You Have the Right to an Attorney…
Can a county that’s historically struggled to give its poor a fair legal defense finally turn things around?
The Onondaga County Bar Association was holding a banquet, as it does every October, to honor two members for distinguished service. Dozens of lawyers from across the county swilled drinks at tables throughout the ornate Grand Ballroom of the Marriott in downtown Syracuse, making small talk in anticipation of the night’s main event. Susan Horn, a veteran defense lawyer nearing retirement, was about to make her speech accepting the 2016 Distinguished Attorney award.
Horn stood. She thanked family and friends. She thanked the Onondaga County Bar Association. She thanked colleagues at Hiscock Legal Aid Society, a nonprofit defense firm she’d headed for more than two decades, for their work in defending those who cannot afford to pay for their own legal defense. Hiscock is a longtime participant in Onondaga’s assigned-counsel program, which, in the absence of a traditional public defender’s office, distributes paid vouchers to private firms and attorneys to represent impoverished defendants.
“What we do at Legal Aid, we do with the generous support of many of the firms and people here in this room and in the wider legal community. We are very grateful for that.”
“But,” Horn continued, her voice taking on a harder edge. “I have to tell you that government is failing in its obligation to provide adequate resources to meet the need.”
She described her staff’s long hours at low pay, crushed by excessive caseloads that hamper their ability to do the work that needs to be done. She mentioned the recent settlement of a lawsuit, Hurrell-Harring v. New York, in which the New York Civil Liberties Union had accused Onondaga and four other NYS counties of violating the constitution by providing inadequate public defense for those who cannot hire their own lawyers.
“It is unacceptable for defendants to sit in jail for weeks and months without seeing an attorney,” Horn seethed. “It is unacceptable for defendants to meet their attorneys for the first time in court and be advised to plead guilty. It is unacceptable for cases to be disposed of or taken to trial with little or no investigation conducted.”
Horn was referring to the 20 plaintiffs named in Hurrell-Harring, one of the most high-profile of whom was Jacqueline Winbrone, a Syracuse woman who spent 52 days in jail after her mentally ill husband stashed a gun in her car and called the police on her following an argument — all because she was unable to contact her court-assigned lawyer. By the time her attorney finally got in touch with her and got the case dismissed, her sick husband, who had depended on Winbrone to drive him to his dialysis treatment, was dead.
“And it is unacceptable,” Horn continued pointedly, “for attorneys working hard to do right by their clients to have their vouchers cut because someone decides that they spent too much time with their clients, or visited too many times in jail, or made too many motions.”
The remarks were targeted — ever since statewide defense attorney pay-rates went up in 2006, the assigned counsel board, which is drawn non-democratically from the county bar association, had garnered a reputation for enforcing a zealous (and often arbitrary) philosophy of cost-cutting on other attorneys in the program. At first, this mostly took the form of arguments over how much action was worth taking on various cases, and refusing to pay attorneys’ bills if they found them excessive.
Horn’s speech caused a stir in the local legal community. Jason Hoge, who helps run the Syracuse University College of Law’s practicum defense clinic and counts himself among Horn’s admirers, remembers the reaction fondly.
“She was supposed to just say ‘thank you guys’ and shut up,” Hoge said, laughing. “People were very upset that they gave her this award and then she turned around and told them they should be ashamed of themselves — that we, as a legal community, should be ashamed of ourselves.” Hoge has some dramatic stories of his own, like that of Joacquin, a troubled Cuban-born teenager and off-and-on opioid addict charged with biting the officer who tried to arrest him in his mother’s apartment during an overdose. Hoge’s clinic, which takes about 30 pro-bono cases a year through the ACP, rescued the boy from the brink of deportation. He’d been rotting in an ICE detention center awaiting the plane back to Cuba, after — you guessed it — a court-assigned attorney failed to properly advise him on his rights as a legal resident with refugee status.
Since the Hurrell-Harring v. New York suit reached a settlement in October 2014, Onondaga County has been stalked through a series of negotiations by its critics and would-be reformers. As part of the settlement, the state is giving all involved counties additional funding towards indigent defense, which in Onondaga is handled by the roster of attorneys and firms in the assigned-counsel program. An early problem was that many of the issues raised in Hurrell-Harring — neglected clients, overbooked or underpaid attorneys, etc. — actually stemmed from the assigned-counsel program itself. Those overseeing the settlement didn’t just want Onondaga to meet a checklist of standards; they wanted to clean house and start over. Solutions proposed in the bidding process that followed included opening an actual public defender’s office, or making Hiscock Legal Aid the sole representative of indigent defendants. But the entrenched legal community dug in and resisted such drastic efforts at transformation. All alternative models were ultimately rejected, and the Assigned Counsel Panel, with all its warts, was retained.
