The following remarks were delivered by Southern District Judge Lewis A. Kaplan on his acceptance of the Learned Hand Medal of the Federal Bar Council on April 30, 2009.

We are gathered this evening primarily to pay tribute to the memory of Learned Hand. Probably no other judge in our history has been as universally respected and revered. So words cannot express how honored, how grateful I am to receive an award in his name, let alone the deep sense of humility that I feel on this occasion . . . .

I want to take a few moments tonight to discuss a problem that faces all of us as lawyers and judges, and I will begin by taking you back to July 16, 1991.

A Case: It was an ordinary summer day in New York. It was hot, topping out at more than 90 degrees. The Mets and Dwight Gooden beat San Francisco at Shea that afternoon. By late that evening, it was still 80 degrees and it was muggy. Three men double-parked in front of an apartment building in the Bronx and went into the courtyard. Shots rang out. A man named César Vasquez fell dead. The men fled. But the central focus of this story is not César Vasquez. It is a man named José, who was a Dominican who had been living illegally in New York.

Some time before the Vasquez murder, José left on a trip back to the Dominican Republic. He was arrested in Los Angeles a couple of weeks after the Vasquez murder when he tried to return to the United States. Still later, he was charged with the Vasquez murder.

At trial, the principal witness against José was a woman who said that she saw José and the others get out of the car that night and then, moments after the shooting, saw all three run out of the courtyard. Pretty persuasive stuff, until you get to the cross-examination. First, the woman admitted that she initially had picked a different man out of the police lineup. Then she admitted that she had been on Valium on the night of the murder. And finally, she admitted that she was on thorazine, an anti-psychotic drug, during the trial. But the jury was not impressed. José was convicted and sentenced to 25 years to life.

If that were the end of the story, it would be no different from hundreds of stories that we all have heard over the years. A terrible crime. A defendant convicted on shaky evidence. A long jail term. But that’s not the end of the story.

You see, we now know that José had been arrested in the Dominican Republic on the day before César Vasquez was murdered. He remained in the Dominican jail until the next day, just nine or 10 hours before the killing in that Bronx courtyard. The short time interval between his release from the Dominican jail and the time of the Vasquez murder would have made it at least difficult, and perhaps impossible, for José to have gotten from the Dominican Republic to the Bronx in time to commit the murder. Furthermore, many people saw him in the Dominican Republic on the night of the murder and in the days that followed. Yet the jury never heard any of this. The only hint the jury heard of José’s alibi was the testimony of a woman who said she had spoken to José on the phone shortly after the murder and that José had been in the Dominican Republic when she spoke with him. But that witness admitted on cross-examination that she had not placed the telephone call. So she had no way of knowing for sure where José really was when she spoke with him. As the prosecutor said on summation, for all she knew, he could have been in a bar on Southern Boulevard.

Fortunately, José finally had a stroke of luck, although not until years after he went to prison. One of the great law firms of this city eventually took on his case. It put heart and soul into it and ultimately won a writ of habeas corpus. José was released from state prison after 15 years, possibly, in fact probably, for a crime he did not commit. But perhaps the greatest tragedy is that José is not alone.

We know from the Innocence Project that 237 people have been exonerated by DNA evidence alone of crimes for which they were convicted and sentenced. 1 So we now know with scientific certainty what many have suspected for years. Our criminal justice system, no different from anything else that depends on inherently fallible human beings, makes mistakes. How many? No one knows. But consider this. In 2008, the number of persons incarcerated in the United States substantially exceeded 2 million. 2 So if even one in 1,000 of those inmates was convicted mistakenly, there are more than 2,000 people behind bars in this country for crimes they didn’t commit. I’d like to talk to you this evening about two reasons that such things happen and what can we do about it.

Quality of Representation: As for how such things can happen, we can start with José’s case. We now know the details of what happened during that case because there was a hearing years later on José’s habeas corpus petition in which José’s lawyer and other witnesses gave evidence.

