New York’s “inadequate” public defense system

William Glaberson has another article in today’s New York Times on the upcoming class action lawsuit at the Court of Appeals arguing against New york state to overhaul its indigent defense system (William Glaberson, The Right to Counsel, N.Y. Times, Mar. 21, 2010, at LI1). Today’s piece is the “story of this one defendant and her public defender, assembled through interviews and court records. . . about a woman who was barely making it before the legal system helped shove her off track.”

SHE was poor and in trouble. He was the public defender appointed to represent her. She was Kimberly Hurell-Harring, a nobody in the courts, a nursing home worker and a mother of two who had done something stupid. . . . It began two and a half years ago, in October 2007, in the Washington County Court here, not far from the Vermont border. In an area of the state where prisons are an industry, Ms. Hurell-Harring pleaded guilty to trying to sneak her inmate husband three-quarters of an ounce of marijuana. . .

Glaberson’s other article, just about a week ago, detailed the broader aspects of the suit (William Glaberson, Key New York Suit Calls Public Defender Programs Inadequate, N.Y. Times, Mar. 16, 2010, at A18). The idea behind the class-action approach — and if it works, a model other states can use — is to get the court to issue an order requiring “the state to upgrade the public defender system,” rather than what has happened already in Kimberly Hurell-Harring’s case, the plaintiff whom the class action lawsuit was filed in name of: that is, appeal each case individually arguing that the attorney fell below the standard required of lawyers for effective assistance of counsel (usually by demonstrating a substandard representation by the attorney and showing a reasonable probability that this failure made a difference in the outcome of the trial (see Strickland v. Washington, 466 U.S. 668, (1984)). Corey Stoughton, the lead attorney on the case for the New York CLU said: “The case-by-case method fails. . . The political method fails. For decades, the State of New York has been on notice that the public defense system is in crisis and fails to meet basic constitutional responsibilities.”

Tuesday, the Court of Appeals is to consider whether the class action suit can proceed.

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