Tagged: public defender

New NYCA Decision on Attorney Disqualification

The New York Court of Appeals has unanimously reversed an appellate division decision and upheld the decision of a trial judge to relieve a defendant’s assigned counsel despite the defendant’s objections to having new counsel. The case arose when the defendant’s assigned counsel from New York County Defender Services (NYCDS) learned that another lawyer in his office was representing a man who had fled from the scene when his client was arrested for possession of a weapon found nearby. The attorney discovered the potential conflict when he sought to track down the other man to call him as a witness in the hope of casting doubt on who had possessed the gun. The attorney’s  supervisors at the NYCDS had prohibited him from looking for, calling the other man as a witness, or  cross-examining him if the prosecution called him to testify. The trial judge removed the attorney despite the client’s desire to keep him as counsel. The defendant was represented by someone else and convicted. He was sentenced to 20 years to life as a persistent violent felony offender.

The appellate division held that removal had been an abuse of discretion, but the appellate division was reversed. The Court of Appeals held that removal is appropriate where institutional defense organizations represent more than one defendant in the same criminal matter, particularly here, where the lawyer’s supervisors prohibited him from calling a prior client as a witness. It also held that the client had not effectively waived the conflict because, while he insisted on his right to retain his attorney of choice, he also continued to insist on calling the other defendant as a witness.

Related Readings:

John Oliver on the Public Defender System

public defenders JOJohn Oliver did it again! With more than 2.8 million views, John Oliver in his weekly “Last Week Tonight” analyzes the public defender system in the United States as only he can do it.  He begins by quoting the 1963 decision of Gideon v. Wainwright, in which the Court stated that “… any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Does this system works as intended?

He shares quite a few shocking facts and statistics:

  • “… anywhere from 60-90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction.” (Brennan Center for Justice, Apr. 9, 2013). 
  • “… 40% of all county-based public defender offices had no investigators on staff.” (Bureau of Justice Statistics).
  • “… about 95 percent of criminal cases never make it to trial.”

He explains that

[t]he Miranda warning includes the right to a public defender. It doesn’t include the fact that public defenders are highly overworked and grossly underpaid.

Related Readings:

  • Gideon v. Wainwright, 372 U.S. 335 (1963). 
  • William Lawrence, The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167 (2015).
  • Indigent Defense Systems (Bureau of Justice Statistics) offers statistical data on the right to counsel and methods for providing indigent criminal defense.
  • John Oliver, Public DefendersLast Week Tonight (Sept. 13, 2015).