The Court of Appeals has reinstated a civil suit contending that the constitutional right to counsel of indigent criminal defendants in five New York counties was abridged under a system for providing representation that is funded and controlled by the localities.
However, the New York state high court concluded in its 4-3 decision in Hurrell-Harring v. State of New York, 66, that the case could go forward only to the extent that it claimed that lawyers had not appeared for the plaintiffs at crucial stages of the criminal proceedings against them or were otherwise "unavailable" to consult with their clients. It held that challenges to the performance of attorneys could only be considered in individual criminal cases after defendants are convicted.
The majority of the court found that plaintiffs in the class action filed by the New York Civil Liberties Union who were denied the advice of attorneys at arraignments and other proceedings faced the "constructive denial" of their constitutional right to representation under the landmark U.S. Supreme Court ruling in Gideon v. Wainright, 372 U.S. 335 (1963).
"The complaint ... contains allegations sufficient to justify the inference that these deprivations may be illustrative of significantly more widespread practices; of particular note in this connection are the allegations that in numerous cases representational denials are premised on subjective and highly variable notions of indigency, raising possible due process and equal protection concerns," Chief Judge Jonathan Lippman wrote for the Court. "These allegations state a claim, not for ineffective assistance under http://supreme.justia.com/us/466/668/case.htmlStrickland [v. Washington, 466 U.S. 668 (1984)], but for basic denial of the right to counsel under Gideon."
Rejecting claims that it was up to the Legislature and not the courts to decide how the poor should be defended, Lippman observed that the Court has "consistently held that enforcement of a clear constitutional or statutory mandate is the proper work of the courts ... and it would be odd if we made an exception in the case of a mandate as well-established and as essential to our institutional integrity as the one requiring the State to provide legal representation to indigent criminal defendants at all critical stages of the proceedings against them."
At the same time, Lippman emphasized that Thursday's ruling should not be viewed as a "back door" to assertions of ineffective assistance involving uniform hiring, training and practice standards.
"To the extent that a cognizable Sixth Amendment claim is stated in this collateral civil action, it is to the effect that in one or more of the five counties at issue the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet because of systemic conditions, not by reason of the personal failings and poor professional decisions of individual attorneys," Lippman wrote.
The plaintiffs sought a declaration that their right to counsel, guaranteed by Gideon, had been violated. They requested an injunction against what they described as a politically unpopular, largely unfunded and poorly regulated mandate on local governments that imposed on poor defendants an unacceptable risk of receiving inadequate representation.
Judge Eugene F. Pigott Jr., writing for the three dissenters, said the majority was, in effect, giving standing to ineffectiveness-of-counsel claims in a civil action, despite the majority's contention to the contrary.
"Such claims are limited to a case-by-case analysis and cannot be redressed in a civil proceeding," Pigott wrote. "Rather than dismissing that claim, however, the majority replaces it with a 'constructive denial' cause of action that, in my view, is nothing more than an ineffective assistance claim under another name."
Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo and Theodore T. Jones Jr. joined Judge Lippman in the majority.
Judges Robert S. Smith and Susan Phillips Read joined in Judge Pigott's dissent.
The case was originally filed in Albany Supreme Court, which declined to dismiss the suit.
ACCESS TO ATTORNEYS
The ruling overturned a 3-2 Appellate Division, 3rd Department decision last summer that dismissed the case because the plaintiffs had failed to state a cause of action (NYLJ, July 17, 2009). It sends the case back to the 3rd Department for consideration of issues not determined by that court.
The NYCLU brought the suit on behalf of 20 plaintiffs who were prosecuted, mostly for low-level offenses in Onondaga, Ontario, Schuyler, Suffolk and Washington counties. The group alleged that 10 out of 20 plaintiffs were not represented by counsel at arraignments and that virtually all defendants complained of problems talking to their lawyers, getting calls returned or otherwise communicating with their attorneys when their cases were pending.
NYCLU attorney Christopher Dunn said Thursday that his group believes that problems alleged by the plaintiffs, such as defendants not being represented at arraignments, are "pervasive" in the state.
"It is certainly a landmark ruling in New York, if not nationally," Dunn said of the decision. "It reinstates the case entirely for our purposes and recognizes that if we can prove our facts, we are going to be entitled to sweeping relief and we think we can prove our facts."
Norman Reimer of the National Association of Criminal Defense Attorneys said the ruling finds broader protections for criminal defendants against poor representation in New York under Gideon than under Strickland.
"The truly lasting import here is that the principle has now been recognized that you don't have to wait for each person to get convicted wrongfully, that the right to effective assistance of counsel is broader than a Strickland claim," said Reimer.