecution’s expert. Any fact-finding can have critical influence
on the outcome of your case and the decisions you make.
In New York, however, failures in the public defense system have occurred and
continue to occur at every step of this process. From attorney assignment to case
resolution, poor and vulnerable New Yorkers are falling through cracks.

8

NEW YORK CIVIL LIBERTIES UNION

Despite applying three times for
a public defense attorney, Shawn
Chase was forced to wait roughly
five months before meeting an
attorney. (Chase’s application was
denied because his parents’ income
exceeded

poverty

minimums,

even though 20-year-old Chase
received

no

financial

support

from them and did not personally
meet the income threshold). He
testified at trial without discussing
or preparing for his testimony
beforehand with his attorney. He
was found guilty and sentenced to
60 days at the Schuyler County Jail
for driving under the influence.

Onondaga County disqualifies
people for public defense in
certain cases where they own
a car even if they have no
actual income.

PUBLIC DEFENSE
ELIGIBILITY
In New York, requests for representation are often
denied due to counties’ drastically low minimum income
thresholds or other regulations that limit poor defendants’
eligibility for public defense services.
In Schuyler County, the Public Defender’s Office based
eligibility on state and federal poverty guidelines to keep
costs down, so that a person with an annual income of
$12,763 in 2007 would likely be deemed ineligible for public
defense.34 According to the county’s former chief public
defender, more than 40 percent of defendants referred to
the Public Defender’s Office between 2004 and 2006 were
denied services because they were deemed “not indigent.”35
In Washington County, one poor defendant who had an
annualized income of $10,320 a year and was supporting
her son was denied public defense services.36
Some counties also fail to take into account financial
obligations, such as mortgages, in calculating whether
people qualify for public defense, forcing defendants
to choose between paying their mortgage or hiring an
attorney. Onondaga County disqualifies people for public
defense in certain cases if they own a house or a car, even if
they have no actual income and have no equity in the house
or car.37
Some counties also exclude defendants 20-years-old and
younger from accessing public defense services if their
parents have enough money to afford an attorney, even
when the defendant is not living with or dependent on his or
her family’s financial support.38 “Many of those clients were
not able to locate or access their parents, or their parents
refused to provide the financial information required,” said
one former Onondaga County public defense attorney.39 In
Washington County, one applicant with no personal income,
but $8,840 annualized from unemployment, was denied
based on his girlfriend’s income.40
As a result, many people too poor to afford an attorney are
nonetheless unable to access public defense services in
New York State.

STATE OF INJUSTICE

9

INITIAL ATTORNEY
CONTACT
For those defendants who are deemed eligible
for public defense services, the sooner the
defense attorney enters their case, the better
equipped the lawyer is to protect their rights. If
a public defense attorney enters a defendant’s
case right away, there is also less chance that
the poor defendant will be trapped in jail for
excessively long periods of time, unable to go
to work and support his or her family. However,
thousands of poor defendants in New York
State have had no attorney contact outside of
court for a full month after a lawyer has been
assigned to them.41
In Onondaga County, for example, more
than 1,600 poor criminal defendants in 2012
were still waiting to communicate with their
attorneys outside of court a full month after the
attorney’s appointment.42 One in four people
charged with felonies were still waiting to see
their attorney outside of court within two weeks
of arrest.43

“My Attorney Only Met Me to Get Paid.”
Richard Love, Onondaga County
Richard Love was arraigned without a lawyer
and held on charges of grand larceny and
criminal possession of a forged instrument at
the Onondaga Justice Center, awaiting trial.
After his arraignment, Love was given a piece
of paper with the contact information for his
assigned counsel. Love was often unable to
even leave his attorney a voicemail. The only
way he could feasibly call anyone from inside
the jail was by making a collect call or calling
a toll-free number that allowed incarcerated
people to leave messages for public defense
attorneys, but that voice mailbox was often
full. Love was never able to reach his attorney
directly. While he sat in jail, his lawyer failed

ARRAIGNMENT
Arraignment before a judge is the critical
moment when charges are read, bail is set
and defendants are either jailed or released,
pending trial. Most people lack the training
and knowledge to challenge spurious charges
or make an effective bail request on their own.
While a lawyer should ideally begin working with
a client before arraignment, a New York Court of
Appeals ruling requires legal representation at
arraignment.44
Despite the critical importance of having counsel
at arraignment, poor defendants in New York
appear alone at arraignment as a matter of
course. There are simply not enough lawyers to
attend every arraignment in understaffed public
defense offices, especially arraignments that

10

NEW YORK CIVIL LIBERTIES UNION

to inform him of plea deal offered by the
prosecution. He was eventually sentenced to
two- to four-years imprisonment.
“My attorney only saw me in jail once in the
month and a half he represented me, and
that was just so I could sign the form he
needed to get paid,” Love said. “And my case
was no exception. All around me there were
others relying on public defense attorneys
they seldom heard from – like me, they
would wait around in jail for months, just
hoping that something was being done on
their behalf.”

