Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police

by 

Jill Paperno, Esq., 

author of  

Representing the Accused: A Practical Guide to Criminal Defense

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - http://www.nycourts.gov/reporter/3dseries/2014/2014_24363.htm - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.

(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:

Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at http://www.americanbar.org/publications/criminal_justice_section _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at https://www.ils.ny.gov/files/Revised%20Standards%20For%20Providing%20 Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's eligibility...is being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).