Albany’s city court on Morton Avenue. Photo: John Whipple

The Defense Never Rests
An overwhelming caseload and a revolving client list leave Albany County public defenders struggling for air

By Travis Durfee

The bailiff has already given her bit on this being a court of law and how everyone is to remain silent so as not to disrupt the flow of justice, but it obviously hasn’t resonated. It’s just after 9 AM on Tuesday at Albany’s Police Court on Morton Avenue, and courtroom No. 1 is abuzz.

The courtroom is a big box, split roughly in half by a metal-and-glass partition about 7 feet tall. Court clerks, police officers, attorneys and the judge occupy one side, victims and defendants fill a waiting area on the other. Roughly three dozen people have already piled into the waiting area, filling seven of the eight available wooden benches nearly to capacity, and more are filing in. It seems that as soon as the courtroom door closes it reopens and a few more people filter in, bringing with them the din from the lobby. People are finding seats, removing coats, rustling papers, scanning for attorneys, whispering, occasionally laughing. On her side of the partition, the bailiff sits on a barstool and glares at the crowd—wide-eyed and deadly serious, hoping her silence speaks volumes. She is ready to pounce.

A court clerk reads names from a sign-in list, and people raise their hands like it’s homeroom. Once through the list, she announces where they are and why they are here: This is police court and you are before Judge Keefe. This is not traffic court. That is down at City Hall. If you’re supposed to see Judge Carter, you’re in the wrong place. He is down the hall in courtroom No. 2. Most of the people, it turns out, are in the right courtroom. Some are not, and in a huff they leave. But even those who remain will soon become irritated. They may have arrived on time or earlier, hoping to return to work before lunch, but none in the waiting area will be seen for a while. The court has more pressing matters: out-of-town hippies clogging the county jail.

Phish played the Pepsi last night. Many of their fans celebrated by huffing nitrous oxide from tanks and balloons, which basically cuts off the oxygen to the brain and numbs the senses. That’s probably why they didn’t see the cops coming. To handle all of the arrests there was a special three-hour session of police court last night, and court has been in session since 8:30 AM this morning, but the judge is still arraigning hippies. A judicial jam session of sorts.

Shauna Collins, one of Albany County’s newest public defenders, already had a hefty load of scheduled cases prior to entering the court Tuesday morning. About 30 files awaited her appearance, and now she’s got to deal with this: There are about 20 Phish defendants left, and almost all have applied for public representation.

In a normal morning, Collins is busy: She’s refreshing her memory of the day’s caseload from notes she’s scrawled on manila envelopes from previous appearances. She’s making her way across the waiting area to meet with a new client, fending off a few eager others on the way. She’s speaking with hardheaded kids who don’t mind going to jail, trying to talk them out of it. On top of that, today Collins must check with the nitrous defendants to see if they’ll accept the district attorney’s deal—plead guilty to a charge of disorderly conduct, pay a fine and leave. Most agree, and the wheels of justice begin to crank.

Through a door to the side of the judge’s bench, a police officer leads two handcuffed men to the inmate pen in the courtroom. As he opens the door, a chorus of bangs and screams floods the courtroom. A man waiting to appear is being detained somewhere behind the courtroom, and obviously feels neglected. “Hey! Hey! Hey!” the man screams in short bursts, trying to get someone’s attention. Whether he got that person or not, he has snagged the attention of everyone else in the courtroom. The waiting area comes alive with muted conversation. The bailiff sits up straight and gives her glare.

The doors close for a moment, muting the ruckus, and the officer leads the two men to the holding area before heading back to assist. As he opens the door, sounds from the invisible scene flood the courtroom once more.

“You want 30 more days for in contempt of court?” a female voice threatens, matching the screamer’s volume.

“In contempt for what?” asks the screamer.

“For acting like an animal,” the female voice shouts back. The door closes. Smiles and arched eyebrows spread from behind the partition, more laughter and chatter from the waiting area.

The bailiff comes out to address the waiting area. She looks ready to kill. She gives her spiel again. “I know this looks like a circus,” she concludes, nodding her head slowly, knowingly, almost bowing. The thought lingers as she heads back behind the partition. It’s 9:45 AM.

