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ALBANY – An Albany judge will get some help at a long-awaited trial in weighing the adequacy of the defense in criminal matters that indigent people receive in New York.

Overturning a lower court decision, a unanimous panel of the Appellate Division, Third Department, agreed last week that the testimony of three expert witnesses will assist in determining the issues raised by Hurrell-Harring v. State of New York, 8866-2007.

Presiding Justice Karen Peters (See Profile) noted that the state Court of Appeals has placed the burden on Hurrell-Harring plaintiffs to show that “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” in New York’s public defense system.

Peters said that if Hurrell-Harring was “simply about individualized claims of denial of counsel at a critical stage of a criminal proceeding,” her court might agree with Justice Eugene Devine’s decision last fall to preclude the expert testimony because it would not contain anything that is “beyond the ordinary experience and knowledge of the average Supreme Court justice.”

But Peters wrote that Hurrell-Harring, at its core, is “about system-wide conditions relating to and affecting the delivery of public defense—such as caseloads, funding and oversight, among others.”

“Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court justice, whose experience is oft confined to case-by-case determinations,” Peters concluded.

Justices Leslie Stein (See Profile), Robert Rose (See Profile), John Egan Jr. (See Profile) and Christine Clark (See Profile) joined in the July 3 ruling.

The New York Civil Liberties Union, which filed the case in 2007, contends that New York has shirked its constitutional responsibility under Gideon v. Wainwright, 372 U.S. 335 (1963), by allowing an underfunded, county-based system to provide representation.

Hurrell-Harring was brought on behalf of defendants following their arrests for relatively minor crimes in Onondaga, Schuyler, Suffolk and Washington counties. Its result is expected to apply in other counties as well.

Acting Albany County Supreme Court Justice Gerald Connolly (See Profile) will preside at the bench trial scheduled to start on Sept. 3.

Connolly was assigned the case after Devine, who had the matter from its inception and made a number of pre-trial determinations in the case, was assigned to the Third Department bench by Gov. Andrew Cuomo in April (NYLJ, April 16).

The Third Department approved the presentation of testimony from Robert Boruchowitz, a professor at Seattle University School of Law; Norman Lefstein, a professor of the Indiana University School of Law, and Robert Spangenberg, president of the West Newton, Mass.-based criminal justice research group the Spangenberg Group.

According to the plaintiffs, Lefstein and Boruchowitz will testify that competent representation in the defendant counties has been impaired by a number of factors, including high public defender caseloads, insufficient resources and inadequate training.

Spangenberg will testify about a report on public defense services in 22 New York counties that his group compiled with the work of the Commission on the Future of Indigent Services appointed by former chief judge Judith Kaye. In 2006, the commission recommended forming a statewide office to take over the public defense obligation under Gideon.

In addition, Harvard Professor Gary King will present statistics on criminal matters handled by public defenders in the counties named in the litigation. Devine had agreed to allow King’s testimony, and the Third Department did not disrupt that ruling.

A spokeswoman for the state Attorney General Eric Schneiderman’s office said the Third Department’s determination will not be appealed and that the office is focusing on preparing for the upcoming trial.

In papers urging the Third Department to uphold Devine’s decision, Assistant Solicitor General Victor Paladino argued for the state that the experts would provide the court with opinions about defense services that are not supported by scientific fact.

“Expert testimony regarding legal conclusions is impermissible,” Paladino’s brief argued. “It is the province of the court itself to decide issues of law.”

The state also has argued that many of the problems named by the Hurrell-Harring plaintiffs should be attacked on an individual rather than a class basis in post-conviction litigation related to the effectiveness of counsel. It contends that any systemic grievances should be directed to the Legislature rather than the courts.

But Chief Judge Jonathan Lippman, (See Profile) writing for the Court of Appeals in Hurrell-Harring v. State of New York, 15 NY3d 8 (2010), said few issues concern the courts more than compliance with the right to counsel, and its adequacy is properly before the courts.

Assistant NYCLU Legal Director Christopher Dunn said the testimony from the three experts will improve the plaintiffs’ chance of meeting the burden of proof, as defined by the Court of Appeals, that a systemic failure in public defense exists.

“The experts are going to bring a national perspective and expertise to the central question of whether the state does have a system in place to ensure that public defense is adequately provided to indigent defendants,” Dunn said. “We certainly believe that [adequate representation] is not the case. We have 30 years of state commissions and reports that back us up.”

Dunn said that the attorney general’s office consistently sought to narrow the focus of the case as much as possible to the particulars of the defense that the named plaintiffs received in the counties where they were arrested and tried.

“The state has to get in the game,” he said. “They have to create a system that provides oversight and funding and supervision and actual staffing, all of which is designed and will ensure that every day of the week, poor people in court are represented.”

Officials in a fifth county originally named in the suit, Ontario, recently reached a settlement with the NYCLU under which that county agreed to enhance public defense services for the poor (NYLJ, June 27).

Corey Stoughton has been the lead counsel for NYCLU through most of the litigation. Pro bono lawyers at Schulte Roth & Zabel led by Gary Stein have worked in tandem with NYCLU attorneys from the case’s inception.

Assistant Attorney General Adrienne Kerwin will lead the defense team for the state at trial.