Mimesis Law
27 June 2017

How Nassau County Poor Are Forced To Sign Away Their Rights

Oct. 28, 2015 (Mimesis Law) — Let me make something clear. For the most part, I detest grand juries.  I have sat through more than enough to know that they are dirty, unfair proceedings, where a prosecutor rules supreme and the only goal is to get that indictment, justice be damned.  But even an unfair grand jury is better than no grand jury at all.

As unfair as the typical grand jury is to a criminal defendant, the presence of a grand jury ensures that scores of defendants are not held indefinitely just because the government feels like holding them. New York law requires that the prosecutor obtain an indictment within 6 days (technically, 144 hours) of arraignment or the detained defendant walks. Sure, the grand jury will indict a ham sandwich.  But at least it forces the prosecutor to bring in the ham and bread.

And that brings me back to one of my and Scott Greenfield’s recent target, Nassau County.  Although the grand jury tends to be target practice for the prosecutor, I have seen what happens when a grand jury does not exist at all.  With no grand jury, defendants who have been given absolutely no discovery or evidence must make an impossible choice: accept a bad plea offer from the prosecutor or sit in jail until that offer looks good.

In Nassau County, indigent defendants are forced to waive their rights to have their case presented to a grand jury.  Not by law, mind you.  They are forced by a completely legal procedure that coerces defendants into waiving that right as a prerequisite to plea negotiations.  Although the law does allow a defendant to “consent” to waiving his rights to a grand jury, consent by threat should be considered no consent at all.

If you did not read my previous Fault Lines post, How Nassau County Courts Screw The Poor, then you might be surprised to learn that the Nassau County public defender’s office is a willing participant in this systemic violation of indigent defendants’ rights.  The blame should fall nowhere near the shoulders of the overworked and underpaid public defenders in the office.  They “consent” to this legal shell game in much the same way that their clients do, under threat of an even worse outcome.

I spoke with Julie Schaul, who currently works as a public defender in Brooklyn.  She worked at Nassau County Legal Aid from 2010-2013.  Julie, along with two unnamed sources, have confirmed that little has changed since I was there from 2005 to 2007.  Last week, I talked about the absurd Nassau County arraignment system that seems designed to shove as many poor people into jail as possible.  Once those people are there, if they are charged with a felony, then it is just another circus in Part 9L, which is how New York calls its courtrooms.

To fully understand the assembly line of injustice that has caused dust instead of witnesses to gather in Nassau’s decrepit grand jury rooms, it begins and ends in Part 9L.  Every indigent felony defendant that comes through Nassau County’s court system has to pass through 9L.

The first 9L court date is two days after arraignments. The main purpose of this court date is to get all incarcerated clients to waive their right to be released if the DA does not obtain an indictment within 6 days, as well as their speedy trial rights under Criminal Procedure Law 30.30.  This removes a lot of pressure from the DA’s office.  Instead of abiding by the law and respecting the rights of incarcerated defendants, they can sit back, relax and put off doing their job until the defendant has spent some quality time in jail.

At that first court date, the DA also lets the public defenders know which clients are screwed and which clients are royally screwed. ‘Workups’ or ‘yellow & whites.’  Given the choice, a defendant wants to be a ‘workup.’  This means that he is still in the running for a misdemeanor offer or a low-level felony.  A defendant who is tagged for a ‘Yellow & White’ has, for all intents and purposes, been indicted.

This indictment does not happen in the normal way that the law intended – with a majority vote after hearing evidence. No, it happens days later, at the Nassau jail.  And it happens by the defendant’s own hand.

Those same 9L attorneys must begin their day at 8 a.m. at the county jail. They enter the jail with a stack of files and a stack of forms.  The files correspond to the clients they are there to see.  The forms are two attached papers, one yellow, one white (hence ‘yellow & whites’).  The client conversation proceeds normally enough for an initial interview.  The complaint is read through and the client gives his version of events.  The problem is, this is not the initial interview.  This is the third time this client has met with a public defender since being arrested.  There is a good chance that each meeting was with a different attorney.

The ‘workup’ clients are told that they are probably looking at months instead of years, and that they will get more information on their next court date. The ‘yellow & white’ clients, though, are told that their future is fairly uncertain.  The case can break this way or that way down the road, but for right now, they need to do something that ensures that their case is not destined for certain calamity.  They must sign away another right.

The public defender explains to each client that while he has the right to have his case heard before the grand jury, should he choose to exercise that right, he will pay dearly.

“I was trained to get people to sign the ‘yellow & whites,’” Schaul told me. “I was told by my supervisors that if the client didn’t sign, it would be a disaster for them.  But I actually had no idea what would happen to them because I had never been trained about what happened next.”

Nassau public defenders are trained to make this decision for the client. Schaul said that the few times she was not able to get the client to sign away his rights, a more senior attorney would go back to the jail to make sure the ‘yellow & white’ was signed.  The entire goal, at the end of the day, is to get every yellow and white signed.  Every time.

By the time Nassau Legal Aid is done with the felony client, they have lost many of the rights that might have given them a fighting chance. The guarantee that no indictment within 6 days means freedom.  Gone.  Only facing a felony if the DA can obtain an indictment from a grand jury.  Gone.  Speedy trial rights.  Gone.

These are not forcibly ripped from the defendant’s possession. It is much worse than that.  The client is told by his attorney (for that day at least) that signing that form is not only the right decision.  It is the only decision.

That form does more than remove some of the defendant’s most important legal protection. It essentially hands an indictment to the DA.  The threat of an eventual harsh penalty is immensely persuasive, and almost every single ‘yellow & white’ defendant signs those damn papers.  A system tends to run more smoothly for the government when the rights of the citizens are stripped away.

Why would the public defenders go along with this? I was a 9L public defender out in Nassau County 8 or so years ago and I, much like Schaul and others, got hundreds and hundreds of clients to sign away their rights.  I knew at the time that this was wrong, but I had no idea how wrong until I got out.  Once I got to Brooklyn and experienced the grand jury process as the law intended, I understood the true damage.  This was never to benefit the client.  This was always to make other people’s jobs easier.  And some of those people were my old bosses.

About those bosses. One day, on the way to Nassau County Jail, another attorney and I decided we were not going to continue this charade.  We walked into 9L that day with a grand total of zero signed ‘yellow & whites.’  On our lunch break, we were summoned into our boss’s office (I’ll call him Rick, because that is his real name).

Rick:               So, you did not get any yellow & whites signed?  You can’t do that.

Us:                  Why not?

Rick:               Because that’s not the way things are done.

Us:                  But the way things are done is not working for our clients.

Rick:               [slow, knowing head shake to signify that the complexities of his position cannot and need not be explained] That’s not the way we do things.  Get them signed.

We were willing to take heat from the DA’s and the judges, but the immediate betrayal from the top of our own office broke our spirit. We continued to fight like hell until we (like so many other good attorneys in that office) escaped.  But those fights were on an individual level, and they were often futile within a system that was designed to beat down the public defender and his client.

Sadly nothing has changed. If anything, it has gotten worse.  As Schaul recounted,

The morale out there was really low. A lot of people were leaving.  The caseloads were really high.  There was a really strong divide between the younger misdemeanor attorneys and the more senior felony attorneys.

The office ran on fear, and that came from the supervisors.

That fear has numerous attorneys at Nassau County Legal Aid Society hoping for change. Unfortunately for them, that fear is valid.

