Keeping Close Counsel

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It’s a little surprising to learn that in the city’s continuing quality-of-life crackdowns, police in the Bronx routinely arrest gay men for having sex in subway stations.

A trivial crime, but one that presents a serious challenge in the courtroom. Judges have been more than willing to order the men into some sort of program as an alternative to incarceration–why send someone to jail for consensual sex? Until recently, though, the only program available was designed for predatory sex offenders.

Until, that is, the Bronx Defenders came up with a solution. This organization of criminal defense lawyers, paid by the city to represent indigent defendants, found a social worker to create a “public civility” program for the men. Judges in the Bronx sent subway sex defendants to the class, focusing on health issues such as HIV transmission.

Helping clients outside the courtroom is nothing remarkable for a defense attorney. Private lawyers are constantly arranging for their clients to go into therapy, or to do some sort of community service uniquely tailored to their situations.

But public defenders rarely have the luxury of being that proactive. With crushingly high caseloads, most simply don’t have the time or resources to be dreaming up new types of sentences.

In New York City, lawyers just out of school make $125,000 at the biggest law firms. Public defenders start at less than one-third of that salary, and few will see six-figure incomes in their careers. They spend their days in airless courthouses, meeting with clients in the hallways or holding cells and cutting deals with prosecutors and pleading with judges to give their clients a break. The goal in every case is the same: keep a client out of prison.

Bronx Defenders thinks slightly bigger. Of course, it seeks to keep its own clients out of prison. But the ultimate goal is to keep everyone else in the Bronx out, too. So when it came to subway sex, they opened the new program to everyone arrested for public lewdness in the Bronx, even the defendants represented by its chief rival, the Legal Aid Society. The students pay $40 apiece for a five-hour class run by an independent social worker, who was recruited by the Bronx Defenders.

One of the guiding principles for executive director and cofounder Robin Steinberg is that a public defender’s office can do more than just give a bleeding client a Band-Aid. Good social work, she contends, will not just keep a defendant out of jail but ultimately keep him from getting arrested in the future. That is to say that criminal defense can actually prevent crime. “We provide social work services not necessarily related to the case,” boasts Steinberg. “We work with clients even when the case is over.”

Since its founding in 1997, Bronx Defenders has sought to help defendants with any and all problems in their lives, not just the immediate circumstance of their arrests. If, for example, an attorney represents someone on a fare-beating case who is also about to be evicted from his home or is facing deportation, the organization may also represent him in those cases.

The same m.o. goes for even the most brutal criminals–though to be sure, not all of them are much interested in a touchy-feely intervention. The lawyers and social workers do what they can. One client convicted of murder is now serving 25 years to life. Steinberg wasn’t able to help him beat the charges, but she was able to aid him in other ways. At first, he thought his children would be better off forgetting about him, until the social workers on her staff convinced him otherwise. He decided to work out a plan for his children to visit him in jail. “I felt good about having made connections with his family and keeping relations between them,” she says.

As Steinberg takes a break from supervising night court, a young Bronx Defenders lawyer, who has just won a defendant’s release, exits the courtroom with her client. She is beaming as he clasps her in a bear hug.

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This little lawyer-defendant Hallmark moment arises from the unlikeliest of origins. The Bronx Defenders are here in court today thanks to former mayor Rudy Giuliani, and his crusade in 1994 to break Legal Aid’s monopoly on criminal defense in the city.

Giuliani, who made his reputation as a federal prosecutor, had no great love for criminal defense lawyers. Neither did he especially like unions. His administration broke a strike by Legal Aid’s union, then opened the contract for criminal defense to other providers. Today, Bronx Defenders is one of seven criminal defense organizations that have stepped into the breach. Last year, Legal Aid got $60.3 million; the other groups, including Bronx Defenders, received a total of $24.3 million in contracts.

Steinberg has hired a youngish crew, chosen as much for their worldview as for their skills at cross-examination and motion writing. Staff who have “an understanding of what some of the issues are that bring our clients into the system,” “a broader sense of racism in our culture” and “what it’s like to live in a neighborhood like the Bronx” are what Steinberg–an Upper West Sider–says she’s looking for.

That stuff matters, because the Defenders seek to gain not only trust of clients but the goodwill of the whole community. It’s partly good public relations: If the community thinks well of the Bronx Defenders, clients might also think well of them and therefore be less suspicious and more cooperative.