At about 11:05 AM, Collins thinks she has a free moment and heads from behind the partition to speak with one of her scheduled clients. Wearing a black pantsuit and pink turtleneck, Collins rasies her brow and flashes a loaded smile as she approaches her client.

“You want to know what they offered?” she asks. The belly of her client, a heavyset black man wearing paint-spattered blue jeans and a camouflage coat, heaves a bit in response. “What?”

“Thirty days,” Collins says, her face wincing. The client throws his hands out to the side in disbelief. He’s been charged with trespassing, a violation of his probation. He doesn’t want to go to jail. “I know you don’t want to,” she begins, but is quickly interrupted.

“Ms. Collins, could I borrow you,” the judge calls. She gestures to her client and heads back to the bench. It’s now 11:08 AM. Collins and her client didn’t even spend five minutes together.

City court is considered one of the lower courts in our country’s judicial system. These courts handle appearances for minor crimes and violations—offenses punishable with jail time but often negotiated to a fine, community service or a treatment program. Rarely does a city court appearance result in a trial, but these lesser crimes usually result in four or five appearances before a charge has been dealt with.

Albany’s city courts are by far the busiest in the county. Of the 9,414 individuals who appeared in city courts throughout Albany County in 2002, approximately 7,576 went through the city’s court, according to the state’s Office of Court Administration. It is important to note that these figures represent individuals appearing in court, not cases. Individuals may have multiple charges within their file. Responding to requests from city officials, the state Legislature created a new city court position for Albany last year to deal with the city’s ballooning caseload. The position was filled in the November 2002 elections, and a new, third city court judge started in January 2003.

In the county’s busiest court, Albany County public defenders provide the overwhelming majority of defense services. In 2002, public defenders represented 5,063 of the 7,576 individuals who appeared in the City of Albany’s lower courts, 67 percent of the court’s entire caseload. While Albany’s overall city court caseload appears to have declined slightly this year, the number of clients represented by the public defender’s office is on the way up. At their current rates, the public defenders will have represented approximately 73 percent of all cases appearing in Albany’s city court in 2003.

Currently, the county defender’s office employs seven attorneys in Albany city courts. Six of those attorneys are in court two or three days a week, and represent most of the clients. The seventh attorney handles any clients charged with a felony in Albany. One of the other six also takes on some of these cases. Since felonies are not within the lower court’s jurisdiction, those cases are usually arraigned and shipped out to a higher court where they are handled by a separate attorney.

Though the county public defender’s office could not provide an exact figure for the number of cases each attorney handles, based on the office’s projected 2003 caseload, the attorneys represented an average of 782 individuals. That figure is well above the National Legal Aid and Defenders Association’s general standard that public defenders shouldn’t handle more than 400 misdemeanor or 150 felony cases a year. Eugene Devine, head of the county’s Public Defender Office, rationalizes those figures by saying that not all of those cases go to trial, but admits that the numbers are very high.

“I know we need bodies to fit those standards,” Devine says. “These caseloads not only put a burden on us, but make it difficult for our attorneys to provide good representation for the clients as well. It’s like a steamroller in that court.”

Earlier this year, the defender’s office hired two new attorneys to deal with the burgeoning caseload. Collins, a 26-year-old in her first year out of law school, has been with the office since April. Like most of the office’s staff, she works part-time as a public defender, two days a week, and spends the rest of her time at a local private firm.

Collins is energetic and enthusiastic about her work as public defender, idealistic even. To her, working as a public defender is advocacy work, something important to her, something she’s devoted time to throughout her adult life.

Representing: Shauna Collins, Albany County public defender. Photo: John Whipple

“It’s public service,” Collins says, taking some time outside of the courtroom to reflect. “These people have a right to be represented and I tend to believe more in that than in wanting to be a prosecutor. I’ve always, for lack of a better term, had somewhat of a soft spot for helping people. I think the DAs will tell you the same thing. They have a soft spot for wanting to help the victims. My feeling is these people have a voice too. I want to be their voice, basically.”

Collins admits that she is too-often speaking for too many people, but adds that it’s just the nature of her job.

