Expanding role of public defenders

For the third consecutive year — and amid widespread county layoffs — the Public Defender’s Office continues to swell with new hires. Recent years have seen: (1) the formation of a Family Court division in the Public Defender’s Office (now in phase two of staggered hires); (2) the creation of a shared-services attorney position for purposes of legal conflicts with neighboring Ulster County; and (3) October’s Legislative decision to hire arraignment attorneys.

The Public Defender’s Office is clearly defying the trend wherein other county departments are being asked to do with less.

To be fair, the new hires in the Public Defender’s Office are almost entirely paid for (at least for now) — not by county tax dollars — but by grants received from the state’s Indigent Legal Services (ILS). In turn, ILS is funded — not by state tax dollars — but by fees received in the course of practice of law.

Public defenders are county employees admitted to the State Bar who provide legal representation to indigent persons in criminal, and recently also matters of family, law.

At its October meeting the Legislature received an update from the public defender on the effectiveness of the Family Court Unit. Due in part to the bad economy qualifying more people as poor, assigned counsel rates have skyrocketed in recent years. Readers will recall that two budget cycles ago the Legislature approved a plan to replace attorneys in private practice in family court proceedings with public defenders. While there have been some gains by employing public defenders, costs continue to rise. At its October meeting legislators approved an additional $525,000 for assigned attorneys because the 2013 budgeted sum had already run out.

Public Defender Tom Angel reported that the two Family Court public defenders hired last year have now handled 515 cases (as of September) which is 60 percent of the assigned counsel cases in one of the three Family Court judges’ courtrooms. This puts them well above their goal of 500 cases per year. Two additional public defenders were hired this fall. Even so, anticipated yearly savings is only about $500. Were it not for the ILS grant, which pays the salaries of public defenders, it would appear the attempt at cost savings falls short.

Of special interest, at this legislator’s request, public defenders have inserted themselves in 90 percent of the cases involving child support arrears where incarceration is being considered. By intervening when defendants in child support arrears face jail time, the public defenders have succeeded in reducing jail sentences by 30 percent from last year (over 1,000 days), for an approximate housing-out savings of $100,000.

New this year is a program to assure criminal defendants have access to legal counsel at arraignment. The Legislature voted in October to receive $615,102 in ILS grant funds to hire additional attorneys to serve on evenings and weekends on a per-shift basis, as needed to be on call to report to courtrooms when persons are arrested and ready to be arraigned. The Criminal Justice Counsel recommended this use of the grant money for mobile attorneys who will travel, although the public defender noted his preference had been for forming a central arraignment center.

The renewed emphasis on attorney representation at arraignments has received renewed interest in New York by the Court of Appeals, as this year the nation celebrates the 50th anniversary of Gideon V. Wainwright, the landmark U.S. Supreme Court decision that held in criminal matters indigent defendants are entitled to legal representation.

Michael N. Kelsey represents the people of Amenia, Washington, Stanford, Pleasant Valley and Millbrook in the Dutchess County Legislature. Write him at KelseyESQ@yahoo.com.