A retired state judge on the Board of Correction scolded city jail officials Tuesday for forcing defense lawyers to endure hours-long waits to see their clients, as well as mounds of red tape, confused rules, repeated searches and other indignities.
Judge Barry Cozier, who served 20 years on the bench, called the right to counsel “the most fundamental right a defendant has,” but said the Department of Correction has been falling down on the job.
“I have observed counsel waiting in the area when I enter a facility and still waiting when I exit the facility,” he said. “It’s very, very clear that these are violations of the right to counsel.”
Cozier added that the “ad hoc manner of dealing with legal visits has to be formalized.”
“We cannot have a circumstance where there are recurring violations of the right to counsel,” Cozier said. “It is sacrosanct. It is extremely troubling to me because I have not seen these issues being remediated in the past year-plus I have served on the board. These are things the department has to address.”
Cozier’s comments followed a detailed recitation of the problems by Michael Klinger, the jail services attorney at Brooklyn Defender Services.
Klinger says confusion often reigns throughout a visit, with Correction staff spouting different procedures depending on the jail. Once they finally get to a given jail, the solicitors often have to wait more than an hour to see their client.
On Sept. 2, a barrister with Bronx Defenders waited two-and-a-half hours as a Correction officer dithered about how to handle the visit, Klinger said.
A day later, an attorney at the Robert N. Davoren Center waited four hours. Her client was produced only after the lawyer complained to a Correction captain, but the detainee said he was only told he had a legal visit minutes earlier, Klinger said.
Klinger said the delays violate two Correction Department directives: 6000R, which lays out the right to visit clients, and 6002, which states legal visits must start within 45 minutes of the lawyer’s arrival at the Perry Center initial check-in building.
“The counsel visits processes create barriers, and what may seem like inconveniences effectively cut off their clients from their own defense,” Klinger said. “Yesterday I waited for an hour and 10 minutes and I considered that pretty good.”
The jail services attorney noted the problem is decades old. In fact, U.S. District Judge Harold Baer held forth on the matter at length 25 years ago in a decision in the Benjamin v. Kerik class-action case.
“This court finds that defense counsel routinely face unpredictable and significant delays in meeting with inmate clients at department facilities,” Baer wrote in Benjamin v. Kerik in 2000. DOC’s policies and procedures, he added, “have led to unconstitutional burdens to inmate access to counsel and courts.”
The visit booths are often deteriorating, the attorney noted.
“Sometimes there’s no chair. Sometimes the chair is broken. The lights often don’t work and visits are conducted in the dark,” Klinger said. “At times, the security glass is so thick, the lawyer can’t hear the client.”
The sound in headsets is often too faint to be understandable. In other places, the headsets are broken or there is only one. In several jails, others can overhear the supposedly confidential lawyer-client conversations. In some cases, the conversation is interrupted by loud music played by the officers.
Klinger said in one incident, following the ultimately voided arrest of Queens public defender Bernardo Caceres for possession of THC-soaked legal papers, an officer posted himself outside a visit room with a drug-sniffing dog.
Caceres’ arrest was touted by DOC and the Correction officers union, until lab tests showed no drugs were found and the charges were immediately dismissed, The News previously reported.
Perhaps most troubling, Klinger said, staff routinely claims a detainee refused a legal visit, when the client did not refuse or even know know a visit was scheduled.
“We believe at least some of the refusals are fabricated,” Klinger said.
Video conferences — meetings online between lawyers and clients — are plagued with similar issues, according to the attorney: “Confusion and delays remain common,” he said. “It’s routine for clients to be produced with five minutes left in their 30-minute slot.
Klinger said, even when people are produced in time, the visit booths are plagued by poor conditions: The audio has a choppy connection and there are periods where the audio or video simply doesn’t work.
Christopher Boyle with New York County Defenders, meanwhile, recounted having to wander through a jail after a meeting before finding an officer to show him the way out.
And at one point, he said, Correction officials were using detainee buses to transport lawyers — making them sit in the pen behind a secure metal grating as if they were prisoners themselves.
CORRECTIONS
Theodore Parisienne/for New York Daily News A Department of Correction bus leaving Rikers Island. (Theodore Parisienne for New York Daily News)
At other times, he said, lawyers are subject to multiple searches or locked in a room with no officer to watch them.
“I don’t want them locked in a room when the department is short-staffed and there’s no officer right outside,” Boyle said.
Boyle added the Correction Department often doesn’t include public defender support staff, like investigators and counselors, on lists of those with the right to have confidential conversations.
“We’ve had meetings with the Mayor’s Office, but there’s a constant talking past each other about what the policies are,” Boyle said.
Helen Skipper, the vice chairperson of the Board of Correction, offered an apology: “I have been through the same thing,” Skipper said.
In response, Fritz Frage, DOC senior deputy commissioner, said he recognized there was “room for improvement.”
“While we will not address every item raised, the department takes these matters very seriously and will continue to ensure there are no barriers to people in custody visiting with counsel,” he said.
But Skipper replied his answer, “says nothing and means nothing.”
DOC General Counsel James Conway noted there is litigation pending over attorney visits, but called the claims from the public defenders groups “disingenuous.”
“There were mischaracterizations in the testimony,” he said.
