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May 10, 1973

Donald WALLACE, on behalf of themselves and all others similarly situated, Plaintiffs,
Michael KERN et al., Defendants. The UNITED STATES of America ex rel. Michael A. McLAUGHLIN, et al. Plaintiffs, v. The PEOPLE OF the STATE OF NEW YORK et al., Defendants. Michael A. McLAUGHLIN, et al. Plaintiffs, v. The PEOPLE OF the STATE OF NEW YORK et al., Defendants

Judd, District Judge.

The opinion of the court was delivered by: JUDD


(On Motions for Preliminary Injunction)

 JUDD, District Judge.

 On motions for a preliminary injunction brought by the plaintiffs in the two above entitled actions, the court has conducted hearings on three aspects of requested relief, (1) with respect to the excessive caseload of the Legal Aid Society, (2) with respect to the refusal of the Chief Clerk of the Criminal Term of the Supreme Court to place pro se motions on the calendar, and (3) with respect to the District Attorney's control of the trial calendar.


 The Wallace case is a civil rights action which the court has determined may be maintained as a class action on behalf of all felony defendants who are or may be incarcerated in Brooklyn House of Detention for Men (BHD) pending indictment, trial or sentence. The McLaughlin actions are brought pro se by inmate plaintiffs, also detained at BHD, and complaining, among other things that the Legal Aid Society is too overburdened to provide adequate representation, and that pro se motions which must be submitted for lack of assistance of counsel are not accepted. The McLaughlin actions, brought after the Wallace action, have not been determined to be class actions, although they are brought as class actions. Plaintiffs in the Wallace action have moved to join the City and the Appellate Division as parties defendant, and to consolidate the Wallace action with the first cause of action in the McLaughlin actions, in which the City (sued as The People of the City of New York) and the Appellate Division are defendants.

 The Criminal Parts of the Kings County Supreme Court are in a state of deep crisis. The Deputy Director of Operations of the Legal Aid Society testified that "The system isn't working." It has not been shown that any individual judge or any Legal Aid attorney or Assistant District Attorney is failing to do his best under existing circumstances, but it is small comfort to a defendant in jail to be told that the fault lies with "the system." The extent to which a federal court can and should protect defendants from the effects of the crisis must be considered in the light of the facts disclosed by the testimony and exhibits that were offered in court.

 Trial Delays

 It is not unusual for defendants who cannot post bail to be held in custody for 12 to 15 months before their cases can be tried. There were 644 defendants who had been in the Brooklyn House of Detention for more than six months at December 31, 1972, and nearly half that number had been there over a year. A Legal Aid attorney testified that out of the last seven cases which he had tried in Kings County Supreme Court in early 1973, the defendants had been in jail for an average of 14 months, and two of them were acquitted. The Legal Aid Director of Court Operations testified on April 18, 1973 that the Society had recently obtained 12 acquittals of defendants who had been in jail from 12 to 14 months each.

 When the court's Law Clerk assigned to this case visited the Supreme Court on March 26, 1973, he found that a typical calendar outside the Parts showed no trials scheduled which involved crimes committed later than 1971.

 The Burden on Legal Aid

 The Legal Aid Society represents 75 percent of all defendants accused of felonies in Kings County and approximately 90 percent of all those who are held in custody on felony charges. During 1972, Legal Aid was appointed to represent 8,698 defendants in felony indictments in Kings County. Ultimately 90 percent of all indictments are disposed of by plea bargaining, but only 4,587 cases were terminated during 1972.

 The average Legal Aid attorney is employed by the Society when he graduates from law school, attends a 21-day training course, serves an apprenticeship of a few months in the Criminal Court, then begins trying felony cases in the Supreme Court, and leaves after about two years for other employment. The newly hired attorneys practice in the Criminal Court while awaiting admission to the bar, under the supervision of an admitted lawyer, pursuant to a special court rule.

 The active caseload of Legal Aid attorneys varies from 45 to over 90 felony indictments per Supreme Court lawyer, according to the oral testimony. The documentary exhibits show that on January 8, 1973 Legal Aid had 4,518 cases pending in Kings County Supreme Court, of which 557 were awaiting grand jury action, 2,677 were assigned to Parts, and 1,284 were awaiting sentence. In March 1973 Legal Aid had 48 attorneys assigned to Kings County Supreme Court. Their average caseload was therefore 94 total cases, or 56 cases if those awaiting grand jury action or sentence are excluded.

