Wallace v. Kern Brief of Appellant

    idatea dour! of Appeals
For the Second Circuit

Docket Nos. 73-1826, 1830, 1831

Donald W allace, et al., on behalf of themselves and 
all others similarly situated,

against Plaintiffs-Appellees,

M ichael K ern, et al., individually and as Justices of the Supreme Court of the 
State of New York, Kings County; E ugene Gold, individually and as District 
Attorney for Kings County; Joseph M angano, individually and as Chief Clerk 
of the Supreme Court, Kings County; Joseph Parisi, individually and as Clerk 
of the Criminal Term of the Supreme Court, Kings County,

____________________________________________________________________________________________________  Defendants.

T he U nited States of A merica ex rel. M ichael A.
against

M cLaughlin, et al., 
Plaintiffs-Appellees,

People of the State of N ew Y ork, People of the City of N ew Y ork, 
Joseph Parisi, Chief Clerk, Supreme Court, State of New York; George 
Spanakos, Administrator, State of New York, County of Kings, et al.,

a n j  Defendants,

T he Legal A id Society of the City of N ew Y ork,
Defendant-Appellant.

M ichael A. M cLaughlin, et al.,
against Plaintiffs-Appellees,

People of the State of New Y ork ; People of the City of N ew Y ork ; T he 
Chief Presiding Justice of the Supreme Court of the State of New York; A ll 
A ssociate Judges of the State of New York; T he New Y ork State A dmin­
istrator, County of Kings.

and Defendants,

T he Legal A id Society, Criminal Defense Division, 
of the City and State of New York,

_______________________________________________________________________________________  Defeiidant-Appellant.

Appeal from Orders of the United States District Court 
for the Eastern District of New York

B R I E F  O F  A P P E L L A N T  
L E G A L  A I D  S O C I E T Y

A rthur L. L iman
Paul, W eiss, Rifkind, W harton & Garrison 
345 Park Avenue, New York, New York 10022 

(212) 935-8000
Patrick M. W all 
A llan L. Gropper

Attorneys for Defendant-Appellant 
Legal Aid Society



T A B L E  O F  C O N T E N T S

PAGE

Preliminary Statement ...................................................  1

The Issues Presented .....................................................  4

Statement of Pacts ......................................................... 5
The Proceedings B elow ...............................................  5

The Wallace Action .................................................  5
The McLaughlin Actions .......................................  6
The Structure of the Criminal Courts in Kings 

County ..................................................................  8
The Criminal Court .............................................  8
The Supreme Court .............................................  10

The Legal Aid Society.............................................  12
The Structure ....................................................... 12
Assignments of Criminal Cases to the Society 13
The Society’s Kings County Office ....................  15

The Crisis in Kings County Supreme Court ....... 16
The Society’s Efforts to Cope with the Crisis ..... 17
The Quality of the Society’s Services ..................  18
Caseload ....................................................................  19

The Opinion and Orders B elow .....................................  21

Point I— The Legal Aid Society—“ a private institu­
tion in no manner under State or City supervision 
or control,”  which performs a function “ nor­
mally performed for and by private persons” — 
does not act “ under color o 
the meaning of Section 1983 27



11

Legal Defender Organizations, Which Owe Undi­
vided Loyalty to Their Clients and Are, by 
Their Very Nature, Adversary to the State,
Do Not Act “ Under Color of State Law”  in 
Representing Indigents—and Federal Courts 
Have Repeatedly So Held .............................. 30

Point II—In fixing a caseload limitation for the So­
ciety, the District Court applied an erroneous 
constitutional standard and erred in translating it 
mechanically into a numerical maximum..............  36

Point III— The District Court erred in entering an 
order which merely shifts some of Legal A id ’s 
caseload to 18-B attorneys, not subject to the same 
degree of judicial supervision, and which does not 
relieve the congestion and delays which are at the 
heart of the crisis in Kings County, or even direct 
that adequate funds be provided for the employ­
ment of additional attorneys and investigators by

PAGE

the Society ................................................................  42
The Need for Federal Enforcement of a Prompt

Trial R u le ........................................................... 44
The Relief Granted Adversely Affects the Condi­

tions in Kings County ....................................  48

Conclusion 50



Ill

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25 (1972) ..................  43

Barker v. Wingo, 407 U.S. 514 (1972) .......................... 47
Brown v. Duggan, 329 F.Supp. 207 (W.D. Pa. 1971) .... 35
Burgett v. Texas, 389 U.S. 109 (1967) .......................... 37

Chambers v. Maroney, 399 U.S. 42 (1970) ..................  37
Christman v. Commonwealth of Pennsylvania, et al.,

275 F.Supp. 434 (W.D. Pa. 1967), cert, denied, 393
U.S. 885 (1968) .......................................................  35

Conley v. Dauer, 463 F.2d 63 (3d Cir. 1972) ..............  42
Conover v. Montemuro,------F .2d -------  (3d Cir. Dec.

20, 1972, No. 71-1871) ............................................  42

Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972) 33

French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970),
cert, denied, 401 U.S. 915 (1971) .......................... 33

Gardner v. Luckey,------F. Supp. —— (M.D. Fla., Jan.
24, 1973, No. 71-561 Civ. T-K) ................................ 33

Gilliard v. Carson, 348 F. Snpp. 757 (M.D. Fla. 1972) 43
Green v. City of Tampa, 335 F. Snpp. 293 (M.D. Fla.

1971) .....................................................................   43

Hilbert v. Dooling, ------  F .2 d ------  (March 12, 1973,
en banc, slip opinion at 2192) .................................  38

Jackson v. Hader, 271 F. Supp. 990 (W.D. Mo. 1967) 35

Lefcourt v. The Legal Aid Society, 445 F.2d 1150 (2d
Cir. 1971) ...........................................................27, passim

Linkletter v. Walker, 381 U.S. 618 (1965) ..................  37
Littleton v. Berbling, 468 F.2d 389 ( 7th Cir. 1972),

cert, granted, 41 U.S.L.W. 3527 (April 2, 1973) 42-43
Loper v. Beto, 405 U.S. 473 (1972) .............................. 37

PAGE



IV

Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968) 33

Palermo v. Rockefeller, et at., 332 F. Supp. 478
(S.D.N.Y. 1971) (Mansfield, J.) .............................. 34

Peake v. County of Philadelphia, 280 F. Supp. 853
(E.D. Pa. 1968) ......................................................... 35

People ex rel. Franklin v. Warden, Brooklyn House
of Detention, 31 N.Y. 2d 498 (1973) ...................... 16, 45

People v. Ganci, 27 N.Y.2d 418 (1971) .......................... 45
Powe v. Miles, 407 F.2d 73 (2d Cir. 1968) .................. 28, 29
Pugliano v. Staziak, 231 F. Supp. 347 (W.D. Pa. 1964),

aff’d per curiam, 345 F.2d 797 (3d Cir. 1965) ....... 34

Reinke v. Richardson, 279 F. Supp. 155 (E.D. Wise.
1968) .....................   35

Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1972) .... 33

Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) ..........  33
Thorne v. Warden, Brooklyn House of Detention,------

F .2d------ (May 16,1973, slip opinion at 3609) .2,16,47

United States ex rel. Frizer v. McMann, 437 F.2d 1312
(2d Cir. 1970), cert, denied, 402 U.S. 1010 (1971) .16, 46 

United States ex rel. Marcelin v. Mancusi, 462 F.2d
36 (2d Cir. 1972) ...................................................  36

United States ez rel. Wood v. Blacker, 335 F. Supp.
43 (D. N.J. 1971) ...................................................  34

Vance v. Robinson, 292 F. Supp. 786 (W.D. N.C. 1968) 35

Wardrop v. Ross, 319 F. Supp. 1299 (W.D. Pa. 1970) 34
Wood v. Virginia, 320 F. Supp. 1227 (W.D. Va. 1971) 35

PAGE



V

Statutes and Rules:
PAGE

18 U.S.C. §3006A(a) ....................................................... 14
42 U.S.C. §1983 ............................................. 3, 5, 7, 27, passim
New York Criminal Procedure Law (“ CPL” ) §10.30 8
CPL §180.10(2) ................................................................. 9
CPL §190.80 ......................................................................  10
New York County Law, Article 18-B ........................4,13,18
New York County Law, §722 .........................................  14

Miscellaneous:

American Bar Association’s Project on Standards for
Criminal Justice—The Defense Function (1970) 23,

31, 37, 38
American Bar Association’s Project on Standards for 

Criminal Justice— Standards Relating to Speedy
Trial (1968) ..............................................................  38

Appellate Division, Subcommittee on Legal Represen­
tation of the Indigent, Report on the Legal Rep­
resentation of the Indigent in Criminal Cases 
(Honorable Robert L. Carter, Chairman) (1971) 40

Judicial Conference Management Planning Unit
March Term Report ................................................. 8

Monthly Reports of the Special Committee for Pur­
pose of Alleviating Overcrowded Conditions Pre­
vailing in Local Houses of Detention and to Ex­
pedite Disposition of Criminal Cases ..................  46

The New York Times, May 27, 1973, p. 16, col. 4 ....... 47
Proposed Resolution 5 of Standards/National Legal 

Aid and Defender Association at the National
Conference, November 9-11, 1972 .......................... 39

Report of the President’s Commission on Law En­
forcement and Administration of Justice (1967) 39



Mnxtvh Staton dour! of Appals
For the Second Circuit

Docket Nos. 73-1826, 1830, 1831

------------—  > * m -------------

Donald W allace, et al,, on behalf of themselves and all 
others similarly situated,

Plaintiffs-Appellees,
against

M ichael K ern, et al., etc.,
Defendants.

T he U nited States of A merica, ex rel.,
M ichael A. M cLaughlin , et al.,

Plaintiffs-Appellees,
against

T he City of N ew Y ork, et al., 

and
Defendants,

T he Legal A id Society of the City of New Y ork,
Defendant-Appellant.

M ichael A. M cLaughlin , et al.,
Plaintiffs-Appellees,

against

People of the State of New Y ork, et al.,
Defendants,

and
T he Legal A id Society, Criminal Defense D ivision, 

of the City and State of New York,
Defendant-Appellant.

Appeal from Orders of the United States District Court 
for the Eastern District of New York

BRIEF OF APPELLANT LEGAL AID SOCIETY



2

Preliminary Statement

This in an appeal by the Legal Aid Society (“ Society” ) 
from a preliminary injunction of the United States District 
Court for the Eastern District of New York (Judd, D.J.) 
which, among other things, restrains the Society from ac­
cepting or acting upon additional assignments of felony 
cases in Kings County Supreme Court so long as the aver­
age caseload of its attorneys in the trial parts of such Court 
exceeds 40.*

The opinion below, like this Court’s recent decision in 
Thorne v. Warden,** reflects deep and justifiable concern 
over the intolerable calendar conditions in the criminal 
courts in Kings County. We share this concern, as this 
Court knows from the Society’s brief in Thorne. No party 
has been more outspoken than the Society in pleading for 
additional resources for the criminal justice system so as 
to assure all defendants a prompt and fair trial. In Kings 
County, the District Court found, “ it is not unusual for 
defendants who cannot post bail to be held in custody for 
12 to 15 months before their cases can be tried. ” f

A  “ dramatic increase”  in indictments in Kings County 
has thrown the Court into a state of deep crisis in which 
there are simply not enough judges and facilities to afford 
persons charged with a crime a prompt trial. With new 
legislation providing for mandatory sentences for certain 
offenders, and the failure of the state to designate a single 
one of the 100 new judges to Kings County, the crisis in

* The Court also directed the Supreme Court clerks to place pro 
se motions on the calendar. That portion of the order is not the 
subject of this appeal.

