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Two Counties: Two Systems of Public Defense

Lou Mazzola isn’t convinced that Brandon Davis committed murder.

He’s not convinced that on Christmas Day in 2013, Davis shot and killed Taliek Bristel during a robbery at Whitey’s mechanic shop in Medford. He is certain of one thing though—Davis didn’t get a fair shake. An inequitable criminal justice system failed him, and that means Davis’s life sentence without the possibility of parole is also unjust. Mazzola has been an attorney with the Suffolk County Legal Aid Society for more than three-decades. He’s appealing Davis’s conviction, and he’s almost certain he’ll lose. Mazzola sees Davis’s case as representative of all of the ills in New York’s public defense system, where counties struggle to adequately fund and therefore administer public defense. The fallout can cost a 19-year-old his freedom.

* * *

Mazzola began his career as a public defender and now he’s an appeals attorney. He’s trying to get Davis a retrial by arguing ineffective assistance of counsel. The root of that ineffective assistance of counsel goes back to a decision made by New York state in the years following a landmark Supreme Court case.

In 1963, the court ruled that criminal defendants had the right to counsel, regardless of their ability to afford an attorney. In his opinion Justice Hugo Black wrote, “The right of one charged with a crime to counsel may not be deemed fundamental and essential to a fair trial in some countries, but it is in ours.” While some states created a statewide funding system for public defense, New York state decided individual counties would provide all indigent defense services and cover the costs associated with those services.

Anne Rabe is the organizing coordinator at the New York State Defenders Association (NYSDA), a non-profit, membership organization thats mission is to improve public defense. “Unlike 28 other states [and the District of Columbia] we don’t have a statewide system,” said Rabe. “So that’s 62 counties with different kinds of public defense programs. Some are great. Some are total failures.”

In an attempt to rectify the disparity that existed among the counties, the New York Civil Liberties Union (NYCLU) sued the state alleging that New York had “systematically and structurally denied meaningful and effective representation to defendants entitled to publicly funded representation.” The Hurrell-Harring settlement required the state fund and oversee four key areas: counsel at arraignment, caseload relief, initiatives to improve the quality of indigent defense, and eligibility standards for representation.

There’s a catch though. The plaintiffs in the lawsuit were just five counties in New York: Schuyler, Onondaga, Ontario, Washington, and Suffolk; and that meant that the terms of the settlement only applied to them and not the rest of the counties in the state.

On Long Island, Suffolk County, with the aid of millions of dollars from the state, is in the midst of an overhaul of its public defense system, implementing all of the provisions of the Hurrell-Harring settlement. Just across the county line, funding is much tighter—often depending upon the financial stability of the county —caseloads aren’t capped and there’s no guarantee of counsel at arraignment.

“Counties often don’t care about having an adequate budget for indigent legal defense. They just don’t care. They see it as a burden they have to provide legal services for poor people, so they don’t provide a lot of funding,” Rabe said.

The patchwork system that exists across the state, where some counties get millions in aid from the state and some counties cannot adequately fund public defense doesn’t just apply to upstate counties with small populations and one public defender—the inequality exists on Long Island. If someone is accused of a crime in Suffolk County in 2017, there’s a much better chance of counsel at arraignment and a lawyer with a caseload that allows her time to meet with the accused and thoroughly investigate the case. In Nassau county, those provisions have not been implemented. In short, Long Island’s public defense is split along county lines and it could mean being accused of a crime in a county that has the resources to effectively defend you; or not.

* * *

Seven years after the initial lawsuit, the Hurrell-Harring settlement was reached on March 11, 2015. Davis was arrested on March 7, 2014, two years before the Office of Indigent Legal Services (ILS), whose job is to “monitor, study and make efforts to improve the quality” of indigent defense would issue guidelines for improvements in Suffolk’s and the remaining four counties’ systems. One key provision required improvements for what’s known as the conflicts panel or 18-B, after the county law it falls under.

These 18-B attorneys represent clients that cannot be represented by Nassau or Suffolk County Legal Aid societies because of conflicts. “One of the things [Hurrell-Harring] said was look, you’ve got your conflicts panel operating on a part-time basis. That’s not good enough,” said Dan Russo, the new full-time director of The Suffolk County Assigned Counsel Program. The state agreed to a full-time administrator who would assign cases, pay vouchers, and evaluate lawyers. “It’s not just a matter of appointing someone. That lawyer not only has to show up but he or she has to meet with the clients, and they have to go to the jail, and they have to file motions,” Russo said. “You actually have to show you’re giving that person the same representation that you would a wealthy client.”

Mazzola says the record shows the 18-B attorneys assigned to represent Davis did none of what Russo mentioned. The trouble begins with Davis’s first lawyer, 18-B attorney Paul Barahal. During Davis’s arrest, the arresting officer questioned Davis prior to reading Davis his Miranda rights. It’s a simple question,

“Do you have a job?”

