Edition: U.S. / Global

For Poor, Appeals Are Luck of the Draw

Published: April 10, 2001

For indigent defendants who believe that justice was not done in New York City's trial courts, appeals courts offer a measure of hope. Trials are reviewed, errors may be detected, convictions may be reversed.

The likelihood of success depends, at least in part, on the skill and effort of the lawyer appointed to handle the appeal.

But just as there are problems with lawyers who defend the poor at trial, there are problems with the lawyers appointed to file appeals. Some work for nonprofit organizations and are paid salaries. But many work on their own for low pay and with no supervision. Some have scant experience in criminal law.

Twenty percent of the 2,500 indigent defendants who need lawyers each year to handle their appeals are assigned to private attorneys who are paid an average of $2,000 per case, start to finish, for work that can take years. Many get no more than the $1,200 standard fee set by state law, which allows for a maximum of 30 hours of work at $40 an hour. A private lawyer would charge a paying client $15,000 to $50,000 to handle an appeal.

About half the cases are assigned to staff lawyers at the Legal Aid Society, which spends about $18,000 per appeal.

Thirty percent are assigned to three small nonprofit groups that spend about $12,000 per case. Two of the groups were created by Mayor Rudolph W. Giuliani to reduce the influence of the Legal Aid Society after its lawyers went on strike in 1994.

Like trial attorneys, lawyers in private practice who do appeals for the indigent have complained bitterly in recent years about pay they say is far too low.

A rigorously mounted appeal involves reading and annotating a trial transcript that can be 500 to 8,000 pages, investigating whether the trial lawyer overlooked witnesses or evidence, researching the law and writing the appeal itself. Once the appeal is filed, the lawyer must respond to the prosecutor's arguments and, in some cases, make oral arguments before appeals courts.

''To suggest that an appeal can be properly written in 30 hours is frankly ludicrous,'' said Robert E. Carrigan, a private lawyer who teaches at New York Law School. ''In an average-to-complex case, it's closer to three times that.'' Mr. Carrigan handled the appeals of about a dozen indigent defendants last year.

Low pay discourages experienced appeals lawyers from taking cases, leaving the work to younger, less qualified lawyers, Mr. Carrigan said. ''A lot of newly admitted attorneys who work from their homes, who are raising families, take appeals cases as a convenient second income for the family,'' he said. ''It's not a good situation.''

Private lawyers who want court assignments for appeals work must have experience in 10 criminal cases, but not necessarily in appeals work.

Jay L. Weiner, a lawyer who did appeals work for prosecutors in Brooklyn and Queens, said the quality of the appeals filed by the private lawyers who opposed him varied widely. Some were notorious among prosecutors for doing shoddy work, he said.

''When I was a prosecutor, sometimes I had to respond to a really bad brief from appointed lawyers,'' he said. ''I hated those cases because the defendant had no control over who represented him, and with such a bad brief, he had no chance either.''

Mark Dwyer, the chief of the appeals bureau in the Manhattan district attorney's office, said appeals lawyers at Legal Aid and the other nonprofit groups give ''excellent representation.'' With private lawyers, ''it's more hit and miss,'' he said. ''You have the excellent ones and some who aren't so good.''

For defendants, it's the luck of the draw. They must accept whoever is assigned by the court. And for some important parts of appellate litigation, some defendants have no lawyers at all.

The case of Humberto Fernandez, a Bronx man convicted of murder in 1996, illustrates the range of hurdles an indigent defendant can encounter under New York City's system for providing appellate lawyers for the poor.

In a few terse paragraphs last October, the Appellate Division of State Supreme Court rejected Mr. Fernandez's claim that he had been falsely convicted of murder. It was an unremarkable decision among hundreds just like it last year. And it gave no hint of the complexity of a case that sent a man with no criminal record and an alibi to prison for 15 years to life.

The case against Mr. Fernandez was weak from the beginning. He was accused of shooting Carlton Bennett, 16, whose body was found on a street in the Bronx in 1993. Mr. Fernandez was arrested seven weeks later. A guest at a nearby party in the Bronx that night had told the police that he saw Mr. Fernandez try to steal a gold chain from a man in a hallway and then shoot at him.

But there was another version of events that prosecutors did not reveal for more than a year. Another guest at the party had told the police that she saw a man put a gun into his waistband seconds after the shooting. At his side was his best friend, Miguel Martinez -- the prosecution's main witness, the one who had blamed Mr. Fernandez.

