Failure At The Nassau County Legal Aid Society, Part 1
Nov. 19, 2015 (Mimesis Law) — A few weeks ago, I wrote two articles about the Nassau County Legal Aid Society that ruffled quite a few feathers. I wrote about my experience as a public defender at that office. My goal was to expose a system that sets Nassau public defenders up for failure. Ultimately, the only people that truly matter in all of this are the people who are actually paying the price. Criminal defendants in Nassau County who cannot afford to hire an attorney have no choice but to rely on a system that utterly fails them.
I was a public defender for 10 years. I am not afraid of a good fight. But I never imagined that one of my biggest fights would be with my old colleagues and my old bosses at the Nassau County Legal Aid Society. My purpose was to detail systemic problems, so I directed my posts toward the management at Nassau Legal Aid.
My reasoning? The heads of that office are the only people with the power to address the problems. Little did I know that indigent defendants in Nassau County were not being cheated out of justice because of a lack of power. They were being cheated because management at the Nassau County Legal Aid Society apparently lacks the desire to make the necessary changes to give their attorneys and clients a fighting chance.
I heard from former Nassau Legal Aid attorneys thanking me for speaking out. I also received a good deal of blowback from current attorneys and supporters of that office. There were attacks on my character and my honesty, but little meaningful rebuttal of the flawed systems I had exposed. If you care to read these comments, be my guest. I submit that they say much more about the commenters than they do about me.
I was accused of being nothing more than a disgruntled former employee who merely wanted to attract paying clients to my fledgling private practice. Supporters of current management stayed suspiciously away from my first post detailing the clearly illegal arraignment conditions out there. But my second post that detailed a practice that gets Legal Aid clients to sign away their grand jury rights, that set them off. Maybe it was the notice of Radley Balko at the Washington Post, but Nassau Legal Aid supporters dove in feet first in full defense of their supposed grand jury system.
Right off the bat, I can state that the numbers support my claims. I practiced as a felony attorney for one year at Nassau Legal Aid. I handled hundreds of cases during that time. Supporters of the current system in Nassau County speak of a robust grand jury and felony exam practice (a felony exam is a reasonable cause hearing before a judge instead of a grand jury). I did one felony exam. I had one case go before the grand jury. I have spoken to numerous former Nassau Legal Aid attorneys who did neither during similar or even longer tenures handling felony cases.
But instead of getting into the weeds of a “we said, they said” mess, let’s go to an unimpeachable source. The felony training manual that is currently in use at the Nassau County Legal Aid Society. Ladies and gentlemen, I give you Part 9L: The Introduction To Felonies.
The very first line in the manual admits to a common practice in Nassau County. Legal Aid clients and private clients are sent to separate court parts with separate judges and separate DA’s.
Look, you can draw your own conclusions about whether a “separate but equal” court system sounds fair. Having practiced in jurisdictions that do not send poor defendants off to their own court parts, separating poor and wealthy defendants is in no way beneficial to indigent defendants. Unless the intention is to create an efficient system of getting convictions and sending those defendants off to jail or prison. Then it works great.
As a point of comparison, before we get into the specific training practices, it is helpful to look at the way another jurisdiction does it. In Brooklyn, the public defender speaks to the felony client prior to arraignment and gets a full fact statement before ever setting foot in court. The client’s grand jury rights are discussed as well as their right to testify before the grand jury, should they choose to exercise that right. After arraignment, if bail is set, the case is adjourned for 6 days from the day of arrest. Before that date, the attorney has the opportunity to investigate the case and have discussions with the prosecutor. On that next court date, if the case is presented to the grand jury, the client is allowed to testify. If the client is indicted, then his case moves on towards discovery. If his case is not indicted, then the client is released.
Now granted, Brooklyn is not Nassau County. This is true. It is also quite beside the point. Brooklyn simply follows the law. It is a simple, but fairly effective system. Nassau County has created an incredibly complex system that operates in spite of the law. And the Nassau County Legal Aid Society trains its attorneys to abide by that system.
