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Chief judge: Keep promise in ‘Gideon’

Chief Judge Jonathan Lippman speaks during a Law Day address at the Court of Appeals in Albany on Monday. Colleen Brescia, New York State Court of Appeals.

All defendants in New York will have legal representation starting with arraignment under a new policy objective of the Indigent Legal Services Board.

Chief Judge Jonathan Lippman, who chairs the board, announced the initiative Monday during a Law Day address in the New York State Court of Appeals in Albany.

“As chief judge, I see the provision of adequate legal representation for our people, rich and poor alike, as the greatest challenge to the continued legitimacy of our justice system,” he told a packed courtroom.

Judge Lippman said he believes the state is finally on the road to meeting the challenge thanks to the work of the Task Force to Expand Access to Civil Legal Services.

“We are in the process of laying the foundation for a permanent systemic funding system for civil legal services; and on the criminal side, where last year the Legislature and the governor created the Office of Indigent Legal Services,” he said. “Our goal is to ensure that all defendants arraigned before the courts of this state are represented by counsel at their first court appearance.”

The board is part of the office.

Judge Lippman said the ILS office will work with policy-making branches of state government, counties, the state magistrates association and all affected stakeholders in the coming months to make the issue “its absolute top priority.”

He said they will work to develop and implement legislative, rule making and other practical solutions to reach the goal.

Judge Lippman cited the 1963 case Gideon v. Wainwright 372 U.S. 335 in which the U.S. Supreme Court ruled “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

He also cited a 2006 report by the state Commission on the Future of Indigent Defense Services that found the state was failing to comply with the basic spirit and ethos of Gideon.

“Nearly half a century later, there is a disturbing disconnect between the promise of Gideon and what is sometimes the reality of our criminal justice system,” Judge Lippman said. “The commission concluded that our indigent defense system here in New York is in many respects dysfunctional and incapable of providing poor defendants with effective representation.”

He said unrepresented defendants in town and village courts, those closest to the people, are routinely arraigned and sometimes jailed without bail

Judge Lippman said the basic fairness of the criminal justice system is being compromised by the reality of chronically overburdened public defenders and that the daily processing of countless defendants in an assembly line fashion is miles removed from the ideal of equal justice for all.

He tied his remarks into the national Law Day theme focusing on the “Legacy of John Adams,” the nation’s second president, who defended British soldiers accused of killing five colonists in 1770 in what became known as the Boston Massacre.

“This belief, for which an ambitious future president was willing to sacrifice his popularity and political career, is so sacred to what it means to be an American that it was constitutionally enshrined by the United State Supreme Court nearly 50 years ago in Gideon v. Wainwright,” Judge Lippman said.

He noted deep reform of the current system will be necessary to ensure all defendants are represented. One of the keys to promote reform will be to move away from payments to localities based solely on local expenditures and fund the system based on performance, attention to quality, and need.

“The problem may not be totally solved in one day, one month or even one year, but it is my pledge to you today that by next Law Day, the norm in our great state will be that defendants are represented by counsel at arraignment and that anything less than that will be aberrational in nature,” Judge Lippman said.

Lt. Gov. Robert J. Duffy, speaking on behalf of Gov. Andrew M. Cuomo, talked about the courage, conviction and integrity of John Adams and his belief in the rule of law as an example of true leadership.

He compared that to what he called the courage, conviction and integrity of the governor to make unpopular decisions to close a $10 billion budget gap.

New York State Bar President Stephen P. Younger applauded Judge Lippman for promoting access to all and praised Duffy and Cuomo for bringing in an on-time budget and pressing critical policy issues such as marriage equality and government ethics.

Younger also talked about the future of the legal profession and how it is being shaped by technology.

Attorney General Eric T. Scheiderman was unable to attend. Judge Lippman told the crowd Schneiderman’s father recently suffered a stroke. Also attending was Justice Henry J. Scudder, presiding justice of the Appellate Division, Fourth Department.

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