The same heads of that organization that have had a hand in creating this broken system are still there. So are the young public defenders getting chewed up and spit out.  So are the ‘yellow & whites.’  Worst of all, so are the indigent defendants whose rights continue to get exchanged for convenience.

62 Comments on this post.

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  • Joe Carbone
    29 October 2015 at 1:41 pm - Reply

    Interesting article. I was an intern as NCLAS in 1992 and the forms were “blue and whites” but the dedendants got hip tot he colors and they changed them to yellow. As another thought how about not giving away Legal Aid services like candy to those who are not deserving of it. Would alleviate a lot of the numbers problems if people actually had to show financial proof bedore they got a free attorney.

    • Ken Womble
      29 October 2015 at 2:18 pm - Reply

      Amazing that these practices have been in place for well over 2 decades. As for screening, I agree with you. But I would put that far below stopping arraignment by ambush and following the law on grand jury procedure on the list of things Nassau Legal Aid needs to fix.

    • David
      30 October 2015 at 4:27 pm - Reply

      Joe – You honk this horn only because you want to increase the number of people who are forced to retain private attorneys such as yourself. Be honest and have the courage to admit it.

      • Ken Womble
        30 October 2015 at 4:34 pm - Reply

        “David”, there is nothing wrong with a private attorney wanting to increase his clientele. There is something very wrong with forcing poor people to sign away their rights to the grand jury.

        • David
          31 October 2015 at 12:49 am - Reply

          Both private and poor people sign the yellow and whites, Ken. You know that.

          • Ken Womble
            31 October 2015 at 10:11 am -

            Listen, I write something, I put my real name on it. Since your personal attacks were dealt with accordingly, you apparently decided to consult a 5 year old to advance your “but they are doing it too” argument. The bosses at Nassau Legal Aid are the only ones with the power to change these absurd practices. But that would take courage.

  • Christopher Best
    29 October 2015 at 7:56 pm - Reply

    How can attorneys knowingly convincing their clients to give up the rights designed to protect them en-mass regardless of their individual circumstances not be considered ineffective assistance of counsel? What am I missing?

    • Ken Womble
      30 October 2015 at 5:57 am - Reply

      Mind you, the public defenders who engage in these practices are brand new lawyers who are swimming in student loan debt. They are trained to do it this way. I for one, was not aware of how bad it was until I got out. But yes, I did know that this was wrong while I was there. But I was afraid that if I made waves, I would be fired.

  • al o’connor
    30 October 2015 at 12:51 am - Reply

    You have reduced an enormously complicated issue to a moral fantasy – in which you cast yourself as the crusading hero pitted against lazy and complicit legal aid supervisors. But the legal culture of the Nassau County criminal courts is not the legal culture of Brooklyn – where the defense bar has open file discovery, grand juries take action within the 180.80 period, and the district attorney does not wield his enormous power to punish defendants who exercise their right to grand jury action. Criminal defense lawyers cannot force systemic change by sacrificing some of their clients on the altar of a greater cause. And so taking on the unfair system you describe is not a simple matter of just saying no to the D.A.’s yellow and whites. It’s way more complicated than that, especially when (as you note) the DA has the legal right to insist on these waivers and visit fire and damnation on those who dare to resist. You make some valid points – there should be vertical representation with one lawyer representing a client from beginning to end. I’m sure your former LAS supervisors would agree. You certainly aren’t the first person to propose the idea. But I think your indignation is largely misaimed. It might be better focused on the legislature, courts, police, district attorneys, public defense funding decision-makers – which perpetuate the injustices of our broken criminal justice system. There’s certainly room in the discussion for criticism of legal aid societies, public defenders and 18-B lawyers. But I’ve been working in the field statewide for over 30 years and the caricature of the lazy, complicit legal aid supervisor is almost always untrue. It certainly is for the one singled out in your article.
    Full disclosure – I worked at Nassau Legal Aid in the 1980’s and early 90’s.

    • Ken Womble
      30 October 2015 at 6:38 am - Reply

      Lord. Where to begin. You are right. It is complicated. But it doesn’t become less complicated by ignoring these problems. You say that sacrificing “some” clients on the altar is not worth it. Right now, everyone is being sacrificed. This is exactly my point. If the bosses step up and put an end to this practice, then it blows up the whole system. Grand jury law exists to protect the defendant. When it doesn’t exist, then every defendant is exposed and the consequences are disastrous.

      You say I should focus my attention on the DA’s and judges and politicians. If you read any of my other posts, you would recognize that I pull no punches when discussing the failings of those groups. But they will always be against defendants’ rights. That is why a public defender office needs strong leadership that will fight for those rights, and support their attorneys when they fight.

      “I’m sure your LAS supervisors would agree” that vertical representation is the way to go??? Who do you think set up the system of grab bag representation out there? NCLAS management needs to be called out, not defended.

      This is not a caricature. This is the reporting of facts. This was my experience and it is the experience of people there now. Public defenders are some of the baddest attorneys out there. They fight the damn government day in and day out. They shouldn’t have to fight their own management as well.

      Remember, Al, at the end of the day this is not about NCLAS management or public defenders, or me, or you. This is about indigent defendents who are getting screwed day in and day out.

      • al o’connor
        1 November 2015 at 10:11 am - Reply

        Ken, I haven’t read anything else you have written and based on what I’ve seen I don’t intend to. If I wasn’t clear before, let me state it more plainly: in your exchange with Rick you were dead wrong. By unilaterally deciding to forego discussion of the waiver form with your clients, you placed their immediate legal interests in jeopardy in order to advance your own cause. It doesn’t matter that you think the cause was a just one – it was your cause, not your clients’. New York’s discovery laws are a disgrace but lawyers can’t protest by refusing to engage in plea bargaining. Progress has to come in other ways – and it can take decades of hard work to bring it about.
        Not only were you wrong, you chose an especially incongruous target for criticism. Rick has worked brilliantly and tirelessly on behalf of indigent criminal defendants in Nassau County for 45 years. As a supervisor for more than four decades, Rick has patiently mentored hundreds of lawyers who went on to dedicate their careers to public defense and the poor, myself included. I have been out of that office for more than 20 years. But to this day I seldom confront a difficult legal situation without thinking, “what would Rick do here?” Rick is an inspirational leader and the finest lawyer I have ever known. I’m sorry you didn’t get the chance to find that out.

        • shg
          1 November 2015 at 11:43 am - Reply

          It’s interesting that different people can read the same thing and come away with such completely different takes. I didn’t see Ken suggest that he failed or refused to inform any defendant not to sign away their rights, but only that he didn’t force or coerce them to, and walked away without a single waiver executed. You seem to have imputed facts not in evidence. Do you have reason to believe that Ken’s clients wanted to waive their rights and he prevented them from doing so? I didn’t read that at all.

          But from the conversation with Rick, it becomes a little more clear that this wasn’t about defendants making informed choices, but having a waiver rammed down their throats. Why you argue that coercing defendants to waive their rights is in their best interests is unclear to me. It would seem antithetical to everything a public defender would believe. Is that NYSDA’s view of the public defense function, to coerce defendants to waive their rights?

          Now you want to extol Rick’s virtues, which is fine. He may well be the finest lawyer you, Al O’Connor, has ever known, though the others lawyers you know may be a bit insulted by your saying so. That said, Ken showed rather than told. If that’s what you deem fine lawyering, well so be it. As for Ken Having the chance to find out, it would seem overwhelmingly clear that he did, but doesn’t share your adoration. Most of us don’t think very well of forcing indigent defendants to routinely give up their rights. Obviously, your mileage varies.

