IX. CONSIDERATION OF INAPPROPRIATE FACTORS

a. Non-Liquid Assets

In examining the net assets of the defendant, only available liquid assets should be considered. Nonliquid assets, such as a home used as a primary residence, an automobile necessary to sustain employment, and reasonable household furnishings, should be excluded from the net asset inquiry. NSC on Defense Services, 1.5(a) (1976). However, as can be seen in the Appendix at 18-29, nearly all jurisdictions that use an eligibility form include an "Assets" section to collect information on the value of a defendant's home and automobile.

The consideration of these assets can result in undue hardship for defendants who may lose their homes, or their jobs if they are unable to get to work without an automobile. Also, the potentially protracted delay associated with liquidating assets such as a house or car can in turn cause lengthy delays in securing legal representation, a result which seriously undermines the defendant's constitutional right to prompt appointment of counsel, as well as the right to present a defense. See ABA Standards for Criminal Justice, Providing Defense Services 5-6.1, 5-7.1, (Commentary) (1990).


b. Ability to Post Bail

Professional Standards also proscribe denial of appointed counsel premised on the ability of the defendant, or his friends and family, to post bail. See ABA Standards for Criminal Justice, Providing Defense Services 5-7.1 and Commentary (1990); NAC on Criminal Justice Standards and Goals, Courts 13.2 (1) (1973); NLADA Standards for Defender Services, II 1b (1976); NSC on Defense Services, 1.5 (a) (1976); NLADA Standards for the Administration of Assigned Counsel Systems, 2.3 (Commentary) (1989).

Moreover, since the constitutional guarantee of counsel is a personal right, the ability of the defendant's friends or relatives to muster sufficient resources to post bail should not disqualify him from eligibility for appointed counsel. See Hardy v. United States, 375 U.S. 277, 289 n.7 (1964); Fullan v. Commissioner of Corrections of State of N.Y., 891 F.2d 1007, 1011 (2d Cir. 1989).

Despite the unconstitutionality of forcing a defendant to choose between his right to courtappointed counsel and the right to pretrial liberty (see ABA Standards for Criminal Justice, Providing Defense Services 5-7.1 (Commentary) (1990); many jurisdictions consider bail posted by or for a defendant as an asset (e.g., Chautauqua, Cortland, Dutchess, Fulton, Monroe and Nassau), which may often result in denial of appointed counsel (Appendix at 30-33). This practice also violates the personal nature of the right to counsel.

Some courts openly acknowledge that they set high bail, and then inform the defendants that if they make bail, they will not be eligible for appointed counsel. New York State Commission on Judicial Conduct, Annual Report 51-52 (1989).

Notably, only four counties indicate that they consider bail in a manner favorable to the defendant--that is, inability to post bail as presumptive eligibility for appointment of counsel (i.e., Madison, Oneida, Suffolk, and Wayne) (Appendix at 30-33).


c. Parental Assets of Minor Defendants

Another factor which implicates the defendant's personal right to counsel, and must therefore not be considered in the eligibility determination, is the parental income of minors charged with crimes. The personal nature of the right to court appointed counsel is equally applicable to minor defendants as to their adult counterparts. See N.Y. Penal Law § 30.00 (McKinney 1987); N.Y. Crim. Proc. Law §§ 170.10, 180.10, 210.15 (McKinney 1993). Conditioning appointment of counsel to minors on the financial resources of parents directly contravenes the personal nature of the right, and consequently is condemned by professional standards governing the provision of defense services. ABA Standards for Criminal Justice, Providing Defense Services 5-7.1 (1990); NLADA Standards for Defender Services II 1b (1976); NAC on Criminal Justice Standards and Goals, Courts 13.2(1) (1973).

Premising a child's eligibility for court-appointed counsel on parental assets opens the door to a host of unconstitutional abuses. Delays in appointment of counsel, occasioned by efforts to force parental cooperation, deprive minors of early entry of counsel, the legal right to prompt investigation of the charges, the ability to obtain pretrial release, and the guarantee of a speedy trial. See ABA Standards for Criminal Justice, Providing Defense Services 5-6.1 and Commentary (1990).

