| Big Apple's legal representation fails indigent NYC system doesn't work, paper reports 04/08/2001 By Jane Fritsch and David Rohde / New York Times News Service NEW YORK – A murder defendant who can't afford a lawyer can expect to have one appointed for him. That much is the law.
But in New York City, there is basic legal work an indigent defendant cannot expect. Most lawyers appointed to represent the poor do not hire private investigators to look for witnesses or evidence. Most do not get expert witnesses to help challenge the prosecution's case. Most do not take the time to go to the scene of the crime. And most do not make a single visit to the jail on Rikers Island to discuss the case with their clients.
In fact, a defendant facing life in prison might get a lawyer who spends as little as 20 hours on the case – half a week's work – and is paid as little as $693.
Thirty-eight years after the U.S. Supreme Court ruled that indigent defendants have a right to legal counsel, New York City offers representation to the poor that routinely falls short of even the minimum standards recommended by legal experts.
In a seven-month analysis of thousands of city records and court cases in 2000, The New York Times found that almost no part of the indigent defense system functions as it was intended.
From the felony courts to the misdemeanor mills and the parole-violation trailers on Rikers Island, defendants frequently get assembly-line representation from lawyers who may spend only a few minutes on each case.
The lawyers complain that they are overworked and underpaid in a system under pressure to produce a high volume of quick guilty pleas. The number of lawyers willing to take such cases has dropped sharply in recent years, and some who do sign up say privately that they are forced to cut corners.
More than most big cities, New York relies on private lawyers to defend the poor in homicide cases. In most big cities, that job is done by public defenders' offices that pay their lawyers salaries.
In New York, private lawyers are assigned from a pool of volunteers after they meet screening requirements to show they have experience. They are paid $40 an hour for courtroom work and $25 an hour for work out of court, the second-lowest rate in the nation.
Questionable effort
In an analysis of all 137 New York City homicide cases completed by appointed lawyers in 2000, The Times found that in 42 of them, the lawyers did less than a week of preparation, raising questions about effort and thoroughness. Only 12 spent at least 200 hours investigating and preparing their cases, a sign of appropriate diligence, legal experts said.
"One can't help but be shocked at the number of homicide cases in which the lawyers are putting in a handful of hours in preparation," said Lawrence C. Marshall, the legal director of the Center on Wrongful Convictions at the Northwestern University School of Law. Mr. Marshall, who reviewed the homicide data for The Times, said preparation time should be more than 100 hours.
Mayor Rudolph Giuliani's criminal justice coordinator, Steven M. Fishner, said the mayor thinks the system works. It meets the needs of the poor "by constitutional standards and beyond," Mr. Fishner said.
He said it was not the city's responsibility to monitor the quality of work by appointed lawyers. That is the job of the Appellate Division, the middle level of New York state courts, he said.
The Appellate Division screens the lawyers who want to represent the poor but does not routinely review their performance.
For defendants, it is the luck of the draw. They must take whatever lawyers are assigned to them.
Juan Carlos Pichardo met his appointed lawyer, Louis Grisorio, then 73, the day after he was arrested in March 1994 and charged with the murder of a drug dealer who had been shot in East Harlem six weeks earlier. Mr. Pichardo, then 23, had no criminal record.
"At the time I thought he was good," Mr. Pichardo recalled, "but I didn't know anything then."
When the trial began in October 1994, a key prosecution witness was Roxanna Martinez, the widow of the victim, Ricardo Martinez. She testified that two men shot him, and that she jumped out of her car and chased them. She said she recognized Mr. Pichardo when he tripped and fell.
Then it was Mr. Grisorio's turn. He scored a few points, but he also committed blunders. He asked Ms. Martinez why she had waited until eight months after the shooting to identify Mr. Pichardo as one of the killers. The prosecutor pointed out that Ms. Martinez had identified Mr. Pichardo four days after the shooting.
In the defense's case, Mr. Pichardo's grandmother, aunt and a neighbor testified he was in bed with the flu at his grandmother's apartment the day of the murder.
Judge Jeffrey M. Atlas called for the next witness, and Mr. Grisorio turned to Mr. Pichardo and asked, "You want to testify?" The lawyer had never talked about whether he would testify, Mr. Pichardo said. So, unaware of the possible perils, Mr. Pichardo said, he took the stand.
This gave the prosecutor an opportunity to ask Mr. Pichardo about incriminating statements the police said he had made shortly after his arrest.
Mr. Pichardo denied making the statements, but his credibility was damaged. He was found guilty and sentenced to 20 years to life.
System needs attention
Katherine N. Lapp, the state's director of criminal justice, called the data compiled by The Times on the performance of the lawyers "astonishing" and said the system "needs serious attention." Ms. Lapp is Gov. George Pataki's representative on a committee that is working to revamp the system. The state Legislature sets the rates for lawyers for the indigent, but the cities pay the bills.
In New York City, lawyers charge paying clients up to $600 an hour for homicide cases, and bills reach $50,000 to $500,000.
For the defendants who were convicted last year, it is impossible to know whether justice was served. After that, the appeals lawyers take over, and as Mr. Pichardo's case illustrates, it can be years before their work is done.
A year went by before Mr. Pichardo's case was assigned to the Legal Aid Society. Frances A. Gallagher, an appeals lawyer, dug in. Reading over the old police reports, she found something surprising. Shortly after the murder, the victim's wife had told a police officer that she had not seen who had killed her husband. It was a flat contradiction of her testimony at the trial, but Mr. Grisorio had never brought it up.
And Ms. Gallagher found the names of two witnesses who had never been contacted by Mr. Grisorio. Both had told the police that there was only one gunman and that Ms. Martinez had not chased him, as she had claimed. It was enough to win Mr. Pichardo a new hearing and, later, a new trial.
In a retrial last June, Mr. Pichardo was acquitted and set free.
Mr. Grisorio, who had been representing indigent defendants for nearly 30 years, went on to represent dozens more after the Pichardo trial. He died in 1996.
How he came to be approved for a homicide case is unclear. "I have not a clue how he got there," Judge Atlas said. "I just think he did not have the knowledge to try a case at that level. He just didn't know what to do."
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