Interview: Broome County Public Defender

January 21, 2010 by schweitzer

In the interest of finding out more about the role of the county Public Defender, members of the Prisoner Support Network arranged an interview with Jay Wilber, Broome County's Public Defender.

Audio here
35 minutes.

Transcript after the jump.

Meeting with Public Defender Jay Wilber
(transcribed by Andrew Epstein)

1/14/10 – 10am – Transcript

SS = Stephen Schweitzer, Prisoner Support Network
AE = Andrew Epstein, Prisoner Support Network / Jail Project
JW = Jay Wilber, Broome County Public Defender

Stephen Schweitzer (SS): What is the public defenders office?

Jay Wilber (JW): The public defender’s office was set up I think in 1968 due to the fact that anyone – in a decision Gideon v. Wanwright - that’s going to do jail has an absolute right to – if they cannot afford attorney – to have one given to them free of charge. We do everything. They don’t even need to have a charge. If they’re a suspect in a crime and they think that they might, come on in and open a file – we’ll see if you qualify. Now, the problem with that is, legally, the courts qualify the clients. That has gotten mixed over the years because of the local courts in rural areas don’t have time and the resources. We’ve taken that on to assist the courts. And there are guidelines. Technically, some places in New York, it’s all a hodgepodge: some are 135% of the poverty line. We currently are 150% of the poverty line. Me, I would love to take it for the working poor, a living wage. I can’t do it. I’ve got right now at my disposal 11 attorneys. One’s on maternity leave, and one left the office. I’m interviewing for that. And we do everything from parole to violations to murders. The one thing we don’t do is vehicle and traffic.

SS: So how are you appointed?

JW: I am appointed by the county executive for a 5 year term. This is all fairly new within the last 10 years. Subject to the approval of the legislature.

SS: So what year are you in now?

JW: I’m in year two I believe. So I got this one and a couple more. There’s a provision where the county executive at the end of the term can automatically renew it. Or she can open it up and see who’s available. That’s what happened last time.

SS: So if she gets replaced as county executive then....

JW: Then who knows?

Andrew Epstein (AE): Is the appointment subject to legislative review?

JW: It’s basically a rubber stamp. No matter who’s in power, they usually – 99.99% - give the people who they want.

SS: How is the caseload assigned to these 11 attorneys?

JW: I do it. I do it based on experience. It’s called vertical representation. Any office who’s worth their weight – I could have a case in Union court, I could have a case in Colesville Court – presently those are done by two separate attorneys. Well, I don’t want to create a problem between the attorneys or the courts. So if you have a case in that court three months ago and you get charged with something else, you’re going to have the same attorney. So that they know all the facts, they know the history.

SS: Are you dealing with a lot of recidivism?

JW: Oh god yeah. There’s some files that are ten, twelve files. And those are just the ones that are open. You go through our case management system – I’m personally myself on third generation. Granddad, dad and kid now. And I’ve only been here 21 years.

SS: Can you give us a sense of the average workload for an attorney?

JW: To be honest that varies. It varies seasonally, it varies with the economy. There’s one attorney now who because his partner in city court – city court is our biggest volume court. When I took over I came up through the ranks, I did it all by myself. It was a much lesser volume. But those people through the year may be handling upwards of 800-900 cases, for one attorney. We split it. She’s out on attorney leave. So that person is taking over that entire court. That’s the only time I have to, for obvious reasons, break that vertical representation code. And if somebody has something in city court, and someone else – just because of the volume, that will go to another attorney after they have a meeting they bring them up to speed. Also I’m not going to give an attorney who’s out six months a murder case. They’re with a client on a disorderly conduct, they get a murder – no, no. That’s going to go to one of the senior assistants, myself, or my chief. So we’re not throwing anyone to the wolves to learn. The one good thing I can say – my chief has been here longer that I have. Right outta college. He’s been here just about 25 years. I’ve been here 21 years next month. We have a lot of people upwards of 15 years. Which is rare in a public defenders office. Usually you get in, you get your 3 or 4 years, you get out. I’m waiting to find out how it’s going to happen five, six years down the road because – you may not know – as of January 1st there’s a new tier in New York State for retirement. That tier is less attractive to stay in longer because you have to pay in, you can’t retire earlier. But I don’t know what’s going to happen. So if I hire somebody, they may get their experience and get out. That has yet to be determined. I’m hoping to find that out.

SS: Can you talk about some of the challenges of your office?

JW: Challenges are always case load, budget time, getting resources. We, as I like to say sometimes, we’re the last person in the revenue stream. There’s a great deal because of the county there’s medical, Medicaid for employees. It’s a very high charge. We are considered a small department. But still, it’s more economical for a county to have a public defenders office than to go to these assigned council. The assigned council rates are $65 an hour for a misdemeanors or below – that’s in or out of court. $75 for felony and parole, subject to the cap. And it’s up to the assigned council if they must exceed the cap. If it’s a high profile case, 40 or a 100 dollars, they’ll eat that up in two weeks. Experts. Sometimes experts make more than attorneys on a case.

SS: When you say assigned counsel you’re talking about members of your staff?

JW: No. Assigned counsel is the general public. Let’s say us three here get a drug bust. My office can only represent one. The other two have to be assigned out to private counsel. Paid by the county. Because I may have information that might help me on you guys. So I cannot represent – there’s a lot of conflicts of interest. Clients we’ve represented in the past or are currently representing, I can’t sell out a past client for a current client, nor can I sell out a current client for a past client. Which means me and my staff can’t cross examine a former or current client.

AE: So is there a certain pool of money that exists for those kind of county pay-outs to private lawyers or does that fluctuate depending on the case load?