Moreover, the coerced disclosure of criminal charges to parents, a necessary prerequisite of such eligibility inquiries, implicates several important privacy interests of minor defendants. In some cases, minors are emancipated. Others have interests adverse to their parents, or may wish to avoid familial or personal shame. No law of this state condones such institutionalized and egregious interference with the privacy rights of persons entitled to appointed counsel.

In addition, the legal obligation of parents to supply their minor children with "necessaries" cannot be used to justify an unconstitutional practice which undermines the child's right to counsel. [20]

Despite the personal nature of the constitutional right to counsel, at least 93 percent of the counties in New York State improperly consider the financial resources of a minor defendant's parents in assessing the child's eligibility for appointed counsel (Appendix at 34-42). This illegal practice has been highlighted by the New York State Commission on Judicial Conduct (1989 Annual Report at 52). [21] These practices can result in unconscionable delays in appointment of counsel to minors, who may remain incarcerated without benefit of counsel to advocate for pretrial release, reduced bail or dismissal of unfounded charges. See ABA Standards for Criminal Justice, Providing Defense Services 5-6.1 (Commentary) (1990).


d. Defendants Charged Solely with Violations

A pervasive and persistent abuse documented by the Commission on Judicial Conduct is the routine failure of many courts to appoint counsel to defendants charged solely with violations. New York State Commission on Judicial Conduct, Annual Report 15-16 (1992). This problem is widespread throughout the state, despite the clear mandate of New York law that all defendants, including those charged with violations, are entitled to appointed counsel if they are unable to hire an attorney. N.Y. Crim. Proc. Law § 170.10 (3) (McKinney 1993).

Judges have candidly revealed that they do not assign counsel in violation cases because, although required to do so by law, their counties do not make counsel available in such cases. New York State Commission on Judicial Conduct, Annual Report 16 (1992). There also appears to be widespread ignorance concerning entitlement to counsel in these cases. [22]

The uniform, decade-long denial of counsel in violation cases in Allegany County illustrates the severity of the underrepresentation problem throughout the state. In 1990, NYSDA conducted a study of appointment practices for violation cases in Allegany County. An extensive review of local court records, sheriff department records, and records maintained by OCA, the state comptroller and other government entities, revealed that during the preceding ten years, unemployed, impoverished defendants had been routinely jailed without counsel. See Kane and Chermak, "An Analysis of Violation Data in Allegany County 1980-1990" (NYSDA 1990).

Meager and unpersuasive attempts to apply the civil concept of "necessaries" to criminal cases are erroneous and unconstitutional. These poorly reasoned decisions employ the very concept intended to protect and benefit children in the civil arena, to deprive children of their constitutional rights in the criminal forum. See e.g., N.Y.S. Atty Gen'l. Inf. Op. 44 (1989) (misplaced reliance on flawed reasoning of a Family Court decision, (Matter of Cheri H., 121 Misc. 2d 973 (Family Ct. Bronx Co. 1983) holding that parental assets can be considered to determine minor eligibility for appointed counsel in Family Court juvenile delinquency cases).Such a result is neither supported by logic, nor is it constitutionally permissible. Oddly, the examination of parental resources in determining eligibility for appointed counsel in the context of a criminal case actually harms the child,turning the traditional concept of "necessaries" on its head. RETURN to Document

21 Another method employed in more than 25 percent of New York State counties to compel parents to pay for the cost of counsel appointed to represent their minor children, is to seek recovery of the fee from the parents (Appendix at 34-42). This practice is unauthorized under County Law § 722d, since the court's jurisdiction is only over the child and does not extend to her parents. See People v. Clemson, 149 Misc. 2d 868 (Newark Village Ct. Wayne Co. 1991)

Moreover, numerous legal obstacles prohibit cost recovery from parents including the dictates of minimal due process, possible exemptions from responsibility where the parent is the complainant, and the possible liability of noncustodial parents. RETURN to Document

22 One city court judge told the Commission on Judicial Conduct that, although he had done a substantial amount of assigned counsel work before taking the bench, he was unaware that defendants charged with violations were entitled to assigned counsel. New York State Commission on Judicial Conduct, Annual Report 17 (1992). RETURN to Document