** Thorne v. Warden, Brooklyn House of Detention, ------  F.2d
------  (May 16, 1973, slip opinion at 3612-3613).

f  Memorandum opinion of May 10, 1973, Docket # 6 3  in Wallace, 
p. 5 (hereinafter cited as “ Opinion” ).



3

failure to provide prompt trials can only become worse. 
The District Court concluded that:

“  While the court remains mindful of the limitations 
on federal court intrusion in a state’s criminal justice 
system, it bears reiteration that the crisis situation in 
Supreme Court, Kings County, its long existence, and 
the failure of the state and city thus far to provide 
effective remedies justifies federal court action.”  
(Opinion, p. 44)

Having stated the case for federal intervention, the 
District Court, in recognition of ‘ ‘ a federal court’s limited 
powers and in the interest of comity with state courts,”  
declined at this stage to enter an order directing that 
prompt trials be held and mandating the additional re­
sources necessary to achieve this constitutional end. In­
stead, departing from an unbroken long line of decisions, 
in this Circuit and elsewhere, holding that the Society and 
other organized defender services were not engaged in 
“ state action”  within the meaning of 42 U.S.C. §1983, the 
District Court chose, as “ the most practicable way”  to 
reconcile intervention with federalism, to run its injunction 
against a private defender organization, which has no 
power to summon the resources necessary to relieve the 
crisis in the state courts.

The Court’s objective to promote the most effective 
assistance of counsel is the Society’s objective. But the 
injunction against the Society will not relieve calendar con­
gestion, accelerate the trial of cases, reduce the control of 
the calendar by the District Attorney, permit the Society 
to hire additional attorneys, or add one whit to the resources 
necessary for the fair and prompt disposition of criminal 
cases. It will, if not reversed, require the Society to divert 
its scarce resources to defending a flood of Section 1983 
lawsuits, saddle the Society with mechanical and arbitrary 
caseload limitations stated as constitutional imperatives,



4

subject the Society to a finding of unconstitutional repre­
sentation of clients, which may have implications in other 
courts, and most of all, relegate indigents to representa­
tion by inexperienced counsel who have been impressed on 
an emergency basis at a grossly inadequate compensation 
scale under Article 18-B of the County Law.

As the District Court recognized, increased reliance 
on private counsel appointed pursuant to 18-B may actually 
add to calendar delays “  because such counsel will not be 
permanently assigned to a Part, like a Legal Aid attorney.”  
Indeed, the plaintiffs themselves urged that the diversion of 
excess cases from the Society to 18-B attorneys was “ not 
merely inappropriate but impermissible,” * and urged that 
the state and city be directed to make available the resources 
for the employment by the Society of additional attorneys 
and investigators.

We appeal from the District Court’s order because it 
is directed against the wrong party and provides no relief 
for the thousands of indigents who are the victims of the 
overcrowded calendars in Kings County.

The Issues Presented

1. Did the District Court err in holding that the Soci­
ety was “ acting under the color of state law”  in accepting 
and acting upon assignments by the State Supreme Court 
to defend indigents accused of crime?

2. Did the District Court err in finding new constitu­
tional imperatives in the American Bar Association’s Proj­
ect on Standards for Criminal Justice, and in translating 
those standards into numerical caseload limitations?

* Plaintiffs’ Memorandum of Law in Support of Motion for Pre­
liminary Injunction, Docket # 4 3  in Wallace, p. 14.



5

3. On the findings below, did the District Court err in 
entering a preliminary injunction which will have the effect 
merely of shifting some of the caseload from the Society 
to an undermanned 18-B panel, and which does not provide 
either (a) relief against the failure of the state to afford 
defendants in Kings County prompt trial, or (b), as plain­
tiffs requested, direct that adequate funds he provided for 
the employment of additional attorneys and investigators 
by the Society?1

Statement of Facts 

The Proceedings Below

The injunction against the Society was issued after hear­
ings had been held in three separate but related cases: 
Wallace v. Kern, United States ex rel. McLaughlin v. Peo­
ple of the State of New York, and McLaughlin v. People 
of the State of New York.

The W allace Action

The Wallace case, brought under 42 U.S.C. §1983, was 
commenced as a class action in July of 1972 by a group of 
inmates in the Brooklyn House of Detention awaiting trial 
on felony charges in Supreme Court, Kings County. Inso­
far as is pertinent here, the complaint named as defendants 
all the Judges of that Court, its Chief Clerk, the Clerk of 
its Criminal Term and the District Attorney of Kings 
County. It made numerous allegations about the quality 
of the administration of criminal justice in that county, 
including the failure to afford defendants a prompt trial. 
Although the complaint did not name the Society as a de­
fendant, it charged that the Society’s resources were so 
overtaxed and the criminal justice system in Brooklyn so 
structured that plaintiffs and other indigents were being 
denied their constitutional right to effective representation. 
The complaint sought, inter alia, an order directing the



6

dismissal of all charges pending against an accused for 
more than six months or, in the alternative, directing the 
release of any person who had been incarcerated for more 
than six months awaiting trial on such charges; a declara­
tion that certain of defendants’ practices deprived plain­
tiffs of adequate representation by counsel; and an order 
enjoining them from the continuation of such practices.

The case was ultimately assigned to Hon. Orrin G. Judd, 
who, declaring it to be a class action, ordered an evidentiary 
hearing limited to plaintiffs’ applications for a preliminary 
injunction with respect to those of defendants’ practices 
which allegedly prevented assigned counsel from adequate­
ly representing plaintiffs.* The hearings commenced in 
February 1973, and the Society, not being a party to the 
action, did not participate at that stage.

The McLaughlin Actions

Before the hearings in Wallace commenced, the second 
McLaughlm action was brought pro se under Section 1983 
by other inmates of the Brooklyn House of Detention await­
ing trial on felony charges in Supreme Court, Kings 
County.** The named defendants included the Society, 
the City of New York, the Presiding Justice of the Appel­
late Division, Second Department, the Justices of the Su­
preme Court in Kings County, the Chief Clerk of that 
Court, and the Administrator of the attorneys ’ panel set up 
under Article 18-B of the County Law. Insofar as is 
pertinent here, the complaint alleged that counsel assigned 
to represent indigent defendants in Kings County Supreme 
Court were violating their constitutional rights by repre-

* The Supreme Court’s practice with respect to pro se motions 
was also a subject of the hearing. That aspect of the case, however, 
is not an issue in the Society’s appeal.

** A  prior proceeding in the nature of habeas corpus had been 
brought by the McLaughlin plaintiffs. 73 Civ. 55.



7

senting them inadequately.* Plaintiffs sought to enjoin 
defendants, including the Society, from interfering with 
their constitutional rights.

The Society moved to dismiss the McLaughlin actions 
on the ground that, in representing indigent defendants in 
state criminal cases, it was not acting ‘ 'under color o f”  
state law within the meaning of Section 1983. The motion 
was denied on April 6,1973.

Evidentiary hearings in Wallace had been held in Febru­
ary. The Court scheduled hearings on the McLaughlin 
complaints against the Society for April, which had the 
effect of bringing the Society before the Court.** At the 
April evidentiary hearings, the Society was given the op­
portunity to respond not only to the allegations in Mc­
Laughlin but to those in Wallace as well. The Court 
treated the actions as consolidated insofar as the claim of 
inadequate representation was concerned, and the orders 
from which this appeal is being taken were issued in the 
McLaughlin actions.

* Both Michael A. McLaughlin and his co-plaintiff Kenneth J. 
Stone had brought separate actions under 42 U.S.C. §1983 against 
the Society and others alleging, inter alia, the ineffective assistance 
of court-assigned counsel. See E.D.N.Y. Docket Nos. 72-C-815 
and 72-C-1037. By two orders filed October 13, 1972, both actions 
were dismissed by Judge Travia on the grounds that they were really 
habeas corpus actions disguised as civil rights suits and that plain­
tiffs had not exhausted state remedies. Their applications for leave 
to appeal in forma pauperis, for certificates of probable cause and for 
assignment of counsel were denied by this Court. See Docket Nos. 
72-8327 and 72-8243.

** The Court indicated the reason why it desired the Society be­
fore it: “ I would rather be able to issue an injunction against both 
the Legal Aid Society and the judges of the courts so that if there is 
any dispute about it I would not be in a position of having to hold 
any judge in contempt.” Wallace minutes of March 29, 1973, at p. 7. 
Ultimately, only the Society was enjoined, not the judges.



8

The Structure of the Criminal Courts in Kings County

The criminal justice system in New York by its very 
structure diffuses responsibility for the management of a 
felony case between two courts, and many judges sitting 
in different parts. To the accused, the system is a maze 
with no end—except by plea bargain. The court has the 
resources to try only a minimal number of cases. Out of 
its cases pending in the past year, only 7.2% were disposed 
of by trial as opposed to 81.4% which terminated in plea 
bargains. As of this March Term, 1992 defendants were 
awaiting trial and incarcerated because of their inability 
to make bail. The backlog keeps growing as the intake 
exceeds the output despite the incentive for plea bargains. 
If all incarcerated defendants insisted on their right to 
trial, it would take almost 4 years for the court at its pres­
ent size and pace to try those cases, without any considera­
tion for the new cases brought in the interim.*

The Criminal Court

The starting point for the felony defendant in Kings 
County is generally the Criminal Court. The Criminal 
Court of the City of New York is a city-wide court, with two 
types of jurisdiction, trial jurisdiction over offenses of less 
than felony grade, and preliminary jurisdiction over felony 
cases. (New York Criminal Procedure Law [“ CPL” ] 
§10.30.)

The Criminal Court sitting in Kings County has a num­
ber of parts serving different judicial functions—arraign­
ment parts, ‘ ‘ all purpose ’ ’ parts, hearing parts, trial parts, 
etc. When a defendant charged with a felony is first

* Based on the figures and assumptions of the Judicial Confer­
ence Management Planning Unit March Term Report. The 
court is of course adding parts. However the impact of the new 
state legislation imposing mandatory minimum prison term has not 
been considered. Responsible estimates suggest that 124 new Su­
preme Court parts will be required in the City of New York.



9

brought to the Court, he will appear in an arraignment 
part, where he will be advised of the nature of the charge 
against him and of some of his rights with respect to that 
charge. The conditions of his release from detention pend­
ing the ultimate disposition of his case will also be deter­
mined by the judge. I f the defendant qualifies for assigned 
counsel, the assignment will usually be made upon arraign­
ment.*

A defendant charged with a felony in the Criminal Court 
is entitled to a hearing on the issue of whether there is 
sufficient evidence to warrant the Court’s holding him for 
action by the grand jury. CPL §180.10(2). The accused 
may waive the hearing, but if he does not and if he is in­
carcerated, he must be released on his own recognizance 
if that hearing has not commenced within 72 hours of his 
incarceration.

There are three ways by which a felony case pending 
in the Criminal Court may reach the grand jury and, 
through an indictment, the Supreme Court. First, the ac­
cused may waive a hearing, and be held for grand jury 
action. Second, the Criminal Court may, after a hearing, 
hold the defendant for such action. Third, the prosecutor 
may, even in the absence of a hearing or the waiver thereof 
by the accused, present the case to the grand jury and 
obtain an indictment, thus divesting the Criminal Court of 
further jurisdiction over the matter.

In practice, most cases proceed via a preliminary hear­
ing to the grand jury. The Society’s attorneys seldom

* One of the complaints against the Society voiced by plaintiffs 
in the court below involved the brevity of the prearraignment inter­
views conducted by Society attorneys in the Criminal Court. See, 
e.g., transcript of the Wallace hearings (hereinafter cited as Wal­
lace), at 170. It was later brought out, however, that a prearraign­
ment interview with counsel was a benefit given only to defendants 
represented by the Society. Those with private counsel cannot con­
fer with their attorneys until the actual arraignment. See transcript 
of the McLaughlin hearings (hereinafter cited as McLaughlin) at 
310, 490, 491.



