IV. IMPROPER DELEGATION OF ELIGIBILITY DECISION MAKING TO THIRD PARTIES

The constitutional and statutory obligation of the judiciary to insure the proper determination of eligibility for appointed counsel is thus beyond dispute. However, in a vast majority of jurisdictions throughout the state, the judiciary does not fulfill this mandate, and instead delegates the initial eligibility determination, in its entirety, to public defense providers. In 40 percent of the counties, the public defender, legal aid society, or assigned counsel program are solely responsible for determining eligibility (Appendix 1-65). However, in some of these counties, the task of making eligibility assessments is delegated further to non-legal staff such as secretaries (e.g., Columbia and Genesee--Appendix at 1-2), investigators (e.g., Broome and Chautauqua--Appendix at 11), and typists (e.g., Cortland--Appendix at 11).

The judiciary is exclusively responsible for determining eligibility in only 34 percent of the counties. In another 21 percent of counties, the judiciary and the public defense provider share eligibility decisionmaking (Appendix 1-65).

In three counties (five percent), the eligibility inquiry is delegated to an outside agency, which, in theory, collects financial data and makes recommendations to the court (Appendix at 315). In Nassau County, the Defense Counsel Screening Bureau (DCSB), an agency created by the County Executive, and housed in the office of the Commissioner of Accounts, conducts all eligibility screening and recommends to the court whether to appoint or deny counsel. In Queens County, the New York City Criminal Justice Agency (CJA), a nonprofit city agency, conducts eligibility screening in conjunction with the pretrial release screening program. [9] Finally, in Suffolk County, the "ROR Unit" of the probation department is responsible for eligibility decisionmaking. [10]

The practical danger inherent in all these delegation arrangements is that the courts will "rubber stamp" the decision made by the screening agency without making any independent assessment of the applicant's eligibility for appointed counsel. Indeed, the court's exclusive reliance on the recommendation of the screening bureau is virtually assured in Nassau County, where some judges routinely receive from DCSB only its single page "recommendation," without any of the underlying financial information on which its decision is based. [11]

In many jurisdictions, often the only involvement by the judiciary in the eligibility determination process is to review the decision of the public defense provider if the defendant challenges an unfavorable eligibility determination (Appendix at 62-65). But even this role is often performed by a party other than the court. In at least eight counties where the public defense provider makes the initial eligibility decision, the review of that decision is conducted by the same office [12] (Appendix at 62-65). Therefore, in many counties, the courts cannot adequately perform their constitutionally mandated obligation to safeguard the counsel rights of criminal defendants, since their involvement in the eligibility determination process is minimal at most and quite often nonexistent.

10 The Suffolk County Legal Aid Society indicates that in a few cases it screens defendants directly. RETURN to Document

11 In People v. Edward McKiernan, No. 926072N (Sup. Ct. App. Term, April 28, 1993), a Nassau County case now pending before the New York Court of Appeals, the trial court improperly relied on the Defense Counsel Screening Bureau's bare recommendation to deny Mr. McKiernan appointed counsel, without making any independent judicial inquiry concerning his financial status. RETURN to Document

12 or example, in Putnam County, a defendant has 10 days to appeal an adverse eligibility determination. The review is conducted by members of the Legal Aid Society's Board of Directors (Appendix at 25). RETURN to Document