Here is how the bill was passing through New York State Senate, to see the full text of the bill, check the box "text" when you follow the link
The bipartisan bill was introduced, and passed through both chambers of the New York State Legislature, in response to a settlement in a class action against several upstate counties that could not provide counsel to indigent criminal defendants at arraignments.
Instead, a month ago Cuomo signed into law another bill providing for a "group counsel" at arraignments - who will perfunctorily appear at arraignments of all criminal defendants horded into one court and will trigger for them the time for discovery and motions, while providing no meaningful assistance, since the measure did not provide additional funding and would not relieve the overload.
It is apparent that Cuomo's signing one bill, but vetoing the other, was based on at least two major considerations:
- money; and
Apparently, Cuomo did not want the State of New York to fund criminal defense out of its own budget, and preferred to continue to saddle counties - and through counties, homeowners - with the criminal defense funding, even though, as the settled class lawsuit showed, and as numbers of New Yorkers running from the state lately (because of high property taxes) keep showing, funding criminal defense through taxes upon homeowners is a bad idea:
- both for homeowners who cannot afford it and prefer to leave the state rather than remain and lose their homes through inordinately high taxes, and
- for criminal defendants who
- do not get properly funded criminal defense, and
- who continue to get assigned counsel who are dependent upon the presiding judge for handouts of future assignments, and, because most judges are pro-prosecution and consider discovery, motions and pre-trial hearings that assigned counsel may ask for an unnecessary nuisance, assigned counsel who would pester a judge with motions and requests for pre-trial hearings, most likely will not get further assignments - it happens all the time in New York.
- allowing representation by an unlicensed counsel of the criminal defendants' choice, and
- creating an independent State Public Defenders' office with its separate budget - same as prosecutor's offices with a budget, and/or
- voucherizing assigned criminal defense - giving the criminal defendant a voucher to choose his/her own criminal defense representative (licensed or unlicensed), for the exact same amount of money per hour, irrespective of education, training, licensing or certification.
- routinely do not ask for a felony hearing within 144 hours of detention of their indigent client, thus:
- depriving their indigent clients of an opportunity to be released from jail for free, without bail;
- depriving their indigent clients of an opportunity to get information in felony cases at the earliest stages of the case, when the prosecution did not yet have time to coach their witnesses as to how to lie under oath;
- routinely do not ask for discovery; and
- routinely do not make motions, especially motion to disqualify the prosecutor or the judge for misconduct or bias, or to dismiss, or for any other numerous reasons that an omnibus motion in a criminal case may be brought;
- routinely do not make necessary objections at trial, making appeals impossible.
DiFiore's office was also in cohouts with assigned counsel (I have proof) in order to sell out the client and have the client plead guilty to bogus charges - and do it quickly, before an independent counsel would come in.
Of course, giving indigent criminal defendants vouchers to choose their own counsel will eliminate the sinecures where assigned counsel are assigned, at $75 an hour, for contributions to the judicial election campaign, or for wining and dining the judge, or for giving jobs or recommendations to judge's relatives or friends, or to those attorneys who will silently agree with the implied requirement to do nothing for their client and multiply convictions, so that the DA himself will become a judge, running on the usual platform of "being tough on crime".
Instead, those who truly do their job for their clients - whether they do or do not have the necessary approval from the judiciary through either licensing or assignments - will be able to provide representation in court, whether the presiding judge, or the state judiciary, or the connected attorneys in the attorney disciplinary committees appointed by the judiciary, like these court representatives or not.
Voucherization of the criminal defense, coupled with allowing unlicensed individuals to provide representation in court, will eliminate a lot of corruption in courts - and especially because unlicensed individuals may not lose a license, and thus be sanctioned for raising the "sensitive" issues on behalf of their clients (such as police, prosecutorial and/or judicial misconduct) that the fear-seized defense bar at this time will not raise, for self-preservation reasons, for fear to lose their licenses and livelihoods, completely controlled by the judiciary.
- anti-requirement of constitutional effective assistance of counsel;
- anti-settlement decision requiring New York to comply with the 6th Amendment right to counsel for indigent defendants;
- anti- Johnson v Avery, because, if the State of New York cannot properly fund indigent criminal defense, it cannot enforce its attorney regulation and prohibit representation of criminal defendants by unlicensed court representatives of their choice - and especially that people under New York law are PRESUMED to know the law; and
- anti-homeowners who are already losing their homes in tax foreclosures in order to fund financial mandates put upon counties, including the criminal defense funding mandate
Here is the official funding request/budget by New York State Courts for 2016-2017:
Nearly 80% of people unable to afford an attorney to represent them in those courts, and the Chief Judges of the State of New York repeatedly lament the justice gap and, as the former Chief Judge Jonathan Lippman said in one of his addresses to graduating law students where I was personally present, we should close our courthouses if we cannot provide proper access to justice to the poor.
Yet, courthouses, marble, granite and all, built by graft and evidence of shamelessness of the State judiciary, lavishing upon taxpayer money in the time of ongoing budgetary crisis and the "justice gap", are very much open. To rich litigants.
And judges and prosecutors received their salary raises to sit like kings on thrones - and wields kingly power - out of those marble taxpayer-backed palaces - and do it with disdain to the poor.
And, salary increases, and renovations of marble palaces for the judiciary are happening while close friend of the Chief Judge Governor Cuomo nixes the bill that would have give the necessary funding to provide constitutionally required court representation for the poor in criminal court.
Salary increases, by the way, were given to judges because judges claimed that they are entitled to raises of their salaries to $200,000 as a compensation for having to preside over cases of pro se litigants, in other words, of the poor (who are supposedly dumb and their dumbness affects the judges' tender sensibilities, requiring salary increases as a compensation for additional stress). And, they get what they wanted.
Yet, only 25 million dollars out of the entire budget of over $2 billion dollars is requested in the New York State court budget for the indigent defense fund - while the State Legislature, through a the bill that passed both House and Senate, and died by veto at the hand of Cuomo, friend of New York Chief Judge DiFiore - indicated that $800,000 - instead of $25,000 provided in the court budget - is needed.
The remaining $775,000 will be paid by New York homeowners, some of whom will lose their homes if they are unable to pay.