All of which leaves Onondaga County in a strange position. Unlike all of the other counties named in Hurrell-Harring — Ontario, Schuyler, Suffolk, and Washington — Onondaga failed to immediately cooperate with the settlement in any meaningful way, instead slipping into a state of tense uncertainty. As deadlines for the County’s compliance loomed in late 2016, a last-minute mobilization began. The following convulsions resulted in the ouster of the program’s longtime executive director Renee Captor, and a slew of proposed training programs and tentative policy changes to address attorneys’ grievances. The case could end up back in court if Onondaga is found noncompliant, but sources at the NYCLU find that unlikely — after all, the county is unlikely to risk losing that state money. Meanwhile, the legal situation of impoverished criminal defendants shows signs of improving…but slowly. Even at this late stage, some root issues with the ACP have just barely been addressed, such as the county’s deliberate noncompliance with state laws that require assigned attorneys to rotate regularly from court-to-court — instead allowing judges to assign cases at their own discretion, with little thought as to possible conflicts-of-interest. And while budgetary concerns played a role in the ACP’s dysfunction, they do not solely explain the way the ACP treated its own attorneys.
I first meet Jason Ziegler, Esq. on a sweltering April afternoon, in the quietly marbled lobby of his office building in downtown Syracuse. We take the elevator up to Ziegler’s floor. Encased together in its dark green fluorescent interior, he turns to me, hesitating.
“I’m glad somebody’s finally interested in this stuff,” he says gruffly, a thickset, bespectacled man barely into his forties who sports an already graying beard.
His office fits snugly into a little corner of the 5th floor — two desks, a printer and some bookshelves packed into a small room with a clipped but glinting view of downtown Syracuse. He has been on the panel for over a decade, and is partially responsible for forming the Gideon Society, a loose alliance of attorneys opposed to the ACP’s practices.
Zeigler’s troubles with Assigned Counsel began about six months into the job. After graduating SU Law in 2005, he joined the panel in 2006 — among the first of the generation to join after the pay-rates went up and shoved the ACP’s expense-control complex into overdrive. He soon began to identify certain patterns in his dealings with the Panel. He would win a case or succeed in getting it dismissed, only to find future assignments steering him conspicuously clear of those types of cases. For example, when defending a homeless man charged with loitering in Armory Square, he correctly noted that the charge was not appropriate, as the man’s behavior did not carry over across multiple instances — when the defendant was arrested, he hadn’t lingered long enough for his offense to qualify as loitering. Zeigler filed a lengthy motion to dismiss. After that, he said, they just stopped assigning him to those types of cases in that particular court. This played out in several different contexts.
“Because attorneys aren’t rotated like they’re supposed to be,” Zeigler said, “there are judges out there who don’t want you filing motions, who don’t want you getting somebody acquitted. You do that, you try your best, and you’re risking future assignments. I was getting tons of cases until I started getting better at my job.”
As he took more work from the ACP, he also began to have problems getting adequately paid for work he’d already done in service of his clients — bills for travel expenses, for time he’d spent in jail, in court, or going through case law would be returned to him with proposed paycuts from the ACP board’s executive director, Renee Captor. Later, when it got worse, Captor would simply refuse to process Zeigler’s bills, citing excessive advocacy.
“They [ACP] really have no authority to say what they will and won’t pay for,” Ziegler explains. “The state statute says you’re gonna pay for all in-court time and all reasonable out of court expenses. I’m supposed to zealously advocate for my clients — just about anything’s a reasonable expense. But they would apply the rules like ‘well, we’re only paying for these and only if we think it’s reasonable. You kinda got blindsided by it.”
Captor eventually became infamous for these tactics — Marc Stornelli, another assigned-counsel veteran and Gideon Society member, remembers Captor’s voucher reviews with anger. “The reasons she gave for the cuts were purely fiscal, not judicial,” Stornelli said. “It didn’t matter the quality of representation, she would just say ‘oh I think that’s too much for this kind of case. As long as she made budget, she was covered.” Renee Captor did not respond to a request for comment on this story.
“This pre-dated Captor, but it was the same clique, the same political fiefdom,” Stornelli said. “It continued with her, she just took it to a new level.” Even before the attorney payrates went up, many in the program and the wider county legal community shared this austere mentality. Stornelli remembers a brief orientation seminar for new panel attorneys when he joined in 1997, in which a “mentor” figure told them they were not supposed to make enough from assigned-counsel to support an office.
Many attorneys seem to have been aware of that reality, and they found other ways to cover their costs, double-billing for their work or engaging in what Ziegler and others called “flipping cases” — basically extorting money from the people they were supposed to be representing, in exchange for the legal fees which Captor and the board were neglecting to subsidize. Or they went along with it and played softball.
“Some people were okay with the status quo,” Zeigler said. “And their clients probably hated their guts.”
Zeigler entered the panel at a pivotal time, when Captor was beginning to consolidate her influence over new attorneys entering the program — he calls it “indoctrination.” New attorneys were essentially told to keep their defense cheap and circumspect so as to not slow down the case-mill.