“No. I just get money.”

It doesn’t sound like the most incriminating statement but Davis was accused of killing Bristol during a robbery. “You would think someone charged with Murder 1, which at one time carried the death penalty as a consequence, would have the best lawyer in the county. No,” Mazzola said. Instead of an oral argument over the suppression of Davis’s statement, the judge asked for a letter brief. “Well the defendant’s attorney doesn’t do that. Doesn’t bother,” Mazzola said. The record doesn’t state why Barahal didn’t submit the letter and Barahal did not return repeated requests for comment. But Davis got the hint that his attorney, as Mazzola put it, was a “schlub.”

Davis then turned to private counsel. Craig McElwee represented Davis for less than a month and made three appearances on his behalf—more than either of the 18-B attorneys. “The family was trying to put together funds,” McElwee said. “I sat down with the mom and the dad and about two weeks later, they came to me and advised me that they would not be able to do it. McElwee declined to disclose his contract agreement with the Davis’s but said it would be considerably more than assigned counsel who would, hopefully, request funding for investigators and experts, which the Davis’s would have to cover themselves if they retained McElwee. So they turned back to the public system and were assigned another 18-B attorney, Steve Fondulis.

Fondulis was assigned on January 7, 2015 and visits Davis in jail on February 4. The next time he visits Davis, according to the court files, is in August, when the trial started. Davis’s mother claims she had called Fondulis on multiple occasions and when she finally saw Fondulis and confronted him, he said, “It’s not my job to hold his hand.” Fondulis could not be reached for comment.

Davis had 3 different attorneys before the start of a trial that carried a life sentence without the possibility of parole. Fondulis met with Davis for just 40 minutes, six months prior to the start of the trial. None of the 18-B attorneys submitted requests to hire investigators. Davis was convicted on October 6, 2017, the day of his 21st birthday. “Now, I’m not going to say he’s a choir boy. He’s not,” Mazzola said. “Is he guilty? I really don’t know. But I’m not confident he got what I would think is a fair trial.”

* * *

Suffolk County, a little more than a year after Davis’s conviction, began operating with millions of dollars in state funding to implement quality improvements in the county’s public defense system. Nassau County, which was not a plaintiff in the settlment, has not undertaken implementing the same provisions. Scott Banks is the Chief Attorney of the Nassau County Legal Aid Society (NCLAS). He has an idea of how he’d want the NCLAS to run—it’s called the holistic defense model and it focuses on melding together the legal and social needs of a client to keep him or her out of the criminal justice system—but it requires much more funding.

“People who are charged have a whole slew of problems,” Banks said citing the growing heroin crisis that plagues the island. Right now, NCLAS has two social workers that provide counseling for all of its clients. Social workers and counselors provide attorneys with information they’re not equipped to get on their own especially when it comes to mental health issues. “Everything we deal with is about resources. We don’t do [holistic defense] here because we don’t have the capacity,” Banks said.

Nassau also does not have a caseload cap. The American Bar Association has standard guidelines but there is no mandatory requirement to be met in the county and not enough staff for NCLAS to meet it even if there was a requirement. Banks called staffing his office’s biggest problem. “People leave and a lawyer could be handling 50 cases and he might get 10 more cases from a lawyer that leaves.” According to a report issued by the National Advisory Commission on Criminal Justice Standards and Goals, lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.

“What’s happening in Suffolk is they’re getting money for hiring new attorneys, money for new office space, more investigators, more social workers. We could probably use all of those things,” Banks said. “But it’s a funding issue with the county.” Despite these shortcomings, Banks, who has been in in his position since September, said he believed Nassau was not part of the Hurrell-Harring settlement because they were already doing everything right.

“That’s just not true. Nassau was not selected because the NYCLU needed a representative cross-section,” Executive Director of the New York State Defenders Association (NYSDA) Jonathan Gradess said. “The NYCLU could’ve thrown a dart at a map of the state and found a county with the same sort of systemic problem.”

Gradess says Nassau County is not unique in its lack of funding and resources to provide effective assistance of counsel. And sometimes, it provides no counsel at all. Defendants continue to be arraigned without lawyers.

In a hearing held by the ILS in August of 2015, Associate Clinical Professor of Law and Attorney-in-Charge of the Criminal Justice Clinic at Hofstra University’s Maurice A. Deane School of Law Elizabeth Nevins said, “I have observed, alongside my students, gross violations with regard to the constitutional and statutory right to counsel in Nassau County.”

Courtroom 155 in the Nassau County District Court is the courtroom for the Town of North Hempstead. Up until October of 2016, Nevins had seen people charged with jailable offenses being denied counsel. “They were not being advised that they were entitled to counsel. Even people who stood up there and said, ‘I can’t afford this and I don’t want to plead guilty,’ were not being assigned counsel,” Nevins said. Now, there is a sign outside of the entrance to the courthouse. It says you can ask for a lawyer.