10

waive a hearing since it provides the defendant with an 
invaluable pre-trial—indeed, pre-indictment— examination 
of the prosecution’s case and witnesses. (McLaughlin, 
328-31).

If a defendant is held for grand jury action after either 
a hearing or his waiver thereof, the prosecutor must present 
his case to a grand jury with reasonable promptness. If 
the defendant is incarcerated for 45 days without such 
action he is entitled, upon motion in the Supreme Court, 
to be released.*

The Supreme Court

The Supreme Court in Kings County has three types of 
parts—arraignment, conference and trial. Upon indict­
ment, a defendant appears in the arraignment part, where 
he is advised of the nature of the charges against him, has 
the conditions of pre-trial release fixed by the court and, 
if eligible, is assigned counsel.** Some time after arraign­
ment, a defendant’s case appears on the calendar of a con­
ference part, where, through counsel, he is informed of 
the “ plea”  offer which emerges from the conference, and

* See CPL §190.80. See also the testimony of Mr. Gallagher 
at McLaughlin, 372, 373, as to the system devised by the Society by 
which motions under CPL §190.80 are automatically made with 
respect to those of its clients who have been held. Barry Wilson, 
one of the named plaintiffs in Wallace, complained that the Society 
had made no such motion on his behalf and that, although his pro se 
motion had been granted, the Society’s attorneys did not notify him 
of that fact, thus causing him to spend needless days in jail. See 
Wallace, 175-79. During the McLaughlin hearing, however, it was 
brought out that: (a) the Society had advised Wilson that such
a motion was not being made since a warrant on another charge 
which had been lodged against him would render the motion fruit­
less; and (b ) a Society attorney, unaware of the warrant, had argued 
Wilson’s pro se motion. See McLaughlin, 581-91. Wilson spent no 
extra time in jail by virtue of any act or failure to act by a Society 
attorney.

** An assignment of counsel in the Criminal Court is not effective 
in Supreme Court.



11

the maximum sentence he might receive under such a plea.* 
The conference parts, like the preliminary hearing in the 
Criminal Court, also serve a discovery function. To ad­
vance the plea bargaining process, the prosecutor must 
often lay his cards on the table, giving the defense the op­
portunity to evaluate the prospects of success at trial.** 
If a defendant declines to accept the offered plea, his case 
is marked off the calendar and assigned to a trial part. 
The case remains in a trial part until its ultimate dis­
position.

There are now 24 trial parts in Kings County, including 
2 homicide parts and 2 additional parts which were estab­
lished last year at the request of the District Attorney to 
handle so-called “ major offenses.”  Sixteen of the trial 
parts are now manned by the Society’s attorneys and handle 
almost exclusively the cases in which the Society represents 
the defendant.

In theory, the calendars of the Court are subject to con­
trol by the Court (McLaughlin, 704-05). In practice they 
are controlled by the assistant district attorney ( Wallace, 
34) who selects for each part 30 cases to be included 
each week on the ready day calendar, and chooses on short 
notice the cases within the 30 to be tried (Wallace, 83-87). 
There was testimony that the assistant district attorneys 
tend to select their strongest cases for trial, with the ironic 
effect that defendants with the best prospects of acquittal

* The sentence “ promise” is a conditional one, and its fulfillment 
depends upon whether the judge, after reviewing the pre-sentence 
report, believes the interests of justice would be served by such a 
sentence. If not, the defendant is permitted to withdraw his plea 
and stand trial. See McLaughlin, 211. One of the charges against 
the Society, made by Peter Grafakos, was that a Society attorney 
failed to assist him in enforcing an absolute and unconditional sen­
tence. See McLaughlin, 211. The minutes of Grafakos’s guilty plea, 
however, clearly show that the promise made to him was a condi­
tional one, which the judge, upon consideration of the probation 
report, withdrew. See Society’s Exhibit W W .

** McLaughlin, 343.



12

must languish in jail awaiting their day in court (Wallace, 
230; McLaughlin, 355). Cases on the ready day calendar 
will sometimes he dropped by the assistant district attorney 
one week, only to reappear in a later week (McLaughlin, 
742). Predictability of a trial date is impossible.

With the court choked by a mushrooming volume of 
cases, the very term “ trial part”  has become a cruel mis­
nomer. Only 110 cases could be tried in the Society’s trial 
parts in 1972.*

The Legal Aid Society

The Structure

The Society is a private membership corporation 
formed in 1876 for the purpose of providing representation 
to the poor. The Society is managed by a Board of Direc­
tors consisting of private citizens elected by the member­
ship.

Of the Society’s approximately 500 attorneys, 370 are 
assigned to the Criminal Defense Division. In addition, 
the Criminal Defense Division has a staff of over 68 ex­
perienced investigators.

Each new attorney in the Criminal Defense Division is 
given five weeks of intensive training, including lectures, 
simulations and appearances in court, supervised by the 
trainers. (Docket # 6, 73 Civ. 55.) The attorneys are then 
assigned to an office in one of the five counties. The most 
experienced attorneys are ultimately assigned to the Su­
preme Court for felony cases; the junior attorneys are as­
signed to the Criminal Court, where, under the supervision 
of senior attorneys, they handle, among other things, ar­
raignments, preliminary hearings, and trials of misdemean­
ors.

* During 1972 the parts available to the Society for the trial of 
cases were increased slowly to eleven parts.



13

As they gain experience in the Criminal Court, the-Soci­
ety’s attorneys progress to the Supreme Court. Each of 
the Criminal Defense Divisions’ offices in the five counties 
is headed by an attorney in charge, who reports to the At­
torney in Charge of the Society’s Criminal Defense Divi­
sion, Robert Kasanof. Mr. Kasanof, who is also acting at­
torney in charge of all divisions of the Society, has the 
responsibility for maintaining an equitable distribution of 
the Society’s manpower to meet the demands for profes­
sional services in all counties.

Assignment of Criminal Cases to the Society

Article 18-B of the County Law of New York, adopted in 
1965, required New York City to place in operation a plan 
for providing counsel for all indigents charged with crime 
within the City.

Pursuant to that provision, the Society was designated 
in 1965 by the City to furnish counsel to persons within the 
City of New York who were charged with a crime, but un­
able to afford private counsel. The City entered into an 
agreement with the Society in 1966, providing it with a 
fixed sum for the representation of indigents charged with 
crimes. (The contract was handed up to Judge Judd, was 
referred to in his opinion and copies will be furnished to 
this Court.) Each year, the Society and the City negotiate 
the sum to be provided the Society for its next year’s opera­
tions; except for the dollar amount, the original contract 
remains in effect and has never been reexecuted. Upon 90 
days’ notice, the Society may terminate the contract. The 
Society has undertaken to employ sufficient attorneys, clerks 
and investigators to provide representation to all indigent 
defendants except where for good cause, such as the charge 
of murder or a conflict of interest, the Society does not act. 
In those cases, a lawyer is assigned from an “ 18-B panel’ ’ 
drawn by the panel administrator. The 18-B attorney is



14

paid by the City in accordance with certain rates and proce­
dures established by statute.*

In negotiating the annual payment with the City, the 
Society estimates its anticipated caseload. I f  the actual 
caseload threatens to exceed its capability, the Society is 
protected by its right on 90 days’ notice to terminate the 
agreement and decline the assignment of new cases. Con­
trary to the lower court’s impression, the Society cannot be 
compelled to continue to accept cases which in its profes­
sional judgment it cannot handle. In 1972, only a last min­
ute appropriation from the City deterred the Society from 
terminating the arrangement. (See Docket # 6  in 73 Civ. 
55, p. 3.)

In the past two years the Society has incurred substan­
tial deficits. For the fiscal year ending June 30, 1972 the 
Society incurred a deficit of $754,650.00. For the six-month 
period ending June 30,1971 the Society incurred a deficit of 
$366,225.00. For the fiscal year ending June 30, 1972 the 
Society realized from the private sector $1,526,700.00. It 
received $5,403,866 from the City of New York, and $1,668,- 
135 from the Federal government in the form of grants to 
support its criminal defense efforts.**

At no time has the City attempted to interfere in the 
operations of the Society, or given any direction to the 
Society on how it should operate or handle its cases. 
Neither the City, State nor Federal government has any

* The rate of compensation is $10 per hour for out-of-court work 
and $15 per hour for in-court work— a rate exactly one-half of that 
provided under the Federal Criminal Justice Act. See County Law 
§722; 18 U.S.C. §3006A(a). The attorneys on the panel need not 
specialize in criminal law. They undergo no training program. They 
function without supervision. They have other cases to handle in 
addition to those obtained through the assignment process. (See 
McLaughlin, 392, 394-395). No increase in the rate of compensa­
tion was enacted by the Legislature at the session which just ended.

** The Society’s annual report, although not marked as an exhibit, 
was submitted to the District Court, and copies will be filed with this 
Court.



15

representation on the Society’s Board. The Society oper­
ates autonomously, and without any governmental control. 
Indeed, the agreement with the City explicitly acknowledges 
that the Society “  shall alone be responsible for their [its 
attorneys’, investigators’ and other employees’ ] work, and 
the direction thereof, and their compensation.”

The Society’s Kings County Office

At present, the Society has 115 attorneys and 19 inves­
tigators assigned to criminal cases in Kings County. Of 
these attorneys, 46 are assigned to the Criminal Court, 57 
to the Supreme Court, and 12 to the Community Defense 
Office. Included in the figure are seven experienced super­
visors.

When a defendant is brought to Criminal Court for 
arraignment, he is interviewed in the “ pen”  by a Legal 
Aid attorney to determine if he qualifies for representa­
tion. I f he does, the judge sitting in the arraignment part 
will assign the Society to represent him or, in the case of 
conflict or murder charges, an 18-B attorney. The assign­
ment is effective only for the Criminal Court and tech­
nically expires when the defendant is held for grand jury 
action. Once a defendant is indicted, a new assignment of 
counsel is made at the arraignment part in Supreme Court. 
Thus, as a general rule, the Legal Aid Society is appointed 
twice to represent each indicted indigent defendant, first 
in the Criminal Court and later in the Supreme Court.

As will be described at p. 17, infra, the Society, never­
theless, continues to represent its clients during the period 
when the case is awaiting grand jury action. Indeed, the 
Society had developed a system for assigning, prior to 
grand jury action, a Supreme Court attorney to the defend­
ant who would be expected “ to carry”  the case through trial 
if an indictment resulted (McLaughlin, 324-325, 827-829).



16

Almost 75 percent of all defendants accused of felonies 
and 90 percent of those incarcerated pending trial in Kings 
County are represented by the Society (Wallace, 22, 28-29).

The Crisis in Kings County Supreme Court

The administration of criminal justice in Kings County 
Supreme Court is in a state of crisis. Incarcerated defend­
ants awaiting trial in that court must often wait for more 
than a year to have their cases heard.* This deplorable 
situation is not of recent origin. Speedy trials were being 
denied to incarcerated defendants in 1970, when this Court 
decided United States ex rel. Frizer v. McMann, 437 F.2d 
1132 (2d Cir. 1970), cert, denied, 402 U.S. 1010 (1971). 
Since then, the situation has grown far worse, as both this 
Court and the New York Court of Appeals have recently 
noted.** A partial explanation for the worsening of the

* The Court below found that as of the end of 1972, “ there were 
644 defendants who had been * * * [incarcerated] for more than six 
months * * * and nearly half that number had been there over a 
year.”  See Opinion, p. 6.