“A lot of these younger lawyers were saying ‘Gee, I guess I can’t hold [preliminary] hearings, file motions…” said Tony Belletier, another Gideon member and assigned-counsel veteran. “They’d just try to work out whatever plea bargain they can and tell the guy ‘this is the best deal you can get.”
Tired of wrangling with Captor over money he was owed, around 2009 Ziegler nearly quit the panel. He had already told several judges he’d be leaving after finishing his current cases when something changed in him.
“I felt like God wanted me to stay on the panel,” Ziegler said. “I felt it was the right thing to do. I had no idea,” he stressed, “that I was signing up for this huge fight.”
While the Hurrell-Harring suit was being fought out in a separate court battle that raged from 2007 to 2014, a series of panel lawyers sued Onondaga County over the money owed them for work completed. Most of these suits were advocated by Jeffrey Parry, a panel attorney and friend of Ziegler’s who some perceived as waging a single-minded crusade on Assigned-Counsel. While helping Parry with his own suit, Ziegler served subpoenas to various judges so they would testify that Parry had done the work for which he had not been paid — Captor, he said, was not above lying and claiming that attorneys had never worked the hours they billed for, as she’d shown during earlier suits. It was after one such trip, when Ziegler tried to serve a subpoena at the offices of Judge Martha Mulroy only to be turned away because she was “on vacation,” that he learned that a powerful friend of the panel’s board, Fifth District Administrative Judge James C. Tormey, had tried to have him arrested for “making a scene.” At that point, they knew they were ruffling feathers.
After Ziegler had filed his own suit, however, and likely because of it, he saw the number of cases he was being assigned dwindle almost into nonexistence, amounting to a freeze-out that nearly drove him out of business several times between 2010 and 2012. “Some days,” he said, “I had to choose between lunch, or putting gas in my car to actually go to the courthouse and the jail to do my job.”
Although certain judges gave him cases here and there that helped him survive those years, many of the judges seemed to be complicit in this “blacklist.” He wasn’t the only one to get the squeeze. Of the other lawyers who sued with Jeff Parry’s help around the same time, all experienced a blacklist to some degree. That was certainly the case for Oscar MacKenzie, an African-American attorney who charged Captor with discrimination and making racist comments towards him, in addition to the nonpayment others were experiencing. MacKenzie was sick with cancer and badly in need of funds to cover his treatment when they froze him out — unlike Ziegler, he never lived to see the thaw, leaving behind a wife and several children in dire financial straits. They never paid him.
Somewhere in the stumble of those years, Zeigler remembers certain symbolic moments, like when a colleague walked in on him eating a sparse lunch in a conference room — just two slices of bread with ranch and garlic between them. The colleague laughed at him and shook his head sadly. “See, this is why no one wants to be like you,” the man had said. “No one wants this treatment.”
Up in his office reflecting on it years later, Zeigler half-chuckles, half-grimaces.
“There was a point at which, you know, nobody wanted to talk to me,” he says. “I was a pariah.”
The day that changed was the day he took the stage impromptu at a panel-wide meeting and gave something of a stump speech, building to a closing statement of “This is bullshit!” As he left the stage, the crowd assembled attorneys broke into applause. A month later, Zeigler reached out to everyone on the panel with an offer to join forces, inaugurating what would become known as the Gideon Society, named for the Gideon v. Wayne case that guaranteed citizens the right to counsel, which grew to include a third of the panel, and is loosely monitoring the Hurrell-Harring implementation. “I went from someone who was seen as this crazy guy to ‘hey, maybe he’s got a point,” Zeigler said.
I talk with five of these dissident defense attorneys in a book-lined conference room of the downtown office block where most of them work— Zeigler, Stornelli, Belletier, Richard W. Perry and Irene Flores. Things have been getting better, they all agree — to an extent. People seem to be getting paid, and there are a lot more preliminary hearings and motions than there used to be. After all, things like this take time. Still, near the end of our meeting, Flores is shouting about how the program is too top-heavy; Stornelli mentions the irony of the new ACP director Kathy Dougherty — the sister of one of the county’s most influential judges, incidentally — having been the County’s legal defense in the Hurrell-Harring lawsuit, as she is now tasked with implementing the suit’s settlement. As the attorneys stir to leave, I ask what they would do if they had total control of the situation.
Stornelli stands up, moving for the exit. “Do away with all this local political shit and run it all outta Albany,” he says, with a hard snap to his voice.
Outside, walking to his car a few minutes later, Ziegler is less defiant. “They all look out for each other,” he says. “The panel, the judges, the D.A., his friends in the legislature…” He looks off momentarily into the city’s concrete stacks, standing tall and impassive against their background of blue. It’s a beautiful spring day, and the sun is shining. “At this point, it’s like — what more can we really do?”