“I Wish I’d Had Someone on My Side.”
Gia Callaway, Suffolk County
After Gia Callaway was arrested and charged with robbery, she was arraigned in a
Suffolk County court. Before she appeared for her arraignment, no one had interviewed
her about what happened in her case. At arraignment, the attorney present on her
behalf did not ask a single question that might have affected the outcome – such as
about her criminal history or about reducing her bail. She wound up remanded to
the county jail in Riverhead to await trial with a new attorney. Once there, she made
multiple attempts to contact her new attorney through the Legal Aid Society but was
unable to get through.
Callaway sat in jail for about four months before her assigned attorney visited her.
During that time, she stopped hearing from her husband and lost her home and
possessions. When her attorney finally visited her, their discussion lasted less than
15 minutes.
“I have nothing left, nothing to return to . . . I just wish I would have had someone on
my side,” she said.
Unbeknownst to her and without her consent, Callaway’s lawyer had her court
appearance adjourned numerous times.
“I was never asked if I wanted to be in court. It wasn’t until after reading my court
documents that I was even aware of each of the adjournments requested by my own
counsel,” said Callaway.
Worse yet, despite the existence of multiple witnesses and video footage, her lawyer
never investigated the evidence in her case, discussed defense strategy with her or
explained her what her options were. He only urged her to take a plea deal – which
resulted in her sentence of one-and-a-half to three years.
“I was railroaded through the system – just another name for them to get through,”
she said. “The facts of my case did not matter.”

STATE OF INJUSTICE

11

occur at night or on weekends.45
According to Schuyler County’s former chief public defender Connie Fern Miller,
in 2007 there were 11 courts across the county that met weekly, so it was virtually
impossible for the one part-time assistant public defender to appear more than
once a month at each court. Defendants routinely appeared at arraignment without
an attorney in both felony and misdemeanor cases.46
Without counsel at arraignment, poor defendants are often incarcerated or stuck
with exorbitant bail they cannot afford, when an attorney could have negotiated
a conditional release. Once a defendant is in jail, communication becomes
increasingly difficult, and postponements of court dates happen without the person
knowing, sometimes for several weeks or months. While awaiting trial, defendants
lose their families, homes and jobs, all at the taxpayers’ expense.

ATTORNEYCLIENT
COMMUNICATION
Following an arraignment, whether
the defendant remains in custody
or is released, court proceedings
continue until the criminal case
is resolved. It is essential that
attorneys meet with their clients
to discuss and evaluate the merits
of plea bargaining and keep
clients informed of hearings, plea
offerings and other procedures.
Poor defendants are routinely
ignored by their assigned public
defense attorneys as they make
efforts to find out what is happening
in their case or express their
preferences for plea bargains
or trials. Last-minute communication is the default mode in New York State.
Defendants meet with their attorneys mere minutes before they are scheduled to
appear in court. Conversations about potential defenses and plea bargains that
should be private take place in public corridors and waiting rooms – even in the
courtroom when prosecutors are within earshot.47
Profound, systemic dysfunction regarding attorney-client contact was present
across all five counties covered in this report.
•	

12

In Onondaga County, there was no client-attorney contact outside of court
in one in three cases in 2012.48

NEW YORK CIVIL LIBERTIES UNION

•	

•	

In Ontario County between
2010 and 2012, for one out
of every four clients, public
defense attorneys billed
30 minutes or less for time
spent communicating with
or interviewing clients.49 In
40 percent of felony cases,
public defense attorneys
billed zero minutes
preparing their clients for
sentencing.50 In fact, in
one in five cases, attorneys
spent more time preparing
their billing statements for a case than interviewing the client
involved.51

•	

In Suffolk County, training materials suggest that public defense
attorneys spend no more than five to 10 minutes with each client.52

•	

Defendants who do not have contact with attorneys – or who are
subjected to a revolving door of “serial” attorneys who briefly appear
and are summarily replaced, without notice or the defendant’s consent
– are at an enormous disadvantage in the criminal justice system. This
can have dramatic consequences on their lives.