A block party, a basketball league, after school debate and arts programs, a “youth court” for juveniles who have been arrested on less serious charges, such as writing graffiti–all of it is part of what the Defenders are bringing to the Bronx. They pull it off with about $200,000 in grants, in addition to its $4.2 million a year from the city.

Rudy’s war on criminal defense–which Legal Aid predicted would decimate legal representation in New York–is having results quite different from what either its supporters or opponents had predicted. New groups like the Bronx Defenders have brought a blossoming of new ideas and practices, some of them strikingly radical, to criminal representation in the city.

“Bronx Defenders’ approach is a recognition of how many cases are not just complicated legal cases, but complicated social and civil cases,” says New York City’s Criminal Justice Coordinator, John Feinblatt. Feinblatt’s opinion matters a lot: His agency is the one that buys public defense services from Legal Aid and the other groups. Feinblatt also made his mark as the founder of the Center for Court Innovation, the organization that developed the model courts that now provide alternative sentencing options throughout the city. The Bronx Defenders brand of lawyering, Feinblatt adds, acknowledges the “deep interaction between legal issues and civil issues and knotty, hard-to-solve social issues.”

The model, known as “community-based representation,” is slowly gaining ground as the new new thing in public defense. It stems from work pioneered by the Vera Institute for Justice starting in 1990, when the institute created Neighborhood Defender Service of Harlem. Steinberg served there as deputy director.

A driving idea, once considered heresy, is that representing the indigent is fundamentally different from representing people with money. It might sound intuitive that impoverished people face a host of issues that rich people do not, but in the legal world, the idea that attorneys should practice law differently when it comes to poor clients goes against a deeply ingrained ethos that all defendants should be equal before the law.

“If you’re rich and you get arrested, the job of a defense lawyer is to help you resume your normal life,” says Christopher Stone, director of the Vera Institute. But if you’re poor, Stone observes, your ‘normal life’ will all too often include getting arrested again and again.

“Dealing with the criminal justice system is part of the experience in heavily policed urban communities,” says Stone. The result is that clients are frequently arrested over and over again, continually going through the court’s revolving door. “One veteran public defender involved in practice used to say he won a lot of trials, but the clients were dead or in prison.”

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Public defenders are ubiquitous on TV but almost invisible in real life, outside the criminal justice business. In the public mind, they’re either hopeless idealists, fighting for their beaten-down clients, or losers, working in low-paying, low-prestige jobs because they couldn’t find employment anywhere else. The latter view, fueled by horror stories about lawyers sleeping through trials, is held by more clients than many lawyers would like to admit.

The truth is that Legal Aid tends to hire young attorneys right out of law school, then gives them extensive training. Whether they are successful depends on a host of factors, most of which are beyond their control. They have to take clients as they find them. Some defendants are caught red-handed; others have winnable cases. The trick is figuring out exactly how strong a case the prosecution actually has and then bargaining accordingly.

Very few cases actually go to trial. Consider this: Bronx Defenders represented 12,500 clients last year. The office had 41 trials. Despite tough sentencing laws, there’s a lot of room to make deals.

Almost two-thirds of all cases are misdemeanors, and many of those are disposed of at arraignment. There is even a name for them: “disposable misdemeanors,” which means that the defendant pleads guilty at arraignment and the judge either dismisses the charges or imposes a sentence, usually community service or a fine. In any event, the case goes away the same day it enters the court system.

Those cases can involve less lawyering, but the defendants may have significant social problems, as do people who commit felonies. Nineteen-year-old Hassin, a Bronx Defenders client, spent years 13 through 17 in reform school. When he first got out, he says he returned to school and got a job, but soon started “chilling in the neighborhood.” Then, in November 2001, he was arrested for carrying a loaded .25 automatic.

Represented by lawyer David Feige, he pleaded guilty and is awaiting sentencing. His plan is to finish his high school education and enter the Navy, at which point he hopes the judge will seal his record and grant him a conditional discharge–meaning that the case will go away if he stays out of trouble.

But this last year has not gone smoothly for him. His mother got evicted from their apartment and had to enter a shelter. Hassin didn’t want to live in a shelter, so he started sleeping at various friends’ homes and hanging out on the streets.

During this time, Feige helped Hassin get a scholarship to a three-week Outward Bound-type camping program. Getting him accepted involved hours of phone calls, and he helped Hassin write his application essay.

The day before Hassin was supposed to enter the program, he was shot.

