One morning in 2002, a guard phoned the mental health unit in an upstate prison to report that an inmate was “acting weird.” The inmate, Carl B., was “non-responsive and crying.” A nurse instructed that the distraught inmate be brought down for an emergency psychiatric evaluation. But instead Carl B. was mistakenly escorted to the yard for recreation. Within the hour, he had assaulted two guards, punching one and superficially biting another. Both men felt pain but sustained no lasting injuries. Carl B. was admitted to care by the Office of Mental Health that same day, diagnosed as delusional and suffering from a psychotic disorder. Although he had a history of psychiatric problems and there was contemporaneous documentation of serious mental illness, Carl B. was indicted for this incident. He was convicted of assault in the second degree and sentenced to 30 years to life imprisonment.

The prosecution of Carl B. took place when much of New York's public defense system was aptly described by the Commission on the Future of Indigent Defense Services as “severely dysfunctional and structurally incapable of providing … effective legal representation.”. After exchanging a few words with his client at the arraignment, Carl B.'s appointed lawyer did not meet or communicate with him again until 24 hours before trial. The lawyer had no clue about Carl B.'s history of mental illness or documented psychosis on the morning of the assaults. Counsel pursued a generic “beyond a reasonable doubt” defense, trying the case by the seat of his pants, knowing next to nothing about the severely disabled man seated inches away from him in the courtroom.

In recent years, New York has taken strides to improve its public defense system. It established the Office of Indigent Legal Services, settled the landmark Hurrell-Harring lawsuit, and enacted legislation to greatly increase state funding of county-based public defense programs. These improvements, it is hoped, will put an end to the kind of “drive-by” representation practiced by lawyers like Carl B.'s trial counsel.

But Carl B.'s case illustrates the critical need for additional legislative reform. Trial counsel's meaningless representation was not brought to light on appeal. Carl B.'s assigned appellate lawyer wrote an otherwise respectable 32-page brief that challenged only the trial judge's evidentiary rulings. The Appellate Division affirmed the convictions and counsel then dropped Carl B. as a client. How could this have happened?

The answer is not as simple as more incompetent lawyering on appeal. New York's antiquated system of dealing with claims of ineffective assistance of counsel is largely at fault. Assigned lawyers in New York, unlike their counterparts in at least eight other states, are not statutorily entitled to be paid to investigate and pursue ineffective assistance of counsel (IAC) claims. As a result, appellate attorneys are often dissuaded from evaluating trial counsel's performance for possible IAC. A bill in the New York State Legislature now seeks to reform this unfair process.

Ineffective lawyering usually occurs outside the courtroom and so it cannot be litigated on direct appeal, which is limited to review of the trial record. Additional facts must be pleaded in a separate CPL Article 440 motion in the trial court. But County Law §722 does not authorize payment for a lawyer's time spent investigating facts, interviewing witnesses or drafting pleadings. Compensation is only available if and when the trial judge orders an evidentiary hearing. When a hearing is denied, as often happens, counsel is paid nothing. Appellate courts will sometimes grant permission to expand the scope of representation to include the filing of a CPL Article 440 motion. But the informal process is not incorporated into court rules, and counsel must conduct a preliminary investigation of a claim without any assurance of later being paid for the work. The practical result of this tight-fisted system is that assigned lawyers are understandably reluctant to investigate IAC because they can never be sure of getting paid. Lawyers are incentivized to review the record with blinders on. Under financial pressure to focus on the existing record, even experienced appellate lawyers can fail to recognize telltale signs that IAC had occurred just outside the margins of the printed page.

This is probably what happened in Carl B.'s case. There were red flags in the transcript. Trial counsel openly admitted that he had spoken with his client only twice before trial. Carl B.'s history of mental illness was not referenced in the record, but his trial testimony was aimless and suspiciously incoherent. After the verdicts, defense counsel remained virtually silent as the judge imposed 30 years to life for these minor assaults. An experienced appellate attorney should have recognized the need to investigate trial counsel's apparent lack of preparation. But by starting down that road, Carl B.'s appellate lawyer would have run the risk of working for free. So he stuck to the written record, submitted a conventional appellate brief and was paid for his legal work.

Does New York's payment scheme seem at odds with a lawyer's professional obligations? American Bar Association standards require appellate lawyers to consider “all issues that might affect the validity of the judgment of conviction and sentence, including any that might require initial presentation in a trial court.” The Office of Indigent Legal Services' Appellate Standards likewise direct that “appellate counsel must determine whether an investigation is warranted as to a possible CPL [Article 440 motion]” and “must” pursue such relief in appropriate cases. These prescriptions don't come with a caveat: “except if you fear not getting paid.” But New York's statutory scheme forces assigned lawyers to choose sides in an ongoing tug of war between the need to comply with professional standards and the basic need to earn a living.

