Sunday, February 22, 2015

New York State of the Judiciary 2015 - the disaster of the criminal "Gideon" unveiled


At the NY State of the Judiciary 2015 address the Chief Judge of the NYS Court of Appeals Jonathan Lippman made a flowery speech that New York is on the way to implement constitutional rights of criminal defendants to counsel established long time ago by the U.S. Supreme Court.



This part of Lippman's speech is more scary than inspiring.

First, an individual had to sue the State of New York so that the State of New York would wake up and recognize a systemic problem of continuous violations of the fundamental constitutional right of indigent criminal defendant in the State of New York for effective legal representation at every stage of criminal proceedings.


Think about the amount of money the State of New York spent on legal representation in a case where it FINALLY admitted existence of a systemic problem.

I do not find this situation inspiring.

Furthermore, the settlement agreement covers only 5 counties out of 62 counties of the State of New York.  

Thus, other 55 counties at this time may continue NOT providing assigned counsel at arraignment, providing assigned counsel with unmanageable caseloads, and failing to monitor competence or actual effectiveness of the work of defense counsel for the indigent, whether through the public defenders offices, legal aide or assigned counsel program.

There is an interesting concession in the agreement.  "Incident" or "sporadic" failures of counsel to appear for the indigent defendants will not be considered a breach of the agreement.  And, with the exception termed in such broad language, I am sure this exception can be used as a loophole to swallow the entire rule and obligation to provide effective assigned counsel at arraignments.


A disastrous figure that the settlement (but not Lippman) cited was over 500 and, in some counties, over 700 cases as caseloads of public defenders.  Such caseloads are completely unmanageable and constitute a constructive denial of meaningful legal representation.

All in all, it can be deemed that in counties with such caseloads on public defenders, legal defense of indigent criminal defendants is non-existent, and all convictions ever made under such circumstances should be instantly vacated and reversed.  Will the State of New York make this huge step?  I highly doubt it.


Such a rule does not exist for malpractice in civil cases, the botched civil case does not have to be reversed for the right to sue for malpractice to arise.

Why does this rule exist?

Obviously, to insulate criminal defense attorneys from any malpractice liability for botched up cases.

Since appellate courts, as a matter of policy, affirm practically 99.9% of criminal appeals, and since the standard of "effective assistance of counsel" set by the court is extremely low, the chance of overturning the conviction in order to satisfy the "criminal defense malpractice rule" is next to zero.

And apparently, this court policy exists to absolve the overworked public defenders from malpractice liability, even though, with 700 cases per attorney, it is obvious that they cannot possibly provide proper legal representation - and should decline accepting cases where they cannot provide such effective representation.

So, the solution that the "spectacular" and "absolute best" New York judiciary has so far found for the staggering problem of ineffective assistance of criminal defense counsel for the indigent because of excessive caseloads is - while not relieving the caseloads - invent a way to block criminal defendants from suing their public defenders for accepting cases where they knew they could not possibly provide effective legal representation - and, predictably, botching the cases.

Thus, indigent criminal defendants in New York are hurt several times - by not being given assigned counsel at arraignment, by being given overworked and underfunded assigned counsel, and then by being blocked from suing his or her assigned counsel for malpractice due to predictably botched representation resulting in a conviction that is impossible to overturn due to courts' policies of priority of finality over fairness.

And existence of such "policy" approaches to resolution of constitutional problems in New York courts is the real problem that Lippman did not address.

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