By MICHAEL VIRTANEN
Associated Press

ALBANY - An attorney for the New York Civil Liberties Union told the state's top court Tuesday that poor defendants often spend much more time locked up because the state system of public defenders routinely fails.

The NYCLU claims that the lack of effective legal help violates state and federal constitutional guarantees to counsel. The group faulted all three methods used among the state's 62 counties: full-time public defenders, a list of private lawyers who take cases and legal-aid societies.

The suit was filed in 2007 on behalf of 20 defendants in five counties: Onondaga, Ontario, Washington, Schuyler and Suffolk. Attorney Corey Stoughton said defendants stand in court every day with no lawyers or those too inexperienced, overloaded or otherwise incapable of representing them.

"As a result, they spend weeks or months in jail before trial, are forced to accept inappropriate guilty pleas, face exceptionally harsh sentences," Stoughton said. Often they have no counsel at arraignments, initial court appearances where attorneys can try to reduce or dismiss charges or bail requirements.

Several of the seven Court of Appeals judges asked for proposed alternatives, whether defense lawyers would have to be on hand around the clock and whether their ruling would set a precedent for all 62 counties. They also questioned the cost, whether the problem could be quantified and whether it should be dealt with case by case.

"It is undoubtedly true that in every county there are some bad lawyers assigned," Hon. Robert Smith said.

The NYCLU complaint was dismissed by a divided midlevel court whose majority concluded that any massive overhaul of the state's public-defense system would require the judiciary to assume traditional legislative powers.

Solicitor General Barbara Underwood, representing the state, argued that all 20 defendants did get counsel, none pleaded guilty at their arraignments and the performance of individual lawyers was a case-by-case issue. In some cases there might be a violation of a defendant's rights, in others not, she said.

"As a legal matter, appointing a lawyer soon after arraignment satisfies the constitution as long as the defendant doesn't irrevocably lose critical rights at arraignment such as by pleading guilty," Underwood said. She acknowledged New York's top court could limit the scope of its ruling and noted that the suit has not been certified as a class action.

Chief Judge Hon. Jonathan Lippman questioned whether they have to wait for unjust convictions to act and whether jailing right from arraignment affected a defendant's rights. "What could be more important than taking away somebody's liberty?" he said.

In 2006, a commission appointed by then-New York Chief Judge Hon. Judith Kaye concluded that the state's indigent-defense system was in trouble.

City University of New York law professor Steven Zeidman, a commission member, said about two-thirds of all misdemeanor cases are "disposed of" at the first court appearance. That's a problem, he said, because collateral damage from guilty pleas can mean deportation, eviction, loss of government benefits or required DNA samples.