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ALBANY � Last year’s increase in assigned-counsel rates failed to resolve the crisis in indigent representation and may have even made it worse, according to advocates who turned out at the Capitol yesterday for the annual Gideon Day lobbying effort. A coalition that included the New York State Defenders Association, the League of Women Voters, the NAACP, the New York State Association of Criminal Defense Lawyers, the Committee for Modern Courts, and the New York Civil Liberties Union portrayed the public defense system as chaotic, inefficient and potentially unconstitutional. Indigent defense counsel rates were increased last year for the first time since the mid 1980s. That happened only after attorneys refused to work for $40 per hour in court and $25 per hour out of court. Judges were forced to scour the courthouses for lawyers willing to represent the poor at those rates. In May, the state Legislature approved a bill increasing the rates to $75 an hour for all cases except misdemeanors, which are to command $60 an hour. Money for the increased costs was to be raised through increases in a host of court-related fees and distributed through a new Indigent Defense Services Fund. The problem is that the rate increase took effect in January and state funding does not kick in until 2005. Consequently, counties, which generally pay for indigent defense, were hit with what amounted to an unfunded mandate. They have responded, advocates said, by abolishing assigned-counsel programs and replacing them with conflict offices and institutional defender offices. The result, according to Albany attorney Michael Whiteman, chairman of the Committee for an Independent Public Defense Commission, is chaos. “We warned last year that if all they did was raise fees for assigned counsel under 18-b [of the County Law], they not only wouldn’t solve the problem, they would make it worse,” he said. “And they did. That’s exactly what happened.” Mr. Whiteman, of Whiteman Osterman & Hanna in Albany, said New York needs to take a statewide view of indigent defense, with the aim of establishing a uniform and accountable system. He said the promise of Gideon v. Wainwright, 372 U.S. 335 (1963), which established a right to counsel, entails more than just the provision of “any old lawyer who will show up and do any old thing.” Mr. Whiteman and other advocates are promoting a comprehensive system of supervision and standards. “Without establishing standards for oversight and accountability, the Legislature left the counties to adopt all kinds of approaches and to pay little attention to the quality of service,” Mr. Whiteman said. Jonathan Gradess, executive director of the New York State Defenders Association, said more than half of New York’s counties are changing the way they meet the Gideon mandate, and they are doing so “without guidance, standards or genuine planning.” “The number of those plans is multiplying, but the quality of those plans is not necessarily improving,” Mr. Gradess said. Integrated System Two senior legislators, Senator Dale M. Volker, R-Erie County, and Assemblyman Joseph R. Lentol, D-Brooklyn, are sponsoring bills that would replace the current patchwork with a more integrated system. Mr. Lentol, in his bill memo, said the state is “currently overburdening localities but failing to ensure justice and public confidence in the legal system.” He noted that the general statutory scheme providing for publicly funded legal representation has not changed since it was created 37 years ago. Mr. Whiteman said that if the state does not take action on its own, the courts may have to intercede. “The risk is that people are going to start bringing lawsuits . . . to compel changes in the delivery of services,” he said. “I would rather seen this done by level-headed people getting together . . . rather than waiting for some court or litigant to figuratively hold a gun at the head of the system.” Meanwhile, Chief Judge Judith S. Kaye made clear in her State of the Judiciary message last month that the assigned-counsel crisis did not come to an end when rates were raised. She created a Commission on the Future of Indigent Defense Services, chaired by retired Bronx Administrative Judge Burton Roberts and vice-chaired by Brooklyn Law Professor William Hellerstein, to conduct a “a top-to-bottom reexamination of our indigent defense system.” In a related matter, two arms of the New York State Bar Association yesterday came out against Governor George E. Pataki’s proposal to transfer oversight of the Indigent Legal Services Fund and the administrative functions of the Capital Defender Office to the Division of Criminal Justice Services. The Criminal Justice Section and the Special Committee to Ensure Quality of Mandated Representation expressed concern over the independence of the Division of Criminal Justice Services since the commissioner is the governor’s top advisor on criminal justice matters. They also noted that since Mr. Pataki became governor, the agency has declined to request funding for traditional defense programs, such as Prisoners’ Legal Services and the Public Defense Backup Center, while supporting funding for prosecution-oriented programs. The State Bar’s House of Delegates, which sets policy, is slated to consider the reports at its April 3 meeting in Albany.

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