This dilemma is imposed almost exclusively on 18-B attorneys, private lawyers who accept assignments, get paid $75 per hour, and provide the bulk of representation in the Third Department and parts of the Fourth Department. To be sure, salaried attorneys who work in public defense offices must contend with caseload pressures. But they are not beholden to the billable hour and have more leeway to investigate facts outside the record. The four large New York City appellate defender offices (The Legal Aid Society, Center for Appellate Litigation, Appellate Advocates and Office of the Appellate Defender) routinely investigate possible IAC and file post-judgment motions for clients whenever appropriate. Their overall CPL Article 440 filing rate for IAC and other issues is small but significant, estimated at less than 5 percent of clients' cases each year. Report of NYC Bar Assoc.'s Crim. Justice Operations Cmte., Jan. 2011. No statewide analysis of CPL Article 440 practice has ever been done. But one limited study found a dearth of such motions filed on behalf of indigent clients in some parts of the state. Amicus curiae brief filed by NYS Defenders Assoc. in Hurrell-Harring v. State of New York, 15 N.Y.3d 8 (2010).

The right to effective assistance of trial counsel is a bedrock principle in our justice system. But its enforcement is frustrated when IAC claims are diverted from direct appeal where counsel is guaranteed and rerouted onto a separate procedural track that deprives poor persons of a lawyer to pursue the claim. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court granted certiorari to consider the constitutional implications of this decoupling of the right to counsel. In his majority opinion, Justice Anthony Kennedy recognized that a “collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective assistance claim.” But the court stopped short of declaring a constitutional right to counsel for IAC claims in proceedings like CPL Article 440. Reserving decision on the constitutional question, the Court devised a modest equitable rule intended to facilitate at least one level of review for IAC claims.

As later clarified in Trevino v. Thaler, 569 U.S. 413 (2013), Martinez held that when a state fails to appoint counsel for a collateral proceeding in which an initial claim of IAC must normally be raised (or an attorney is appointed but performs ineffectively), a federal habeas corpus court may review a “substantial” IAC claim on the merits, despite procedural default rules that would otherwise bar such review. The holding is helpful in capital cases because death-sentenced prisoners have a right to appointed counsel in federal habeas corpus proceedings. But in non-capital cases where there is no such right, Martinez makes little practical difference. An extremely small percentage of non-capital defendants ever manage to pursue federal habeas corpus relief. And of those who do, the overwhelming majority are pro se petitioners. Martinez simply brings them back full circle: without a lawyer to investigate or litigate their IAC claims.

Because states are not yet constitutionally required to appoint counsel in this context, legislation is needed to ensure that all indigent New Yorkers have a fair opportunity to litigate IAC claims related to their direct appeals. And now a bill sponsored by Assemblywoman Vivian E. Cook would do just that. The bill (A8465/2017-18) amends County Law §722 to provide that any assignment of counsel in connection with a direct appeal “includes authorization for representation” in CPL Article 440 proceedings. Under the bill, lawyers would be paid for work associated with the “preparation and proceeding” of a CPL Article 440 motion, including the lion's share of time spent investigating facts, researching the law and drafting pleadings. The bill covers IAC claims and all other issues cognizable under CPL Article 440 (e.g., newly discovered evidence, illegal sentences). Because the CPL Article 440 authorization is granted under the umbrella of an appellate assignment, the bill's language would presumably allow attorneys to voucher time spent investigating seemingly promising issues that do not pan out. In this way, lawyers would no longer need to fear being financially penalized for exercising due diligence on a client's behalf. This simple amendment would allow all appellate attorneys, regardless of their employment status, to practice in conformance with professional standards. The bill passed 127-0 in the New York State Assembly in May 2018. But it later died in the Senate.

The bill memo pulls no punches, calling the current system “unjust and nonsensical.” But the bill itself is otherwise modest in scope. It does not establish a free-standing right to counsel in CPL Article 440 proceedings. It would apply only when there is a pending direct appeal and a 440 motion implicates the conviction or sentence being appealed. This limitation makes economic sense because the right to counsel would simply be extended under circumstances where an assigned attorney is already engaged in review of the lower court proceedings for error.

After losing his direct appeal, Carl B. spent much of the next decade suffering through repeated rounds of decompensation, shuttling back and forth between prisons and psychiatric hospitals as his mental illness grew chaotically worse under the strain and isolation of life imprisonment. His sister finally found a pro bono lawyer to review his case. Only then did an investigation uncover trial counsel's ineffectiveness. In 2016, 14 years after the unfortunate incident in the prison yard, the trial judge overturned Carl B.'s criminal convictions. He was later released to a civil mental hospital for care and treatment.

The quality of representation provided to poor persons should not hinge on the employment status of appointed lawyers. But New York's disparate compensation scheme has resulted in a two-tiered system of appellate representation. The human consequences of this inequality are real and sometimes devastating. Enactment into law of Assemblywoman Cook's bill would raise the overall level of appellate practice in the state. It would also hasten the day when stories of injustice like Carl B.'s are no longer heard.

Alfred O'Connor is litigation counsel at the New York State Defenders Association. He represented Carl B. in the CPL Article 440 proceeding that resulted in vacatur of the convictions in 2016.