          Ironically, no one, including you, disputes that the discussion Ken writes about happened. If that’s what you consider good lawyering, then it’s probably a good idea that you not read anything else Ken has written. It would make you very, very sad.

        • Ken Womble
          1 November 2015 at 6:47 pm - Reply

          Al (can I call you that?). You decide that I am the one to be chided for “unilaterally” making a decision in spite of the true wishes of my clients. Yet you then praise the Rick who forced me and force many other public defenders to take this decision away from all of our clients. Your position has flaws, but listing them would take up far too much time. I stand by what I have written. I am happy with the fact that I am not making excuses and facile arguments to support my own cowardice and capitulation. Oh, and knowing the law and knowing how to use it are two very different things.

        • Ken Womble
          2 November 2015 at 6:53 am - Reply

          I want to be clear about two things.

          One. The reason we came back with no yellow and whites signed was because we properly advised the clients and left the decision up to them without putting the fear of god into them and forcing them to sign (as Rick ordered us to). Each one made the decision to say, screw this nonsense, I will take my chances with the grand jury.

          Two. Rick is not an inspirational leader. He is a terrifying boss who never goes to court and scours the attorneys files behind their backs while they are in court looking for mistakes. Mind you, these were not mistakes about violating clients rights (something he was perfectly fine with), these were mistakes about failing to follow office protocol for filling out paperwork or making notes in your files. You say Rick is the finest attorney you have ever known? But you do not dispute that he has presided over the utter failures I have laid out in my two articles. Therefore, you have publicly announced not only that you are fine with the way things are going out in Nassau, but that there is no greater attorney than the one who is very responsible for those failures. Hey, at least you had the courage to put your real name on your shallow defense of Rick and that failed system.

          • David
            3 November 2015 at 12:05 am -

            Ken – You’ve become a disgrace.

    • David
      30 October 2015 at 3:52 pm - Reply

      It’s curious that Ken’s shared his “outrage” within mere months of establishing his own private firm. He wants publicity so that he can retain paying clients. Otherwise, Ken’s outrage wouldn’t have remained silent and unpublished for 7 years.

      I worked with Ken. He broke his commitment to remain with the office for an agreed upon amount of time. He left the office on very poor terms with management because he breached a promise to remain with the office that he had made. View his criticism with skepticism. I suggest he’s not hero, just a charlatan in search of publicity.

      • Christopher Best
        30 October 2015 at 4:07 pm - Reply

        Interesting. Two paragraphs attacking the messenger, while not a single word dedicated to refuting the message…

        • David
          30 October 2015 at 4:24 pm - Reply

          Mr. O’Connor aptly addressed Mr. Womble’s “outrage”. I addressed Ken’s motivations. Now that he’s got his own firm, Ken’s outrage is boundless. But I never saw that outrage when I practiced with him or afterwards. Question the credibility of his claims and solutions. That’s just a suggestion.

          • Christopher Best
            30 October 2015 at 4:27 pm -

            “Mr. O’Connor aptly addressed Mr. Womble’s “outrage”.”

            Really? Did he do so to you privately or something?

          • Ken Womble
            30 October 2015 at 4:32 pm -

            No “David”, you opined as to my motivations. So let me ask you this. What are your motivations for defending a system that is so clearly failing to protect the rights of indigent criminal defendants? As Christopher (notice the lack of quotation marks) pointed out, your comment is a classic ad hominem attack, and a poor one at that. I waited 7 years because I was a public defender for those seven years and was in no position to speak so publicly about this and the many other things I have written about here. And honestly, if you never saw outrage out of me, then I question whether you really knew me at all.

          • shg
            30 October 2015 at 5:17 pm -

            That you choose to attack Ken’s motivations speaks volumes about the veracity of his information. Then again, the people who have corroborated and added to them help as well, as do the many emails from people who are afraid to go on record for fear of their jobs that we’ve heard from further corroborating that it’s a disaster.

            I hope you do a better job in court, as the substantive emptiness of your comment is damning to Nassau LAS.

      • Andrew Fleischman
        31 October 2015 at 12:23 pm - Reply

        David, I was just hoping to get a clearer picture of what you’re arguing.

        Are you saying that Ken is hoping that indigent defendants will read this website, scrape some money together, then hire him?

        Because it seems like that would be really unlikely to happen before they make bond.

        And if the issue with Ken’s professionalism is that the public defender’s office wanted him to stay longer (presumably because he was doing a satisfactory job), how does that affect his credibility here?

        If, for instance, he was fired for gross misconduct, maybe you could argue sour grapes. But he voluntarily decided to leave the system, and now he’s sharing his experiences about it. So what’s the motivation to lie?

        I just don’t understand your argument.

  • Catherine Griffin
    2 November 2015 at 2:00 pm - Reply

    I worked with Rick for 9 years, I can wholeheartedly say he is the finest lawyer and mentor I could have had at my back for each day of those 9 years. Nassau is a tough jurisdiction to practice in but Rick taught me how to fight effectively for the rights of our clients, to whom he has dedicated his career. Rick spent countless hours working with me on cases, his door was open, no matter when or what for, if I needed help he was there. He was available all day and night without exception. There is no other person who would have been there for me as a lawyer or for our clients more than Rick. At the end of my last trial in Nassau my client asked me to thank the wise man for being there for him and that is what Rick is. Rick is a man with a brilliant legal mind who fights tirelessly every day for our clients. In my so far 14 year career as a public defender I have simply never met a finer defender of our clients or their rights or a man who stands so steadfastly at the backs of his lawyers.

    • Ken Womble
      2 November 2015 at 2:21 pm - Reply

      Hi Catherine. With all due respect, no one disputes that what I have written about has happened and continues to happen. This leaves the audience in the position of choosing. They can support Rick because they have “never met a finer defender of our clients or their rights.” Or they can admit that having a policy of violating defendants’ rights is wrong and should change. It really is that simple.

      • David
        3 November 2015 at 12:19 am - Reply

        “No one disputes that what I have written about has happened and continues to happen.” No one. You’re right. Everyone agrees with you Ken. Just look at these comments. Nice try, Ken.

        “Or They can admit that having a policy of violating defendants’ rights….” – violating defendants’ rights? what? Not one thing the NCLAS does violates anybody’s rights. What bullshit you pass off as reporting.

        You pathetic purveyor of lies. Try getting some name recognition by winning cases, not crafting lies about the Society or individual members.

