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They Don't Pay kausfiles Enough to Read This Series!

Series-SkipperTM earns its paycheck.


Posted Monday, April 16, 2001

        Series-SkipperTM is a new service from kausfiles that lets readers avoid award-winning newspaper series without fear of missing anything good. (For more on the rationale for Series-SkipperTM, click here.)

        Series: "Two-Tier Justice," Jane Fritsch and David Rohde, New York Times, April 8, 9, and 10, 2001.

        Oh-what-a-big-deal-this-is "nut graph": "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."

        A few minutes? Well, for non-capital homicide cases the median time spent is 72 hours. An expert tells the Times it should be "well beyond 100 hours."

        Main thesis: New York, unlike many big cities, relies on private lawyers to defend the indigent. These lawyers are underpaid, at $40 an hour for court time and $25 an hour out of court. Some of them are bad; some don't do much leg work (visiting crime scenes, interviewing witnesses). A few lawyers (13) have more than 400 cases a year, the limit recommended for New York's Legal Aid Society, the nonprofit group that handles another chunk of the indigent caseload.

        How'd they milk three parts out of that? Part I says poor defendants sometimes get bad representation in homicide cases; Part II says they sometimes get bad representation in other criminal cases; Part III says they sometimes get bad representation on appeal. Part IV says those with names beginning with the letters A-K sometimes get bad representation. Part V deals with the letters L-Z. Just kidding about IV and V.

        Main problem with thesis: It's not that controversial. Everyone seems to agree at least that the lawyers are underpaid. An aide to Mayor Rudolph Giuliani is quoted supporting an increase in the fees (which the city will have to pay). There's a committee of the state legislature that's trying to figure out what to do--the debate seems to be whether to just raise pay or "revamp the system." The Times series could have discussed the various possible revampings, but it doesn't. (They only had three parts!) Also, a committee of local lawyers recently weeded out bad attorneys who had handled felonies in Manhattan and the Bronx--though not in Queens, Brooklyn, and Staten Island.

        Any good horror stories? Fewer than you'd expect. 1) In the most vivid story, a private lawyer doesn't investigate witnesses in a homicide--and, presenting his case, turns to his client in open court and asks, "You want to testify?" The catch is the conviction was overturned and the defendant acquitted on retrial. 2) One lawyer represents a record 1,600 clients in a single year. He has to have "a colleague ... fill in to represent a client whose court appearance" he couldn't make. He also has a sloppy filing system. The Times gives no evidence that either practice has caused any client any harm. 3) A Legal Aid Society lawyer (not one of the underpaid private lawyers) fails to contact the alibi witnesses of a construction worker charged with robbery. He spends three years in prison. His conviction is overturned when the witnesses are contacted, but he cops a plea in exchange for a sentence of "time served." 4) A Mr. Humberto Fernandez seemingly misses a promising grounds for appealing his murder conviction--his lawyer never introduced the testimony of an alibi witness after promising the jury he would--because it should have been raised in a motion before the trial judge, which his court-appointed trial lawyer didn't do and which his new appellate lawyer says isn't her job.

        Any indication these horror stories stem from low pay? The Times wants you to infer that better-paid lawyers would do a better job. That may be a reasonable assumption, though there will always be lawyers who screw up. In general, the series makes its argument on the basis of inputs (hours worked on trials and appeals) rather than outputs (whether representation actually was inadequate and whether that changed anything).

        Any actual innocent people behind bars? The construction worker in Horror Story No. 3, above, may have been innocent, as Mr. Fernandez (No. 4) may be. But Fritsch and Rohde do not give the prosecution's side of the story or even get a formal comment in either case.

        Major unaddressed argument: One assembly-line lawyer claims her frequent contact with prosecutors lets her serve her clients effectively. "They could have Johnnie Cochran, and he wouldn't be able to get them a better deal," she says. What's the answer to that? ...

        In general, does the Times even attempt to determine whether innocent people have suffered or if guilty people have been punished excessively? No. The Times says it "analyzed all 137 New York City homicide cases completed by appointed lawyers in 2000," but then declares "it is impossible to know whether justice was served." That's not true, of course--137 is a finite number. The paper could have thrown enough reporting manpower at these cases--or at the 53 convictions--to figure out if there were any gross miscarriages of justice. But it didn't, presumably because the Times has a budget too.

        Good detail: Most lawyers are too pressed to travel to Rikers Island prison to interview their clients. So they interview them at the courthouse in Manhattan, in an open room with other accused criminals, in which defendants "often feel they cannot speak freely ... for fear that others will overhear their conversations and try to use the information to make deals with prosecutors."

        Evidence series is animated by free-floating liberal anger: Fritsch and Rohde periodically lament that Mayor Giuliani cut the budget of the Legal Aid Society and thereby "diluted the strength of a powerful force that regularly pursued civil cases to protect suspects' rights," including "class-action litigation." But there is no real attempt to evaluate Legal Aid's contributions. Are all class-actions good?

        Does anyone say anything unexpected in this series? No. In court, a "statement against interest" is considered particularly powerful evidence--a defendant admitting guilt, for example. Or a lawyer admitting incompetence. There are precious few statements against interest in this series. The professor from the "Center on Wrongful Convictions" says the protections against wrongful convictions are insufficient! The Legal Aid Society lawyers say the Legal Aid Society needs more money! Giuliani's aide thinks the system works reasonably well. The two lawyers hammered the hardest are unable to either admit incompetence or defend themselves (or sue) because they are, conveniently, dead.

        Estimated time you've saved by reading SeriesTM instead of the series itself: 1 hour.

        Third of a series.

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Copyright 2001 Mickey Kaus.

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