WASHINGTON – Many studies have documented nationwide problems with indigent criminal defense, but a new report, saying reforms are more urgent than ever, recommends that defenders reject new cases when faced with excessive caseloads; lawsuits seeking systemic reforms should be filed when other options fail; and appellate advocates and others should press the courts for a new test for determining ineffective assistance of counsel.

The Constitution Project’s National Right to Counsel Committee, formed in 2004, Tuesday released its examination of whether criminal defendants and juveniles charged with delinquency receive adequate legal representation when they cannot afford to hire lawyers, and its recommendations for achieving lasting reforms.

The committee, whose members share judicial, prosecution, defense, academic, law enforcement, policymaking and victim experiences, reported that although there has been considerable progress since the U.S. Supreme Court’s landmark right-to-counsel ruling, Gideon v. Wainwright, 372 U.S. 335, in 1963, the evidence is “overwhelming” that jurisdictions that have done reasonably well in the indigent defense area are in a distinct minority.

Read the committee’s report.

“In most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources,” the report states.

Among its recommendations for systemic reforms, the committee called for the following:

• Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.

• Prosecutors should adopt open-file discovery policies in order to promote the fair administration of criminal and juvenile justice.

• When indigent defense systems require attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.

• The U.S. Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), which established a two-pronged test for determining ineffective assistance of counsel should be replaced by a straightforward test: Has the accused received “competent” and “diligent” representation, as required by the rules of professional conduct adopted by the legal profession? The current test also requires that defendants show that they have been prejudiced by incompetent representation.

• The federal government should establish an independent, adequately funded National Center for Defense Services to assist and strengthen the ability of state governments to provide quality legal representation.

• Federal financial assistance through grants or other programs as provided in support of state and local prosecutors should also be provided in support of indigent defense, and the level of federal funding for prosecution and defense should be substantially equal.

• States should establish a statewide, independent, nonpartisan agency headed by a board or commission responsible for all components of indigent defense services. The board or commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel.

New York Issues

Jonathan Gradess, executive director of the New York State Defenders Association, said the report indicates that 43 other states have statewide or semi-statewide governmental structures that give indigent defense services providers independence from the courts and prosecutors in their states. Mr. Gradess is one of the leading voices for creation of an independent statewide commission to oversee indigent criminal defense services in New York.

New York provides defense services to the poor on a county-by-county basis. Critics say the system is wildly uneven, depending on the services and resources available in each county.

“New York stands out in the report as having done squat,” Mr. Gradess said yesterday in an interview.

The Legislature did not appropriate the proposed $3 million in the 2009-10 state budget approved in early April for preliminary funding toward creating a statewide criminal defense commission, but Mr. Gradess and Assemblywoman Helene Weinstein, D-Brooklyn and chairwoman of the Assembly’s Judiciary Committee, both said there is an understanding among legislators and Governor David A. Paterson to continue discussions about the issue.

“It got put off-budget with a commitment to work on it by the end of the session,” Mr. Gradess said.

Included in the budget was a provision directing chief state Administrative Judge Ann Pfau (See Profile) to establish by April 1, 2010 caseload limits for attorneys providing criminal legal services for the indigent in New York City by April 1, 2010 (NYLJ, April 6).

The caps are to be phased in by 2014.

Steven Banks, attorney-in-chief of the Legal Aid Society of New York City, said 81 percent of his attorneys now have caseloads in excess of non-binding limits adopted by the Appellate Division, First Department in 1995. Mr. Banks said that the problem is exacerbated by the fact that Legal Aid, under its contract with the city, cannot refuse any cases it is assigned.

The New York Civil Liberties Union is pursuing a legal challenge to the criminal legal services system as unconstitutionally inadequate (NYLJ, Nov. 11, 2007).

The Appellate Division, Third Department is expected to rule in the next several weeks about whether Hurrell-Harring v. State of New York can proceed. Meanwhile, Supreme Court Justice Eugene P. Devine in Albany County is scheduled to hear arguments next week on whether the plaintiffs in the action should be granted class-action status, along with other issues.

The right-to-counsel committee’s honorary co-chairs are former vice-president Walter F. Mondale, who, as the then-attorney general of Minnesota, organized an amicus curiae brief joined by 23 states on behalf of Clarence Earl Gideon. The other is former FBI Director and U.S. District Judge William S. Sessions. The committee’s co-chairs are Timothy K. Lewis, a former U.S. circuit court judge; Rhoda Billings, a former chief justice of the North Carolina Supreme Court; and Robert M.A. Johnson, chief prosecutor of Anoka County, Minn., and a former president of the National District Attorneys Association.

Marcia Coyle is a staff reporter of The National Law Journal, an affiliate of the New York Law Journal. She can be reached at Marcia.Coyle@incisivemedia.com. New York Law Journal reporter Joel Stashenko contributed to this story.