** See Thorne v. Warden, Brooklyn House of Detention, -------
F.2d ------- (2d Cir. May 16, 1973) ; People ex rel. Franklin v.
Warden, Brooklyn House of Detention, 31 N.Y.2d 498 (Feb. 16, 
1973). The Society’s brief in the Thorne case, made a part of the 
record in the Court below, provides, at page 26, the following figures 
as to the number of defendants awaiting trial in Kings County Su­
preme Court incarcerated more than 90 days:

October 1971 516
November 1971 667
December 1971 545
January 1972 875
February 1972 562
March 1972 512
May 1972 398
June 1972 638
August 1972 710
October 1972 746
November 1972 901
December 1972 935
January 1973 856



17

crisis may be found in the dramatic increase in indictments 
obtained by the Kings County District Attorney in 1972, a 
year in which indictments increased by 48 percent over 
1971 while felony arrests decreased by 8 percent (Docket 
#6 , 73 Civ 55 at p. 26). More so than ever before, there­
fore, the Supreme Court found itself without the facilities 
to cope with the ever-increasing number of indictments 
which ultimately overwhelmed it.

The net result of this backlog of cases is the wholesale 
denial of incarcerated defendants’ rights to a speedy trial 
and the frustrations caused by such a denial. Moreover, 
the control of the Court’s calendar by the District Attorney 
climaxes the long trial delay with an unfairly short period 
for final preparation and notification of witnesses.

The Society’s Efforts to Cope With the Crisis

Over the past 18 months, as the crisis in Kings County 
grew, the Society has made constant efforts to cope with it. 
It has more than tripled its staff in the Supreme Court 
office, from 16 in December of 1971 to 48 in March of 1973 
to 57 at present.* It initiated a system to increase continu­
ity of representation of its clients by enabling its Supreme 
Court attorneys to assume responsibility for a defendant 
shortly after that defendant’s case leaves the Criminal 
Court,** It has filed hundreds of motions requesting the 
dismissal of an indictment for lack of a speedy trial.f 
It has initiated numerous bail reviews for its incarcerated 
clients, resulting, for example, in the pre-trial release of 
more than 200 of them during the summer of 1972. $ It

* See McLaughlin, 313. The rate of staff increase has far ex­
ceeded the rate of increase in the number of indictments.

** That system, called the “ digit system” , is explained at 324, 325. 
It has now been replaced by a new system with the same purpose. 
See McLaughlin, 827, 828, 829.

f  See, e.g., McLaughlin, 33.
f  See McLaughlin, 336.



18

has held numerous conferences with those having power to 
administer in the court. (McLaughlin, 360 et seq.) It has 
suggested that all trial parts maintain a full schedule this 
summer and has offered to man all those parts in an effort 
to reduce the backlog in Supreme Court.* These efforts, 
however, have failed to relieve the calendar congestion. 
The Supreme Court simply has not been provided with 
resources adequate to the task of handling the staggering 
number of cases on its calendar.

The Quality of the Society’s Services

The District Court found that, despite their increased 
burden, ‘ ‘ Legal Aid attorneys compare favorably with pri­
vate attorneys in the quality of their work and their 
results.”  (Opinion, p. 18.) The record firmly supports this 
finding. No judge before whom those attorneys appear, on 
a daily basis, has ever complained to the Society about the 
caliber of their services to our clients; the only complaint 
voiced by the state judiciary was about the zeal of the 
Society’s attorneys in bringing every conceivable motion 
to protect those clients.** As the District Court found, 
the Society’s acquittal rate in Kings County Supreme 
Court is about the same as that of the private bar.f In­
deed, there is not a single instance supported by the record 
below in which a client of the Society was prejudiced or 
harmed in any way by the action of any of its attorneys.

The Court below, in its opinion, equated the quality of 
the Society’s attorneys with that of those assigned under 
Article 18-B of the County Law.f Virtually every witness, 
however, when asked to make a comparison between the

* See McLaughlin, 317-320, 361-362.
** See McLaughlin, 311, 341.

f  See Opinion, p. 48.
f  See Opinion, p. 48.



19

Society and the 18-B attorneys, testified that, on the whole, 
the Society’s attorneys were better.*

The 18-B panel operates with major disabilities. As 
Justice Thomas R. Jones testified, “ the criminal bar of 
Brooklyn is limited.”  (McLaughlin, 707). The fee sched­
ule for 18-B attorneys admittedly is inadequate, and attor­
neys have resigned from the 18-B panel in protest against 
the meager fee awards. (Wallace, 125, 128, McLaughlin, 
402). There are no funds available to institute programs 
for recruitment or training of new attorneys for the 18-B 
panel. (McLaughlin, 386-417.)

The administrator of the 18-B panel in Kings County 
testified that while the panel “ could perhaps handle more 
cases, I am not prepared to say how many more cases that 
would be. I find it very difficult in my office to get attor­
neys, frankly, to participate in the 18-B panel at this par­
ticular stage.”  (McLaughlin, 390-91.)

In recognition of these limitations of the 18-B program, 
counsel for plaintiffs in Wallace specifically requested the 
Court below not to rule that 18-B attorneys should be as­
signed the cases which the Society would he unable to 
handle because of any caseload limitation imposed upon 
it.** Instead they urged that the Society be authorized to 
have additional personnel—a recognition that, properly 
funded, the Society is the organization best suited to render 
effective representation to indigents.

Caseload

There was no evidence, or finding, that the outcome of 
a single case had been prejudiced by the caseload carried

* See, e.g., McLaughlin, 311, 312, 669, 721; Wallace, 125, 232, 
297, 381.

** See plaintiffs’ Memorandum of Law in Support of Motion for 
Preliminary Relief, Docket # 4 3  in Wallace.



20

by the Society’s attorneys. There was, however, testimony 
from a number of the Society’s attorneys that the maxi­
mum caseload per trial attorney should be no more than 
50 and, preferably, 40. (Wallace, 44, 86). The plaintiffs,
and the Association of Legal Aid Attorneys, urged a case­
load limitation of 40 per Supreme Court attorney, including 
cases awaiting sentence and grand jury action. (Docket 
#60  in Wallace, 72 Civ. 898).

The Society’s position on numerical limitations was 
expressed in the testimony of its Director of Operations, 
and the affidavit of its Acting Attorney in Charge. Stress­
ing the calendar stagnation in Kings County, the Director 
of Operations testified that an attorney can handle any 
number of cases “ if he is not going to trial for a year, a 
year and a half”  (McLaughlin, 477). The Acting Attorney 
in Charge stated:

“ It is my own view that this problem will not be 
finally resolved until the courts or the legislatures im­
pose an absolute requirement that every defendant 
accused of a crime and confined must be brought to 
trial or released from custody within ninety days, ex­
cepting only such period of delay as are the result 
of conscious, freely-elected action by the defendant. 
Such a requirement of speedy trial with effective sanc­
tions will, I believe, produce an expenditure of the 
public resources required to implement it, and I am 
pessimistic that any other measures will be as fully 
effective.”  Afif. of Robert Kasanof, April 28, 1973, 
Docket # 5 , 73 Civ. 55.

In imposing a caseload limitation on the Society, the 
District Court relied in part on the testimony of a private 
attorney called as an expert by plaintiffs, who stated that 
his criminal caseload ranged between 25 and 35 active cases. 
But the same attorney testified that his cases included a 
homicide which entailed a 7-week trial, and that in addition



21

lie handled some civil matters. Moreover, unlike the So­
ciety, he did not have the benefit of permanent investigators, 
nor the convenience of offices within the court {Wallace, 
100-139). One cannot dispute the fact that even 25 active 
cases awaiting trial in different courts, including complex 
cases requiring protracted trials, may be too many cases 
for any single attorney to handle. But that begs the ques­
tion of how many cases a skilled attorney can master and 
effectively defend in a court in which the opportunity for 
a trial is a rare event.

The fact is that numbers are no substitute for the pro­
fessional judgment of attorneys as to whether they can 
effectively assume responsibility for more cases. Indeed, 
one need look no further than the Federal court to ap­
preciate the unreliability of a case count as a measure of 
effective representation. There, with calendars controlled 
by the courts, cases handled by the Society, which are gen­
erally more complex than those brought in the state court, 
proceed promptly to trial despite the fact that the average 
caseload per attorney exceeds the 40 case maximum im­
posed by the District Judge on the state court.

Despite the burdens it shoulders, and the uncertainty 
created by the prosecution’s control of the calendar, it is 
undisputed that the Society is not in any way responsible 
for the delay in disposition of cases in Kings County. The 
Society’s attorneys are prepared to try far more cases than 
the Court has resources to try.

The Opinion and Orders Below

On May 10, the District Court simultaneously entered 
an order including a preliminary injunction and filed its 
principal 57-page opinion. As we treat elsewhere (pp. 27- 
36, infra) the Court’s earlier Memorandum and Order 
dated April 6, denying our motion to dismiss on jurisdic­
tional grounds, we focus here on the Court’s lengthy and



22

detailed opinion addressed to the conditions in Kings 
County, and the relief it ordered.

The opinion below opens and closes on the same theme:
‘ ‘ The Criminal Parts of the Kings County Supreme 

Court are in a state of deep crisis. The Deputy Di­
rector of Operations of the Legal Aid Society testified 
that ‘ The system isn’t working. ’ It has not been shown 
that any individual judge or any Legal Aid attorney 
or Assistant District Attorney is failing to do his best 
under existing circumstances, but it is small comfort 
to a defendant in jail to be told that the fault lies with 
‘ the system’.”  (Opinion, p. 5)

* # #
‘ ‘ The fact that the injunction to be granted will run 

only against The Legal Aid Society and the Court 
Clerks does not indicate any allocation of culpability, 
but merely a determination of the most practicable 
way, consistent with a federal court’s limited powers 
and in the interest of comity with the state courts, to 
remedy two of the deficiencies which led a Legal Aid 
executive to testify, as quoted earlier, that ‘ The system 
isn’t working’ ”  (Opinion, p. 57).

The District Court found that, judged by traditional 
standards of effective representation, the work of the Soci­
ety and its lawyers was not wanting. Indeed, it found:

“ Legal Aid attorneys compare favorably with pri­
vate attorneys both in quality of their work and in 
their results. Their acquittal rate is approximately 
the same as that of private attorneys. In the calendar 
year 1972, Legal Aid obtained acquittals in 39.1 per­
cent of the cases that were decided by jury verdict, 
but there were only 140 trials out of 4,587 cases that 
were closed.”  (Opinion, p. 18)

*  *  *



23

‘ ‘ The overburdening of its attorneys is not the fault 
of The Legal Aid Society, and it may not prevent 
adequate representation being given in cases that are 
actually tried. It is important, however, that criminal 
defendants have the appearance of justice as well as 
having a coincidental right result in the end.”  (Opin­
ion, p. 41).

The Court reasoned that since the litigation was one 
in which it was being asked to exercise wide-sweeping 
prospective control of the conduct of state criminal cases, 
it could and should apply a different standard.

The Court reviewed the various functions which de­
fense counsel should undertake in the discharge of their 
duties, citing the American Bar Association’s Project on 
Standards for Criminal Justice (pp. 37-40). The Court 
concluded:

“ Comparing the level of representation now pro­
vided by The Legal Aid Society with the American 
Bar Association Standards, it becomes evident that 
the overburdened, fragmented system used by Legal 
Aid does not measure up to the constitutionally 
required level.”  (Opinion, p. 41).

