"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Thursday, September 10, 2015
Indigent defense in New York on the rocks: funded by the poor and raided by the state
There is no doubt that constitutionally required defense for the poor in New York is in crisis.
Time and again New York State Court administration claims that there is a crisis in provision of legal services for the poor, creates "Commissions" and "Task Forces" (consisting of attorneys only) in order (allegedly) to help resolve the crisis, but - nothing changes.
Over time, some measures (or, rather, half-measures) were introduced to improve the situation, but, as it is now, representation of the indigent in criminal and Family Courts in the State of New York is - one word - horrible.
Criminal defendants are deadly afraid of assigned counsel, and for a good reason. Public defenders, as well as assigned counsel are usually overloaded and underpaid. Throughout my career as a legal assistant and an attorney, since 1999, I have never seen an assigned counsel make a motion, and very rarely an assigned counsel would conduct discovery - and only paper discovery.
The usual way of representation by assigned counsel is - waiver of defendants' rights at the outset, without even telling the defendants they had the rights that are waived by the assigned counsel to begin with.
Often the deficiencies in indigent criminal defense are explained by lack of funding.
So, I decided to look as to what are the sources of funding for indigent defense and if the situation is as bad as it is presented.
While looking for information about funding of the indigent legal defense, I came across an extremely interesting document: a fairly recent report by the New York State Comptroller about revenues from town and village justice courts - those are the courts where judges are not lawyers and where judges are not required to have any minimum degree of education. I wrote about these courts several times in my blog posts describing lack of competence of judges of these courts.
Yet, apparently, these courts exist the way they do - and the State does not really want to overhaul them - because - BECAUSE - these courts are a major revenue producer for the State and local governments.
I will run a separate blog posts, or, most likely, several blog posts, about the Comptroller's report.
At this time, I would like to point out just two numbers:
25 million and 50 million
25 million dollars - is the revenue that the justice courts provided, from conviction fines and surcharges, to the State of New York Indigent Legal Defense Fund (that was as reported in 2009);
And, it was recently reported that over a 6-year period New York State took 50 million dollars OUT of the Indigent Defense Fund, considering it as being "in the black" and having a surplus. That was twice the yearly revenue the Fund received from the justice courts.
All explanations by the State of New York that ILDF is "in the black" and does not really need the money taken out of ILDF are profound lies.
ILDF cannot possibly be "in the black" to the point of being able to allow the State of New York to raid the fund and take $50 million dollars over 6 years - because over the same 6 years multiple lawsuits have been filed against counties and against the State of New York by various people and organizations claiming that indigent legal defense in New York is inadequate and underfunded.
By the way, the Indigent Legal Defense Fund itself claims as one of its goal - provision of COST-EFFECTIVE assigned legal defense.
What is COST-EFFECTIVE criminal defense, is well known - it is what we have now, when assigned counsel simply DO NOTHING. That is extremely cost effective, because if - God forbid - assigned counsel would do anything more than show up at appearances, there will be no money to cover that representation. So, while the State of New York pays lip service as to its efforts to resolve the crisis of indigent representation, in reality, New York state is robbing the fund created to help the poor receive adequate legal representation by simply taking the money (provided by the already convicted poor people) for other means.