“We were talking about this the other day down in city court,” she says. “I just think that we’re just so used to [the pace] that it’s our life now. It’s what I do. I know it’s going to be hectic and it’s going to be overwhelming and there are going to be potentially 100 cases a day, so to hear that number [400 misdemeanor cases per year], it just seems to me like, wow, what would I do with all this time? But you get used to those standards—[it’s] terrible that we’re used to it, but. . . .”

Collins says she tries her best to stay on top of all of her cases throughout the day, but frequent interruptions make it difficult. The interrupted conversation with the man in the camouflage coat was not an isolated incident, Collins says.

“I always have one ear on one thing and one ear on the another,” Collins says. “I don’t want my clients to think I’m not listening to them, but I have to be ready to shift gears at a moment’s notice. It’s difficult.”

The man in the camouflage coat is trying to get Collins’ attention. Roughly 25 minutes after their conversation was interrupted, the client walks up to the partition to ask the bailiff if he can speak with his attorney. Collins is busy discussing cases with inmates from the county jail. The bailiff tells the man to be seated. His attorney will be with him when she gets a chance, the bailiff says. Shaking his head, he heads back to his seat. He and Collins do not speak again before the judge calls his name.

Nationwide, public-defense services have come under scrutiny of late, and Albany County is no exception.

In observance of the 40th anniversary of Gideon v. Wainwright, the Supreme Court case that established the right to legal counsel regardless of ability to pay, the New York Civil Liberties Union has been investigating public-defense services in upstate New York. According to Chris Dunn, associate legal director of the NYCLU, its first stop was Albany County.

“We had gotten complaints from people expressing concerns about indigent defense services [in Albany County], and we got them from a range of sources—people in the community, people who are advocates,” Dunn says. “It is our belief that in most counties the problem is they just don’t have the resources they need to represent people properly. The vast majority of public defenders are out there trying to do the best they can, but they just have way too many cases, they don’t have enough resources, and the clients suffer. That is something that can’t continue in counties where that is happening.”

Over the past two months, the NYCLU has discussed the issue with representatives from all facets of the county’s indigent defense services: judges, attorneys, defendants and advocates. Dunn says the initial charges were serious enough to warrant such an investigation.

“If your entire day consists of sitting in court as the cases are called and having three minutes of conversation with the client before something happens,” Dunn says, “you know no one could competently represent a client in those circumstances, and that is a totally common scenario. I think it happens every day. If you’re the defendant, that’s a big problem.”

There has been speculation that the NYCLU might file a lawsuit requiring the state of New York to take more responsibility for indigent defense. NYCLU’s parent organization, the American Civil Liberties Union, and other indigent-defense advocacy groups have been filing similar lawsuits throughout the country. Currently each of New York’s 62 counties decides how to provide indigent-defense services and pays for those services with already stretched local property taxes. Public-defense services in the state are frequently referred to as a patchwork, and many think the system needs an overhaul. Despite the lawsuit talk, however, Dunn wasn’t tipping his organization’s hand.

“There are lots of solutions to these problems—they may be legislative in nature, they may be administrative. There may be litigation,” Dunn says. “But I don’t want to give the impression that we are about to file a lawsuit right now, because we’re not. We think there are serious problems with representation for indigent clients in some of the upstate counties and there may be lots of responses, one of which could be litigation.”

Devine says he has spoken with the NYCLU about its investigation, and was told that his office was being investigated to see how indigent-defense services were provided in the state’s capital. Devine does not think Albany County is in straits as dire as some rural counties in the southern United States. Devine says he has heard of some counties so poor that they had to issue a special tax to pay for the costs of a murder trial.

“I would submit we’re better off than that,” Devine says.

Apparently, Albany’s city- court judges weren’t satisfied with the number of public defenders in their courtroom. Last month, judges Thomas Keefe, William Carter and Thomas Eagan removed their black robes and donned lobbying hats to inform the county Legislature of the need for more public defenders in police court.

“We have spoken to the county legislature of the need for greater public-defender staffing in our court,” Keefe says. “Essentially we were there because of the situation we were having with the calendars. . . . What we told the county legislature [was] that we need one more three-day-a-week person immediately. Providing [the public defender’s office] with that request is the absolute minimum requirement.”

