Starting next year, New York City public defender organizations will get priority over homicide cases against low-income defendants, a shift from a system in which homicide work was mostly sent to veteran defense attorneys working on assigned counsel, or 18-B, panels.
Currently homicide cases are first sent to 18-B attorneys and defender organizations such as the Legal Aid Society were brought in when conflicts arise. After years of talks, that model is set to be reversed.
To prepare for the change, Legal Aid, the city’s largest provider of indigent legal services, has formed the Homicide Defense Task Force; Legal Aid and its counterparts throughout the city begin taking cases under the new model on Jan. 1.
The New York City government, which allocates about $290 million annually for indigent defense, expanded its contracts with public defender organizations to include homicide cases “because these organizations have strong institutional capacity,” said Patrick Gallahue, a spokesman for the Mayor’s Office of Criminal Justice.
“New Yorkers will continue to receive effective representation,” Gallahue said.
Legal Aid, for example, can offer in-house resources such as mitigation specialists and units specializing in DNA and forensics, said Jamal Johnson, who will head up Legal Aid’s task force.
Alice Fontier, managing director of The Bronx Defenders, said her organization is bringing on at least three additional attorneys, a social worker, an investigator and a paralegal to handle the influx of new cases.
The Bronx sees an average of about 100 homicide cases annually. Fontier’s said that defense providers such as The Bronx Defenders can bring more resources to the table to represent indigent defendants facing murder charges than many 18-B attorneys, who are often solo attorneys.
“There are some excellent 18-B attorneys and there are some people who aren’t as committed to handling their clients as they should be,” Fontier said.
While priority on which attorneys represent defendants in murder cases is shifting, 18-B lawyers are not being removed from the picture entirely; they’ll still get called in on cases with three or more defendants.
Another scenario where murder cases get sent to assigned counsel may be presented because of the size of institutional providers such as Legal Aid, said Michael Alperstein, the administrator for the 18-B plan for the First Department, which includes Manhattan and the Bronx.
For example, a Legal Aid attorney representing a defendant in a homicide case may not learn until close to trial that a witness in the case was also previously represented by Legal Aid, and thus an 18-B attorney may come in to break up the conflict.
“I don’t think it’s going to eliminate the 18-B plan because we’re going to still get conflict cases,” Alperstein said. “There are a high percentage of homicides with defendants finding conflicts and requiring newly assigned lawyers.”
The change comes as crime rates across the city continue a downward tumble.
According to the New York City Police Department, the department investigated 290 total murders in 2017, and, as of the end of November, it investigated 266 this year.
Most homicide cases involve defendants of limited means, thus even defendants in high-profile cases, such as Pedro Hernandez, who was convicted of kidnapping and killing Etan Patz; and Yoselyn Ortega, a nanny convicted earlier this year of killing two children in her care in their Upper West Side apartment, were represented by 18-B attorneys.
18-B attorneys are paid $75 per hour to handle felonies, a rate that has not changed since 2004. Under the terms of their contracts with the city, indigent defense providers are allocated funds based on the volume of cases they handle.
Years ago, the city’s authority to shift cases from assigned counsel to institutional providers was the subject of a legal battle between the Bloomberg administration and city bar groups.
In 2012, the Court of Appeals issued a 4-3 ruling finding that the city is allowed to implement a combination model of providing indigent defense using both institutional providers and assigned counsel.
There are also differences between 18-B and institutional providers over representing low-income parents facing abuse and neglect proceedings.
At a recent hearing before a blue-ribbon panel formed to discuss parental representation in New York, representatives from Brooklyn Defender Services touted data showing that cases with representation from institutional providers tend to result in children getting sent to foster care less often and for shorter periods of time than when 18-B attorneys work the cases.