RESEARCH, INVESTIGATORS
AND EXPERTS
Investigators and experts are often necessary in criminal cases, either for essential
fact-finding or preparing a defense. But across all five counties reviewed in this
report, legal research, investigation and expert consultation are denied to poor
defendants on a regular basis.
•	

In Onondaga County, attorneys spent an hour or less conducting any
kind of investigation in 98 percent of cases.53 Lawyers spent less than an
hour on legal research in 94 percent of felony cases and 99 percent of
misdemeanors.54

•	

Of the more than 14,000 cases reviewed in Onondaga County in
2011, investigators worked on fewer than 50 cases (0.3 percent of all
cases), and experts were used in only 22 cases.55 Not a single expert
was consulted in the 23 cases for which charges included murder,
manslaughter or homicide.56

•	

In Ontario County, based on a review of the assigned counsel billing
statements between 2010 and 2012, attorneys billed zero minutes for
investigating in 61 percent of cases and zero minutes for research in 65

STATE OF INJUSTICE

13

percent of cases.64 Public
defense attorneys failed to
speak to a single witness
in almost 90 percent of all
cases. In fact, seven in 10
attorneys spent more time
preparing their billing
statements than they did
interviewing witnesses.57
•	

In Schuyler County, out
of the hundreds of cases
handled by public defense
attorneys from 2011-2012,
investigators were used
in six cases, and experts
were rarely used, if ever. 58

•	

In Suffolk County, out of
the tens of the thousands
of cases in 2010-2011,
experts were consulted in
17 cases – approximately zero percent.59 n

In Suffolk County, out of the tens
of thousands of cases in 2010-2011,
experts were consulted in 17 cases –
approximately zero percent.

14

NEW YORK CIVIL LIBERTIES UNION

One Case, Six Useless Attorneys
Eric Witherspoon, Suffolk County
Eric Witherspoon was held in jail for more than two years in Suffolk County without being
found guilty of anything.
Witherspoon was held in jail awaiting his trial after he was arraigned on three-year-old
burglary charges. He went nine months without any private communication with his public
defense attorney.
As the father of an adolescent boy, Witherspoon said that “the hardest thing was not being
able to tell my son anything. I had no idea what was going on in my case. There was nothing I
could say when he asked about what was happening.”
In an initial conversation with the county’s Legal Aid Society, Witherspoon asked that his
attorney preserve several of his rights, including the right to a grand jury hearing. But on
his second court date, Witherspoon learned that his attorney had ignored his wishes and
submitted waivers to those rights without his consent. When he asked to speak to his attorney
about this, the attorney said he was too busy. Witherspoon remained in jail with no idea of
what was happening with his case.
“At every turn they refused to listen,” Witherspoon said. “It felt as though I was talking to
a wall.”
Witherspoon worked with three separate Legal Aid lawyers and three separate assigned
public defense attorneys on his case. He was not indicted for a full year after his arrest, and
he didn’t learn that one of his legal advisers was no longer representing him until he arrived
for a court date to find a new attorney had been assigned to him. At that point he was so
frustrated he elected to represent himself, with only a third assigned attorney as an adviser.
Eventually, he lost at trial and was sentenced to 20 years in prison.

STATE OF INJUSTICE

15

III. Defense Attorneys:
Set Up to Fail

One attorney who signed up
to

take

public

Onondaga

defense

County’s

cases

found

getting essential resources like
investigators for his cases to be
an uphill battle. The county would
question why he had spent time
on work such as communicating
with clients and drafting motions,
and delay reimbursing him for
his upfront costs. Eventually, he
couldn’t afford to cover the costs
of being a public defense attorney
and stopped taking those cases.

The widespread constitutional violations taking place in New
York’s public defense system are not the fault of the state’s
overworked, underfunded public defense attorneys. Rather,
the state fails its poor criminal defendants by first failing the
attorneys whose job it is to represent them.
From county to county, public defense services are
inconsistently provided through county-run public
defender’s offices, local legal aid societies, “assigned
counsel programs” that contract with private attorneys,
or through a combination of the three. These different
mechanisms are subject to varying degrees of funding and
oversight, none of which are sufficient.
In large parts of New York State, public defense attorneys
retained by the counties lack the tools and time they
need to adequately defend clients. Defense attorneys
often carry unmanageable caseloads without budgets
for investigations, paralegals and workplace basics
like computers. Furthermore, a lack of supervision and
oversight results in attorneys essentially practicing in a
vacuum, without direction or evaluation. It is no wonder
their professional responsibilities go unmet.

In Washington County in 2012, caseloads
were not tracked at all. Assistant
public defense attorneys were asked twice
a year about their caseloads; the number
was written down on a Post-it note that
was not kept.

16

NEW YORK CIVIL LIBERTIES UNION

“CATTLE CALL
CRIMINAL
JUSTICE”
Attorneys who represent poor
defendants in most of New
York State shoulder caseloads
that exceed professional
recommendations on top of having

thin-to-nonexistent support staff. This
puts them – and their clients – at a stark
disadvantage next to the prosecutors
who have lighter caseloads and greater
support.
The New York State Bar Association
and national legal experts recommend
that attorneys carry no more than 150
felony cases or 400 misdemeanor cases
a year.60 In “most upstate counties,”
caseloads routinely outstrip recommended
maximums “by a factor of 1.5 or 2 or 3 or 4
or 5,” according to Office of Indigent Legal
Services director William J. Leahy.61
In New York State, public defense
attorneys carry up to 420 felony cases a
year, in addition to misdemeanor cases
and, in some instances, family court cases.
•	

•	

•	

“Cattle Call Criminal Justice”
Donald Telfair, Suffolk County
On August 10, 2013, Donald Telfair was brutally
assaulted by a group of individuals who thought
that he had robbed them earlier that evening.
The assault was so severe that Telfair was
hospitalized overnight for multiple procedures,
and his fractured jaw was wired shut.
Telfair met his lawyer at his arraignment the
next day — in front of the judge and prosecutor.
His attorney didn’t ask him any questions about
what had happened or about his criminal history.