“He’s had some setbacks,” says Feige paternally, thus discouraging his client from discussing details. Perched on the sofa arm next to Hassin, Feige pats his client on the back.

Hassin says he’s back on track now. “I promised Dave I would stay out of trouble,” he explains.

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If their enterprise sounds zealous–even cultlike–the staff at Bronx Defenders, at least those who spoke to City Limits, are true believers. They carry cell phones with them everywhere and, stunningly, give the numbers to clients. Karen Smolar, who came to Bronx Defenders after working at Legal Aid and in private practice, says she not only gets calls at night, but even while lying on the beach on vacation. “I didn’t have my supervisors’ phone numbers at Legal Aid,” Smolar laughs.

Nine of the Bronx Defenders’ 27 lawyers, including Steinberg herself, worked at Legal Aid at some point in their careers. But the relationship with the Legal Aid Society is anything but intimate. Legal Aid suffered a huge talent drain in the aftermath of the 1994 strike, with many experienced attorneys leaving to join the new competing defender organizations.

Of the seven new groups, six were created by former Legal Aid lawyers. When they first formed, they raided Legal Aid for talent, luring staff with higher salaries than they made with their former employer.

The bitterness ran deep and continued for years. To this day, the home page of the union’s web site advocates doing away with the “runaway” criminal defense groups, “whose purpose is to undermine unionism and high quality indigent defense.”

The Legal Aid Society and its union both filed lawsuits against the city in an attempt to shut down the new organizations. The suits claimed that cutting Legal Aid’s budget and bidding the contract in response to a strike violated federal labor laws. “I certainly don’t think what Giuliani did was good for poor people,” says Legal Aid’s Nancy Ginsburg, a union leader during the 1994 strike. “They just took all the Legal Aid lawyers.” On top of that, Legal Aid was subsequently hit with severe budget cuts and the threat of layoffs.

Legal Aid ultimately avoided laying off any lawyers, but one-third of its supervisors were demoted and a large number of other lawyers quit. Funding for Legal Aid’s Criminal Defense Division decreased from $80 million a year to $60 million, and the total number of lawyers went from 720 in 1994 to 377 in 2001.

Altogether, the city established five new trial offices and two appellate offices, with a combined budget slightly more than one-third of Legal Aid’s. Last year, the alternate providers represented 18 percent of all defendants. (Independent private lawyers still handle some cases.)

But eight years down the line, the success of Bronx Defenders in pushing the holistic paradigm is having an apparent ripple effect on other criminal defenders in New York–including the group’s esteemed rival.

“I would like us to do more of that,” says Russell Neufeld, newly appointed head of Legal Aid’s Criminal Defense Division. “That approach is encouraged much more now.” He notes that Legal Aid has just hired 80 new lawyers and is training them to think more broadly about what their clients need from them. For instance, criminal division lawyers are urged to refer a client with housing problems to the civil division. Or a lawyer for a kid charged with disorderly conduct stemming from an incident at school would do well to attend the resulting school suspension hearing, too.

Legal Aid also runs formal programs, and unlike the Bronx Defenders, it targets these initiatives to those clients who could most benefit from special intervention. For several years, the Manhattan trial office has run a “juvenile offender” unit that works intensively with adolescents as young as 13 who have been arrested and charged as adults for serious offenses, such as armed robbery. In addition to the project’s six lawyers, one of whom works on juvenile cases full-time, there is a forensic social worker as well as a therapeutic social worker, who does individual counseling with the youngsters and their families. The social workers are funded through private grants.

The idea is to provide enough support to the family that a judge will feel confident allowing a young defendant to remain in the community on probation. “The reality is, there’s not a lot of family therapy out there,” says Ginsburg, the full-time lawyer with the project. Having a counselor on staff “avoids a lot of the crisis management that lawyers end up doing.” Otherwise, little problems escalate until they reach a point where parents decide they can no longer handle their youngsters–which means that the teens go to jail.

But would this proactive approach work for an armed robber who’s already deep in the criminal life? Ginsburg is skeptical. “Whenever you’re dealing with people who have problems, you can often address the reasons they came into the system in the first place,” says Ginsburg. But, she adds, “adults are not that interested in coming into their lawyer’s office to have their life changed.”

