Lawyer Christina Cagnina wanted to make the criminal justice system better when she started participating in a program in Onondaga County, New York, to represent those who cannot afford legal representation. But after 14 years, she felt she couldn’t anymore under her county’s system. Individuals might spend days in jail before defendants even made contact with her. Defendants who were low flight risk were sent to jail while they waited for trial, because lawyers missed arraignments altogether.
Days in jail would become weeks, months, and years for many defendants, who become significantly more likely to eventually plead guilty or be convicted once they are stuck in jail pending trial. That’s because the power dynamic shifts. Clients have little access to resources behind bars. And jail is used as “ransom” to extract plea deals, as National Association for Criminal Defense Lawyers’ Norma Reimer put it last year.
A new report from the New York Civil Liberties Union reveals that defendants who can’t afford a private lawyer routinely appear at arraignments without a court-appointed counsel in several counties, despite a New York court ruling that held the right to a lawyer applies at that phase of the case. When lawyers do enter an indigent defendant’s case, they have felony caseloads up to five times the maximum loads recommended by experts and bar associations. In Suffolk County, appointed lawyers did not consult experts in a single case they handled. And in Onondaga County, the funds spent on prosecutor investigations is nearly 35 times the money devoted to investigations for criminal defendants:
For Lane Lozell, accused of stealing $20, time in jail meant losing his job. Not having a lawyer at his arraignment meant he was sent to jail pending trial when he was not able to afford the $2,500 bail. And being in jail pending trial meant he could not even make contact when his lawyer when he had one. After months of not hearing from his lawyer, he pleaded guilty to three months in jail to end his incarceration.
James Adams also lost his job. He had a lawyer in a case accusing him of stealing deodorant from a drug store, but he couldn’t reach him from behind bars. When he used his jail phone calls to try to reach his attorney, his voice mailbox was full, and his office did not accept collect calls. Even after hints from the judge that Adams had been overcharged with felony burglary and robbery, Adams’ lawyer did not file a motion to dismiss — until the judge ordered him to do to so.
Ray Robinson was arrested after his girlfriend reported that she had threatened to kill him. After getting a call from the police, he voluntarily appeared at the police station because he knew he was innocent. But when he got there he was arrested and placed in a holding cell, his phone confiscated. Robinson’s lawyer urged him to plead guilty to a felony, but for months, Robinson urged his lawyer to just look at the text messages on his phone. When Robinson finally convinced the judge to review the evidence, both the prosecutor and public defender looked at his text message, and agreed that Robinson was guilty of nothing more than a violation warranting a fine. “Half a year of court proceedings could have been avoided if Robinson’s attorney had looked at one single piece of evidence — the text message on Robinson’s phone,” the report explains.
Lawyers in several of these cases arguably fell short of their constitutional duty to provide effective assistance of counsel. But they don’t have the time or the resources to do otherwise. Cagnina recalled numerous times when a client sat in jail for days because no one contacted her office to tell her about an arraignment before a long weekend. “If a person had a private attorney, they’d be able to get ahold of them right away,” she said. Cagnina, who worked in Onondaga County, said it was “next to impossible” to get investigators who would work on her cases because of the “miserably low compensation rate.”
“I was never able to represent people the way I wanted to or the way the Constitution required,” she said. The NYCLU’s Corey Stoughton said lawyers are “overwhelmed by hundreds more cases than any person, even a superhuman lawyer, could handle.”
This is nothing new for New York. Eight years ago, a commission appointed by the state high court’s chief judge found that the indigent defense system was in crisis, and that “the right to the effective assistance of counsel, guaranteed by both the federal and state constitutions, is not being provided to a large portion of those who are entitled to it.” As a result of that report, the state formed the Office of Indigent Legal Services, which has been aiming to oversee a county-by-county system for assigning lawyers to those who can’t afford them.
The New York Civil Liberties Union also filed a lawsuit in 2007 to challenge the system in the several counties highlighted in this report. That lawsuit is scheduled to finally go to trial next month, and is being deemed the first of its kind by NYCLU. The U.S. Supreme Court held in 1962 that defendants who cannot afford a lawyer are entitled to have one appointed. But in the years since, report after report has suggested that right is illusory only.
Authorities around the country have recognized that the public defense system is inadequate. Last year, the Department of Justice intervened in a Washington state case challenging the indigent defense system, and declared that the right to counsel is in “crisis.” The federal judge in that case agreed with plaintiffs that lawyers who spend less than an hour per case amount to little more than a “warm body and a law degree.” In other jurisdictions, some lawyers have between 7 and 32 minutes per case.