Suffolk County’s Legal Aid Society
consists of nearly 70 attorneys
who carry more than 25,000
criminal cases a year.62 In the
County Court Bureau, 11 attorneys
each carried on average 255 felony
cases in 2010.63 In the District
Court Bureau, attorneys carried
on average 600 cases a year – or
200 cases at any given time.64

When the prosecutor made blatant errors by

In Onondaga County, one assigned
counsel attorney indicated that he
carried 400 to 600 cases a year –
of which 280 to 420 were felony
cases – as much as three times
the recommended maximum for
felony cases.65

standing before you — it is all about getting

In Washington County in 2012,
caseloads were not formally
tracked at all. Assistant public
defenders were asked twice a year
about their caseloads; the number
was written down on a Post-it note
that was not kept. The caseloads
of private attorneys who took on
public defense cases were not
even discussed.66

mischaracterizing his history, Telfair’s attorney
failed to protest. Telfair had to address the court
himself — with his jaw wired shut.
“Everything in the court was rushed,” Telfair
said. “It’s cattle call criminal justice. It is all
a numbers game, no matter that a person is
through the court calendar for the day.”
Unable to post bail, Telfair was sent to Suffolk
County jail, where he remained for months, until
he took a plea bargain for one-and-a-half to three
years. By then, he had already served the bulk of
the time he would anticipated he would have to.
“The system is broken and needs to be fixed,”
Telfair said. “The amount of money someone
makes should not determine how justice is
served.”

STATE OF INJUSTICE

17

ABSENT OVERSIGHT
New York State’s failure to provide oversight means that both state officials and
poor defendants are in the dark about the lack of justice for poor New Yorkers.
In much of New York State, virtually any lawyer can sign up to be part of assigned
counsel programs that contract with counties to provide public defense services.
As one assigned counsel program administrator in Onondaga County said,
to qualify to take on misdemeanors, “All you need is a pulse and malpractice

“My Children Were Victims of the Broken System.”
Donnell Stepney, Onondaga County
Donnell Stepney was driving with some friends when police officers stopped the car, pulled
him out of the passenger seat and brutally beat him. Upon searching the vehicle, the officer
found a 9mm handgun that belonged to the driver. Stepney and the driver were both arrested
for criminal possession of a handgun and other charges and taken into custody.
The driver owned the handgun and plead guilty to possessing it, so the charge of gun
possession against Stepney should have been dropped. However, Stepney’s lawyer failed to
submit the driver’s guilty plea as evidence in Stepney’s trial.
“All he kept telling me was to take the plea [bargain]. But I wasn’t guilty,” Stepney said.
After the trial, Stepney’s attorney gave him a file filled with documents he had never seen.
It was clear Stepney had been excluded from the defense process all along.
“The hardest part of all this is that I was robbed of the ability to take care of my children,”
he said. “I was all they had.”
Stepney was eventually sentenced to eight years in prison. After his incarceration, his three
children were placed in a home by the Department of Social Services.
“There is not a day that goes by that I don’t think about those kids,” Stepney said. “If I had
committed this crime, I would have taken the plea deal and served my time. But I didn’t. So
I went to trial, hoping my lawyer would put the government to the test. Instead, I became
the victim of a broken system and so did my children.”

18

NEW YORK CIVIL LIBERTIES UNION

insurance.”67 Once a lawyer is engaged in public defense work, he or she is
subject to minimal ongoing oversight.68
•	

In Onondaga County, no prior criminal defense or trial experience is
required to sign up to take on misdemeanor public defense cases through
the assigned counsel program.69 Nor does the county or the assigned
counsel program supervise the work of the attorneys who are part of the
assigned counsel program.