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Eight years after the ill-fated strike, Legal Aid and the city have come to a sort of détente. Feinblatt’s office has reportedly promised to cut a deal with Legal Aid, paying it to take over work that had previously been done by private lawyers. The catch is that Legal Aid must now represent almost all of the defendants not represented by the alternate groups–an unpredictable number that depends on whether the volume of police arrests goes up or down. (For now, they’re going down–in 2001, there were about 340,000 arraignments in city courts, down more than 36,000 from the previous year–but arrests had gone up the year before that, suggesting that 9/11 kept police otherwise occupied.) A settlement of Legal Aid’s and its union’s lawsuits against the city is likely to follow soon.

But from the point of view of Legal Aid, no piece of the contract pie will ever replace the power to shape city criminal justice policy it gained by virtue of being the sole public defense organization in the city. A lot of smaller defense groups set the stage for City Hall to divide and conquer. “I think the reason the Giuliani Administration did what they did was to weaken the power of the public defender in the city,” says Neufeld today.

When Legal Aid was the only organized public defender, it used that power to protect the rights of defendants. For instance, around 10 years ago the city wanted to arraign defendants via video hookup from police precincts rather than transporting them to the courtroom. This would have saved the time and expense of taking defendants to court. But it would also have deprived defendants of an opportunity to meet a lawyer in person before seeing the judge.

Arraignments are the first appearance on a case, where defendants meet their lawyers and learn about bail. In many ways, what happens at arraignment determines the fate of a person charged with a crime. If the judge denies bail, or sets it too high for the defendant to post–and even a very small amount can be too high–the person goes to jail.

The thought of lawyers not even meeting their clients in person for arraignments appalled Legal Aid. After the organization refused to go along with it, the plan was scotched. “Legal Aid was big enough and strong enough to say no, and it didn’t happen,” says Neufeld.

It was Legal Aid’s union, meanwhile, that also insisted on the one lawyer, one client rule known as “vertical representation.” It means that the same lawyer who represents a client when he or she is first arraigned on the charges continues with the case for its duration. In fact, vertical representation was one of the cornerstone issues of an earlier strike of the Legal Aid union back in 1974. Continuity of representation was written into the contract between management and the union in 1976.

Although the union can no longer realistically threaten to strike, it hasn’t totally rolled over, either. In 1999, a group of Legal Aid lawyers walked out of the Manhattan courthouse after Criminal Court Judge Donna Recant ordered a Legal Aid lawyer handcuffed for alleged contempt.

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As is their habit, some of New York’s judges have weighed in on the alternative defenders debate. So far, they’ve liked what they’ve seen, and in fact they credit the new groups with improving the quality of criminal defense overall. In 1995, the First Department of the Appellate Division created a committee to study indigent defense in Manhattan and the Bronx. The committee’s most recent report has nothing but praise for the new groups. “By any measure, the new trial-level defense organizations are a success,” concludes the report, which was based on interviews with judges and lawyers.

The committee also recognized Bronx Defenders for bringing high-quality representation to clients in that county: “A few judges expressed the belief that the overall quality of lawyering had improved in the Bronx because of the existence of BD.”

The group has made its mark in the courtroom as well as outside it, thanks to some groundbreaking legal work. Feige has crusaded to change how police arrange for witnesses to make identifications of suspects. Instead of traditional lineups, where a victim looks at one suspect and four fillers at the same time, Feige has successfully argued in several cases that the victims should see people one at a time–an approach that might reduce the chance of mistaken identification.

Feige’s work has caught the attention of defense attorneys around the city. In mid-November, a Legal Aid lawyer in Brooklyn persuaded a judge to order a sequential lineup, using arguments similar to Feige’s.

For Feige’s boss Robin Steinberg, it always comes back to the community, even inside the fortress of the Bronx County Courthouse. At night court there is a constant parade of people asking for information about their friends, husbands and relatives. Although Steinberg could easily tell these people that she has no information–which is the truth–she rushes up to the court personnel to investigate the status of every case she’s asked about. At one point, two people who are pressing what sounds like harassment charges against their landlord come looking for the prosecutor. Steinberg dashes in to find the Assistant District Attorney and quickly returns and says the prosecutor will be right out.

Then she does something extraordinary. Public defenders don’t have to solicit business. Their clients are assigned by the court when they’re arrested. And most have enough clients calling them and clogging their voice mail with messages, without giving out their number to strangers. But tonight, in between helping lawyers interview clients, craft arguments and win clients release on bail, Steinberg decides it can’t ever hurt to let residents know about Bronx Defenders. “If you ever need help with the defender stuff,” she says, handing them her card, “I’m here.”