 The Attorney-in-Charge of the Brooklyn office of The Legal Aid Society wrote to the City-wide Attorney-in-Charge in September 1971 that no trial attorney could handle more than 40 cases and cover arraignments and conferences. His assistant testified that 50 was the most one lawyer could handle, and that any increase in the caseload would erode the attorney's effectiveness on all his cases. One of the senior attorneys serving in the Supreme Court testified that he had a caseload of 91, and that he felt that 40 was near the limit of the number of files that he could handle adequately with proper attention to the defendant. Another attorney who had worked in the Legal Aid Society in the Supreme Court and then in the Community Defender Office and now in this court, stated that he estimated that a caseload of 30 to 35 was appropriate, in order to maintain a one-to-one relationship between attorney and client.

 A private attorney said that he would not try to handle more than 25 to 35 active cases. The parties stipulated that three other members of the New York bar with from three to 17 years experience in criminal cases would give similar testimony.

 Robert P. Patterson, Jr., former President of the Legal Aid Society, testified that he thought a fixed maximum was less important in criminal cases than in civil, because of the limited number of criminal parts available, but he admitted that Legal Aid has insufficient staff to cope with the present circumstances. He described the two years of constant urging which had been necessary since the surge of indictments began in mid-1971 to obtain the extra help which has now been promised for mid-1973. In two successive years he threatened to cancel the City contract if more help was not forthcoming.

 A defendant in the Kings County Supreme Court will be represented during his case by a series of Legal Aid attorneys.

 An experienced and dedicated Legal Aid attorney with a caseload of 40 to 45 felony indictments described the proceedings under which defendants are asked to accept pleas which may involve sentences of five years or even more. She said the third floor pen where she would meet a defendant for the first time (four floors below the courtroom where the plea negotiations take place) is "a horrendous situation, physically" an "absolutely unbearable situation for Legal Aid" and "a humiliating experience for the defendant," with 40 people listening to the defendant's conversation with his counsel. She recognized that she could not adequately represent a defendant in such circumstances, and she would not have gone to trial under such circumstances, but said that it is a burden on Legal Aid to make trips to the jail. When a defendant whom she had met once and for whom she had negotiated a conditional 60-months sentence to the Narcotic Addiction Control Commission came up for sentence, she was busy on other matters in the courthouse and had to let another attorney appear for him, even though the Judge (as she had feared) refused to impose a NACC sentence and had the defendant reinstate his not guilty plea and go back to jail to await trial.

 She testified that it is not unusual for a lawyer other than the one who appeared in the Conference Part to represent the defendant at the sentence. According to her, Legal Aid appears in Conference Part before it has prepared the case. The Conference Part, she stated, is for defendants who are guilty to plead at an early stage of the proceedings and there is no need to know about possible defenses. She did state, however, that the Legal Aid attorney in the Conference Part has a copy of the complaint, a criminal court report, a synopsis of any preliminary hearing, and write-ups by previous Legal Aid attorneys who have interviewed the defendant.

 Plaintiff Wilson testified that he was assigned a Legal Aid attorney when he was arrested, was interviewed for from two to five minutes in the bullpen with six or seven other prisoners in the same enclosure, that he was represented by another Legal Aid attorney when he was brought to court a few days later and was interviewed for two minutes in the bullpen. He further testified that he was returned to jail and did not see a Legal Aid lawyer for the next 45 days, although a law student interviewed him in jail. He filed a pro se motion after he had been in jail for 45 days without being indicted and received a reply from the Chief Clerk stating that the motion had been filed and forwarded to the Legal Aid Society. The motion was granted on June 7 by Mr. Justice Rinaldi, but Wilson remained in jail until June 27, after he had been indicted and was brought up for arraignment, represented by a different Legal Aid Society attorney. When the attorney went out for coffee, Wilson examined his folder and found a copy of an order directing his release, but no one had informed him of the fact, and the court told him that his release had been nullified by the subsequent indictment. When he was in court for conference in Part 1-A, he was represented by a different Legal Aid Society attorney who talked with him in the bullpen twice about offers of a plea to a three-year sentence and later to a one-year sentence, which he refused. He filed a pro se bail motion which was forwarded to the Legal Aid Society. He was in court around August 25th represented by a different Legal Aid Society lawyer, who offered him another plea without any interview. He submitted a letter to the court asking his release and received a form reply from the Clerk. In late September, he found out through the Law Journal that his bail had been reduced to $500 and on October 2nd, it was again reduced to $100 cash, which was posted, permitting his release. He was next in court on December 27 represented by another Legal Aid Society attorney who was not familiar with the facts and told him that the court was just getting people there to mark their cases ready and passed or to take pleas of guilty. There had been no communication to him from the Legal Aid Society between October 3 and December 27 and no further communication up to February 22, 1973, when he testified in this court.