  • Ilana Kopmar
    2 November 2015 at 4:48 pm - Reply

    The Nassau County District Attorney’s office has long had a policy of refusing to plea bargain post-indictment. Thus, if a defendant charged with a crime wants to try to negotiate with the DA, he or she must first sign a waiver. This is often the best chance for a defendant to work out a favorable plea bargain, as many do. Yet, you neglected to disclose this policy to your readers, leaving the misimpression that the client’s rights were being waived for no reason whatsoever. Further, you leave the impression that once the waiver is signed, there is no going back. This too is untrue. The speedy trial waiver (yellow and whites) can be revoked at any time. Additionally, for any client who does not wish to waive, then the district attorney’s office must present their case within the statutory time period.
    You don’t mention that the entirety of Nassau County Criminal Court bar engages in this same practice. They do so because they are skilled practitioners representing clients who often wish to negotiate pre-indictment. You seem to be arguing that an attorney practicing in Nassau County should sacrifice his or her clients’ best chance at reaching a favorable plea bargain for some greater good. But attorneys have an ethical obligation to each client, above any other consideration, and that is exactly what the Legal Aid Society and the private bar are doing.
    You also fail to point to other counties in New York State which also have a similar process requiring a temporary waiver of 180.80 and GJ. The Queens District Attorney’s office has a similar policy of refusing to plea bargain post-indictment. As such, Queens has a similar process of having defendants waive 180.80 time and GJ presentment, while they first engage in pre indictment plea negotiations.
    You egregiously blame Rick for the procedure of signing a pre-indictment waiver in order to negotiate a plea bargain. Rick has devoted his life toward representing the indigent population in Nassau County, one of the most conservative counties in New York. He didn’t invent the Part nine system. The Legal Aid Society adapted to the system after being placed in the predicament of not being able to negotiate post-indictment. Rick’s only objective has been and will always be what is in the best interest of each and every client. He teaches all of us who practice in County Court that pre-trial waivers are a necessity to protect those clients who wish to negotiate their case. He has never and would never “force” a client to sign a yellow and white if that is not what they wish to do and it is not in their best interest. I can attest to that by pointing to our robust Grand Jury practice and number of indictments that we attorneys in county court currently have in our case load.
    I have worked in county court for over twenty years, and feel fortunate that Rick has been my boss. Rick has dedicated his entire 45 year career to training and supervising his attorneys. He is in court for every trial and hearing, on the phone nights and weekends, zealously and aggressively fighting for the rights of the poor. Your animus towards Rick is telling, and it can only be due to the deterioration of your relationship with him when you broke a commitment you made to him. Your disingenuous attempt to tarnish the reputation of someone who has worked so diligently for so long to protect the rights of indigent defendants says much about you, and nothing about him.

    • Ken Womble
      2 November 2015 at 5:23 pm - Reply

      More of the “well they are doing it too” arguments. You all want to make this all about Rick, who has become the star of this show, because his honor is so much more important than following the law on grand jury. So he folded on this policy long ago and we are supposed to be OK with it all these years later. Which is it? He folded on a bad policy, or the practice out there is hunky dory? I was told to get clients to sign the Y and W’s. Julie Schaul said the same thing. So have many other people who I have talked to who are, for some strange reason, concerned about potential backlash from NCLAS. While I was there, I saw the inside of the Grand Jury room one time. Felony Exam. One. Signed Y and W’s. Hundreds.

      You and the others are making this all about Rick. This is about a bad policy that needs to change. Are others to blame? Sure. But NCLAS is the only organization with sufficient numbers and sufficient power to change that system.

      • Ilana Kopmar
        2 November 2015 at 6:18 pm - Reply

        We don’t want to make this about Rick – you’re the one who is making it about Rick. But, if you want to talk policy – then let’s talk about policy. As I indicated in my comment, Queens County has a similar practice to Nassau. Like Nassau County District Attorney’s office, Queens District Attorney’s office has a policy of no plea bargaining post indictment. Any defendant who wants to negotiate pre-indictment must first waive their 180.80 rights at arraignments before their case is sent to a pre-indictment part. I don’t see you pointing the finger at Queens Legal Aid Society for failing to stop this practice. Why not? They engage in the same practice as Nassau born out of a necessity to assist those defendants who want to negotiate pre-indictment.

        Additionally, NCLAS only represents about 25-30% of all defendants in Nassau County Court. The private bar and 18-b practitioners represent about 70% of all defendants appearing in County Court. I don’t see you going after them for failing to change the District Attorney’s office policy of no plea bargain policy post indictment. We represent a minority of the defendants in Nassau County with insufficient numbers to yield a tipping point. So, contrary to what you stated, NCLAS does not have the power or sufficient numbers to change the District Attorney’s policy.

        Lastly, you indicated that you only saw the Nassau County Grand Jury one time. Maybe if you had kept your promise of staying at Nassau County for a year, then you would have seen the grand jury countless times.

        • shg
          2 November 2015 at 6:42 pm - Reply

          The “Queens does it too” defense is not only a logical fallacy, but unavailing. Queens has always been a hotbed of problems, like prosecutors questioning defendants right before arraignment, and aspiring to be like Queens hardly speaks well of a policy. But more importantly, just because Queens is ugly doesn’t make Nassau less ugly. Pointing to the worst and saying “us too” hardly makes your case.

          As for LAS representing 25-30% of defendants, is there any other individual or firm that does so? Of course not. LAS is the single largest defense provider. Your analogy doesn’t hold up. So you’re as big as they come. If not LAS, then who? Individual private or 18B lawyers? And regardless of what they do, how does that make what LAS does any better? Again, a logical fallacy. If what you’re doing is wrong, then it’s wrong regardless of whether others are wrong as well.

          But the biggest question is why the resistance? We’ve heard from many LAS lawyers, and none of this commentary is fooling them. They want change desperately, but are certain they would be fired for speaking out publicly. Instead of trying to defend the indefensible, why not try to improve things, help the defendants, and stop making excuses? Why fight so hard to defend the problems of the status quo when you could fight to make things better for your clients? That’s the real shame here.

  • Sarah
    2 November 2015 at 5:03 pm - Reply

    As a current staff attorney in part 9L, I have to say that your article is completely wrong. I have never once been told to coerce my clients into signing yellow and whites. In fact, from day one I was taught to convey all the options to my client and advise them of all their rights including their right to demand a felony exam. When I discuss my cases with Rick he has never told me that I MUST get them to sign or that I have to tell my client that he/she will be screwed if he/she doesn’t sign the yellow and whites. In fact, I have had several clients demand a felony exam when I didn’t think it was in their best interest and when I returned to the office to speak with Rick about the cases he always said they have the right to demand a felony exam and our job is to do our best to assist them no matter what direction the case goes. Rather than sending me back to the jail to convince or coerce a client to sign the yellow and whites, Rick instead shifted the focus to how we can help our client if the cases gets presented to the grand jury. Rick is always the first one to look at the case with you and determine what witnesses we need to speak with before the case is presented. Rick has always taught me that the client is the ultimate decision maker as to whether or not to demand a felony exam or sign yellow and whites. Rick has also taught me that our ethical duty is to represent each client to the best of our ability no matter what direction they choose to take and that although we hope to impact larger changes that we can never do that at the risk of harming a client or not following their wishes.

    • Ken Womble
      2 November 2015 at 5:25 pm - Reply

      How many felony exams or grand juries have you done? How many Yellow and Whites have you gotten signed?

  • Karen
    2 November 2015 at 5:41 pm - Reply

    One can only be amazed by the memory of Ken. To remember such detail of your conversation with Rick ( including his slow head nod) from 8 years ago is astonishing. Or is it more likely that your memory is flawed? As a prior LAS attorney and an attorney in private practice for fifteen years I can say your posts are complete falsehoods. Never did Rick tell any attorney to force clients to waive their rights. Ilana already addressed these incorrect statements so I don’t want to repeat them..I agree with Al and Catherine and so must the majority of Nassau County as Rick was honored by the Nassau Criminal Courts Bar Association as the practitioner of the year. Or maybe all Nassau lawyers have it wrong and the disgruntled employee who broke his commitment and left 8 years ago knows better.