•	

Ontario County did not supervise the work of public defense attorneys
that are part of its assigned counsel program or ensure that they met
standards for representation.70 It did not offer training, legal research
resources (physical or electronic) or monitoring. (As its 2014 settlement
agreement with the NYCLU shows, Ontario has since established a
public defender’s office, minimum attorney practice standards and
reporting requirements.)71

•	

Schuyler County has no written policies for attorneys beyond a general
manual for all county employees. Apart from paying for attorneys to meet
their basic requirements to retain their licenses, the Public Defender’s
Office does not offer any training or orientation to its attorneys.72 There is
no written plan for how cases are assigned through its assigned counsel
program, and no evaluation or review of their performance.73

•	

The Suffolk County Legal Aid Society, which handles the bulk of cases for
poor defendants, does not offer formal training for new attorneys, who only
shadow experienced attorneys for one week. One former Legal Aid Society
attorney described his experiences as “being thrown out there without any
proper training.”74 Suffolk County also does not offer written policies or
processes for evaluating potential conflicts.75

•	

Washington County does not offer formal training, reviews or written
standards for attorneys.76 n

STATE OF INJUSTICE

19

IV. How Underfunding Created
a Broken System

Lane Loyzelle was accused of
stealing $20. He was arraigned
without a lawyer, and the bail
was set at $2,500, an amount he
could not afford to pay. He saw
an attorney once, after waiting
13 days, but no subsequent visits
occurred for months. While in
pretrial incarceration, he lost his
job. With no confidence that he

New York State is bound by federal law to provide legal
representation to criminal defendants who cannot
afford counsel. But New York’s decision to delegate its
responsibilities to its counties has permitted the state to
retreat from its financial and ethical responsibilities.
State money accounts for only 16 to 28 percent of the money
the five counties covered in this report spent on mandated
public defense. It’s plain that funding for public defense
services is not a state priority. Between 2008 and 2012,
New York swept more than $40 million from the Indigent
Legal Services Fund – the main source of state funding for
public defense services – and re-deposited it into the state’s
general fund to support other agenda items. In the fiscal
year of 2014, New York authorized an additional $11 million
sweep.77

could go to trial with an attorney

This inadequate state funding has been especially
harmful for poor defendants because counties generally
opt to spend their own funds on district attorneys rather
he accepted a plea offer for three
than on public defense attorneys, despite the obvious
months incarceration.
overlap in caseloads. The differences in resources and
salaries can be stark. Moreover, the pay gap between
public defense attorneys and prosecutors widens over
time, pushing qualified attorneys out of public defense
and into private practice or the District Attorney’s office.78

he hadn’t heard from in months,

20

•	

In 2012, Onondaga County’s annual expenditure on its assigned counsel
program – which handled roughly 95 percent of its public defense cases
– was less than half of the county District Attorney’s budget.79 In 2011, the
county spent $28,161 on investigators in indigent defense cases, while it
funded the District Attorney’s Investigations Bureau with 35 times that
amount – $997,414 – enough to hire 11 full-time employees.80

•	

Onondaga County also refuses to reimburse attorneys for routine
expenses and delays payment on statutorily authorized reimbursements.

NEW YORK CIVIL LIBERTIES UNION

No One Checked the Evidence
Ray Robinson, Onondaga County
Ray Robinson moved to Onondaga County from his native Queens. He had worked hard to
rebuild his life after a childhood history of abuse, persistent mental health issues and a
record of petty crime that led to multiple stays at juvenile facilities.
While incarcerated for 15 years on drug charges, Robinson experienced an awakening: “I
realized the life of want I was living came at a cost, and it wasn’t worth it.” Upon release, he
threw himself into construction work and volunteering at shelters.
In 2011, Robinson’s ex-girlfriend accused him of threatening her life in a text message,
characterizing him as a dangerous gangbanger. Robinson, confident of his innocence, went
to the precinct the next morning after receiving a call from police. But at the precinct his
phone was confiscated, and he was arrested, fingerprinted and placed in a holding cell.
“The officers assumed I was guilty because of what I had done in the past,” he said. Robinson
was issued a restraining order and arraigned in court without an attorney.
When he was finally assigned an attorney, Robinson implored him to review the actual text
message in question. His attorney declined to do so, insisting that Robinson take the plea
deal being offered by the prosecution.
“’Just take the deal,’ he would say to me,” Robinson said. “It was as if he was working with
the prosecutor.”
After six months of being stonewalled by his defense attorney, Robinson asked the court
for a hearing to determine if there was enough evidence. The judge agreed. When the
public defense attorney and the prosecutor looked at the actual text message in question,
Robinson’s misdemeanor charge was knocked down to a violation, for which Robinson
was fined.
Half a year of court proceedings could have been avoided if Robinson’s lawyer had
investigated one single piece of evidence – the text message on Robinson’s phone.