The Court concluded that the appropriate relief was 
a caseload limitation on the Society. The Court fixed an 
average caseload of 40 for each of the attorneys assigned 
to the trial parts of the Supreme Court and added a 
requirement that new assignments could not be under­
taken without the professional certificate of the local Brook­
lyn office chief. The Court was at pains to emphasize the 
importance of inclusion of sentencing cases in the calcula­
tion (pp. 46, 47).

On May 17, 1973, one week after the Court entered its 
injunction, Justice Damiani, the Assistant Administrative



24

Judge, District Attorney Gold and one of the latter’s as­
sistants met ex parte with Judge Judd in his Chambers. As 
a result, on the following day a conference of all counsel 
was held in which the Court stated:

“ Now, I confess that my injunction order may be a 
little cloudy.”  (McLaughlin, 790)

# # #

“ I did not give thought to the practical problems 
which may he involved between Criminal Court ar­
raignments and Supreme Court arraignments or Su­
preme Court preliminary hearings. I f I had done so, 
I think I would have adopted the view that Justice 
Damiani and the District Attorney urged that the 
Legal Aid continue in those cases until there is an 
arraignment in the Supreme Court.”  (McLaughlin, 
792)

The practical problems to which the Court alluded arose 
in part from the treatment to be given cases which had al­
ready left the jurisdiction of the Criminal Court and were 
in the grand jury process. These defendants would be ar­
raigned in the Supreme Court after indictment at a time 
when the Society would be restrained by the Court’s Order 
from undertaking further cases. The Court substantially 
accepted the suggestions by the Assistant Administrative 
Judge and the District Attorney that the Society be di­
rected to continue its representation of defendants await­
ing grand jury action until replaced by 18-B counsel. In 
addition, the Court now excludes cases awaiting sentence 
from the 40 case maximum—after having only a week be­
fore declared in its opinion that “ Excluding cases awaiting 
sentence from the caseload is inconsistent with the con­
stitutional requirement for advice of counsel at the time 
of sentence.”  (Opinion, p. 46.) A new order modifying 
the May 10 order in these respects was entered on May 22.

The District Court ’s injunction could not have intruded 
more deeply on the Society’s internal affairs. It, in effect,



25

shifts responsibility from the Society’s executives to the 
Federal court for determining the staffing needs of the 
Society in the state court. Even after the caseload drops 
below 40, the Society is barred from undertaking new as­
signments unless its local administrator certifies to the 
Federal court as well as to the clerk of the state court that 
“ in his personal professional judgment (after consulta­
tion with his supervisory staff in Kings County)”  the as­
signment of the additional cases to be anticipated in the 
next month will not exceed the capacity of the Society to 
give effective representation. The Society’s attorney in 
chief is bypassed. The fact that the first application for 
modification of the Court’s order came not from the Soci­
ety, nor from plaintiffs, but from the prosecutor and As­
sistant Administrative Judge does not bode well. The 
District Court’s decision, we submit, consigns the Society 
to a tug of war between its clients and the prosecutor over 
the number of cases the Society should handle.

But the District Court’s order is as striking for what 
it omits as for what it directs. Unwilling to act at this stage 
against public officials who control the funding for assigned 
counsel, the District Court took no steps to insure that 
18-B counsel would be available, despite the undisputed 
testimony in the record that new lawyers could not easily be 
recruited because of the grossly inadequate compensation 
rates. Rejecting the prayer by the Wallace plaintiffs that 
the state be directed to provide the Society with additional 
funds to increase the number of attorneys, the Court ob­
served that ‘ ‘ difficulties in recruiting 18-B attorneys do not 
justify forcing Legal Aid to accept more clients than it can 
effectively represent”  and it limited itself to expressing the 
hope that the state courts “ may recognize the economic 
facts of law practice”  by increasing allowances to 18-B 
attorneys. (Opinion, p. 49.)

The Court’s order leaves indigents with no assurance 
that they will receive meaningful representation by coun-



26

sel. Indeed, the Court did not even consider imposing the 
same caseload limitations on the private 18-B counsel, who 
must he recruited on an emergency basis, that it imposed 
on the Society.

The opinion below is even more disturbing in recogniz­
ing, without acting upon, the heart of the crisis: the delay 
which pervades the administration of justice in Kings 
County. In view of the Court’s perception of the degree 
of this crisis, it is puzzling that it singled out for its initial 
consideration and fashioned relief which its opinion recog­
nizes may exacerbate its delays,* and which will require 
modification if “ defendants did not stay in jail as long, if 
there were better facilities for interviews, if there were 
more adequate supporting services, and if problems of 
calendar control are resolved”  (Opinion, p. 45).

A mandatory requirement that confined defendants re­
ceive a speedy trial might, at least, have shaken loose the 
public resources which are essential for any improvement 
of the criminal justice system in Kings County. By acting 
to fashion new relief on a new theory without mandatory 
allocation of additional resources, the District Court left 
untouched, and perhaps even aggravated, the chronic and 
persistent violation of the constitutional right, of benefit 
both to defendants and the public, of a speedy trial.

* “ Appointment of more 18-B counsel will cause some inconven­
ience to the Judges and Court Clerks because such counsel will not be 
permanently assigned to a Part, like a Legal Aid attorney, and some 
calendar delays may result, but this factor is not sufficient to over­
come the need for immediate relief.” (Opinion, p. 33) (emphasis 
supplied).



27

P O I N T  I

The Legal Aid Society— “ a private institution in no 
manner under State or City supervision or control,” * 
which performs a function “ normally performed for 
and by private persons” **— does not act “ under color 
of State law” within the meaning of Section 1983.

The District Court ruled that The Legal Aid Society is 
“ so far involved with state action that it should not be 
immune from suit”  under Section 1983f (Opinion, April 6, 
1973, Docket #10  in 73 Civ. 113, p. 7). The Society, the 
Court held, had “ interposed itself as an agent of a munici­
pality between the defendants and their right to counsel,”  
and, “  [s]ince it is under contract with a subdivision of the 
state to supply attorneys,”  it is “ acting under color of 
state law.”  {Ibid.)

In so holding, the District Court rejected the unanimous 
authority of the Federal courts—at least six decisions of 
Courts of Appeals and twelve District Court decisions, all 
of which have, without exception, held directly to the con­
trary—including a 1971 decision of this Court holding 
squarely that the Society is not an “ agent”  of the City 
or State and is not amenable to suit under Section 1983.

The question presented is of overriding importance to 
the Society and to all private and public defender organ­
izations.

In Lefcourt v. The Legal Aid Society, 445 F.2d 1150 
(2d Cir. 1971), this Court ruled that a “ prerequisite”  for 
any relief against a defendant under Section 1983 was a

* Lef court v. The Legal Aid Society, 445 F.2d 1150, 1157 (2d 
Cir. 1971).

** Id. at 1156.
f  42 U.S.C. §1983.



28

finding that a federal right had been denied by the defend­
ant “ under color of state law.”  The absence of such pre­
requisite, this Court held, constituted a defect “ jurisdic­
tional in nature.”  (Id. at 1153-54). After meticulous re­
view of the Society’s status, this Court concluded that the 
Society was a private institution free of governmental 
control, regulation and interference, and affirmed the dis­
missal of a complaint brought against it under Section 1983 
(Id. at 1155, 1157).

This Court, in its opinion in Lefcourt, stressed the So­
ciety’s “ independence”  from State or City supervision or 
control (Id. at 1157). The management of the Society, 
this Court noted, is vested in its Board of Directors, and 
in officers elected by that Board (Id. at 1152). The Society’s 
Attorney-in-Chief, the Court further noted, is designated 
by its Board, as are the attorneys in charge of the Society’s 
three divisions, including the Criminal Defense (then the 
Criminal Courts) Division (Ibid.). In addition to govern­
mental funding, the Society also receives “ private financial 
contributions.”  (Id. at 1154). The Society’s “ history, 
constitution, by-laws, organization and management defi­
nitely established,”  this Court concluded, that the Society 
is “  a private institution in no manner under State or City 
supervision or control.”  (Id. at 1157).

The District Court rejected the conclusion of this Court, 
and it did so on a single basis. “ The Second Circuit,”  the 
lower Court stated, citing Powe v. Miles, 407 F.2d 73 (2d 
Cir. 1968), “ has recognized the importance that a contract 
may have in deciding whether a ‘ private’ institution has 
acted under color of state law.”  (Opinion, April 6, 1973, 
p. 6). The Society, the lower Court held, had, by its con­
tract with the City, “ interpos[ed] itself as an agent of a 
municipality between the defendants and their right to 
counsel”  (Id., p. 7), and, “  [s]ince it is under contract with 
a subdivision of the state to supply attorneys, ”  it is “  acting 
under the color of state law.”  (Ibid.)



This Court’s decision in Lefcourt was distinguished on 
the basis that that case “ was not related to any provision 
of the contract between The Legal Aid Society and the 
City.”  (Ibid.)* In Lef court as in the instant cases, how­
ever, the Society’s contract with the City** was directly 
placed in issue and was, indeed, a chief basis on which it 
was contended that the Society was acting “ under color 
of state law”  and hence subject to Section 1983.

This Court noted in Lef court that, in view of the allega­
tions in the Lef court complaint which suggested that the 
Society was “ the mere agency of the City,” f  it was “ neces­
sary to examine whether, irrespective of the function the 
Society performs, it may be an agency of the City by virtue 
of its contractual relationship with the City.”  (445 F.2d 
at 1155). This Court then concluded that the plaintiff in 
Lef court had failed to establish

“ that the City or any other governmental subdivision 
or agency had any right whatever to intervene in any 
significant way with the affairs of the Society with 
respect to its employment practices or otherwise.”  (Id. 
at 1155),

and further concluded that:
“ It cannot be said that the Society acts under color 
of State law by virtue of the financial and other benefits 
which it receives from the City and various other gov­
ernmental agencies, courts and subdivisions, since there

* Nowhere does the lower Court’s opinion refer to the fact that 
Powe v. Miles was discussed at length by this Court in Lefcourt and 
was relied on as support for the conclusion that the Society was not 
acting under color of state law and not subject to Section 1983.

** The 1966 contract with which the Lefcourt decision dealt is still 
the agreement in effect today.

f  Even such a finding might not be enough. This Court ex­
plicitly noted in Lefcourt that, even if the Society were a “ mere 
agency”  of the City, “ the Society itself might not be a proper defend­
ant since §1983 may not properly be used in suits against municipali­
ties.”  (Id. at 1155, n.5.)

29



30

has been no sufficient showing of governmental control, 
regulation or interference with the manner in which 
the Society conducts its affairs.’ ’ {Hid.)

It need not be added that there was no vestige of show­
ing on the record below of governmental “ control, regula­
tion or interference.” * Indeed, the record below rein­
forces the conclusion of this Court in Lefcourt as to the 
absence of “ control, regulation or interference.”  The 
City’s contract with the Society (submitted to the Court 
below) explicitly provides that the Society “ shall alone be 
responsible for their [the Society’s attorneys’ and em­
ployees’ ] work, and the direction thereof. * * *”  (Agree­
ment, Paragraph First, p. 3). The only testimony before 
the Court on the question of state control was the response 
of a Society staff executive, when asked whether any City 
official had ever attempted to tell any Society attorney how 
to handle an individual case or what policy should be fol­
lowed with respect to the defense of the indigent accused: 
“ not once in the 27 years that I have been with the Society, 
directly or indirectly.”  (McLaughlin, 523-24.)

Legal Defender Organizations, Which Owe Undivided 
Loyalty to Their Clients and Are, by Their Very Nature, 
Adversary to the State, Do Not Act “ Under Color of 
State Law” in Representing Indigents— and Federal 
Courts Have Repeatedly So Held.

