Andrew Cuomo's New Year's Eve veto on the criminal defense act and the need for deregulation of the legal profession

On New Year's Eve, New York State Governor Andrew Cuomo has dealt a blow to a bipartisan bill seeking to ensure constitutionally required effective assistance of counsel for criminal defendants and removal of funding for such criminal defense from counties to the state, see, for example, an article about the New York State House passing the bill.

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
• power.

The vetoed bill would have required to shift at least a part, if not all, funding of indigent criminal defense in the state from counties that have to raise property taxes and foreclose on homes of people who cannot pay them in order to satisfy the mandate to fund criminal defense.

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.

So, money and power.

Yet, the solution is quite on the surface - it is already contained in the U.S. Supreme Court decision Johnson v Avery of some 48 years ago, and was developed and pointed out by professor Ilya Somin last year - it is:

• 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.

This way, assigning counsel to indigent criminal defendants will be removed from the power of presiding judges, will stop being the "stick-and-carrot" of the local criminal defense bar, and will allow indigent defendants to have court representatives of their choice, those who truly work for their clients, and not those who are favored by a certain judge for reasons unrelated to their performance.

Yet, many judges consider choosing attorneys for the poor, and thus holding the local bar on a financial leash, as their own important personal perk - I've heard that many times from the recently retired Judge Becker who yelled at my clients that they will either have the judge choose their assigned counsel for them, or, if they choose me as counsel retained with their friends or extended family's money, the judge will not allow them money for experts and investigators, even though they do qualify for it under the law.

Lawsuits against judges based on such "selective assignment" process universally get dismissed by federal courts on "absolute judicial immunity" grounds protecting the judge from liability for malicious and even corrupt acts in the assignment process - where assignments may be granted out for election campaign contributions or behind-the-scenes agreement with the judge (who is usually a former prosecutor) that the assigned counsel will not raise too much waves in defense of his/her client and will allow the prosecution the boon of at least some conviction, whether it was warranted by the law and the facts of the case or not.

Such assigned counsel usually:

• 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.

When an indigent criminal defendant is then convicted as a result of neglect or a complete sellout by the assigned counsel who was concerned more about his/her own future assignments from the same judge and from other judges, than doing their duty for their client, New York state law then protects the assigned defense attorneys, and not their clients/victims - by not allowing their clients to sue them for malpractice unless they overturn the conviction (a near impossibility), the very conviction that would not have happened but for the assigned counsel neglect or sellout.

And, appellate court are extremely liberal in deciding what conduct of a criminal defense attorney constitutes, or does not constitute constitutionally acceptable representation, in order not only to have the conviction stand, but also to protect the assigned counsel favored by the judge from liability.

As a contrast, an attorney in a civil case in New York can be sued for malpractice without a prior condition that the court decision that was the result of the attorney's malpractice be first overturned. 

Putting a member of the County's establishment who, most likely, will consider the wishes of judges anyway in order to assign counsel - like the Onondaga County did a little earlier than Cuomo vetoed the bill - will not provide to indigent defendants either a court representative of their choice, or a skilled or independent court representative, for a simple reason.

The person "chosen" to head the "program" of assignment has been entrenched in the county for 17 years, Kathleen Dougherty, represented the County as its deputy attorney, and was thus part of the problem with providing counsel for indigent criminal defendants which resulted in a class lawsuit, and was part of the problem with selectively racist solitary confinement of juvenile delinquents in the County that is now challenged by a new class lawsuit by NYCLU.

Putting the fox in charge of the chicken coup is never a good idea.

Cuomo is a personal friend of New York Chief Judge Janet DiFiore, a recent prosecutor whose office is so entangled with the local judicially that her Assistant District Attorneys handled plea allocutions and recited waivers of constitutional rights instead of the judge - despite challenges of such practices in motions (I personally filed such a motion on behalf of a client, seeking to disqualify DiFiore's office because of that, and other misconduct).

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.

DiFiore, as a prosecutor, is aware of the usual incestous relationships of the District Attorneys with presiding judges, who usually assign, following DA's lead, direct requests or "good relationships" with the judge, attorneys who would not put up a fight on behalf of their clients, or who would simply sell them out - thus helping prosecution.

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.

It is apparent that Cuomo's veto is:

• anti-fairness;
• 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

but

pro-preservation of judicial control of the identity of court representatives for the criminal defendants.

It is apparent that the legal establishment, and Cuomo is part of it, will not cede its grip on putting indigents, and minority indigents, in jail by controlling who is allowed to represent the poor and how such representation will be funded.

I understand that there are budgetary concerns as to how the state will fund criminal defense for the indigents.

Yet, there were no budgetary concerns this year for dramatic raises in salaries for both judges and prosecutors, raises that were voted for by attorneys whose financial well-being is dependent on the judiciary, and who were thus disqualified by their partiality from legislating on the subject.

In the triangle of prosecutor-judge-defender - the defender is the only one whose office was not established and whose salaries were not tied to judicial salaries and were not raised.

Here is the official funding request/budget by New York State Courts for 2016-2017:

Nearly 2 billion dollars for the court system.

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.

Meanwhile, Governor Andrew Cuomo repeatedly finds money for pet projects of his various rich friends - the friends who Preet Bharara keeps investigating and catching, without touching Cuomo himself.

That money should be instead channeled for criminal defense.

If at least some of the funding burden is lifted off New York State's homeowners, maybe they will have an incentive to stay instead of leaving the state in droves.

As it is now, Cuomo's veto perpetuated New York's ongoing violations of indigent criminal defendants' 6th Amendment right to effective representation of counsel.  

It was done allegedly out of budgetary concerns - so the $800 million dollars that the indigent criminal defenses could, but did not receive from state budget, will be squeezed out of homeowners, to the point of foreclosure and sale of their homes and leaving them homeless.

Great measure and great motivation, Governor Cuomo.

Additionally to be thrown out of their homes because they cannot fund the County's mandate for indigent criminal defense, New York taxpayers will also have to pay now for more 6th Amendment violation lawsuits.  

And settlements in such lawsuits may amount to more than the needed funding for the voucher/State Public Defender office.

I bet, under such circumstances, the exodus from New York State will continue.