Let’s start at the beginning. After an indigent Nassau County felony defendant is permitted often less than a minute to speak to a public defender (in front of all the other arrestees in that cell), he is arraigned. Bail is almost always set, and can amount to many thousands of dollars. The next stop is two days later, in Part 9L (the “L” stands for Legal Aid).
So in the two days from arraignment to this court date, the DA decides which cases are workups and which are Y & W. During those two days, the client sits in jail wondering what the hell happened at arraignments. Maybe he will be one of those clients lucky enough to be deemed worthy of a workup. Under that scheme, he might get a “misdemeanor offer or better.”
So after receiving the case delineations from the DA, the public defender heads to the pens and conveys that “misdemeanor offer or better,” right? Not quite. The DA must be given plenty of time to come up with an offer. How long? Well …
Another week or two in jail is just standard practice for Nassau Legal Aid clients.
The only thing that really matters on that first court date is getting the “OK to adjourn” from the client. Here is where it gets really interesting, if “interesting” means a complete abdication of the attorney/client relationship and a waiver of client rights without their consent.
Mind you, the only chance the client has had before this to “get into the facts” has been a 30 second, non-private conversation with a different attorney prior to his arraignment. And at that point, the public defender barely had more than his name. Attorneys should be demanding an opportunity to “get into the facts” the first time they meet a client. In Nassau County, most Legal Aid felony clients must wait until after their second court appearance to have any meaningful discussion with a public defender.
Here is the “full explanation on how to receive the okay to adjourn.”
Nassau Legal Aid attorneys are trained to get the OK to adjourn by enticing the client with promises of time and privacy. For most defense attorneys, these are non-negotiable prerequisites to appearing on behalf of a client for the first time.
What Nassau Legal Aid attorneys are not trained to do is tell the client that they will be waiving their speedy trial rights (CPL §30.30) and their right to release if the case is not presented to the grand jury within six days (CPL §180.80). They are also not told about their grand jury rights. This is the adjournment form. Notice the first paragraph.
There is no blank for the client to sign. For some inexplicable reason, though, clients who are not in jail are required to sign a different adjournment slip that has a blank for the defendant’s signature. People in jail tend to want to know what they are signing, and Nassau public defenders are trained to “not get into” that.
But what if you have one of those unreasonable clients who isn’t all that crazy about continuing to sit in jail without any valid explanation from his attorney?
Instead of respecting the client’s right to have a say in his case and his freedom, the manual tells attorneys to sweeten the deal a bit. If the client still “refuses,” then, and only then, are you to give in to his demands and speak with him about his case. This will be the first time the client has gotten an opportunity to speak to an attorney about his case in any detail at all.
What if the client speaks a foreign language? They get a full jail visit, unless they are one of the rare few who speak Spanish.
“Spanish clients?” Are you kidding me? Not to get sidetracked, but I have been doing this for a long time. I do not recall ever representing a Spanish client. I have represented hundreds of Latinos or Spanish-speaking clients, but so far, not one from Spain.
Beyond the bit of careless “otherness,” there is the glaring statement that “Spanish interpreters refuse to do such interviews in the pens.” How the hell are we expecting the Nassau County Legal Aid Society to stand up to judges, DA’s and the police if they cannot even stand up to the Spanish interpreters?
But the training apparently works, because almost every client agrees to the adjournment (if not those pesky rights they are never told about). The next step is a jail visit. This is a two-person job. If one attorney arrives before the other and there are clients that need to be seen in the separate annex jail, here is what the training manual instructs.
Look. I like Correction Officers. They tend to make great jurors. But the notion that Nassau Legal Aid management instructs its attorneys to hand over their files to anyone, let alone, law enforcement, speaks volumes about the skewed relationship between that office and the law enforcement agencies they are supposed to fight tooth and nail against.
Once the client meetings begin, there is a chilling theme that runs throughout those meetings, no matter if the client is a workup or a Y&W.