José was represented in the murder case by a lawyer retained by José’s family. The lawyer, of course, knew that José claimed that he had been in the Dominican Republic at the time of the murder. He knew also that a number of witnesses were prepared to testify that José had been in the Dominican Republic on the night of the murder. But the lawyer admitted in the habeas corpus proceeding that he did not interview any of those witnesses except for the woman who testified at trial about the phone call to José.

We know too, from papers in both the original murder case and in the habeas proceeding years later, that the lawyer who defended José at trial had copies of Dominican police documents attesting to José’s arrest in the Dominican Republic on the day before the murder and to his release on the afternoon of the day on which the murder took place. At the murder trial, the lawyer told the judge, outside the presence of the jury, that he wanted to offer the Dominican documents into evidence. The judge questioned whether they were admissible and asked the lawyer to brief the issue. But no brief was filed, and the documents were not offered into evidence.

So that’s how José was convicted of a murder that took place in the Bronx when he quite likely was in the Dominican Republic. The documents and witnesses that made out a strong alibi never were offered in evidence.

The sort of legal representation that José received at his murder trial probably happens more than we’d like to admit. There are at least three reasons for it.

The first is economic. A competent criminal defense can cost a lot of money. Some individuals facing criminal charges scrape up whatever they can to hire a lawyer. Too often, however, the fees they can pay, if they can pay any at all, are not enough to support a minimally adequate defense. In other words, some defendants probably are convicted because they can come up with just enough money to hire a lawyer to try the case, but not enough to pay for a thorough investigation, to hire an expert witness, or to do whatever else might be essential to a proper defense in their particular cases.

The second is informational. Many persons charged with crimes lack the information and the knowledge to distinguish between good and not-so-good criminal defense lawyers.

Third, there can be an issue of lawyer competence. Anyone who has passed the bar is permitted to take on a criminal defense, no matter how serious the charge, provided only that the client is agreeable. But graduation from law school and passing the bar do not qualify a lawyer to defend criminal cases, at least serious criminal cases. If we are honest with ourselves, I think we have to admit that this too is a problem that occurs more than it should.

The Broken Promise of ‘Gideon,’ the Indigent Defense System: Thus far, I have been talking about problems that affect some criminal cases defended by privately retained lawyers. But only a small minority of criminal defendants have enough money to hire their own attorneys. Ever since Gideon v. Wainwright, 372 U.S. 335 in 1963, most are represented by court appointed lawyers at public expense. But despite the fact that nearly 50 years have passed since Gideon, our system of providing lawyers to the poor in criminal cases is overworked, underfunded and, in important respects, simply not working.

The brightest star in a pretty cloudy sky is the federal system. In federal cases, we use two sources to provide counsel for those too poor to hire lawyers. The first is federal defender organizations, which have salaried lawyers on staff who are appointed to represent indigent defendants in almost all federal district courts. 3 In addition, federal courts use private lawyers who are members of panels appointed in each district under the Criminal Justice Act, or CJA. On the whole, we are moderately well served by these providers, especially here in New York City, but all is not well even in the federal system.

First of all, the compensation of the private lawyers who take on indigent cases is woefully inadequate. CJA lawyers are paid only $110 an hour in non-capital cases, which is about half the hourly rate that they charge their private clients. 4

We are fortunate in having many dedicated and able private lawyers who accept CJA appointments, especially here in New York City. But we have to face the fact that virtually every lawyer who even considers joining a CJA panel must think about the opportunity cost of taking on indigent cases instead of higher paying, private clients. And that points to an even more troubling possibility – that some private lawyers who serve on CJA panels, at least in some places, are not up to the job.

This is not an abstract concern. A recent study of the comparative performance of lawyers with federal defender organizations, on the one hand, and CJA panel attorneys, on the other, in three districts outside New York showed that defendants represented by CJA panel attorneys were more likely to be found guilty and more likely to receive longer sentences than defendants represented by federal defender organizations. 5 Why that is so is somewhat uncertain. But the data certainly suggest at least some of the reasons. On average, the CJA panel attorneys in the districts that were studied had less experience and went to lower quality law schools than those employed by the federal defender organizations. 6

So there is room for improvement even at the federal level, which is the relative bright spot in the sky. But there is far more to be done in state after state, and it is in the states where the vast majority of criminal cases are brought.