 Before Wilson filed his first pro se motion, he was told by a Legal Aid attorney that a motion for release because of delay in indictment would be futile in view of a hold from the Narcotic Addict Control Commission; however, this does not explain why the order directing his release was not brought to his attention, especially in light of the fact that he was released from all custody when his bail was reduced in October.

 Randolph Jenkins, another of the inmate plaintiffs, testified that he was assigned a Legal Aid attorney when he was arrested, had a different Legal Aid attorney when he appeared in court a week later, asked the Legal Aid attorney to check records at the police precinct but was told that the attorney would be unable to get them. He asked the right to have a private attorney, but when he was unable to obtain one, the court appointed another Legal Aid attorney. He was released in May 1971, indicted in June 1971, assigned another Legal Aid attorney and brought to trial in April 1972 with still another Legal Aid attorney, the trial resulting in a disagreement on one count and a conviction on another.

 When the Law Clerk assigned to this case went into one of the Supreme Court Criminal parts, selected at random, on March 26, 1973, after all the cases on the Ready Calendar had been marked "ready and passed," the Assistant District Attorney announced that he would proceed to trial on the Boone case. This was not on the calendar, but involved one of the defendants who had been granted the right to a speedy trial by the New York Court of Appeals in People ex rel. Franklin v. Warden, 31 N.Y.2d 498, 341 N.Y.S.2d 604, 294 N.E.2d 199. Then the Legal Aid lawyer stated that he had just been informed of the trial date on the preceding Friday, and that he had not received a bill of particulars, explaining that he had just come into the case. When the Assistant District Attorney stated that his file contained no request for a bill of particulars, the Legal Aid attorney stated that the previous Legal Aid lawyer apparently had not served a demand. The fact that Legal Aid could not be prepared even on a test case which it had carried through the Court of Appeals tells volumes about the extent of its burden.

 Citywide officials of Legal Aid oppose the setting of maximum caseloads because cases are not all alike and attorneys differ in ability, and the City might force the Society to treat any maximum as a minimum in fixing appropriations. One Legal Aid attorney in an executive position testified for the defendants that he could prepare ten felony cases in a week. The statement, if true, would be an extreme example of accommodation to an unsatisfactory system. The court gives it no credence.

 Even if a Legal Aid attorney has been assigned for a defendant in the Criminal Court, a new appointment is necessary in the Supreme Court after a defendant is indicted.

 Frederick Cohen, a private attorney with six years experience, testified that when he represents a client he always goes to the scene of the crime, attempts to use the client as an investigator if he is not in jail, in order to locate witnesses, that he files motions for bills of particulars, for discovery of exculpatory material, and for identification hearings if there has been a line-up, and that such motions not only help him obtain information but force the Assistant District Attorney to look at the case and perhaps consider a favorable negotiated plea. If there is a long delay in jail, the attorney brings a habeas corpus application. In connection with habeas corpus and bail applications, he interviews as many people as he can, not only to find the defendant's roots in the community but to identify possible character witnesses.

 On the other hand, the head of the Brooklyn Legal Aid office testified that it is not a frequent occurrence for a Legal Aid attorney to see his client in jail while the case is pending, although paraprofessionals go to the jail every day to see if any inmate has any problem or to bring the Society's attention to anyone "who has been lost in the system." One of the senior attorneys stated that he goes to the jail twice a month, but has to wait at least an hour to have his client brought down and cannot talk to more than two clients in a session. He would like to go out on his own investigations, but has no time because he could take all day on one case. He would like to look up cases and prepare affidavits in support of motions, but for lack of time submits mainly form motions. Questionnaires circulated on the seventh floor of the Brooklyn House of Detention showed that only one of 30 defendants represented by Legal Aid had received a visit from counsel, whereas five out of 15 with private attorneys had been visited.