Throughout the training manual, for any substantial discussion that occurs between the client and the public defendant the attorney is reminded to advise the client of the minimum and maximum sentence he is facing. This warning, and it is very much a warning, is provided all the same to the guy who stuck the gun in someone’s face as the kid who just happened to be there when this happened. Even workups who are still in the running for that “misdemeanor or better” offer are warned about years in upstate prison. This warning is given to the extremely guilty, the barely guilty and the not guilty alike. In Nassau County, it apparently isn’t just the prosecutors who assume everyone is guilty.
Now, what about those felony clients who have been deemed unworthy of a workup and have been classified as a Y & W? When speaking to a Y & W clients about options, there are really four. They can sign the form, they can demand a felony exam, they can send their case to the grand jury or they can do nothing.
Here is the Yellow & White form.
(The form currently in use in Nassau County is identical, except the current District Attorney’s name appears instead of former DA Denis Dillon.)
If the client signs the Y & W, then the system has “worked,” a County Court attorney is assigned and the case moves on to plea bargaining phase. The client who knows the law might think that he will receive some protection from his right to a speedy trial. A person’s speedy trial rights are in the 6th Amendment of the United States Constitution. Isn’t that very important?
But what if it is one of those “cop assaults” where the client ends up in the hospital and the cop has a bruised fist? What about one of those “cop assaults” where the assault is caught on video, but it is the cops who are doing the assaulting? Better to just notify the client about the minimums and maximums and move it along.
Every effort is made to get the client to sign that Y & W, and Nassau Legal Aid attorneys have an amazing success rate. Sure, the training manual talks about the right to demand a felony exam.
The client’s “right” to demand a felony exam is not much of a right if no client ever exercises it.
But what about all that controversy from my last Nassau article about getting clients to sign away their grand jury rights via the Y & W form?
This theme of plea bargaining being the only option is present throughout the training manual. “[T]he case must be transferred there for that purpose” sounds much less optional than Nassau Legal Aid management would like us to believe (emphasis very much mine).
If a Nassau Legal Aid client starts sniffing around about his grand jury rights, the public defender is trained to discuss that “right” with them. Spoiler alert, grand jury is never a good idea.
Does this sound like a primer on the functions of the grand jury or a fairly biased warning that taking any case in this direction is legal suicide? Also, the third sentence is the only place in the entire training manual where the client’s right to testify in the grand jury is mentioned. The manual makes no mention of ever explaining to the client that they have a statutory right to testify before the grand jury.
In my years of practice outside of Nassau County, I have talked plenty of people out of testifying in the grand jury. But each time, it was an individual assessment of what was right for their case. It was not a systemic warning of gloom and doom that I was trained to convey if the topic somehow slipped into the conversation. Except for when I worked at Nassau Legal Aid.
Just to leave no question, here is the section detailing the conversation to be had with A1 felony (most serious state law charge) clients.
Notice the complete lack of any discussion regarding the client’s right to testify. On such serious charges, it is usually not a good idea, but that does not negate the requirement to have this conversation with the client. It is important, though, that the Nassau Legal Aid attorney inquire into whether the client would like to flip or snitch for the prosecutor.
What about those few defendants who refuse to sign the Y & W or demand a felony exam?
[E]ventually, … the DA will simply just present the case to the grand jury,” and the client loses the ability to participate in plea bargaining.
Just in case it was not clear, going to the grand jury is a “risk” that leads to “NO PLEA bargaining.”
Basically, the Y & W is your only option. The clock is ticking. Sign.
After the jail visit, the Nassau Legal Aid attorney heads back to Part 9L with a stack of signed Y & W’s and starts the process all over again for a new batch of defendants.