The anomaly of the lower Court’s decision is that it 
branded, as acting “ under color of state law,”  a legal de-

The District Court took judicial notice in its opinion of a re- 
port of a committee (the “ Carter Commission” ) appointed by the 
state Appellate Division as showing “ [t]he relation between The 
-Legal Aid Society and the state in relation to staffing * * * ”  This 
report, the lower Court noted, “ is part of the record in Wallace v.

and also within the scope of judicial notice.”  (Opinion, April 
O, LWS p. 6 ). The report, however, in no way showed— nor could 
have shown— any ‘ control, regulation or interference” by the state 
n the Society s staffing— or in any other phase of the Society’s 

operations.



31

fender organization which is generally regarded as a model 
of independence and freedom from partisan political pres­
sure.* The Society fully meets the goals of the American 
Bar Association Standards for Providing Defense Services 
that, to guarantee “ sufficient independence,”  responsibility 
for operation of a legal defender service must be lodged 
in a board “ outside the ordinary framework of state or local 
government”  (p. 21). Equally, the system must be “ prop­
erly insulated from pressures, whether they flow from an 
excess of benevolence or from less noble motivations”  (p. 
20). Indeed, the Standards point out that:

“ The plan and the lawyers serving under it should be 
free from political influence and should be subject to 
judicial supervision only in the same manner and to 
the same extent as are lawyers in private practice.”  
(p. 19)

Not all defender organizations have been as fortunate 
as the Society in being structurally independent of political 
influence. As the ABA Standards state, in stressing such 
independence as a chief advantage of private defender sys­
tems :

‘ ‘ In privately financed defender systems the power 
to select the chief defender is vested in the governing 
board of the legal aid society or defender association. 
The independence from political influence which this 
form of selection permits has been cited as one of the 
most advantageous features of private defender sys­
tems. Some public defenders are elected officials;

* Indeed, the Society has now, or has had within the last year, 
lawsuits pending against the Governor, the Mayor, the Presiding 
Justice of the Appellate Division, Second Department, all the Judges 
of the Criminal Court of the City of New York, all the Justices of 
the Supreme Court of the State of New York authorized to sit 
in the First Department, the Police Commissioner, the Commissioner 
of Corrections of the City of New York, the Commissioner of Cor­
rections of the State of New York, and numerous other public offi­
cials.



32

others are appointed by the judiciary, * * * or by a 
political body such as the county commission or city 
council.”  (p. 35)

Nonetheless, even in the case of public defender sys­
tems which lack such complete independence, the Federal 
courts have uniformly held that they are not under Section 
1983 because they are not acting ‘ ‘ under color of state law.”

The rationale underlying this rule was cogently set out 
by this Court itself in Lefcourt:

a* * * representation of persons accused of crimes, 
far from being the function of any agency which ‘ tradi­
tionally serves the community’ is normally performed 
for and by private persons. Those who can afford 
their own counsel value the fact that their relationship 
with their attorney will be protected by the Courts 
through the attorney-client privilege. The person with 
a retained attorney knows that that attorney will use 
his best efforts consistent with ethics and law, and that 
no State official is in a position to alter this in any 
way. The City has sought to have the Society function 
under similar circumstances. Under the contract, the 
City retains few controls over the Society, and the 
Society’s obligation under the contract is to its clients 
and not to the City.”  445 F.2d at 1156 (emphasis sup­
plied).*

Every other court that has considered the status under 
Section 1983 of private and public defender organizations, 
as well as assigned counsel, has reached precisely the same

* Lef court noted that the plaintiff’s case did “ not involve the 
manner in which the Society carries on its public function.”  (445 
F.2d at 1156-57). The Society’s fulfillment of its public function, the 
representation of its clients, is, however, precisely that aspect of its 
function which is not action of the state, but action taken solely on 
behalf of the client in opposition to the purposes of the state.



33

conclusion as did this Court. In Espinoza v. Rogers, 470 
F.2d 1174 (10th Cir. 1972), an action brought against 
Colorado public defenders, the Tenth Circuit found that a 
public defender’s professional duties and responsibilities 
toward his client are the same as those of all other attor­
neys, and that public defenders in the office of the Colorado 
State Public Defender do not act under color of state law 
so as to be amenable to suit under Section 1983. In French 
v. Corrigan, 432 F.2d 1211 (7th Cir. 1970), cert. denied, 401 
U.S. 915 (1971) and Mulligan v. Schlachter, 389 F.2d 231 
(6th Cir. 1968), attorneys appointed by the state court to 
represent indigent defendants were held to have been ap­
pointed solely to serve the interest of the client, and thus 
not acting under color of state law.* Similarly, in Thomas 
v. Howard, 455 F.2d 228 (3d Cir. 1972), counsel was as­
signed from a pool of attorneys maintained by the Essex 
County Legal Aid-Criminal Division. The Third Circuit 
concluded that the attorney appointed by the Court could 
not be sued under Section 1983, observing that, since the 
attorney was “ performing his duties solely for [his client], 
to whom he owed the absolute duty of loyalty, as if he were 
a privately retained attorney * * * [he] was not acting 
‘ under color of state law, custom or usage ’ within the mean­
ing of the Civil Bights Act * * * and no triable issue of 
fact upon which relief may be granted remained in the 
case.”  (455 F.2d at 229-30) (citations omitted).

The same conclusion—that defender organizations are 
not subject to Section 1983 since they do not act under 
color of state law—has been reached by the District Courts 
in a variety of suits brought against attorneys under Sec­
tion 1983, including a recent decision in an action strikingly
similar to the instant actions: Gardner v. Luckey, ------
F.Supp. ---- (M.D. Fla., Jan. 24, 1973, No. 71-561 Civ.
T-K). There, plaintiffs, in an action under Section 1983

* See also Ssijarto v. Legenian, 466 F.2d 864 ( 9th Cir. 1972) 
(attorney, whether retained or appointed, does not act under color of 
state law).



34

against the Public Defenders for two judicial circuits for 
failure to provide adequate representation, sought, among 
other things, a caseload limitation. Although the office of 
public defender was created by statute, and funded by the 
state, the Court held that those facts did not “  endow such 
public defenders with the color of state law in representing 
their clients * * * nor immediately transform an attorney- 
client relationship into state action.”  (Opinion, p. 6.) The 
Court concluded: “ an attorney for an indigent defendant, 
whether court-appointed or a public defender, is not an 
officer or servant of the state. His duty is to oppose the 
efforts of the state to convict his client. His actions, good 
or bad, are not done for the state nor under color of any 
statute.”  (Id., pp. 4-5) (emphasis in original). See also:

United States ex rel. Wood v. Blacker, 335 F.Supp. 
43 (D.N.J. 1971) (action against attorneys in New 
Jersey Public Defender organization; case dismissed 
on grounds that Public Defender Act does not clothe 
the attorneys with any additional power nor give them 
any authority not possessed by all other attorneys);

Pugliano v. Stazidk, 231 F.Supp. 347 (W.D. Pa. 
1964), aff'd per curiam, 345 F.2d 797 (3d Cir. 1965) 
(action alleging conspiracy among police officers, mag­
istrate and Legal Aid Society attorney to induce wit­
ness to give false testimony at trial; case against at­
torney dismissed on motion, on grounds attorney not 
acting “ under color of state law” ) ;

Wardrop v. Ross, 319 F.Supp. 1299 (W.D. Pa. 
1970) (action against Public Defender, dismissed);

Palermo v. Rockefeller, et ad., 323 F.Supp. 478 
(S.D.N.Y. 1971) (Mansfield, J.) (action seeking dam­
ages and injunctive relief against various city, state 
and county officials alleging, mter alia, that attorneys 
conspired with state officials to deny plaintiffs’ rights; 
case summarily dismissed against attorneys, as not



35

acting under color of state law, even though complaint 
alleged they had conspired with state officials);

Wood v. Virginia, 320 F.Supp. 1227 (W.D. Ya. 
1971) (case alleging racial discrimination in adminis­
tration of justice; attorneys held not acting under 
color of state law, even if appointed by court);

Peake v. Comity of Philadelphia, 280 F.Supp. 853 
(E.D. Pa. 1968) (Philadelphia Voluntary Defenders 
Association, an organization partly subsidized by state 
and local governments, held not amenable to suit under 
§1983);

Vcmce v. Robinson, 292 F.Supp. 786 (W.D.N.C. 
1968) (action, alleging appointed attorney had abetted 
conspiracy against his client, dismissed summarily on 
grounds that the attorney was not acting under color 
of state law in representation of client: “ His duty was 
to oppose the efforts of the state to convict his client. ” ) 
(emphasis in original);

Brown v. Duggan, 329 F.Supp. 207 (W.D. Pa. 1971) 
(action claiming damages and attempting to bring 
criminal charges against attorney under 18 U.S.C. 
§§241 and 242 for conspiracy with prosecutor; dis­
missed for lack of “ color of state law” ) ;

Reinke v. Richardson, 279 F.Supp. 155 (E.D. Wise. 
1968) (damage action against appointed attorney, dis­
missed) ;

Christman v. Commonwealth of Pennsylvania, et 
at., 275 F.Supp. 434 (W.D. Pa. 1967), cert, denied, 393 
U.S. 885 (1968) (damage action against appointed at­
torney, dismissed);

Jackson v. Hader, 271 F.Supp. 990 (W.D. Mo. 1967) 
(damage action against appointed attorney, dis­
missed).



36

The lower Court attempted to distinguish away a dozen 
and a half cases, all of which reached a result diametrically 
opposed to the result below, on the grounds that “ most of 
the cases”  simply ruled that Section 1983 does not en­
compass malpractice actions, that the cases were for 
damages rather than equitable relief, that they did not in­
volve “ concerted action.”  But these precedents cannot be 
so limited, for they rest on the well-reasoned conclusion that 
defender organizations, even when created by statute, run 
by a state-selected Board and funded entirely by the state, 
cannot be deemed to act under the “ color of state law.”

It is respectfully submitted that the eighteen federal 
decisions cited above are right in this conclusion and that 
the rationale of those cases, enunciated by this Court as 
well, is unanswerable. The attorney who represents a de­
fendant in a criminal prosecution owes his duty to his client, 
not to the state; indeed, his task is to oppose the will of the 
state with every ethical and professional means at his dis­
posal. Such action, whose very essence is adverse to the 
state, cannot be converted into “ state action.”

P O I N T  II

In fixing a caseload limitation for the Society, the 
District Court applied an erroneous constitutional 
standard and erred in translating it mechanically into 
a numerical maximum.

The District Court departed from precedent in the con­
stitutional standard by which it measured the work of the 
Society and found it wanting. It put to one side past cases 
which have measured a defendant’s right to the effective 
assistance of counsel, e.g., United States ex rel. Marcelin v. 
Mancusi, 462 F.2d 36, 42 (2d Cir. 1972), and ruled that in 
determining whether to give prospective relief under §1983, 
the “ adequacy of representation may be measured by a dif-



37

ferent standard”  than that utilized in post-trial habeas 
corpus cases. (Opinion, p. 37.)*

Although the Court found that “ Legal Aid attorneys 
compare favorably with private attorneys both in quality of 
their work and in their results”  (p. 18), it concluded:

“ Comparing the level of representation now pro­
vided by The Legal Aid Society with the American Bar 
Association Standards, it becomes evident that the 
overburdened, fragmented system used by Legal Aid 
does not measure up to the constitutionally required 
level.”  Opinion, p. 41.**

The standards of “ effective assistance of counsel”  which 
the District Court enunciated were those set forth in the 
American Bar Association’s Project on Standards for 
Criminal Justice—The Defense Function (1970). They 
were put to a use by the District Court which their authors 
never intended. General Standard 1.1(f) specifically warns:

“ These standards are intended as guides for conduct 
of lawyers and as the basis for disciplinary action, not 
as criteria for judicial evaluation of the effectiveness 
of counsel to determine the validity of a conviction; 
they may or may not be relevant in such judicial evalu­
ation of the effectiveness of counsel, depending upon 
all the circumstances.” !

