Wallace v. Kern

• Citation: 392 F. Supp. 834
• Decision Date: 10 May 1973
• Docket Number: 73-C-55,No. 72-C-898,73-C-113.,72-C-898
• Parties: Donald WALLACE, on behalf of themselves and all others similarly situated, Plaintiffs, v. 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.
• Court: U.S. District Court — Eastern District of New York

392 F. Supp. 834

Donald WALLACE, on behalf of themselves and all others similarly situated, Plaintiffs, v. 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.

Nos. 72-C-898, 73-C-55, 73-C-113.

United States District Court, E. D. New York.

May 10, 1973.

Stephen M. Latimer, Daniel L. Alterman, James Reif, Robert L. Boehm, Ann M. Garfinkle, New York City, for plaintiffs in 72-C-898.

Michael A. McLaughlin, pro se.

Louis J. Lefkowitz, Atty. Gen., State of New York, for defendants Supreme Court Justices, Administrative Judge, District Atty., Chief Clerk and State Administrator; Irving Galt, Joel Lewittes, Hillel Hoffman, Asst. Attys. Gen., of counsel.

Norman Redlich, Corp. Counsel, City of New York, New York City, for defendants City of New York and Commissioner of Corrections; Victor P. Muskin, John Nachazel, Asst. Corp. Counsels, New York City, of counsel.

Patrick M. Wall, New York City, for defendant The Legal Aid Society.

Lewis B. Oliver, Jr., New York City, Association of Legal Aid, City of New York, as amicus curiae.

MEMORANDUM

(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.

Facts

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 h...