STATE OF INJUSTICE

21

Having waited up to a year for reimbursements, some attorneys in
Onondaga County have stopped taking cases through the assigned
counsel program altogether.81
•	

In Schuyler County, no written policies or procedures guide the provision of
legal services to indigent defendants. The Public Defender makes $40,000
less than the District Attorney.82

•	

In Suffolk County, prosecutors are far more richly resourced than public
defense attorneys, both in salary and staff. For example, Suffolk County’s
Legal Aid Society employs five investigators, while the District Attorney’s
office employs 56 investigators.83 Suffolk’s Legal Aid Society has no
paralegals, while the DA’s office has eight.84

•	

In Washington County, where more than 1,400 cases were referred for
public defense in 2011, at the time the Chief Public Defender and all of the
Chief Public Defender’s six assistant public defenders worked part-time
and carried private practices. The county did not fund full-time assistant
public defense attorneys, paralegals or legal assistants. All seven attorneys
shared one computer.85
Poor defendants and the
attorneys representing them
are not the only victims
of New York’s abdication
of its responsibility to
provide public defense.
The broken system also
harms taxpayers, who are
financially responsible
for the state’s decisions
and bear the economic
burden of prolonged prison
stays, unnecessary court
proceedings and wrongful
conviction lawsuits. n

22

NEW YORK CIVIL LIBERTIES UNION

V. Recommendations
The Supreme Court’s command is clear: All criminal defendants, no matter the
crimes of which they are accused, are entitled to representation. Yet thousands
of people move through New York’s criminal justice system every year without an
active, competent advocate – exacting tolls of harm that ripple outward to families,
communities, cities and towns.
New York has squandered its reputation as a national leader in protecting
fundamental principles of fairness, equality and justice. To restore that reputation,
ensure fair outcomes in criminal cases and improve the efficiency of our justice
system, the state should immediately take the following steps:
•	

Immediately ensure that there is a lawyer representing every poor
criminal defendant in New York at the initial court appearance, and
ensure that the lawyer has previously met with the defendant and is
prepared to contest the charges and advocate for pre-trial release or
affordable bail.
New York must immediately follow the mandate issued by the state’s
highest court in 2010 and expand and make permanent existing grant
programs that allow county public defense programs to hire enough
lawyers to be both present and prepared at every arraignment in the state.

•	

Immediately reduce the huge caseloads of public defense attorneys so
they have the time to communicate with defendants, investigate cases,
research and file legal motions, and be prepared for court.
New York State law limits caseloads for attorneys – but only in New York
City.86 Lawyers and defendants throughout the rest of the state deserve
the same standard. The state must develop a system to accurately weigh
attorney caseloads using existing, widely accepted and well-tested
standards. The state must also require county defense providers to track
and monitor caseloads, and ensure that adequate funding exists to bring
caseloads in line with those standards.

•	

Replace the disorganized and underfunded county-based arrangement
for public defense services with a true system run by New York State
with adequate funding, standards and supervision to ensure poor

STATE OF INJUSTICE

23

criminal defendants receive the defense to which they are entitled under
the Constitution.
The state must end its abdication of responsibility for public defense – an
unfunded mandate to the counties – by transforming the New York State
Office of Indigent Legal Services (ILS) into an agency with the power and
resources necessary to manage New York’s public defense system. As
it now stands, ILS has no enforcement authority and distributes a small
number of state grants that do little to repair the fundamental flaws in the
justice system.
•	

24

Counties still bear 75 to 90 percent of the costs of public defense services.
That equation must be flipped. The state, through ILS, should bear the
majority of the costs of public defense, and ILS must be given the power
and independence to ensure that state money is spent efficiently and in the
best interests of criminal defendants who cannot afford counsel. n

NEW YORK CIVIL LIBERTIES UNION

VI. Endnotes

1 Information on the Office of Indigent Legal Services (ILS) is available at https://www.ils.ny.gov (last visited Sept. 2, 2014). See also

	

Plaintiffs’ Memorandum of Law In Opposition to the State Defendant’s Motion for Summary Judgment at 39, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. October 3, 2013) [hereinafter Plaintiffs’ Memorandum of Law].
2 The facts of this account and the other accounts in this report are drawn from court filings and other sources.
3 See id.
4 Amended Class Action Complaint, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. November 8, 2007), available at
http://www.nyclu.org/files/Amended%20Class%20Action%20Complaint.pdf (last visited Sept. 2, 2014). In 2014, Ontario County settled with
the NYCLU. The settlement agreement is available at http://www.nyclu.org/files/NoticeofClassActionandProposedSettlement.pdf (last
visited Sept. 2, 2014).
5 Almost one-third (30.91 percent) of Onondaga County defendants in 2012 never met with their attorney outside of court. Affidavit of Gary
King at 61, Oct. 1, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter King Affidavit].
6 See Plaintiffs’ Memorandum of Law, supra note 1, at 24, 44, 47. See also Affirmation of Erin Beth Harrist in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 64, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov.
8, 2007) [hereinafter Harrist Affirmation].
7 This data is based on public defense cases in Suffolk County between 2010 and 2011. See King Affidavit, supra note 5, at 32.
8 Statistics on Suffolk County and Onondaga County are available in Plaintiffs’ Memorandum of Law, supra note 1, at 23- 24.
9 See ABA Standing Committee On Legal Aid and Indigent Defendants, Ten Principles of a Public Defense Delivery System, American
Bar Association, Feb. 2002. Available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/
ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf (last visited Sept. 2, 2014).
10 Affirmation of Kristie M. Blase in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment Ex. 176,
Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (“We handle about 4 to 600 cases an attorney”). See also
Plaintiffs’ Memorandum of Law, supra note 1, at 67 (Onondaga County); id. at 66 (Ontario County); id. at 19 (Schuyler County); id. at 18
(Washington County, noting that cases are not formally tracked).
11 See Plaintiffs’ Memorandum of Law, supra note 1, 61-62.