  • David Teeter
    2 November 2015 at 6:40 pm - Reply

    What you are asking the Legal Aid Society to do is fry a few clients for the “greater good” as you define it. You want them to refuse to engage in the “yellow and white” process in order to bring down the system. The problem with that is that the clients who get indicted will be treated harshly by the DA, much more harshly than they otherwise would. While some others may be released because the DA is not able to indict within the time limit, they too might suffer a greater punishment in the long run.

    This is unethical. A defense attorney cannot act for any “greater good.” A defense attorney must act in the client’s best interest at all times. Sometimes that will mean waiving 180.80, sometimes not.

    I understand that you, as a beginning attorney, felt pressure to have all the clients sign the waiver. That is because there is an unequal risk. If a waiver is signed when it should not have been, the waiver can be revoked with little, if any, time lost. If the waiver is rejected when it should have been signed, a client will be indicted, lose any opportunity for a plea bargain, and serve much more time than otherwise.

    I am not defending the “yellow and white” system. I agree that the DA should be put to the test as 180.80 requires. However, the attorneys who practice in Nassau, public and private, don’t set the policy, and they are not charged with the duty to fight the system to the detriment of their clients. They zealously advocate for their clients given the parameters set by the law and the DA. They don’t deserve your criticism.

  • Ken Womble
    2 November 2015 at 8:00 pm - Reply

    I feel like we are going around in circles here. I think allowing the DA to hold the grand jury process hostage without a fight is wrong (and not in accordance with the meaning of the law). You all think Rick is great, so grand jury rights can get bent. We could have this debate for years.

    On another note, how about a new topic. The cops have a thin blue line where anyone who is seen as crossing said line is attacked regardless of the merits of his or her complaints. Since blue is already taken, what color would you like to have for your thin line?

    • Linda Lebovitz
      2 November 2015 at 9:35 pm - Reply

      I would like to begin by stating that I hope you (Ken Womble and SHG, whoever you are) have the courage to allow this note to remain in the public domain. I understand that dissenting posts have been “taken down” by someone other than their authors. Certainly, one who makes bold and public criticisms of an institution of which they have very little or no knowledge should not be frightened or intimidated by the opinions of people significantly more mature, experienced and wise than he.

      You have been critical, among other things, of the Legal Aid Society’s policy in Part 9L to “strategically” waive clients’ 180.80 rights. What I can add to the previous contradictions to your assertions is a big of history. You do not know that under previous administrations of the DA’s office, the presumption was to demand a felony exam. Only if the DA was going to proceed at that hearing by submitting a full written confession or threatened indictment due to a sensitive (eg., a confidential informant or a victim of a sexual assault) complainant, would that demand be waived. However, due to a change in the policy of the DA’s office, ie., their decision to present cases directly to the grand jury when a felony exam was demanded, the strategy of the Society had to change as well. Any competent attorney considers statutory plea bargain restrictions as well as the DA’s policy of “no post-indictment plea bargaining” when advising a client how to proceed at that critical junction. It would be malpractice to do otherwise.

      Nassau County is a very different place than other counties in New York State. The volume of criminal cases, the political and ethnic make-up of the population as well as, most importantly, the judicial and prosecutorial climate force the entire defense bar to operate differently than, for example, the defense bar in Brooklyn or Manhattan.
      That is a fact of life that is indisputable.

      The alumni of the Legal Aid Society have gone on to sit on the federal bench, NYC Supreme Court, Nassau County and Nassau District courts. We have alumni who teach at highly regarded law schools, practice in policy-making offices as well as defending people charged with the most serious crimes. We are thought of as among the attorneys who best protect our clients’ interests, who obtain the best outcomes both by plea and after trial, who are willing to share our knowledge and experience with others and who certainly are looked to by others in the profession for guidance in the Nassau County courts.

      As far as Rick is concerned, it is incomprehensible that anyone who has had the honor of knowing him would defame him in the way the contributors to this blog have done. Under no circumstances would he ever advise an attorney to coerce a client into making any decision as misguided as that client’s decision may be. This includes but is certainly not limited to demanding a felony exam. Our job is and has always been to advise a client of the potential consequences of each option. Rick’s door is open, both literally and figuratively, to discuss, advise and assist each of us in this mission. He is committed to superb representation of our clients and has negotiated when necessary with both the DA’s office and the supervising judges to be sure that any policy changes they impose do not adversely affect the rights of our clients and, frankly, defendants in general. In my experience as a Legal Aid attorney for the last 32 years, I wholeheartedly vouch for his integrity, his intelligence, his approachability and his unqualified dedication to the representation of indigent clients.

      • shg
        2 November 2015 at 10:06 pm - Reply

        No “dissenting posts” have been taken down. You’ve been misinformed.

        • Mike
          2 November 2015 at 11:01 pm - Reply

          Except that they have.

          • shg
            3 November 2015 at 5:13 am -

            I don’t think you understand how this internet thing works. On the outside, it may seem as if it’s all magic, but on the inside, the information exists and is all available. For example, we know who has posted multiple comments under different names. We know that “David” posted a about a half dozen times (here and elsewhere) the exact same comment using various fake names (the comment was posted, but only once). So this isn’t a discussion. If you are saying your comment wasn’t posted, you’re a liar. If you’re saying other people told you so, then you now know the truth. And if you prefer not to believe me (which would be interesting since you’ve commented under a false name and from the same IP address as “David”), then it no longer matters.

            We don’t, as a matter of internal integrity, dox (reveal private information) commenters, even those who are liars. If you want to comment under a pseudonym, so be it. We are also under no duty to post comments. Contrary to what Linda Lebovitz says, this is not public domain. You are guests in our house, and you are allowed to comment as a courtesy. You may disagree, but you don’t get to reinvent the etiquette of the internet because you have no clue. And yet, we allow negative comments out of choice, not requirement.

            That said, this is quite a show for people who are familiar with the internets, and because of lack of familiarity with the internet by those trying so desperately to defend Rick, the obviousness of it is quite clear. We’ve seen little swarms of friends of someone whose feelings were hurt try to blunt the damage many times before. Much as it’s admirable to defend a friend’s honor, this is accomplishing the opposite of what it’s intended to do. You’re giving a lot of people some good lulz, and changed no one’s mind. So there is no reason not to post negative comments, even though you can’t appreciate why that could possibly be. This isn’t a popularity contest, even though you folks don’t grasp how this works.

            Now you know. Welcome to the internet.

      • Rendall
        7 November 2015 at 3:51 pm - Reply

        “Nassau County is a very different place than other counties in New York State. The… ethnic make-up of the population… force the entire defense bar to operate differently than, for example, the defense bar in Brooklyn or Manhattan.”

        Can you expand on that part a little bit? How does the ethnicity, specifically, of the population force the defense bar to operate differently than Brooklyn or Manhattan? Serious question.