To begin with, the caseloads of many state defender organizations are overwhelming. They are so bad that public defenders in Florida, Kentucky, Tennessee, Maryland, Minnesota, Arizona and Missouri have begun declining new cases or have sued to gain the right to decline excessive case assignments. 7 New York and other states suffer from similar problems. For example, attorneys at the Legal Aid Society, which is the principal provider of defense services to the poor in New York City, have average annual caseloads far in excess of standards set by the Appellate Division, First Department. 8 While the Legislature this month passed a bill authorizing the adoption of rules regarding compliance with caseload standards for lawyers representing the poor, the bill applies only in New York City and does not commit the state to provide the necessary funds. 9 And the point of course is this – lawyers who are overwhelmed with too many cases cannot provide effective representation.

Second, the compensation rates for court-appointed counsel often are ridiculously low, much lower than the inadequate federal rate. Many states pay well under $100 per hour, some as low as $40 per hour. To give you two examples, New York pays $75 per hour in felony cases up to a cap of $4,400, though the cap may be waived in extraordinary circumstances. Virginia pays $90 per hour, but restricts per-case payments to $1,235 for cases punishable by more than 20 years in prison and to $445 for all other felony cases, also subject to waiver. 10 Stop and think about that for a minute. It means that Virginia, absent a waiver of the statutory cap in a particular case, pays for no more than 13 and a fraction hours of lawyer time to defend felony cases that can result in more than 20 years in prison and less than five hours for other felony cases. While some lawyers accept these rates and at least some presumably perform adequately, we must ask ourselves whether that is common or whether, instead, the defendants who are represented by lawyers under these systems get what the Gideon case held our Constitution guarantees.

Third, state indigent defense systems often fail to ensure that appointed counsel are even minimally qualified to provide effective representation. To take New York State as an example, the Legal Aid Society here in the city does have training programs. But while a few public defender and legal aid programs upstate provide some training, many offer little or none and lack the money to send their people for outside training. 11 And the situation in other states often is as bad or worse. 12

Solutions: I could go on. But the overall point is clear. We pride ourselves on the American system of justice, and we have much to be proud of. But we do not have a right to be smug or complacent. Our system of defending the poor is in a state of crisis in many parts of the country. We must respond to that crisis.

A good first step would be for the federal and state courts to adopt a system of certification for criminal defense lawyers, a system with some real teeth in it. A meaningful certification system at least would tell paying clients – in other words, those who have a choice of defense lawyers – whether a lawyer whom they are considering meets minimal standards of training and competency. We should consider limiting the defense of felony cases to lawyers certified in criminal defense and trial practice.

And that’s not all we can do. We need a system that requires the reporting of cases of arguably substandard criminal representation followed by an investigation of the circumstances. Where appropriate, lawyers who clearly fail their clients ought to be stopped from defending criminal cases, at least until they can demonstrate that they have become equal to the job.

A second step would be to pay the lawyers whom we appoint to defend the poor enough to attract a greater number of able advocates and to compensate those lawyers fairly for devoting the time and attention that is essential to the effective assistance of counsel that the Sixth Amendment guarantees.

Third, we must reduce the crushing case loads under which our public defenders labor in too many jurisdictions. We cannot reasonably expect people to take or remain in these jobs when their burdens are so great that they cannot perform in a professionally appropriate way.

Finally, we must remember always that the practice of law is a profession, not simply a business. Professional life involves more than billable hours, profits per partner, and rankings on the American Lawyer charts. It involves more than providing free legal work to a charity or cause in which one happens to believe, important as that can be. The defense of the indigent is a crying need, and it is the responsibility of the bar to see that this need is satisfied.