STATE OF INJUSTICE

25

12 In 2012, the Public Defender’s Office in Washington County consisted of the Chief Public Defender and six part-time public defenders,
all of whom shared one computer. Affirmation of Matthew Schmidt in Opposition to State Defendant’s Motion for Summary Judgment at
18, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter Schmidt Affirmation].
13 Existing state standards are available on the New York State Defender’s website at http://www.nysda.org/PublicDefenseStandards.
html (last visited Sept. 2, 2014).
14 Background on Clarence Gideon is available on Wikipedia at http://en.wikipedia.org/wiki/Gideon_v._Wainwright (last visited Sept. 2,
2014).
15 McMann v. Richardson, 397 U.S. 759 (1970).
16 Argersinger v. Hamlin, 407 U.S. 25 (1972).
17 A “party accused shall be allowed to appear and defend in person and with counsel.” N.Y. Constitution, art. 1 § 6 (1938). See also
People v. Arthur 22 N.Y.2d 325 (1968); People v. Benevento, 91 N.Y.2d 708 (1998).
18 See N.Y. C.P.L. 180.10(3)(c); N.Y. C.P.L. 170.10 (3); N.Y. C.P.L. 210.15 (2)(c).
19 Plaintiffs’ Memorandum of Law, supra note 1, at 46-47.
20 N.Y.S. Bar Ass’n Rule 1.3, available at http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=50671 (last visited Sept. 2, 2014).
21 National Legal Aid and Defender Association, Performance Guidelines for Criminal Defense Representation (4th ed. 2006). Available at
http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines (last visited Sept. 4, 2014).
22 Commission on the Future of Indigent Defense Services, Final Report to the Chief Judge of the State of New York, June 2006: 8. Available
at http://www.nycourts.gov/ip/indigentdefense-commission/IndigentDefenseCommission_report06.pdf (last visited Sept. 2, 2014).
23 Id. at 40.
24 Plaintiffs’ Memorandum of Law, supra note 1, at 12-14, 57 – 62.
25 Id. at 13.
26 “ILS has neither the authority nor the capacity to enforce the standards it has promulgated.” Id. at 12, 39.
27 Id. at 41.
28 Id. at 38.
29 Id. at 77.
30 Complaint in Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. November 8, 2007), available at http://www.nyclu.org/
files/releases/public_defense_complaint_110807.pdf (last visited Sept. 2, 2014).
31 See Settlement Agreement Regarding Claims Involving Ontario County in Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y.
App. Div. November 8, 2007), available at http://www.nyclu.org/files/releases/executed_ontariocounty_settlement_agreement.pdf (last

26

NEW YORK CIVIL LIBERTIES UNION

visited Sept. 2, 2014).
32 The number of counties that have passed resolutions can be obtained from the National State Defenders Association at www.nysda.
org (last visited Sept. 2, 2014).
33 Hurrell-Harring v. State of New York, 15 N.Y.3.d. 8, 25. (2010).
34 Schuyler County public defense eligibility in 2007 was based on the state’s 2007 poverty guidelines. See Affirmation of Connie Fern
Miller at 3, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter Miller Affirmation].
35 Id.
36 Schmidt Affirmation, supra note 12 at 9.
37 Affirmation of Mariko Hirose in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 19, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (discussing how assets may detract from public defense eligibility in Onondaga County) [hereinafter Hirose Affirmation].
38 See, e.g., Miller Affirmation, supra note 34 at 3; Schmidt Affirmation, supra note 12 at 9.
39 Affirmation of Christine Cagnina in Opposition to State Defendant’s Motion for Summary Judgment at 2, Hurrell-Harring v. State, appeal
docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007).
40 Schmidt Affirmation, supra note 12, at 9.
41 See Plaintiffs’ Memorandum of Law, supra note 1, at 50; King Affidavit, supra note 5, at 59.
42 King Affidavit, supra note 5, at 59.
43 See Plaintiffs’ Memorandum of Law, supra note 1, at 22.
44 Hurrell-Harring, 15 N.Y.3.d. 8, 25. (2010).
45 Miller Affirmation, supra note 34, at 3-4.
46 Id.
47 Affidavit of Gia Callaway at ¶ 18, Sep. 30, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007); Harrist Affirmation, supra note 6 at ¶ 161; Affidavit of Donald Telfair at ¶ 13-24, Sep. 30, 2013, Hurrell-Harring v. State, appeal docketed No.
8866-07 (N.Y. App. Div. Nov. 8, 2007).
48 Almost-one third of Onondaga County defendants (30.91% in 2012) never met with their attorney outside of court. King Affidavit, supra
note 5, at 61. See also Plaintiffs’ Memorandum of Law, supra note 1, at 49.
49 King Affidavit, supra note 5, at 96.
50 Plaintiffs’ Memorandum of Law, supra note 1, at 23.