The prosecutor requested a mistrial, saying he was no longer sure he had the right man. Mr. Fernandez was released, but the case lingered for two more years as prosecutors tried to shore it up. It finally went to trial in 1996.

Mr. Fernandez's appointed lawyer, Edward R. Dudley Jr., had had the foresight to get a sworn statement from an alibi witness who had moved out of New York during the years the case was pending. The witness said he had seen Mr. Fernandez in his car with his girlfriend and their child about the time of the murder, and at a different location. In his opening statement to the jurors, Mr. Dudley promised that they would hear that alibi statement.

The prosecution put Mr. Martinez, the main witness, on the stand, and he repeated his claim that Mr. Fernandez had shot the victim. But he was forced to concede that he had been drunk at the time, had been smoking marijuana and had been carrying a gun himself.

Mr. Dudley presented only one witness, the party guest who had seen Mr. Martinez standing next to his friend, who had been holding a gun. Mr. Dudley never had the alibi statement read to the jury. In his closing argument, he never mentioned the alibi or explained why he had not produced it.

The jury found Mr. Fernandez guilty in June 1996, and he was sentenced to 15 years to life in prison.

In an interview, Mr. Dudley said he did not offer the alibi statement because he realized after the trial started that Mr. Hernandez's girlfriend, who had been with him, would not be available to testify. The alibi statement could have highlighted her absence from the trial, he said. He acknowledged that it may have been a mistake to promise an alibi and not deliver it.

Mr. Fernandez's appeal was assigned to the Legal Aid Society, but after a year and a half he was notified that the society had a conflict of interest because it had represented someone else involved in the case. So a private lawyer, Susan E. Light, was appointed in January 1998. Ms. Light is a vice president for enforcement at the New York Stock Exchange and a former assistant district attorney in the Bronx. She does appeals on the side.

In prison, Mr. Fernandez had a stroke of luck. He met Vincent Malerba, a car mechanic who was also serving time for a murder he said he did not commit. In nearly two decades in prison, Mr. Malerba had become a renowned jailhouse lawyer who had helped many inmates who had no one to represent them.

Mr. Malerba analyzed the case and found several grounds for appeal, including Mr. Dudley's failure to read the alibi statement to the jury. That is the sort of issue that must be raised first in a motion before the trial judge, or appeals courts will not consider it. Ms. Light had been appointed only to file an appeal and had no clear obligation to make a motion before the trial judge. ''I didn't because I work here for the New York Stock Exchange and I couldn't possibly be in the courthouse in the Bronx,'' she said.

So Mr. Fernandez was without a lawyer to handle this crucial stage of the appeals process. Other defendants have encountered this problem. The discovery of new evidence or new witnesses, for example, must also be raised before the trial judge. The decision of whether to make that extra effort is up to the appointed lawyer.

Mr. Malerba went to work on a prison word processor and produced a brief in February 1998 that was compelling enough to persuade the trial judge, Justice Harold Silverman of State Supreme Court, to grant a hearing. Ms. Light said she helped to bring the brief to the judge's attention. For the hearing itself, yet another lawyer, Lynn Calvacca, was appointed. Ms. Light said she helped to brief Ms. Calvacca on the case.

At the hearing, Justice Silverman refused to hear arguments about the missing alibi and limited the hearing's scope to a claim that a potential defense witness had been intimidated by the police. In the end, the judge refused to grant a new trial.

That ruling can be appealed, but there is no lawyer to do it. Ms. Calvacca had to withdraw from the case because she joined the Brooklyn district attorney's office.

Meanwhile, Ms. Light finally filed her appeal of the jury's verdict in January 2000, three and a half years after Mr. Fernandez was convicted. Ms. Light said she tried to persuade the appeals court to wait for Justice Silverman's ruling on the hearing so that she could combine the appeals, but the court refused. In her appeal brief, she argued that Mr. Dudley had made a serious error in his handling of the alibi testimony, and that there was no evidence that the body found in the street had any connection to the shooting outside the party several blocks away.

The Appellate Division's First Department rejected Ms. Light's appeal in October. The Court of Appeals, New York State's highest court, has not decided whether to hear the case.