* W e do not agree. If the standards which the District Court 
applied to the Society’s representation are the Constitutional mini­
mum, they are equally applicable in reviewing convictions, and are 
retroactive. Linkletter v. Walker, 381 U.S. 618 (1965); Burgett v. 
Texas, 389 U.S. 109 (1967); Loper v. Beto, 405 U.S. 473 (1972).

** It should be noted that the Court continued: “ The overburden­
ing of its attorneys is not the fault of The Legal Aid Society, and it 
may not prevent adequate representation being given in cases that 
are actually tried.”

f  The Supreme Court has also specifically found that it is inap­
propriate to translate the right to the effective assistance of counsel 
into an abstract set of per se rules. Chambers v. Maroney, 399 U.S. 
42 (1970).



38

The ABA Standards set forth laudable objectives. But 
they do not fit the conditions in Kings County and consti­
tute inappropriate talismans in a court which cannot pro­
vide a defendant with a forum for the early adjudication 
of his case. For example, the lower court cited the stand­
ards providing that interviews should be conducted in pri­
vate, and that lawyers should keep their clients informed 
of developments in their cases. But nothing in the Court ’s 
order alters the fact that initial interviews with incarcerated 
clients must be conducted in crowded pens, and that coun­
sel, no matter how frequent their visitations, cannot bring 
their clients any promise of a definite trial date. Smaller 
caseloads are meaningful only if defendants are afforded 
the right to prompt disposition of their cases. Burgeoning 
caseloads are secondary symptoms of the affliction. Nu­
merically reducing them masks but does not cure the basic 
harm to defendants’ rights.

The incongruity of the District Court’s use of the ABA 
Standards as an abstract litmus test of the Society’s repre­
sentation of its clients is indicated by the fact that its own 
preliminary injunction is contrary to the Standards. Thus 
the District Court directed the clerks of the Supreme Court 
to place on the calendar every pro se motion made by a cli­
ent of the Legal Aid Society without even giving the Society 
an opportunity to examine the motion, and evaluate the mer­
its. This is contrary to the spirit and intent of Standard 3.9, 
entitled ‘ ‘ Obligations to Client and Duty to Court,”  in 
which the Commentary specifically admonishes assigned 
counsel to “ refuse to comply”  with demands that dilatory 
or groundless motions be made.*

* This Court has also specifically recognized that standards pro­
posed by the American Bar Association’s projects on criminal justice 
are not binding as constitutional mandates or even appropriate means 
to solve a particular problem in the administration of justice. In
Hilbert v. Pooling, ——  F.2d ------  (March 12, 1973 en banc, Slip
Op. at 2192), this Circuit noted that its recently adopted Prompt 
Disposition Rules did not follow the standards proposed by the 
American Bar Association’s Project on Standards for Criminal Jus­
tice— Standards Relating to Speedy Trial (1968). Slip Op. at 2195.



39

Even if the ABA Standards could be deemed constitu­
tional imperatives, it would not follow that a specific nu­
merical caseload restriction should be imposed by the Court. 
It is no more possible for a legal aid organization to arrive 
at a numerical equation setting out the appropriate work­
load for a lawyer than it is for a law firm to determine 
workload by numbers. Numbers, when considered apart 
from all factors which individualize the caseload of an at­
torney, do not provide an appropriate index of an attor­
ney’s capabilities or his clients’ requirements. Particu­
larly is this true when calendars are swollen in an immobi­
lized court.

It is for that reason that although caseload limitations 
have been the subject of discussion for many years, there 
has been no general consensus on how to determine them. 
The Task Force on the Administration of Criminal Justice, 
in its section on “ The Courts,”  notes that some defender 
offices have imposed a felony caseload maximum of between 
150 and 200 cases per lawyer per year, hut the Commission 
did not endorse this figure in its own recommendation to 
the President. Report of the President’s Commission on 
Law Enforcement and Administration of Justice 55 (1967). 
More recently, a Subcommittee of the National Legal Aid 
and Defender Association proposed a resolution setting a 
standard of not more than 150 felonies per lawyer per year. 
The Defender Section of the Committee rejected this stand­
ard.* Although it was repeated in working papers of the 
National Conference on Criminal Justice, held under the 
auspices of the Law Enforcement Assistance Administra­
tion in January 1973, the original authors of the proposed 
standard asked that it be withdrawn. The basis for their 
rejection of their own standard was the lack of a factual 
underpinning to support the numerical conclusions arrived
at.

* Section 7.4(1) (a) of proposed Resolution 5 of Standards, sub­
mitted and rejected by the National Legal Aid and Defender As­
sociation at the National Conference, November 9-11, 1972 (pro­
posed by William Higham).



40

One of the few studies ever to advocate a specific nu­
merical caseload maximum for a legal aid or defender 
organization was the Carter Commission’s, on which the 
Court below relied. The specific determination of that 
Commission was that the Legal Aid Society should “  deter­
mine a maximum lawyer-client ratio beyond which it can­
not provide effective representation.”  Appellate Division, 
Subcommittee on Legal Representation of the Indigent, 
Report on the Legal Representation of the Indigent in 
Criminal Cases (Honorable Robert L. Carter, Chairman), 
13 (1971).* Yet despite the fact that almost all of the 
other Carter Commission suggestions were carried out by 
the courts and the Society—indeed, most were initiated be­
fore the Commission submitted its report—this suggestion 
of a numerical quota was never recommended by the Ap­
pellate Division.

The futility of expressing a Sixth Amendment right as 
a number is illustrated by the Court’s own adjustment of 
its quota to exclude cases awaiting sentence only one week 
atfer it had ruled that such an exclusion would “ be incon­
sistent with the constitutional requirements.”  The Court 
itself recognized that other adjustments in the maximum 
caseload figure might be required if the basic constitutional 
deficiencies in the Kings County courts were remedied:

“ The maximum set now may be different from what 
could be managed if defendants did not stay in jail as 
long, if there were better facilities for interviews, if 
there were more adequate supporting services, and if 
problems of calendar control are resolved. The limit 
which the court fixes now may be changed in the future 
if experience or changed circumstances justify.”  
(Opinion, pp. 45-46).

* Even this determination had the qualification that any numerical 
restriction should have a “ built-in flexibility and be implemented with 
the understanding that it is only a rough approximation and cannot 
therefore be too rigidly applied.”  Id.



41

Both logic and experience support the testimony of the 
Society’s management that the efficacy of representation 
cannot he judged on the basis of numbers. Indeed, the 
District Court, during the conference on May 18, stated:

“ I t ’s not material what is counted in the 40, be­
cause Mr. Sirigliano must certify not only that they 
are below 40, but that Legal Aid attorneys can effec­
tively handle the additional cases which will be ex­
pected within the next month. I did it that way in 
order to avoid having to decide statistical questions 
for which there was not enough evidence in the record.”  
(McLaughlin, 842).

Despite the insufficient statistical evidence, the District 
Court nonetheless translated the Sixth Amendment Con­
stitutional right to counsel into a number, and to the ex­
tent that the Society was allowed discretion, restricted the 
exercise to the local supervisor. The number “ 40 active 
cases”  can be ignored elsewhere by the Society, by other 
legal aid and defender services in the United States and by 
the private bar only at their peril.

The vice of the decision below is that the relief ordered 
is utterly irrelevant to the crisis so perceptively diagnosed 
by the Court. At best, the order would accomplish nothing 
more than dividing among a greater number of attorneys 
the swollen inventory of “ active”  but immobilized cases 
in Kings County. Not a single defendant would be afforded 
an earlier trial. The cure is not the cosmetic one of im­
proving the caseload-per-attorney statistics, but of accord­
ing human beings both fair and speedy trials and ending 
the obscenity of prolonged jailing without trial of men 
presumptively innocent under our judicial system.



42

P O I N T  I I I

The District Court erred in entering an order which 
merely shifts some of Legal Aid’s caseload to 18-B at­
torneys, not subject to the same degree of judicial su­
pervision, and which does not relieve the congestion 
and delays which are at the heart of the crisis in 
Kings County, or even direct that adequate funds be 
provided for the employment of additional attorneys 
and investigators by the Society.

The Court below started with certain propositions which 
caused it to deal preliminarily with the wrong issues and 
the wrong party, and to enter an order which fails to pro­
vide any relief for the real crisis in Kings County. The 
Court said:

“ * * * while the court remains mindful of the limita­
tions on federal court intrusion in a state’s criminal 
justice system, it bears reiteration that the crisis situa­
tion in Supreme Court, Kings County, its long exist­
ence, and the failure of the state and city thus far to 
provide effective remedies justifies federal court ac­
tion.”  (Opinion, p. 44).

The Society fully concurs, and there is ample precedent for 
a federal court’s use of its injunctive power to protect Sixth 
Amendment rights and to remedy the chronic deprivation 
of the right to a speedy trial in Kangs County.*

* See Conley v. Dcmer, 463 F.2d 63 (3d Cir. 1972) (§1983 ac­
tion against Pittsburgh magistrates and other court officials alleging 
failure to provide counsel at preliminary hearings as required under 
the Constitution: case remanded with specific instruction that “ In the 
event that the District Court finds that necessary* steps are not being 
taken, it shall fashion whatever remedies it deems appropriate” ) ;
Conover v. M ontemuro,------ F .2 d --------  (3d Cir. Dec. 20, 1972, No.
71-1871) (action against the administrative judge of the Family 
Court Division of the Philadelphia Court of Common Pleas and an­
other seeking revisions of the court’s intake procedures) ; Littleton v.



43

But despite its sensitive and often eloquent appreciation 
of tlie magnitude of the crisis in Kings County, the Court 
establishes the wrong set of priorities—separating out the 
issue of caseload limitation for preliminary injunction 
while deferring action on the more urgent issues of speedy 
trial and prosecutorial calendar control. We recognize that 
reform must start somewhere, but the District Court 
started at the wrong end.

Thus despite the clear showing on the record (including 
testimony of a Supreme Court justice),* * and the Court’s 
own findings,** that calendar control disadvantages defense 
counsel and the accused, the Court merely stated that “ cal­
endar control is under active consideration at various levels 
of the Judicial Conference * * *”  and “ the complexity of 
the problem and the corrective steps envisioned by the 
Judicial Conference dictate that the court abstain from any 
action on this issue.”  (Opinion, pp. 51-52). Even if the 
Court below had been correct—and it was in error—in 
finding that the Society operates “ under color of state 
law”  for purposes of injunctive relief herein, we submit 
that it was an abuse of discretion for the Court to find it-

Berbling, 468 F.2d 389 (7th Cir. 1972), cert, granted, 41 U.S.L.W. 
3527 (April 2, 1973) (action against state judge, magistrate, prose­
cutor and investigator, alleging systematic racial discrimination in 
imposition of bail and sentencing by the court) ; Gilliard v. Carson, 
348 F. Supp. 757 (M.D. Fla. 1972) (defendants enjoined from fail­
ure to provide counsel as required by Argersinger v. Hamlin, 407 
U.S. 25 (1 9 7 2 )); Green v. City of Tampa, 335 F. Supp. 293 (M.D. 
Fla. 1971) (action against city and three judges requiring that all 
defendants be advised of their right to counsel under the Sixth 
Amendment). See also the opinion of Judge Judd dated Feb. 27, 
1973 in the Wallace action, Docket #39 , pp. 11, et seq .; and the opin­
ion of Judge Weinstein dated July 11, 1972 in the Wallace action, 
Docket #27 .