STATE OF INJUSTICE

27

51 Id. at ft. 14. See also King Affidavit, supra note 5, at 108.
52 Plaintiffs’ Memorandum of Law, supra note 1, at 55. Suffolk County training materials are not publicly available.
53 Plaintiffs’ Memorandum of Law, supra note 1, at 54.
54 Id. at 24.
55 Id. at 23.
56 Id.
57 King Affidavit, supra note 5, at 103-110. These estimates are based on a sample of assigned counsel billing statements between 2010
and 2012 in Ontario County. Prior to 2010, the Ontario County Assigned Counsel Program handled all of the county’s public defense cases.
In April 2010, Ontario County opened a Public Defender’s Office, which proceeded to take on the majority of trial level public defense
cases. As of October 2013, for example, the Ontario County Assigned Counsel Program was estimated to handle between “10-15 percent”
of trial level public defense cases, and all cases in which there is a conflict between the Public Defender’s Office and a criminal defendant
unable to afford counsel. See Affidavit of Normal Lefstein at 12, Oct. 8, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y.
App. Div. Nov. 8, 2007).
58 Affirmation of Matthew Yoeli in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 23-24, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (indicating experts may never have been used) [hereinafter Yoeli
Affirmation].
59 Investigation and expert data is based on cases in Suffolk County from 2010-1011. See Plaintiffs’ Memorandum of Law, supra note 1, at
23-24; King Affidavit, supra note 5, at 32.
60 See Ten Principles of a Public Defense Delivery System, supra note 9.
61 See Plaintiffs’ Memorandum of Law, supra note 1, at 68.
62 Id. at 20.
63 Id. at 64; Harrist Affirmation, supra note 6, at ft. 12.
64 Harrist Affirmation, supra note 6, at 94.
65 Plaintiffs’ Memorandum of Law, supra note 1, at 67.
66 Schmidt Affirmation, supra note 12, at 5.
67 Renee Captor, Assigned Counsel Administrator of Onondaga County, interview with a party associated with the Office of Indigent Legal
Services, Apr. 9, 2012. This document is on file at the NYCLU.
68 Plaintiffs’ Memorandum of Law, supra note 1, at 70.
69 Hirose Affirmation, supra note 37, at 8.

28

NEW YORK CIVIL LIBERTIES UNION

70 Affirmation of Brooke Menschel in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 12, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007).
71 Plaintiffs’ Memorandum of Law, supra note 1, at 17, 70.
72 Other than paying for continuing legal education credits (CLEs), the Public Defender’s Office in Suffolk does not offer any training or
orientation to its attorneys. See Yoeli Affirmation, supra note 58, at 5.
73 Id. at ¶¶ 233 -234.
74 Several attorneys indicated that their training program only consisted of shadowing more senior attorneys for a week. See Harrist Affirmation, supra note 6, at 4-6.
75 Id. at ¶ 128 (“[E]vidence demonstrates that there is no LAS [Legal Aid Society] policy requiring a search through WebCrims, nor do all
LAS attorneys use WebCrims in order to check for conflicts.”)
76 Plaintiffs’ Memorandum of Law, supra note 1, at 71.
77 Id. at 13-15, 49.
78 Id. at 61-62
79 Id. Data on the number of public defense cases in 2012 is from the New York State Unified Court System Office of Court Administration, on file with the NYCLU. The Unified Court system Office of Court Administration’s contact information is available at http://www.
nycourts.gov/admin/oca.shtml (last visited Sept. 2, 2014).
80 See 2012 Onondaga County Annual Budget at 3-104, 3-105, on file with the NYCLU. See also Plaintiffs’ Memorandum of Law, supra
note 1, at 44.
81 Id. at 59.
82 Id. at 60.
83 Harrist Affirmation, supra note 6, at ¶ 116.
84 Id. at ¶ 226.
85 Schmidt Affirmation, supra note 12, at 18. In 2012, Washington County’s Public Defender’s Office consisted of the Chief Public Defender and six part-time public defenders.
86 New York City caseload standards were passed in 2009. John Eligon, “State Law to Cap Public Defenders’ Caseloads, but Only in the
City,” New York Times 5 Apr. 2009. Available at http://www.nytimes.com/2009/04/06/nyregion/06defenders.html (last visited Sept. 2, 2014).

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