Fair Funding for Public Defenders

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Fair Funding for Public Defenders

 

David Walsh-Little

 

      "Public pretender" is a descriptive reference with which most appointed counsel are uniquely familiar.  The terse phrase summarizes the distrust that many people have when assessing the quality of lawyers who represent the poor in criminal cases.  If you were any good, you would  work for more money in the private sector.  Public defenders pressure their clients to plead guilty.  With too many cases public defenders don't have time to adequately prepare.

 

      When the seminal case of Gideon v. Wainwright established the right to an attorney, it had little to say about the quality of that representation.  The fact is that public defender systems vary from jurisdiction to jurisdiction.  The negative perceptions associated with appointed counsel are real in some places and not in others and the discrepancies have everything to do with funding.  Having money to hire more lawyers means less cases per attorney, more time to prepare, and better representation.

 

      This past week, the highest court in New York heard oral argument and is now considering a class action lawsuit, Hurell-Harring v. State of New York, which attacks the differences in public defender funding in that state.   The court isn't deciding the case on the merits mind you. The issue is whether the case can go forward at all.  The lower appellate court in New York dismissed the lawsuit on "justiciability" grounds, concluding that issues of funding are questions for the legislative branch in which courts have no business sticking their judicial noses.  How we spend public funds, as the argument goes, even as to critical Constitutional questions such as the effectiveness of your appointed lawyer, are dictated only by the legislature.  And in these economic times, well, funding for representing poor people charged with crimes isn't exactly a fiscal priority.

 

      The plaintiffs, represented by the New York Civil Liberties Union, have pressed on, recognizing that their argument boils down to a matter of fairness.  What meaning does equal protection of the laws have, if your attorney doesn't have the time or resources to build a defense?  The lawsuit identifies and focuses on five New York Counties where funding is particularly low.  Unlike Maryland and some other states, New York does not have a state wide public defender system.  Such systems provide for uniformity in funding, training, and coordination that improves representation.  In New York, appointed counsel is determined by individual counties, where some have well respected organizations providing the defense (the Legal Aid Society in New York City for example) while other counties just provide a contract to the lowest bidder, qualified or not.

 

      The prosecution of the lead plaintiff in the case, Kimberly Hurell-Harring highlights this problem.  She was represented by the part-time public defender in Washington County on an allegation of smuggling marijuana into a local prison.  That private attorney, Patrick Barber, focused his practice on wills, divorces, and debt collection but that didn't stop the local government from giving him the county's criminal defense contract.  Nor did the fact that he was twice reprimanded for neglecting his cases.  Mr. Barber had a law degree, he was the lowest bidder, and that was enough.  Not surprisingly, Mr. Barber negotiated a plea for Ms. Hurell-Harding to a felony and jail, a plea bargain later overturned on appeal.  Mr. Barber has since been disbarred for creating fake legal documents in a separate matter and is now facing criminal charges himself.  How can you not question his competence as a public defender?

 

      Not surprisingly, most people charged with crimes are poor and rely on appointed counsel to defend their rights   Providing not only a lawyer, but ensuring that this lawyer has the resources needed for a vigorous defense is what is at stake in the Hurell-Haring case.  The plaintiffs' arguments involve a critical and important step toward fulfilling the spirit of Gideon. The New York Court of Appeals should take the step of allowing the case to be decided on the merits.  A hearing about why we tolerate an unfair class based justice system is long overdue.  Just ask the next defendant who thinks his lawyer is a "public pretender".