It is a Monday in late November of 2019. A handful of attorneys, court officers, and bystanders are seated in a courtroom at the Bronx County Hall of Justice. And Shawn Young is facing the end of a trial for the alleged assault and attempted murder of a fellow inmate three years ago at the Anna M. Kross Center on Riker’s Island.
Young, a 35-year-old originally from Manhattan, is well-dressed to face the end of a trial three years in the making. He appeared in court with a light gray vest over his dress shirt and pants.
Appearances aside, Young is one of many defendants in the New York City criminal justice system relying on a court-appointed attorney to defend his rights.
Juan Campos, Young’s attorney, makes his summation first. Campos reiterates his client’s assertion of innocence -- that another inmate slashed the victim, and then pressured Young into hiding the razor on his person.
“He had to make a split-second decision to survive,” said Campos.
The prosecutor arguing the case against Young dismissed such a sequence of events in his own argument; he said that the timetable would not allow the razor to be hidden if Young was not prepared to hide it or was given it by someone else. He referred to Young’s earlier testimony as “a nice little story” and nothing more.
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Campos are two of many practicing attorneys in the Bronx who regularly take cases from the Assigned Counsel Plan, or the 18B Panel.
The Assigned Counsel Plan is not an organization in-and-of itself, but a city program that assigns private attorneys to indigent defendants. Attorneys can apply to join different panels under the Plan, such as a panel for misdemeanor cases, felonies, or homicides.
In the Bronx, many Assigned Counsel panel members were formerly members of the Bronx District Attorney’s Office.
John Yu began working for the DA’s office in 1977, before leaving to start a solo practice. He said that he greatly valued the independence of working for himself, to the point of it being worth the cut in earnings.
“I never saw myself as a career DA,” said Yu.
Mike Marinaccio, who previously worked as an Assigned Counsel spokesman for the Bronx Bar Association, said that the pathway was a common practice for attorneys who wanted to gain courtroom experience before going into business for themselves.
And while the financial stability is appreciated by those who join the program, the lawyers interviewed for this article said that they are very clear on who their client is -- the defendant, not the city. Even former prosecutors said that they take “innocent until proven guilty” seriously, and do not believe their former position should have any bearing on the quality of representation they give their clients.
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As far as indigent defendants go, Young is relatively fortunate. Having dropped a previous Assigned Counsel attorney, Campos was assigned his case one year ago after the alleged assault.
When Campos felt overwhelmed by the material on the case, he appealed to Judge Martin Marcus -- the judge overseeing the trial -- to bring on another lawyer as co-counsel. The judge agreed, and Campos was joined by his colleague Martin Goldberg.
“We were able to share the work,” said Campos, speaking to a reporter after his summation.
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While New York City retains two public defender organizations to handle most of indigent defendant cases -- the Legal Aid Society and New York City Defender Services -- the Assigned Counsel Plan remains a major factor in the indigent defense environment.
The 2019 New York City budget estimated that approximately $52 million would go towards the Assigned Counsel Plan, which includes funding that goes towards the office that assigns cases in the five boroughs. Defender Services is anticipated to receive funding of $50 million for the same time period and the Legal Aid Society is anticipated to receive a total funding of $108 million.
By comparison, total funding for all five District Attorney’s Offices in New York City are estimated to come to approximately $351 million.
Unlike the institutional defenders, however, Assigned Counsel attorneys are not retained employees with a salary. They work an hourly rate of $60 for misdemeanors and $75 for felonies, up to a maximum cap of $4,400 per case,while continuing their own private practices.
While that may sound like a lot, especially for an economically-depressed area like the Bronx, the rate was last set in 2004. In the meantime, costs for attorneys have increased along with the rest of the city. Expenses related to transportation, office space, and utilities continue to rise regardless of profession; in addition, the increased presence of audio/visual technology means that attorneys will need more equipment to gather and organize evidence on their clients’ behalf.
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The prosecution chose to play a video from the Kross Center’s surveillance during their summation. In the video, corrections officers at Riker’s Island are seen making repeated requests for Young to bend over far enough for them to search his entire body for the razor involved in the incident.
Another video was played to show the amount of blood lost by the victim after the attack.
Neither video played by the prosecution at the end of the trial depicted the assault in the Center’s holding pens.
Campos referred to other video logs from earlier in the trial in his summation. In that video, said Campos, the corrections officers remove another inmate before they question Young; he further claimed the officers also moved less quickly in the video than their earlier testimony indicated.
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Marinaccio said that the stagnation in pay makes Assigned Counsel work less appealing as a career path for experienced attorneys; even as caseloads shift towards the institutional defenders, it leaves fewer Assigned Counsel attorneys to take on the cases that remain.
“If a young attorney were to ask me today, I would not recommend they go into 18B work,” said Marinaccio.
Underlying the financial strain of Assigned Counsel pay is access to resources. Both the District Attorneys’ Offices and the institutional public defenders have funding included in their budget for ancillary services, such as registering clients’ or witnesses’ for drug treatment programs or retaining investigators to gather evidence on their behalf.
For members of the Assigned Counsel Plan, funding for those services must be requested from the judge overseeing their trial. Not only can judges reject those appeals for funding, there are also caps on hours and payment for investigators -- leaving some indigent clients with lawyers expected to do the same work with fewer resources.
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Young -- an admitted member of the Bloods and a married father of a young child -- was also familiar with the Assigned Counsel Plan, allowing him to trust the man the criminal justice system had assigned to him in the first place.
“Once an inmate starts talking to you...they’ll respect you,” said Campos, adding that respect needs to be shown in turn from the attorney to their client.
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Several Bronx attorneys told Public Defense Informer that they have seen their work misunderstood from two different directions.
In the first case, defendants not familiar with the indigent defense system may hear the words “court-appointed” and fear that the person who just walked into the room is colluding with the prosecution.
Some of this confusion can be credited to the pressure of being arrested or a lack of general knowledge about the court system.
John Yu said that other factors can exacerbate the situation; it is not uncommon, for instance, for an indigent defendant to also have a mental condition or lack access to medication that helps them remain lucid.
Regardless of what situation a client is facing in and outside of court, however, Yu said that it is the responsibility of the attorney to let the client know what their options are and to not try and force them to take any one path -- even against their own legal experience and study.
“With 18B, you get the gamut,” said Yu. “You got to be respectful.”
At the other end of the spectrum are sections of the public -- and “law-and-order” politicians -- who express frustration at the idea of using state funding for people that are automatically perceived as criminals in the public’s imagination.
“You hear that, but those are generally people who don’t understand how the system works, or want to understand how it works,” said Marinaccio.
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Despite a shift in caseloads towards institutional defenders, the need for Assigned Counsel is not likely to disappear soon. Not only does the program catch the overflow of cases beyond the contracts for Legal Aid and Defender Services, but it also provides a pool of candidate counsel for cases where there may be a conflict of interest for either organization.
Following the approval of raises for public defenders and institutional providers in the last legislative session, the New York State Legislature is currently considering an increase for Assigned Counsel attorneys in the upcoming 2020 legislative session. Advocates echoed concerns from Bronx attorneys that indigent defense needed to be incentivized to cover the needs of the most vulnerable defendants.
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After both summations, and a lengthy lunch break, Judge Marcus gave the jury their instructions and sent them off to determine the verdict. The jury was given three counts to consider for Young’s case -- second-degree attempted murder, first-degree assault, or second-degree assault.
Young was found not guilty on all three counts by the end of court that Monday.