We need greater participation by able criminal defense lawyers in defending the indigent, even where the acceptance of indigent defense assignments involves some economic sacrifice.

We need greater contribution of lawyer time and effort on an entirely pro bono basis.

We need the bar to support steps that will ensure that the level of representation afforded to criminal defendants, both those who can pay and those who cannot, meet the standard required by the Sixth Amendment

And we need strong support from the bar to help persuade our legislative bodies to spend the money that is so urgently needed to make the Sixth Amendment guarantee of the effective assistance of counsel a practical reality every day in every court in our land.

Endnotes:

1. http://www.innocenceproject.org/about/Mission-Statement.php (last visited April 27, 2009).

2. The Pew Center on the United States, “One in 31, The Long Reach of American Corrections 1″ (2009).

3. See “History of the Defender Services for the U.S. Federal Courts,” available at http://www.uscourts.gov/defenderservices/history.html (last visited April 27, 2009).

4. Statement of Julia S. Gibbons, chair, Committee on the Budget of the Judicial Conference of the United States Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the United States House of Representatives 15 (March 19, 2009) (average hourly overhead of $70 and average net hourly rate of $176, for an average total hourly rate of $246).

5. Radha Iyengar, “An Analysis of the Performance of Federal Indigent Counsel 3″ (Nat’l Bur. of Econ. Res. June 2007).

6. Id. at 23.

7. Erik Eckholm, “Citing Workload, Public Lawyers Reject New Cases,” The New York Times, Nov. 9, 2008, at A1.

8. Steven Banks and Adriene Holder, Testimony of The Legal Aid Society on Access to Justice before The Assembly Committees on Codes, Judiciary, Governmental Operations, and Corrections 3 (Feb. 24, 2009) (available at www.legal-aid.org/media/72264/testimonynysfy09-10budget022409.pdf).

9. 2009 N.Y. ALS 56, 2009 N.Y. Laws 56, 2009 N.Y.A.N. 56, 2009 N.Y. Senate-Assembly Bill S56, A156-B, at part ZZ §1.

10. Rebecca A. Desilets, Robert I Spangenberg and Jennifer W. Riggs, Rates of Compensation Paid to Court-Appointed Counsel in Non-Capital Felony Cases at Trial: A State-by-State Overview, table at 6, 9 (June 2007); see also N.Y. County Law §722-b (McKinney 2004); Va. Code Ann. §19.2-163, amended by 2009 VA. Laws Ch. 284 (S.B. 1363).

In Virginia the court in its discretion may waive the fee cap up to an additional $850 for felonies and $155 for misdemeanors.

11. Robert L. Spangenberg, Jennifer W. Riggs, Jennifer M. Saubermann, David J. Newhouse and Marea L. Beeman, Status of Indigent Defense in New York: A Study for Chief Judge Kaye’s Commission on the Future of Indigent Legal Services 159 (2006).

12. Jennifer W. Riggs, Robert L. Spangenberg, David J. Newhouse & Jennifer M. Baubermann, Review of the Caddo Parish Indigent Defender Office 11 (Feb. 22, 2007); Marea L. Beeman and Jennifer W. Riggs, Review of Indigent Defense Services in North Dakota 11 (Jan. 30, 2004); Robert L. Spangenberg, Marea L. Beeman, David J. Newhouse, Rangita de Silva-de Alwis, Jennifer W. Riggs, Jennifer M. Saubermann, A Comprehensive Review of Indigent Defense in Virginia, 10, 32-33 (January 2004); Marea L. Beeman & Rangita de Silva-de Alwis, Overview of the Clark County, Washington Indigent Defense System in 2002 26 (December 2002); Task Force on Improving Public Defender Services in Michigan, Model Plan for Public Defender Services in Michigan 5 (October 2002); Rangita de Silva-de Alwis, Training Requirements for Indigent Defense Attorneys (June 2002) (noting that Delaware requires new public defenders to attend 1 hour DNA class).