But what about the workup cases that stay in Part 9L? When the client heads back to court he gets that “misdemeanor offer or better,” right? Well …
The client does not return to court. He sits in jail on this court date. It is “standard” for there to be no offer when the client’s case returns to court. But just be patient, that “misdemeanor offer or better” is still possible, right? Well …
Wait, what happened to the “or better?” The truth is, a misdemeanor conviction, which creates or adds to a criminal record, is seen as victory in Part 9L. Throughout this manual, there is almost no talk of anything approaching what most defense attorneys would consider victory. Taking a plea to a criminal charge should never be done lightly, but Nassau Legal Aid attorneys are trained that a plea to a misdemeanor is a win.
This attitude becomes a bit easier to understand when you look at the word used to describe the people who bring complaints against the clients.
“Victim.” It is telling that for as long as this manual has been in use, no one in a position of power at Nassau Legal Aid has seen the use of the word “victim” as problematic. It is a word that assumes guilt. Defense attorneys are supposed to be fighting to preserve the opposite of that.
What about the client who knows the law and wonders why he hasn’t been released pursuant to CPL §180.80 or his §30.30 speedy trial rights?
“[T]he adjournment will not be at the People’s request.” Nassau County operates under that mistaken and illegal assumption that an adjournment only counts towards the defendant’s speedy trial rights if the adjournment is at the “request” of the prosecutor. This is not the law. Although there are many loopholes that allow the law to be considerably gamed, the speedy trial clock is only supposed to stop if the prosecutor announces, on the record, that he is ready for trial. In Nassau County, though, prosecutors are only charged speedy trial time if they “request” the adjournment. Needless to say, they rarely make this mistake and defendants remain in jail.
In most jurisdictions, CPL §180.80 is a vitally important law (defendant must be released if no indictment filed within six days of arrest). In Nassau, this right is customarily signed away by the Legal Aid attorney “because that’s just the way things are done out there.” This law which puts pressure on DA’s across the state to get their felony case together or release the defendant, is only mentioned in passing in the training manual, and not even until page 14 out of 18.
That’s right. It “actually” does require that if the DA cannot get an indictment within 6 days, the defendant is entitled to be released. Please tell me how your system, where all statutory rights to release defendants are stripped away and no one gets released, how is that better?
But what if you have a client who is not guilty? Funny, the phrase, “not guilty” appears nowhere in this manual. However, there is a short section devoted to “Innocent clients.”
As a criminal defense attorney, that sentence was more troubling than any other sentence in this manual. Three things. First, and the most glaring, is that innocence is irrelevant to a criminal defense attorney. Or, as seasoned criminal defense attorney Jeff Gamso puts it, “[i]nnocence, factual innocence is essentially a distraction in our business.” The government must prove guilt beyond a reasonable doubt. That’s it. There is no “yeah, but.” The law puts the burden on the government, not the defense.
Two, the idea that you must only notice “[i]f you have a client who is proclaiming innocence,” is chilling language. This moves beyond a system that shifts the burden from the prosecution to the defense and further shifts the burden all the way to the defendant. The foundation of criminal defense is seeing no difference between the person who is absolutely innocent and the person who cannot be proven guilty beyond a reasonable doubt. This includes fighting like hell for the innocent, the guilty and everything in between.
Three, if a Nassau Legal Aid attorney has to deal with one of these “innocence proclaimers,” what does she do? She has to report to the principal’s office. Now, this part is off script, but after seeing the tone and tenor of this training manual, it should be abundantly clear that the innocent client is not welcomed with open arms. The reason a supervisor is brought in is so that a more experienced attorney can step in and get that client to fall in line with the program.
I imagine that those supervisors will dispute this claim, and their friends will bend over backwards to corroborate it. But remember, these are the same people who claimed that they were respecting the rights of clients out in Nassau County. You can decide.
This is a part of the system out there. It is not a system that was created in accordance with the law. It was a system that was created in spite of the law. It was a system that was created decades ago. Think about that for a second. We have a vastly different view of the criminal justice system today than we did 30, 20 or even 3 years ago. Nassau County Legal Aid has watched this change but has clung to its outdated, unfair system.
Tomorrow, the culture that has allowed this perverse relic from decades ago to continue to crush poor defendants in 2015.