The Court of Appeals rejects 98 percent of requests for hearings, and that is where most cases end. A conviction could be appealed to the federal courts with what is known as a habeas corpus petition, but the city will not pay for the private lawyers to work on federal appeals. Lawyers rarely appeal to the United States Supreme Court because there is little likelihood that the court will hear the case.

If Mr. Fernandez's case had been handled by the Legal Aid Society or one of the other defense groups, his chances for continued representation would have been better. The organizations file federal appeals when they are called for and absorb the costs. They also file post-conviction motions for new trials, as the jailhouse lawyer did for Mr. Fernandez, and absorb those costs, too.

The extra work has become a strain for the Legal Aid Society, whose budget has been cut by the Giuliani administration. The society's staff of appeals lawyers has shrunk by a third, to 98 from 148 in 1994. Its lawyers now take an average of 335 days to file an appeal, far beyond the 120-day goal set by the city.

It is the responsibility of the Appellate Division to ensure that all indigent defendants have legal counsel for their trials, and for filing appeals. Those rights were guaranteed by the United States Supreme Court in decisions in 1963.

But as recently as 1998, the Appellate Division's First Department -- Manhattan and the Bronx -- heard some cases in which prosecutors filed appeals, and defendants were not represented. The practice came to light after a Manhattan judge threw out the conviction of Jovani Garcia, 17, who had been charged with armed robbery.

The Manhattan district attorney's office appealed the decision to the First Department, but the defendant, who had been freed, was apparently unaware of the action. After hearing arguments only from prosecutors, the Appellate Division unanimously reinstated the conviction in 1998.

Andrea G. Hirsch, a private lawyer, took on Mr. Garcia's case and appealed it to the Court of Appeals, arguing that Mr. Garcia had been denied his Sixth Amendment right to counsel. Ms. Hirsch, assisted by a researcher at the Legal Aid Society, found that from 1994 to 1998 the Appellate Division had decided 41 cases in which prosecutors had filed appeals, but defendants had no legal representation.

In 1999, the Court of Appeals ordered the First Department to rehear the appeal in Mr. Garcia's case, this time with a lawyer. And the court ordered the Appellate Division to ensure that if a prosecutor files an appeal, the defendant is assigned a lawyer.

But it was all of little help to Mr. Garcia. The First Department gave him a new hearing and reinstated his conviction.

Ms. Hirsch received a check for $1,200. It worked out to about $4.85 per hour, she said. She no longer takes indigent cases.

Two-Tier Justice

This is the last of three articles examining the representation that New York City offers to indigent defendants. The first article dealt with homicide defendants, and the second dealt with the lawyers who handle hundreds of cases. Articles in this series are available at The New York Times on the Web:


Photos: Vincent Malerba, a prisoner who helps inmates prepare appeals when they feel their court-appointed lawyers have not done enough. (Ruth Fremson/The New York Times)(pg. A1); Legal Aid Society lawyers in the Bronx setting up their schedules. The society's staff of appeals lawyers has shrunk by a third since 1994. (Ruth Fremson/The New York Times)(pg. B6) Chart: ''KEEPING TRACK -- Appealing a Conviction'' The Appellate Division, New York's middle- level court, has granted fewer appeals in recent years. First Department Bronx, Manhattan Second Department Brooklyn,Queens, Staten Island, Suburban counties REVERSAL RATES* Departments must hear all appeals. Charts show percentage of appeals heard from 1995 to 2000. The Court of Appeals, New York's highest court, has heard fewer cases and reversed fewer convictions. Court of Appeals 1995 APPLICATIONS TO APPEAL: 3,140 CASES HEARD: 89 PERCENTAGE REVERSED: 25 1996 APPLICATIONS TO APPEAL: 3,018 CASES HEARD: 53 PERCENTAGE REVERSED: 24 1997 APPLICATIONS TO APPEAL: 2,944 CASES HEARD: 57 PERCENTAGE REVERSED: 21 1998 APPLICATIONS TO APPEAL: 2,982 CASES HEARD: 57 PERCENTAGE REVERSED: 30 1999 APPLICATIONS TO APPEAL: 2,799 CASES HEARD: 44 PERCENTAGE REVERSED: 15 2000 APPLICATIONS TO APPEAL: 2,863 CASES HEARD: 51 PERCENTAGE REVERSED: 20 *Appeals by prosecutors and appeals of guilty pleas not included. (Sources: The Legal Aid Society; Court of Appeals)(pg. B6)