Following the hearing where Nevins had testified, the ILS released a report on April 4 which updated and standardized the criteria and procedures for determining who is eligible for assigned counsel. In Nassau, according to the testimony of Nevins and others, had previously been no single method for determining eligibility. Most counties including Nassau use a net income of 125% of the Federal Poverty Guidelines to determine eligibility. The ILS recommended increasing that to 250% (which testimony from advocates in both Nassau and Suffolk said was important in an area with a high cost of living). This means an individual in New York is eligible for public defense if their net income is at or below $30,150, an increase from $15,075. The ILS also recommends that non-liquid assets not be considered including ownership of a car.

“So far none of those recommendations have been implemented,” Nevins said. “At a bare minimum, whether it’s required or not, all of the things people were testifying about in terms of appointment of counsel—they are not followed in Nassau.”

Nevins also argues that it simply takes too long to get through a case in Nassau. She automatically tacks on three or four months of administrative procedures, from the time of arraignment to when someone says they cannot afford a lawyer and until the court discovers there is a conflict and the defendant is ultimately assigned an 18-B attorney. It takes weeks if not months and multiple appearances.

“Statutorily and constitutionally there is a right to a speedy trial,” Nevins said. “I can’t tell you the number of clients I’ve had plead guilty because they just can’t come to court anymore. It’s not like this everywhere,” said Nevins, who before her work at the Hofstra Law Clinic had been a trial attorney for the Public Defender Service of the District of Columbia. “Not only are cases not investigated, it’s also a psychologically challenging process, and then you just wind up pleading guilty anyway.”

* * *

Around 10 p.m. on New Year’s Eve, Governor Andrew Cuomo vetoed a bipartisan supported bill that would have created a statewide funding and administrative system for public defense arguing the estimated $800 million dollar price tag would’ve been too costly for the state.

Gradess, executive director of the NYSDA, called the veto “stunning” and a “missed opportunity.” To Gradess, the state’s citing of costs was disingenuous. The state is able to fund correction, paroles, police and prosecutors, creating a giant disparity in funding between prosecution and defense, Gradess argued. He also said the calculation of costs was shortsighted for multiple reasons. Since the War on Drugs in the 1980s and 90s more and more collateral has been tied to arrests and convictions. That includes housing, loans and employment. People lose jobs, cars, apartments, health care, educations, and Gradess argued that all of those loses have costs too. “It’s a planned process—not some accident. The government is saying that people of color are sufficiently unimportant as to be disposable.”

While Gradess calculates the costs in long-term impact on people’s livelihoods, some see the short-term costs as unmanageable as well. Stephen Acquario is the head of the New York State Association of Counties (NYSAC). Acquario and other county executives are concerned about the expanded eligibility recommendations (the same ones that Nevins said had not yet been implemented in Nassau).

“There’s a doubling of expansion and those eligibility costs are going to produce a lot of extra costs, certainly extra work for the counties who are operating under a property tax cap. So it’s beyond the capacity of local governments to sustain this state constitutional responsibility,” Acquario said.

In the weeks following the governor’s veto, NYSAC named state-funded public defense as one of its top priorities in the new legislative session, and they even considered a lawsuit against the state to make it happen. But Acquario hopes they can reach a compromise with the governor. “Within the terms of a 163 billion dollar budget, surely there’s room for funding this type of initiative. We hope that the governor will make this a priority this session.”

* * *

On April 7, after emergency extender budgets to keep the government operating, Cuomo and legislative leaders reached a final budget agreement that included funding for top priorities for the governor, like his excelsior college tuition plan, and “Raise the Age,” which raised the age of adult criminal responsibility from 16 to 18. It had been a sticking point among Democratic and Republican legislators. Among these compromises was a plan to extended the provisions of Hurrell-Harring—counsel at arraignment, caseload relief and quality improvements—to the rest of the state.

Cuomo hailed it as “true reform to public defense systems that were failing.” But the money isn’t there yet. The budget includes 1.25 million dollars to “develop the framework” for funding the reforms. That also means that the state is not fully funding public defense, just covering the costs for counties to meet a certain standard.

“It’s so basic it’s hard to be incredibly excited about it,” Nevins said, noting that the most positive impact would be on setting reasonable caseload standards. But Leahy of the ILS is optimistic. His office has been tasked with crafting plans for each of the reforms and how to extend them to the remaining counties, including Nassau. The deadline is December 1. “It’s a very happy and optimistic time, but as always, there’s a lot of work ahead,” Leahy said. Reform implementation will be phased in and is not expected to be fully complete until April 2023.

That means that the divide in resources reforms between Suffolk and Nassau county will exist at least for six more years. Public defenders will continue to be on the “horns of a dilemma,” as Gradess described it, while they conduct triage. And cases, like Davis’s murder charge, might not get the treatment, time and resources they deserve.