Monday, March 22, 2010

The Right to Counsel And Plea Bargaining

The New York Times had an excellent article over the weekend regarding the right to counsel in a case where the defendant was encouraged to plead guilty to a felony that turned out not to be a felony at all. Below are some portions of the article, but the entire piece (which is well worth reading) can be found here.

... Everybody around Fort Edward knew Pat Barber, a fixture at the courthouse and a stepfather of two whose family owned a local tavern. He had been here all his life except for college in western New York and law school at Syracuse.

So there was not much in the way of vetting when he put in a cost-conscious bid to become Washington County’s chief public defender, a part-time position he added to his private practice of trial work, debt collections, wills and divorces. It was quickly settled. Beginning in 2006, he would get $50,000 a year and some rent for the office he had shared with a law partner who had recently died. “We have to have a good reason not to take the low bid,” said John A. Rymph, the chairman of the County Board of Supervisors.

There were plenty of good reasons, according to court records released last month. Mr. Barber, 49 at the time, had been reprimanded twice — in 2002 and 2005 — by the Committee on Professional Standards, the state group that disciplines lawyers, for neglecting cases. He had been struggling with depression for years. “On some occasions he had to leave the courtroom because of panic attacks,” a report from his psychiatrist said. “He had daily drinks to cope.” But the people reviewing the bids in Washington County knew none of that. The reprimands were confidential, though officials at the professional standards committee say they could have been released to a potential employer if Mr. Barber had signed a waiver. If, that is, anyone in Washington County had known to ask him to sign one.

Told recently about Mr. Barber’s history, Roger Wickes, the county attorney, said, “I would have assumed the board would have been concerned had they known about it.”

By the time Ms. Hurell-Harring made her trip across the state, Mr. Barber’s troubles were piling up. He had put $304,895.46 in checks for an auto-accident settlement into the file and never mailed them to his client, court records say. He kept telling another client he was finishing up some work related to her divorce. “I misled her as far as the progress of what was going on,” he testified later.

In a third private-practice case, a man appealed his rape conviction, claiming that Mr. Barber had failed to do basic things at the trial like question some important witnesses. In time, a divided appeals court ruled that “no legitimate trial strategy existed.” The week in October that he went to court for Ms. Hurell-Harring, Mr. Barber was being pursued on yet another file full of trouble. At the request of county officials, John R. Winn, a local lawyer, had been asking questions about two estates Mr. Barber was supposed to be handling that had been so neglected that two properties had been sold for unpaid taxes.

Mr. Winn started calling Mr. Barber, and eventually he turned over a carton with all his records on the two estates — dividend checks, tax bills and bank statements, all in their original envelopes. “I looked, and I said, ‘He’s never opened anything,’ ” Mr. Winn said. One of the women had died six years earlier.

In a long interview this month, Mr. Barber blamed his depression. “You just develop this nausea fear of a file and you would do anything to stay away from it,” he said. He argued that his problems had not affected his public work. But his psychiatrist, Dr. Koock E. Jung, said in another disciplinary case against him, in 2009, that his symptoms included “breaking out sweating, dizziness and shortness of breath, which affected his law practice seriously, especially his public defender’s job.”...

... At the county jail, Ms. Hurell-Harring was growing frantic as she waited nearly a month for her sentencing. She called Mr. Barber’s office every few days. Usually thesecretary said he was busy. When they did talk, she said, Mr. Barber told her she had no options.

On Nov. 8, 2007, the civil liberties union filed its class-action suit in Albany, mentioning Ms. Hurell-Harring’s contraband charge. A lawyer read it at the New York State Defenders Association, an organization that provides training and expertise to defense lawyers.

The lawyer, Alfred A. O’Connor, had been working for years on the very issue in her case: whether that small amount of marijuana should be defined as dangerous prison contraband, which could make her smuggling effort a felony, or whether it was ordinary contraband, a misdemeanor that might mean no jail time at all and none of the consequences that come with felony convictions.

Mr. O’Connor started calling Mr. Barber, too. “Good news,” he recalls saying when they spoke on Nov. 15, the day before Ms. Hurell-Harring’s sentencing. He told Mr. Barber that the state’s highest court was considering the contraband question. Defense lawyers had already laid out the very argument that could mean freedom for his client.

But Mr. Barber did not ask for a copy of the briefs. “There wasn’t any enthusiasm,” Mr. O’Connor said. Asked about this in the recent interview, Mr. Barber said had not wanted to bring up anything that could make prosecutors ask for a longer sentence.
The next day in court, Judge Kelly S. McKeighan noted that Ms. Hurell-Harring had admitted to the felony charge: promoting prison contraband in the first degree. Mr. Barber agreed, never mentioning that it might not be a felony at all.

“I just want to go home to my kids and my mother,” Ms. Hurell-Harring told the judge. Instead, she went back to jail, serving four months before she was released for good behavior. She left Washington County on Jan. 28, 2008, a convicted felon facing five years of probation.

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