  • Taryn Shechter
    2 November 2015 at 9:31 pm - Reply

    No one denies that there are issues with how the criminal justice system functions in Nassau County. However, the accusation that clients are forced to sign their rights away is simply ignorant. Due to the lack of discovery in Nassau County and the District Attorney’s policy of no plea bargaining post indictment, our clients are given the opportunity to try and negotiate a plea deal if that is the path that they want to choose. The earlier posts from today have done an excellent job of explaining how the system really works in Nassau County and what we have to do to protect our clients. Our job as attorneys is to explain to our clients their options and fight for what they want. If a client wants to go to the grand jury and potentially have a trial then we will demand a felony exam, if they want to see if a plea deal can be worked out then that’s what we will do. The decision rests solely with the client. It should be noted that if a client chooses to try and work out a plea deal by signing a “yellow and white” they can still at any point change their mind and demand a felony exam. I am not sure what conversations you had with your clients in Part 9L but I have certainly never explained, “he will pay dearly,” for choosing to demand a felony exam and go to the grand jury. As an attorney, I did and continue to, evaluate whatever evidence that the District Attorney has given thus far along with the information from my client to determine what course of action I would advise. If ever I wasn’t sure about what advice to give I would speak with Rick or another more experienced attorney first. When I was in Part 9L and a client did not want to sign a yellow and white it often meant they wanted to demand a felony exam and therefore we would. If however a client did not choose either option the case would sometimes go to a county court attorney because it likely meant the case was going towards litigation and would require the assignment of a county court attorney anyway.

    As public defenders we fight injustices every day and at the Nassau County Legal Aid Society we are lucky enough to have the guidance and mentorship of Rick. The reason we have all spoken so much about Rick is because you are the one who brought him into this. We all respect and admire him for his unwavering dedication to our office and clients. He is extremely involved with all of his attorneys and their cases. Rick has been fighting for clients’ rights for over 40 years, this is just who he is. He has a wealth of knowledge and is always available to help with a case whether it is preparing for litigation or simply just discussing a new case. Rick has personally second sat me on all of my litigation in County Court and does the same for my colleagues. There are never any “office hours” with Rick, he is available whenever you need him. Whether it is late night phone calls from home, reaching out on his days off or middle of the night text messages with new strategies for litigation, he is always thinking about what is best for our clients.

    You have specifically targeted the Nassau County Legal Aid Society and proclaimed it is our responsibility to change the policies in Nassau County, but which of my clients do you want me to make the sacrificial lamb? You say we should demand change. Let’s play this out, one day Rick tells us that we are no longer signing yellow and whites, forcing the D.A. to indict all of our clients. What then? What makes you so sure that the D.A. would then offer a post indictment plea? You can’t guarantee that, and what am I supposed to tell my client who wanted me to try to negotiate his case? How am I supposed to tell him that he and my other clients are being sacrificed for the greater good, so that future clients would no longer have to sign yellow and whites. I don’t know about you, but I will never sacrifice a single client in that manner. I am bound to protect each and every client and that is what I intend to do.

  • Ken Womble
    3 November 2015 at 9:19 am - Reply

    To summarize, we all seem to agree that if a defendant exercises his right to have his case presented to the grand jury, as the law intends, if he is indicted, the DA will make him pay for his decision. This is a terrible system. It forces defendants to make huge decisions on felony cases without even getting a whiff of discovery. No one is saying that NCLAS created this system. It was clearly the DA. Where we seem to part company ever so slightly is where I am advocating that SOMETHING be done to change this system for the betterment of defendants in Nassau County, and you all seem to be saying that this shitty system should remain and we should do NOTHING.

    I assume you are also completely cool with the complete lack of confidentiality in arraignment interviews? What about the absurd practice of only providing the complaint and rap sheet to the public defender when the case is called onto the record for arraignment and not before they actually speak to the client about their case?

    I am not saying that Nassau public defenders don’t fight. Nothing could be further from the truth. They fight like hell. I am merely advocating that so many parts of the system out there make them fight in vain. All the energy spent attacking me would be much better spent figuring out a way to change these practices.

    • Brian Shupak
      3 November 2015 at 9:22 pm - Reply

      So many people in the comments section have spoken out in support of Rick, and I share in their sentiment. Rick is extremely intelligent, highly respected by the entire defense bar, and he is a career long mentor to a lot of people, including me. You don’t work for 45 years in the same office if you are not highly skilled at what you do, or you do not care about the people you fight for everyday. To suggest that Rick would want the attorneys in the office shoving Y&Ws down a client’s throat, is simply wrong and contrary to how he wants his staff to counsel their clients. I worked at NCLAS for 3+ years and never once did Rick suggest in any way to me – express or implied – that the way to do things is to force a client to sign a Y&W.

      Ken, you advocate that something needs to be done about the GJ system in Nassau, yet not once do you suggest any possible solution to a very very complicated problem. You are clearly enraged that the arraignment process runs the same way as it did when you were there. yet I did not see one suggestion made by you to change it. The tone of your two articles leaves me with the impression that all you intend to do is be destructive, attack, take shots at management, and criticize the practice out there, and do nothing constructive to make the system more fair to the clients. Your actions are consistent with that as well – in the face of adversity and practicing in a very challenging courthouse and within a GJ system that you felt lacked fundamental fairness to your clients, you cowardly quit after only two years when you committed yourself to three, ran off to Brooklyn, kept silent about your experience for 7 years, and allowed the system to continue out there without any awareness raised for seven years. And when you finally did speak up after all this time, you had nothing to offer as a solution.

      With all of your wisdom and experience practicing in a jurisdiction with grand juries operating “as the law intended,” and within an arraignment process that gives your clients a real fighting chance at freedom from the start, why don’t you put your money where your mouth is and help revolutionize the GJ system in Nassau?

      • Ken Womble
        4 November 2015 at 12:03 pm - Reply

        Again. Do something vs. do nothing. I am advocating for the former.

        • Brian Shupak
          4 November 2015 at 12:54 pm - Reply

          Yet you do not have any proposed solutions to change the GJ system or arraignment process, which was precisely my point. I didn’t see any advocacy in any of the two articles you wrote that are about Nassau. I didn’t see a single sentence in any of your articles that involve any constructive solutions being proposed. So what are you specifically advocating for?

          • Ken Womble
            4 November 2015 at 1:55 pm -

            Get the paperwork prior to interviewing clients for arraignment. Make sure there are enough attorneys to fully interview the clients prior to arraignment. Privacy for those interviews. Follow the law on grand jury and not allow the DA’s to hold the process hostage to place defendants’ in the worst possible negotiating position. NCLAS is the only institutional provider with the size and strength to make any of this happen. I propose they try to do just that, because the current system is not working.

  • Samantha Marshall
    3 November 2015 at 9:08 pm - Reply

    The fact that defendants possess certain rights doesn’t mean they should or even want to exercise those rights. A criminal defendant has many rights, such as the right to testify before the grand jury, the right to remain silent, and the right to a jury trial, but for strategic and personal reasons, defendants routinely choose to waive some or all of those rights. What your article fails to address is the fact that 180.80 rights are no different. If you practiced for any meaningful amount of time in Nassau you’d know that the yellow and whites are not as evil as you make them out to be. Many defendants benefit from signing y&ws by eventually getting misdemeanor offers on provable felonies or by getting to keep their cases in part 9 where many times the best possible plea deals are offered. In many cases, the defendant has other pending cases or some type of other hold on them so they cannot get out of jail even if they exercise their 180.80 right. In fact, the delay in grand jury proceedings that the y&ws allow often gives the defense the time needed to gather evidence and witnesses to present at the grand jury proceeding strengthening the defendant’s chances of getting a no true bill. It should also be noted that the defendants who are deemed “work ups” also are required by the DA to waive their 180.80 rights if they wish to hear what the DA has to offer- they just don’t put it in writing. The bottom line is that if the yellow and whites did nothing to help our clients and only hurt them we wouldn’t participate in using them.
    I have worked for Nassau Legal Aid for 6 years and have never been threatened or pressured to coerce clients into signing away any right. The attorneys at my office are fortunate to have Rick, one of the most brilliant and selfless public servants that exists, teaching us how to analyze cases and determine the best strategy for achieving the best results. But, like my colleagues have already pointed out, the decision of whether to waive 180.80 is always left to the client. Sure it sucks that the DAs office out here threatens to refuse to negotiate post indictment, but frankly, that’s their prerogative. No one is entitled to a reduction of charges. So, getting rid of the yellow and whites is not necessarily going to solve any problem.
    That being said, any attorney in my office will acknowledge there are many needed improvements in the Nassau court system. We meet often to discuss what we can do to better the system out here and have been getting copies of defendants’ charges and rap sheets in arraignments before interviews take place for some time now. Nassau County will never be the city – we don’t have the same open minded jurors you have or the liberal voters. Rather than picking on one of the few organizations that is trying to make the county a better place, your criticism would be better placed with the county itself for providing us with too few resources or the DA’s office for their terrible policies.

