Failure At The Nassau County Legal Aid Society, Part 2
Nov. 20, 2015 (Mimesis Law) — Yesterday, I laid out a laundry list of problems with the way public defenders are trained to handle felonies at the Nassau County Legal Aid Society. Yesterday was the “how?” Today is the “why?”
First, I recognize that Nassau County is not Brooklyn. They are different places with different cultures, no doubt. But what is not different is the law. The law grants certain rights to criminal defendants, no matter if they are arrested on Utica Avenue, Brooklyn or Uniondale, Nassau County. Yesterday, I discussed the systemic waiving, either without consent or under “you really have no other choice” coercion, of rights such as the right to a speedy trial and the right to have one’s case presented to a grand jury.
Now, is Nassau County the only jurisdiction in New York that decided that these rights for criminal defendants were not really their bag? No. But “well, somebody else did it too,” is an argument more appropriately delivered by a five-year-old who just poked his sister in the back seat of the family sedan. Just because others are ugly doesn’t mean you have to be ugly too.
Much of the opposition received from my earlier posts were arguments of the same (or somehow, lesser) caliber. Apparently I crossed some kind of “[insert color] wall of silence,” usually more closely associated with police and their misconduct than public defenders. Those on the other side of that [insert color] line threw everything they could think of against the wall to see what would stick. Not that I need to, but as a courtesy, I’ll try to provide explanations.
Why did I wait seven years to speak out? Why did I attack the management of Nassau County Legal Aid instead of the District Attorney or courts? Why did I raise all these issues without providing any solutions? I waited seven years because I was a public defender during that time and felt that I was in no position to speak out like this (plus, I only started writing for Fault Lines in June and had nowhere else to write about it until then).
The District Attorney and courts seem to be fine with the status quo. If change is going to come, it is going to have to come from the defense side of things. Nassau Legal Aid is the only institutional provider out there with the numbers to actually do something about this system.
Finally, although it is not my job to hand you a solution, I will do it anyway.
Seriously, just stop. Stop agreeing to do ambush arraignments. Demand the complaint and rap sheet before speaking to the client. Demand something as simple as being able to speak to the client in private (fosters something we lawyers like to call “confidentiality”). When the vast majority of your clients have bail set at arraignments, stop blaming the hopeless conservatism of Nassau County. Blame an unfair process to which you have capitulated. If Nassau Legal Aid attorneys could get into the facts of the case with a client prior to the bail application, then they might be able to make more effective requests for release.
Stop allowing the District Attorney to continue to bastardize an already problematic “ready rule” to essentially eliminate speedy trial rights altogether. It makes the District Attorney’s job immensely easier, which means that it is an unmitigated disaster for poor defendants. Public defenders are duty-bound to do many things. Making the government’s job easier is not one of them.
Stop allowing the DA’s Office to hold the entire felony process hostage with the absurd policy of “workups” and “yellow & whites.” You have been letting them punch you in the stomach for decades because you are afraid that if you stand up to them, they might punch you in the face. This is not defense. This is cowardice. You have the law on your side. Use it. Because remember, you aren’t actually the ones getting hit. Your clients are.
The Nassau County criminal justice system is unnecessarily complex. Why? Well, the more complex a system, the less variety it can recognize. When the public defender is primarily focused on process, making sure that every single thought or spoken word is marked in the correct box on the inside of the back flap of the file, or that this waiver or that form is properly executed, they lose the substance, like zealously defending each client’s case.
This complex system forces every defendant into the same box. Presumed Guilty. This is the opposite of the bedrock principle of our criminal justice system. If public defenders were allowed to give each case the individual attention it deserves, then the system would implode on itself.
And that is exactly what needs to happen.
Seeing positive change as impossible is a defeatist attitude. The majority of the public defenders at the Nassau County Legal Aid Society are anything but defeatists. They fight as hard as any public defender out there. But they fight a losing battle day in and day out within a massively broken system.
As for the management at Nassau Legal Aid, the choice is theirs. They can continue along the same road, attacking anyone who dares shine a light on their systemic hackery.
Or, they can decide, today, to draw a line in the sand and say, “this aggression will not stand, man.” Walk over to arraignments right now and notify the court that they will no longer be conducting arraignments unless Legal Aid attorneys are provided the paperwork and given adequate time to interview each client.
Then you can call up the fairly new District Attorney, Madeline Singas. You can inform her that you will no longer be waiving the clients’ speedy trial and grand jury rights as a matter of course. You can then start explaining to the clients that they actually have these rights and what that means. Honestly. Accurately. Fully.
Will this upset some people? Of course. But it should upset the people who are trying to screw indigent criminal defendants, not the ones constitutionally mandated to protect them.
You can do this, Nassau County Legal Aid. The poor defendants who rely on your services deserve it. More importantly, the law demands it.