* McLaughlin, 717, 718; Opinion, p. 51.
** The Court said:

“ The District Attorney’s control of the calendar creates ad­
ditional problems for Legal Aid because it is difficult to try a 
case properly on 24-hours notice.” (Opinion, p. 21).



44

self with ample power to enjoin the defender— even to 
make itself overseer of its Criminal Defense Division— 
and at the same time to find that considerations of fed­
eralism tie its hands with respect to the prosecntor. What­
ever their caseloads, defense counsel will be disadvantaged 
so long as they do not receive reasonable notice of trial 
dates.

Even more important, the District Court failed to deal 
with the root cause of the crisis in Kings County—the un­
willingness of the state to provide sufficient judicial facil­
ities to insure a prompt and fair trial to the persons ar­
rested and incarcerated by its agents.

The Need for Federal Enforcement 
of a Prompt Trial Rule

The Court’s findings as to trial delays demonstrate the 
intolerable conditions now prevailing in Brooklyn. The 
Court wrote:

‘ ‘ It is not unusual for defendants who cannot post 
bail to be held in custody for 12 to 15 months before 
their cases can be tried. There were 644 defendants 
who had been in the Brooklyn House of Detention for 
more than six months at December 31, 1972, and nearly 
half that number had been there over a year. * * # The 
Legal Aid Director of Court Operations testified on 
April 18, 1973 that the Society had recently obtained 
12 acquittals of defendants who had been in jail from 
12 to 14 months each.

“ When the court’s Law Clerk assigned to this case 
visited the Supreme Court on March 26, 1973, he found 
that a typical calendar outside the Parts showed no 
trials scheduled which involved crimes committed later 
than 1971.”  (Opinion, pp. 5-6).

As the New York Court of Appeals found in a recent 
case brought by the Legal Aid Society, the situation is



45

getting worse, not better, and, in 1972, the backlog of felony- 
cases in Kings County increased 60 percent. People ex rel. 
Franklin v. Warden, Brooklyn House of Detention, 31 N.Y. 
2d 498 (1973). There was a “ surge of indictments”  which 
began in Kings County in mid-1971 (Opinion, p. 9), and 
as bad as the matter was in 1970, since then the Brooklyn 
Supreme Court has become even more congested.

Since the magnitude of the problem became apparent, 
years ago, the response of the State has been wholly in­
adequate. The Legislature adopted a new Criminal Proce­
dure Law in 1971, but it dealt with the important and 
pressing problem of speedy trial without providing any 
guidelines or restrictions on state discretion. New York 
law only states that “ after a criminal action is commenced, 
the defendant is entitled to a speedy trial” , CPL §30.20, 
and this provision has been read by the state courts to be 
meaningless when delay is caused by backlog. In People v. 
Ganci, 27 N.Y.2d 418 (1971), the Court of Appeals, over 
the vigorous dissent of Chief Judge Fuld, held that the stat­
utory and constitutional right to a speedy trial is not 
abridged if calendar congestion and inadequate court facil­
ities are the causes. This basic holding was reaffirmed 
recently by the Court of Appeals in People ex rel. Franklin 
v. Warden, supra. There the Court of Appeals (1) ex­
pressed awareness of the magnitude and gravity of the 
problem, (2) noted that congestion continues “ to be the 
most difficult and intractable in the Supreme Court in the 
metropolitan counties,”  and (3) expressly found that “ the 
solution lies in the increased availability of additional per­
sonnel and expanded physical facilities.”  31 N.Y.2d at 
502-503. But it found that its “ constitutional mandate”  
was to “ adjudicate the rights of individuals”  and it refused 
to deal with the matter.

As long ago as 1970 this Court, en banc, issued a stern 
warning to the State that the conditions prevailing in the 
New York City criminal justice system could not continue



46

indefinitely without federal action to protect the constitu­
tional rights of citizens entitled under the Sixth Amend­
ment to a speedy trial. As Chief Judge Lumbard wrote in 
United States ex ret. Frizer v. McMann, 437 F.2d 1312 (2d 
Cir. 1970), cert, denied, 402 U.S. 1010 (1971):

“ While the present condition in the Metropolitan 
counties is frequently described as an ‘ emergency’, its 
progress has been certain and notorious for the past 
few years. Thus the situation is more accurately de­
scribed as chronic. We are convinced that the con­
tinuance of this situation cannot excuse denial of due 
process rights in any particular case where a defendant 
has not been a party to the delay or absent other cir­
cumstances peculiar to his case. The Fourteenth 
Amendment guarantees to every defendant facing state 
criminal charges the due process right of a speedy trial. 
Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 
18 L.Ed.2d 1 (1967). This is a most important con­
stitutional right, and it is the duty of the federal courts 
to make independent inquiry to protect that right when­
ever there is a substantial claim of its violation.”  
437 F.2d at 1315.

Despite this warning, however, conditions have worsened. 
In March 1970, at the time of the submission of briefs in 
Frizer, the number of defendants held in the Kings County 
jail for three months or more, awaiting disposition of felony 
charges, was 790. 437 F.2d at 1314. In December 1972 
the number of defendants incarcerated for more than three 
months in Kings County Supreme Court awaiting trial was 
935 and in January 1973 the number was 856. Monthly 
Reports of the Special Committee for Purpose of Alleviat­
ing Overcrowded Conditions Prevailing in Local Houses 
of Detention and to Expedite Disposition of Criminal Cases. 
Noting “ a substantial increase”  in the number of persons 
awaiting trial in 1973 over the number incarcerated in 1970 
and 1971, when Frizer was decided, this Court last month



47

again expressed its grave concern with the “ chronic”  
failure of New York State to provide arrested defendants 
with a speedy trial. Thorne v. Warden, Brooklyn House
of Detention,------  F.2d ------  (May 16, 1973, slip opinion
at 3612 n. 2). Although the Court dismissed the appeal as 
moot, it wrote:

“  * * # we cannot let this occasion pass without 
expressing the hope that the serious conditions dis­
closed by the record in this case will be eliminated by 
the State’s provision of additional judges, facilities 
and personnel needed to enable the State judiciary to 
afford a speedy trial to each accused person who is 
incarcerated pending trial.”  Slip opinion at 3613.

See also Barker v. Wingo, 407 U.S. 514, 538 (1972) (con­
curring opinion of White, J.).

This Court’s hope of improvement has become more 
remote even in the few weeks since the Thorne decision, 
and the prospects are of ever worsening conditions in Kings 
County. Effective September 1, 1973 New York State law 
will require mandatory sentences in certain classes of cases, 
and the State has recently created 100 new judges, pur­
portedly to deal with the increased court congestion and 
caseload. There is no hope that Kings County will bene­
fit. In the course of the New York State Senate’s approval 
of the Governor’s bill authorizing up to 100 new judgships, 
six judgships which were expected to be allocated to Brook­
lyn were removed from the bill.*

The motivation and intent of the elected officials of 
New York State are, of course, not before this Court or 
the District Court. But the relevant facts before this Court 
are plain: the situation, described as “ chronic”  in 1970, 
has worsened in the interim; its causes are well known; 
and it is capable of being solved. When confronted by

* The New York Times, May 27, 1973, p. 16, col. 4.



48

a long-standing and continued denial of basic rights, no 
judicial officer of the United States is required by con­
siderations of comity to abstain from taking effective action, 
even if it runs against state judicial officials who are, at 
their level, powerless to remedy the basic evils of the 
situation. On the record below, the appropriate relief was 
to require that all defendants be granted a prompt trial in 
Kings County. Nothing less will protect the rights of 
accused who, until they are brought to trial, are guilty of 
nothing other than the misfortune of being arrested in 
Brooklyn.

It was an abuse of discretion, we submit, for the District 
Court to enter a preliminary injunction against the Society 
while deferring for later consideration plaintiffs’ basic 
demand for a speedy trial mandate.

The Relief Granted Adversely Affects 
the Conditions in Kings County

The relief directed against the Society will tend to com­
pound the prejudice to defendants of the system of justice 
prevailing in Kings County. Assuming that Legal Aid 
attorneys are overburdened, the Court’s order merely shifts 
that burden to private attorneys appointed at nominal 
rates of compensation under Article 18-B of the County 
Law. Yet the record below shows that there is an inadequate 
pool of attorneys available for assignment to the defense 
of indigents in Brooklyn, and the Court itself found only 
that the Administrator testified that they can handle 
“ some”  additional cases (Opinion, p. 48). As with calen­
dar control by the District Attorney, the Court limited 
itself to the hope that 18-B attorneys would be able to 
provide the protection of the Sixth Amendment rights of 
defendants according to the Bar Association’s Standards 
it adopted:



49

“ It should be possible to recruit enough additional 
members to the Panel at least to handle cases coming 
up before September, when it may be that additional 
staff will permit Legal Aid to resume accepting as­
signments.”  (Opinion, pp. 48-49)

There is no basis in the record for this hope, and the plain­
tiffs specifically disavowed it.*

The Court also limited itself to hope with respect to 
the patently inadequate compensation afforded 18-B attor­
neys. The Court’s findings as to the inadequate compensa­
tion of 18-B counsel were clear, but it only wrote:

“ The state courts may recognize the economic facts 
of law practice today * * # It is by no means certain 
that the Legislature will leave the compensation rate 
indefinitely at the present figure. * * (Opinion, 
p. 49)**

We submit that a Court should not fashion relief, partic­
ularly on a preliminary injunction, on the basis of expecta­
tions when the subject matter is as important as the con­
stitutional rights of defendants.

Here again the Court’s objectives were undercut by 
its unwillingness to grant relief against the state. Only

* “ The evidence at the hearing indicates that the caliber of rep­
resentation provided by these ‘ 18(b) attorneys’ is roughly the same 
as that provided by a Legal Aid attorney with 90 active cases. It 
follows that assignment to 18(b) attorneys of the cases which are the 
excess of what the current staff of Legal Aid may constitutionally 
undertake is not merely inappropriate but impermissible: if a Legal 
Aid attorney with 90 cases is, as a matter of law, not providing ade­
quate representation, an attorney providing approximately the same 
quality representation should not be assigned still more cases. The 
remedy is therefore an increase in the number of Legal Aid attor­
neys.”  (Memorandum of Law in Support of Motion for Preliminary 
Relief, Docket # 4 3  in Wallace, p. 14) (emphasis supplied).

** No such change in compensation for “ 18-B” counsel was en­
acted although such legislation was introduced in the 1973 session.



50

by directing that the funds be made available for the Soci­
ety either to hire additional staff, as the Wallace plaintiffs 
requested, or for the 18-B panel to attract additional at­
torneys, could the right of defendants to effective repre­
sentation be preserved. As written, the Court’s order ac­
tually constricts the right of defendants to counsel, for it 
denies them the services of the Society without providing 
them an adequate substitute.

These results are but by-products of the underlying 
error of the Court below in applying Section 1983 to a 
private organization which cannot direct the expenditure 
of public funds or bring about the much-needed reform in 
the criminal processes in Kings County.

Conclusion

For the above stated reasons, we respectfully request 
that the orders below be vacated and the complaints be dis­
missed as to the Legal Aid Society.

Respectfully submitted,

A rthur L. L iman

Paul, W eiss, Rifkind , W harton & Garrison 
345 Park Avenue 

New York, New York 10022 
(212) 935-8000

Patrick M. W all 
A llan L. Gropper

Attorneys for Defendant-Appellant 
Legal Aid Society



< * 3 ^ 3 0 7  BAR PRESS, Inc., 132 Lafayette St., N ew  Y ork  10013  -  9 6 6 -3 9 0 6

(2098)