  • Sgt. Schultz
    4 November 2015 at 7:24 am - Reply

    As laughably adorable as these comments have been, as Rick’s handful of loyal friends try desperately but clueless to defend his honor (did he send out a script? It sure looks that way), the lameness of the defense leaves no doubt to the reader that Womble is absolutely correct. That these are lawyers is pathetic. One would think you could do a better job of arguing your case, but your arguments suck.

    And for all the effort, a little truth slips into your blatant bullshit:

    The fact that defendants possess certain rights doesn’t mean they should or even want to exercise those rights.

    Those rights belong to the defendants, not the legal aid lawyers to take away by lying to defendants or coercing them to give up their rights. And so it all crumbles because one of your little swarm of Rick loyalists goes off script.

    And the rest of the internet laughs at how your attempt to cover up fails. Absolutely adorable.

  • Samantha Marshall
    4 November 2015 at 12:53 pm - Reply

    Anyone who can read and has more than two brain cells to rub together can see that’s not what my post says. Your inability to string together a coherent response clearly demonstrates your lack thereof.

    • shg
      4 November 2015 at 1:21 pm - Reply

      First, if you are replying to someone, use the reply button. That’s how people know what you’re replying to. Second, whether Sgt. Schultz’s response is coherent or not isn’t affected by your reply. People can read for themselves, and don’t need you to tell them. Third, he quoted you. You wrote what you wrote. If you expressed yourself poorly, and blame someone else in a particularly snarky way for quoting your precise language, you lose.

      I reread your comment. It was remarkably poorly written and unclear. That’s no one’s fault but yours.

  • Howard
    5 November 2015 at 12:34 am - Reply

    Ken is so far up your tuchus that I’m embarrassed for him. This article manifestly demonstrates his willingness to tell outright lies in order to serve his personal motivations. It also serves as compelling confirmation of Ken’s poor reputation amongst members of the criminal bar.

    • shg
      5 November 2015 at 6:37 am - Reply

      This is a substantiveless personal attack by someone who is too much of a coward to use his real name. Comments of this type are ordinarily deleted as they add nothing, but I’ve posted this comment so that anyone who reads it will be able to see the type of character reflected by those desperately trying to harm Ken for what he wrote.

      No one likes cowards hiding behind rocks throwing pebbles.

      • Patrick Kauffman
        5 November 2015 at 8:50 am - Reply

        Shg, the hypocrisy of your replies are almost comedic. Your posts are full of personal attacks made from behind 3 initials. Moreover, your aggressive comments in defense of Ken add nothing to any genuine argument, and actually hurt Ken’s position. It’s also clear that you sensor many posts. What are you so afraid of? Today, is the first time I have made any comments, but I wonder if they will even be seen.

        • shg
          5 November 2015 at 9:04 am - Reply

          First, the word is “censor.” Second, you made one comment prior to this one, and it’s been posted (at 8:35 a.m., I see, 15 minutes before you wrote this comment). Third, if you knew how to use the internets, you would be aware that I’m Scott Greenfield, and have used my initials when commenting for a very long time, but my identity is pretty well know. Perhaps not to you, but the internet isn’t limited to stuff you know.

          More importantly, I’m in charge of this place. Your ignorance of FL or how the internet works doesn’t mean that it should be changed to accommodate any clueless reader or commenter.

          My comments are about the integrity of the process here. Whether they add to “genuine argument,” hurt Ken’s position, or anything else is up to others to decide. But when comments, like yours that “it’s clear that you sensor [sic] many posts” are facially false, I step in the clear up the ignorance and the lies. Sorry if that makes you sad.

    • Ken Womble
      5 November 2015 at 7:25 am - Reply

      Reputation is important in the legal profession. We just seem to have very different ideas of what and who matters.

      • shg
        5 November 2015 at 8:36 am - Reply

        Reputation is a funny thing. Some lawyers aspire to a reputation of fighting for their clients. Some lawyers hope for a reputation of being cooperative and making the wheels of the system grind smoothly so that defendants can be swiftly convicted and punished.

  • Patrick Kauffman
    5 November 2015 at 8:35 am - Reply

    I worked for NCLAS for over 5 years before entering private practice in criminal defense in the years since. Based on my experience, I wholeheartedly dispute many of the alleged “facts” that claim to be reported here, especially those aimed to discredit Rick.

    It’s a shame actually because there is value in debating and raising awareness about flaws in the system that harms defendants in Nassau. Nevertheless, any value from civilized discussion is lost in personal attacks on Rick or those that share a different opinion, sarcastic quips instead of responding to valid opinions, and the use of propaganda in lieu of actual arguments or accurate reporting. For these reasons, it is pointless to debate the actual merits of these important issues since I will get no true debate (please see the numerous genuine arguments left uncontested in other comments above). Instead, I will concentrate my post on pointing out many misrepresentations and misleading statements, the worst of which have unfairly attacked the reputation of a man that has dedicated over 4 decades to fighting for the rights of indigent defendants.

    First, Rick does not train attorneys to force clients to sign yellow and whites. In fact, NCLAS routinely visits incarcerated defendants at the jail to provide more time to explain the purpose of these documents and review all options. Conversely, some (non NCLAS) attorneys simply sign yellow and whites on behalf of their clients without the benefit of a thorough explanation. The depiction of your supposed interaction with Rick defies belief. If I ever went to Rick (which was quite easy as his door was always open) about a client that wanted to exercise his 180.80 or 30.30 rights, Rick would meticulously review the file with me, exploring all the potential legal risks and benefits to that particular defendant. Rick taught me to analyze each case on its own merits, asking is this a good case to demand a felony exam? Or sign yellow and whites? Or even think outside the box? There were absolutely no standard marching orders to simply “get them signed.”

    If Rick was upset at you at all, it was perhaps because it appears that you & your colleague chose to protest a system in a manner that compromised the very rights of indigent defendants that you now claim to champion. It seems highly unlikely that every single defendant both you and your colleague visited that day each independently chose not to sign the Y&Ws. It is more likely that you were actually guilty of the same evil you now claim NCLAS has perpetrated…you and your colleague unduly influenced these defendants to make a major decision about their rights based on your ulterior motives. If that was the case, then it is a good thing that Rick was there to prevent such a selfish act and preserve the rights of these defendants.

    Furthermore, to say that this was “always to make other people’s jobs easier” could not be further from the truth when talking about Rick. Rick works tirelessly in defense of NCLAS’s clients. He stays late almost every day. He spends his weekends assisting attorneys in trial preparation. If not in person, he is available by phone any time of day, on the weekends, and even while on a rare vacation. This is not a man who takes the easy way out.

