In concluding that states should also provide public defenders to people accused of committing crimes, U.S. Supreme Court Justice Hugo Black observed in Gideon v. Wainright, “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.” Many public defenders view it as their duty to throw wrenches into the cogs of that machinery. In reality, public defenders carry more than just wrenches in their extraordinary toolbox, which they employ daily to challenge the ordinary injustices faced by our clients.
March 18 marked the 54th anniversary of Gideon, and all last week, public defenders around the country celebrated “Public Defense Week”, a brainchild of the National Association of Public Defense. We celebrated our zealousness, tenacity and compassion in the face of a criminal justice system that targets poor people of color and often prioritizes efficiency over justice and respect for the humanity of our clients.
We see injustice routinely. How we go about fighting it is anything but routine.
Take the issue of bail. Faced with choosing between a plea that gets her out of jail immediately versus languishing in Rikers as the case meanders through a clogged court system, a transgender woman will take the plea, despite her innocence, in an act of self-preservation. A homeless vet will take a plea, regardless of whether he is guilty, just to make sure he can keep his bed in a shelter, regardless of the long-term consequences of a criminal conviction.
Clients who fight their cases from home are more likely to have their charges dismissed, and less likely to serve prison time. Recently, we at The Legal Aid Society re-evaluated how we address bail, which is usually determined by a judge early on in a case, before we’ve had time to develop a meaningful relationship with our clients. We created the Decarceration Project to provide more resources up front in a case. In our pilot project in Manhattan, when bail is set the attorney teams up with a social worker, a paralegal and a law fellow who then gather letters of support from family and community members, connect the client with services, and if possible provide data regarding the rates at which defendants enrolled in the proposed program return to court. The team then presents these comprehensive bail packages to higher courts for review. The involvement of the social worker early on has been pivotal in changing the trajectories of our clients’ cases. The Decarceration Project also advocates for bail reform citywide and has partnered with other defender organizations and the Brooklyn Community Bail Fund and the Bronx Freedom Fund to expand bail opportunities citywide so that they are available to all New Yorkers not able to afford bail on their own.
Defenders must learn and use every advance in science and technology deployed by the police and prosecution. When a public defender represents a client charged with arson, she knows that within a year, she will have to understand fire better than an arson investigator in order to debunk his testimony on cross examination. When the NYPD started showing mugshots to people on their computers instead of in mugshot books, public defenders successfully argued to the Court of Appeals that the police have an obligation to preserve the electronic photos that were shown to the witness. And when DNA evidence became the norm in certain cases, Legal Aid responded by establishing a unit of attorneys who consult with defenders on all DNA cases. After years of litigation our unit won a Frye hearing preventing the Brooklyn District Attorney’s office from using the New York City Office of Chief Medical Examiner’s novel low copy number DNA testing method and their Forensic Statistical Tool. With the assistance of undergraduate science and math interns and forensic experts Legal Aid reverse engineered OCME’s probabilistic genotyping software.
Defenders are a generous lot with their tools. Our DNA Unit, for example, has provided forensics trainings that feature experts from around the country and are attended by other defender agencies and members of the private bar. The DNA unit frequently lectures across the city to various Bar organizations at trainings sponsored by the New York State Association of Criminal Defense Lawyers, The Federal Defenders, and The American Bar Association. In fact, because of our expertise, we lecture across the country and have given presentations to the American Academy of Forensic Sciences, The National Institute of Standards and Technology and defender organizations in Illinois and California.
Don’t let the name defender fool you. Defenders have learned to be proactive, too. We don’t wait for our clients to come to us with a crisis; we work to prevent crises. After President Trump issued his first Executive Order banning Muslim immigration, Legal Aid attorneys not only went to airports to protect the rights of these immigrants, but they also led over 40 know your rights presentations throughout the city and created materials preparing community members for contact with ICE. Our immigration hotline has answered the concerns of thousands of frightened immigrants and their loved ones. Legal Aid’s Community Justice Unit meets New Yorkers in their neighborhoods to learn about their legal needs, and further informs us how to serve them better.
New York defenders have access to these extraordinary tools, in part because there are multiple service providers (including The Legal Aid Society, Brooklyn Defender Services, Bronx Defenders, Neighborhood Defender Services of Harlem, New York County Defender Services and Queens Law Associates) advocating for equitable funding and criminal justice reforms with state and local officials that will benefit all New Yorkers.
Despite all that, New York still fails its citizens on three issues. First, we are one of only two states in the nation that prosecute all 16- and 17-year-olds as adults. Teenagers who get into school yard fights, are jailed at Rikers and risk permanent criminal records and sentences to adult prisons. Second, our discovery rules are some of the worst in the nation. Defenders are handicapped without the full discovery to which civil practitioners or even defense attorneys in other states are accustomed. Prosecutors are not obliged to turn over discovery until the eve of trial, preventing thorough investigation of witnesses and causing defenders to blindly negotiate pleas. Third, Civil Rights Law 50(a) further tilts the playing field for the benefit of prosecutors. Under 50(a) police officers’ personnel records are confidential, preventing us from seeing the records of the officers upon whose words our clients lives hang.
With interdisciplinary teams and specialized units in our toolbox, during last week’s Public Defense Week celebrations defenders had a lot to congratulate themselves for. We recognize, however, that we still have a ways to go before Gideon’s promise of equal justice for all is fulfilled.