 The budget requests submitted to the City by the Legal Aid point out that lack of supporting personnel means that attorneys earning higher salaries than aides must put in more of their time preparing a case, and that delays in reaching a case mean that more time must be spent than would otherwise be necessary, because the attorney and the client have to refresh their recollections and go over the same matter several times. The seriousness of the problems of delay, and its long continuance, are shown by figures on the Kings County Supreme Court in Legal Aid's budget requests to the City for the fiscal year 1974. A comparison of intake of new cases with dispositions or output of old cases, gives the following figures: Intake Output Fiscal 1971 4,372 2,224 Fiscal 1972 7,259 4,657 Fiscal 1973 (projected) 8,480 3,896

 The budget report states:

The output-input relationship, which has increased from fiscal year 1971's level of 51% to fiscal year 1972's level of 64% has substantially dropped to 47.6% projected for fiscal year 1973. This is further evidence of the total breakdown of Supreme Court operations in Kings County.

  The declining intake-output ratio reflects in part the dramatic increase in indictments in Kings County as reflected in the reports of the Judicial Conference of the State of New York: July 1, 1969 to June 30, 1970 5,027 July 1, 1970 to June 30, 1971 7,291 July 1, 1971 to June 30, 1972 11,064

 The evidence indicates a sharp decline (25% to 40%) in the rate of new indictments since January 1, 1973.

 The Attorney-in-Charge of the Brooklyn office of Legal Aid wrote to the City-wide Attorney-in-Charge on October 31, 1972 that,

I have found the majority of the staff here to be hardworking and conscientious. However, the backlog of cases and the consequent delay have completely undermined staff morale.

 Legal Aid attorneys compare favorably with private attorneys both in quality of their work and in their results. Their acquittal rate is approximately the same as that of private attorneys. In the calendar year 1972, Legal Aid obtained acquittals in 39.1 percent of the cases that were decided by jury verdict, but there were only 140 trials out of 4,587 cases that were closed. The evidence at the hearings did not analyze the extent to which pleas of guilty may have been influenced by the improbability of a prompt trial.

 In computing caseload, Legal Aid omits defendants who had a preliminary hearing and are awaiting grand jury action and also defendants who have been found guilty or pleaded guilty and are awaiting sentence. One witness stated that there is minimal work after the guilty plea if there has been a conditional agreement on sentence, although there is more if there has been a trial and a guilty verdict or a plea of guilty and no commitment concerning the sentence.

 Pro Se Motions

 The Court Clerk in charge of criminal motions testified that he receives from 25 to 50 pro se motions in an average day, requesting such things as a bill of particulars, dismissal of indictment, suppression of evidence, and almost any other motion that an attorney might make. They are clocked in, checked against the docket, and if the movant is represented by counsel, the papers are sent to counsel and the movant is sent a form letter stating that pro se motions are not entertained and that the papers have been sent to his counsel.

 The Clerk testified that there are from 25 to 70 motions on the motion calendar each court day and that calendaring pro se motions would mean a substantial increase in the number to be considered.

 Although the instructions to Legal Aid Society personnel are to put a back on pro se motions and file them with the court, one of the Legal Aid Society attorneys testified that if they are busy, they just place the motions in their file. One attorney had "a stack" of unfiled motions when he left Legal Aid, according to the Assistant Attorney-in-Charge. It appears to the court that the vast majority of such motions are not placed on the calendar by the Legal Aid Society, regardless whether they are meritorious or frivolous.

 It often takes more than a month to process a motion and get it to the Legal Aid office on the next floor of the court-house because of unfilled vacancies in the Clerk's office. Legal Aid has not been able to establish any procedure for prompt pick-up of pro se motions.

 Legal Aid witnesses testified that many pro se motions are frivolous, and some may contain information damaging to the defendant, but no instances of damaging information were proffered.

 The policy with respect to pro se motions is based on a directive from Mr. Justice Miles McDonald on October 1, 1969 when he was the Administrative Judge, and when the burden on the Legal Aid Society was probably substantially less than it is today.

 There are two exceptions to the policy of not entertaining pro se motions. Motions to relieve counsel will be placed on the calendar. Motions submitted to the Appellate Division and forwarded by that court will also be placed on the calendar, pursuant to the directions in a letter from the Clerk of the ...

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