Apparently, legislators took note. Amending the 2004 county budget Monday night, the legislature added an additional $250,000 to the public defender’s office’s $2.6 million budget for this year.

“A lot of our efforts here are to try and level the playing field between defendants that have money and defendants that don’t have money,” says Paul Collins (D-Albany), a county legislator and chair of the legislature’s law committee. “It doesn’t seem to me to be just because you’re poor that you should have less of a chance in an adversarial system.”

Devine says that the additional funds allow his office to hire three more public defenders in Albany city court, and to place one attorney in the county jail four or five days a week. The money will also provide the defender’s office with updated case-tracking software, and will fund training sessions for county public defenders. Devine says the additions to his staff should quell any notion of the county being named in a lawsuit regarding indigent-defense services.

“Whether we started out as a target, I don’t know,” Devine says. “I was led to believe it’s part of a statewide effort to get some numbers together. Regardless, if there was a problem, we fixed it.”

Around 3:45 PM Tuesday, the calendar is winding down. A sense of calm has fallen over the courtroom. The waiting area has all but emptied and the judge’s voice echoes throughout the chamber. A handful of inmates from the county correctional facility are seated in the pen waiting to appear, and the bailiff is yawning on her barstool. But the defense never rests—Collins is being fired.

The client was arrested for sale of a controlled substance. Collins has explained the options to her client: He can either plead guilty to a lesser charge and take the deal from the district attorney of 10 months in jail, or take his case to trial, which could result in worse. But the client doesn’t want to hear it. Still. He has appeared for these charges before and the judge granted him time to decide how he wants to move ahead. He has a tough decision to make: one bad choice or the other. He obviously doesn’t like those choices, so he’s shooting the messenger. He wants a different attorney.

“She’s not listening to me, your honor. I’ve asked her to modify my bail and she hasn’t listened,” the client pleads. But today’s isn’t a bail hearing. He hasn’t even placed a request to lower his bail.

“Sir, you have a decision to make,” Keefe says. “You have a right to be represented by a lawyer. You do not have the right to a lawyer who will give you the advice you want hear. You do not have the right to keep coming in here and wasting the taxpayers’ money.”

Collins’ arms are crossed and her weight is shifted slightly away from her client as he pushes for a new attorney once more. Keefe says that he will not honor the request for a new attorney, and the defendant walks away shaking his head. The judge adjourns the matter for a week. The incident frustrates Collins, but she can’t let it throw her too much: She has a few more cases to try. Her day isn’t done yet. Nor is Charles McFadden’s.

McFadden, a 38-year-old Albany resident, has been in court since 8:30 AM waiting for his twin brother to be called. By McFadden’s account, his brother has been arrested five times in the past six months, each time on charges stemming from his brother’s caustic relationship with a woman. “She’s no good for him,” McFadden says.

McFadden, who’s been to court for all of his brother’s appearances over the past few months, is hoping that today will be the day that his brother is released from the county correctional facility to his care. Though the court says his brother is mentally fit enough to stand trial, McFadden says he is mentally unstable. He needs a good program and he needs to stay on his medications. And he needs to stay away from that woman.

McFadden sat patiently as the hippies were arraigned. He watched the clients who could afford private attorneys walk out the door before lunch. He waited while Collins’ stack of files dwindled, until there was only one left.

His brother is called at 4:06 PM, the moment McFadden’s been waiting for all day. Now it’s the McFadden brothers’ turn for the justice mandated to them by the Supreme Court.

McFadden is allowed behind the partition to stand before the judge with his brother. Unfortunately, there is little new with the case. Collins is still searching for the right program for McFadden’s brother; he’s burned through a number in the past few months.

His brother’s case doesn’t last for more than three minutes before it is adjourned for a few weeks. The McFadden brothers exchange a quick hug before one goes back to county, the other back home. Both will be back in court in a few weeks. Maybe by then the county’s three new public defenders will be in city court to ease the burden. Maybe a judge will have forced New York state to take more responsibility for indigent-defense services. Maybe Collins will have 25 instead of 45 files that day. Regardless, McFadden will take the day off from work, again, to sit and wait for his brother’s next three minutes with the judge.