    Your repeated references to the number of felony exams conducted or how many times the inside of GJ rooms have been seen, versus the number of Y&Ws signed is very misleading and paints quite an incomplete picture. It ignores the other (more likely) paths that cases may take, such as a conversion (reduction to misdemeanor charges), release via 180.80, or a GJ proceeding where the defendant opts not to testify (thus a defense attorney would have no reason to be inside the GJ).

    To say Rick never goes to court is a blatant lie. He personally accompanied me to court several times. He is present for the majority of litigation in County Court, observes prospective attorneys in District Court, and even goes to court for non-litigation purposes. In fact, I just saw him in court within the last few weeks assisting a NCLAS attorney during trial.

    Ken, contrary to what you say, you are the one who made this about Rick. You called him out by name and even highlighted it with that questionably accurate dialogue box. Then you went on in your replies (or that of your followers) to attack a man that has dedicated his life to indigent defendants’ rights, as well as attack anyone who defended him or had a different opinion. I’m sorry that you clearly didn’t get know Rick or avail yourself of his wisdom (your loss), but I think it’s obvious that numerous skilled and respected attorneys see Rick as an inspirational leader. I know that I do.

    I take no issue with calling for reform, especially involving the rights of indigent defendants in the harshest of environments, being Nassau County. But, any good points you may have had get totally lost when you mislead, misinform or tell untruths. You stand on a soap box preaching that you are willing to do something while others stand idly by, yet at no point anywhere in your ramblings do you actually detail what this something is. Instead of delivering your message with passion and accuracy, it suffers from a tone filled with anger and resentment that seeks to hurt a good man.

    • Ken Womble
      5 November 2015 at 9:01 am - Reply

      “It’s a shame actually because there is value in debating and raising awareness about flaws in the system that harms defendants in Nassau.” I’ll just let that sit out there for a bit.

      “I take no issue with calling for reform, especially involving the rights of indigent defendants in the harshest of environments, being Nassau County.”

      Nassau County is a harsh environment precisely because the management of the institutional provider has failed to fight to change so many of these obstacles. The simple fact that public defenders are not provided with the complaint or rap sheet before they interview the client is unforgivable and could change today. All it would take is for NCLAS to say no. But that call must come from the top. It hasn’t for decades. What are we waiting on here?

  • KENNETH ROSS
    5 November 2015 at 11:48 pm - Reply

    ahhh mr womble

    hope i can enter into the conversation to put a little perspective into the narrative …..i joined the legal aid society back in january of 1971…..rick joined about a month or so before i did……back then there was no union for members…..things were different…..with the exception of a homicide case….a felony examination was conducted in just about every single case and it was not unusual for an individual attorney to conduct between 5-10 exams on any given day……i spent exactly one year as a district court attorney and litigated scores of pre-trial hearings and between 10-13 jury trials before moving up to the county court…..during voir dire there was no time restriction placed on counsel as there is today…..at a wade hearing identifying witnesses were put on the witness stand for direct and cross examination….and of course that is now almost non-existent…things change…..but the one constant is the grand jury……if i were an attorney for an organized crime figure or a white collar client or a terrorist i would agree with you and detest the very existence of the grand jury…….but as an attorney for an indigent client i must say that the grand jury is a safety net…..that is if one knows how to practice before it……

    one must keep in mind that guilt or innocence does not necessarily correspond to a verdict that matches the label…..the skill and ingenuity and preparation of the attorney and investigation stall is crucial and a decision as to whether a client should appear and testify before the panel is not one that can be made lightly……over my 43 years in the office i appeared with clients between 5-15 times a year and i would say that as a unit…..the legal aid society may well have had favorable results in the grand jury anywhere from 40-100 times per year……a good number of these cases may not have reached the same favorable outcome in front of a trial jury…..and i would further add that the society during my tenure had an outstanding grasp and use of the grand jury for the benefit of the client which far exceeded that of the private bar or the 18b panel

    sometimes clients make the decision that they will testify….sometimes counsel makes it in consultation with the client…..but in the vast majority of cases the client should never testify!!!!!…..and of course there are times that a felony exam is requested and the prosecutor serves notice of the intent to put the case before a grand jury panel……and in a small minority of cases the prosecutor will not be able to proceed and the client is released from custody until such time as the DA can proceed or a plea offer is conveyed and accepted…..

    yes there are innocent people who are arrested and it is a crime that they will be incarcerated but life is not perfect and hopefully with counsel from the legal aid society justice will prevail….the grand jury is composed of between 16-23 members and 12 must vote to hand up an indictment regardless of whether the vote is of 16 or the full panel of 23……
    if a defendant testifies and he is nonetheless indicted counsel is furnished with the transcript of his/her grand jury testimony….the same is not true for an alibi witness or other witness that a client asks the grand jury to call……….some of this information may not be readily available at the arraignment interview……

    i do understand the frustration that a district court attorney may feel…..but one needs to remember that the decision to appear in front of the panel and testify is not one that is an easy call ……..but i can honestly say that i have never been told that i must have a client sign over and waive 180.80…..i have always been free to make that call as i determine it…..and to my knowledge that has always been true for those county court attorneys with significant trial and the experience that i possess…

    when i retired last year county court had roughly 10 attorneys and district court maybe double that number and of course district court is composed of newly admitted attorneys with limited experience……most if not all have not had felony exposure and are not truly in a position to be making decisions which could have far reaching results for a client going forward…..most clients that i’ve had contact with over 43 years do not wish to litigate the case but are looking for the best possible outcome…..

    theory and practice are very different animals…..it is easy to say that a client is ” waiving ” his rights……but is that really what is happening or is the legal aid society doing what is best for the client…….having litigated hundreds of cases over my career and having represented both the innocent and the guilty i have fought for each client with the same degree of vigor and skill ….i have never been asked to forfeit the rights of a client at any stage of the proceedings and those of you ( judges and prosecutors alike ) who have had the opportunity to see me litigate ……know that the society does right by its clients….all of its clients…

    change can have aspects that are both good and bad or neither……comments should be constructive……ken , if you think that the society should institute change in its practice i have no issue……but if that is the goal…..i believe that by torching the society and the county court bureau chief you have gone about it the wrong way…..and with that i will close

    • Ken Womble
      6 November 2015 at 9:35 am - Reply

      But I suppose that is the point. Other attorneys who are unaware of these practices hear about them and they are rightly horrified. I’m not suggesting tweaks to an almost working system. I’m saying something we all know. Nassau’s system of “justice” for poor people is broken. If the person who has overseen decades of his attorneys not receiving the complaint or rap sheet of their clients prior to the arraignment interview (done with less privacy than a men’s bathroom at a college football game) and has done nothing to try to change the grand jury system out there (that forces a large portion of defendants to negotiate a plea prior to any discovery), then yes, I think that person deserves a good deal of the blame. Do you think someone like Tina Luongo would allow this kind of thing to continue for even a day? Public defenders are some of the baddest badasses out there. They deserve leaders who are going to fight for them while they fight the good fight. Because at the end of the day, this is not about me or Rick or attorneys or DA’s or judges. This is about indigent defendants getting ambushed at arraignments and then being told to play along with a broken system. Consent might have a lot of gray area, but allowing the DA to hold the grand jury system hostage to make their jobs easier does not fit into my definition.

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