JW: Oh, it fluctuates on the case load year to year. The one thing that comes back – it’s called the I.L.S.F. Indigent Legal Service Fund. That was created at the state level to help offset the increase cost of the assigned counsel fees I just mentioned. Used to be $25 and $40. Your mechanic makes more than that, right? So what it is, they set up a system they thought would guarantee increased funding, competency, etc and basically what it is, you have to spend the same money for the indigent that you spent the year before, or, the statute says, you lose all of that funding for that particular year and the other counties will split it up. I think last year it was like $857,000. And that goes back to the counties to help offset the assigned counsel program. Technically, we’re considered the indigent representation along with family court, things of that nature and it’s a pool of money.

SS: You get funding from the state or federal level?

JW: No federal. The only grant I get - $27,432 – called “aide to defense.” My colleague downstairs, the District Attorney, he gets a lot more “aide to prosecution,” and has a lot more grants. His grants are so large he can actually fund positions with those grants.

SS: Speaking of your colleague, is there any kind of conflict of interest because of the nature of what you’re both supposed to do?

JW: No.

AE: What’s the relationship like between the folks in the public defenders office and the folks in the district attorney’s office?

JW: Professional. I can’t say cordial. I can’t say there’s any animosity. That’s all we deal with, is the DA’s. We don’t with wills, estates – this is all we do. A lot of other public defender offices deal with family court. We don’t have to. Which is nice. All we deal with is the 18 individuals down two floors.

AE: How responsive can you be to your client give the nature of the workload? Let’s say you have somebody you’re working with who says, “I want to go to trial. I’m innocent.” How responsive are you? Do you have to be totally responsive to the wishes of the client?

JW: Absolutely. I’ve had clients where I’ve said, “Let’s go to trial.” [They say], “No way. I’m not going to risk it.” You have to tell them the exposure: legally, ethically, morally. “I go to trial on this. Well, yes, if you do lose, you get so-and-so.” Some of the say, “I want no part of that.” You have to respect that. Conversely, “Why are we going to trial? They have your DNA, they have your confession, etc.” [They say], “I want them to be put to the proof.” “Ok, let’s go.” There’s a difference you have to realize. In this county, felonies will go to trial a lot sooner than misdemeanors. Why? Because the local court are part-timers. You do realize 90% of them aren’t lawyers? You did know that, right? Oh yeah. A bus driver, a milkman used to be a judge – can put somebody in jail for up to 2 years in Broome County and not have a legal degree. I say two years subject to “good time” which is 16 months. That’s part of the challenge. They have their own organization resource center, but I think too much they rely on the district attorney. The DA to a certain extent has to say, “Well, you know, they may want to win at a trial level but we’re going to go right next door and appeal it.” But you may not get a trial in the local court, 14, 16, 18 months. Bring the person back. “Do you really want a trial?” “Yes.” Come back three months. “Do you really, really want a trial?” “Where’s the…[inaudible]”

AE: Does the sheer volume of the workload – you said something like 800, 900 cases per attorney –

JW: That’s only one individual. Usually, what I try to do with the national standards, we try to stay between 250 and 200. Yeah, it’s a challenge.

AE: Does the workload ever effect your approach to a case?

JW: No. Because, I’ll be honest with you, it might be a simple misdemeanor, you’ll spend more time on than a felony. It might be a client that needs more attention, you might have 15 witnesses on that case, and the felony case there might not be that much work up, investigations, to be prepared to go to trial. Basically, you never know what it is until you get through the door and into the meat of the case. And that’s from my personal experience. Obviously, people in jail get preference. First thing is, try and get everyone out of jail, as best you can. Whether its setting up bail, do property bonds, contact the family. We have a great staff, we have some investigators, but a lot the time it’s just getting the word out: “I’m in jail. Can you take care of my dog? I need the keys to go to my aunt?” I mean its little things like that that really help you establish a relationship with your client. Half of them don’t think we’re real lawyers anyway. I’m licensed in three jurisdictions.

SS: We had a question about jail visits. And you mentioned as we walked in the door there’s some statutory law that prevents even you from going in and taking away from family time? Can you talk a little bit about that?

JW: I can show it to you. It’s the 500 section of the correction law. I’ll show you what I got here. [takes book off of shelf, flips through pages] 500c, 5 says “All persons confined in a county jail or penitentiary shall as far as practicable be allowed to converse with their counsel or religious adviser.” Ok. Now when you turn to 500 J, Who may visit correctional facilities? Statutorily, you got the governor, lieutenant governor, secretary of state, comptroller, attorney general, members of the legislature, judges of the court of appeals, supreme court, county court, district attorney, clergymen or minister.

SS: Nothing about public defenders…

JW: How about lawyers? There you go. Effectively, they can’t do it constitutionally. But that’s been out there how many years now? Nobody sees fit to have that fixed.

AE: But when you go to visit a client in Broome County jail, do you get the full legal visit with private room, notepads, all that?

JW: Oh yeah. I mean, guys, just because of familiarity, we have 3, 4 people at the jail everyday. If you’re on the jail list, we see you the next day. Worst day to get arrested is late Thursday night because it gets printed not until Saturday or Sunday. So we might not see you til Monday. Monday’s a holiday? Tuesday. But other than that, if you get picked up on a Wednesday, we’re there on a Thursday, picking up notes, doing a bail app on you that day or the next day if we humanly can.

SS: Do you think then our best bet to work with prisoners and get this information is to work with jail ministry?

JW: The person that’s in charge of the jail is Mark Smolensky and his deputy administrator is Kevin Moore. I do know that the jail reentry people have had problems. I know the gentlemen we were talking about on the elevator [Josh Price] had issues or problems getting in there. But they don’t have to let you in.

SS: It’s the sheriff’s call?

JW: Yeah. Now, when I say that, into the attorney rooms that are more private. Now they have to let you in subject to inmate’s visiting time general visitation.

AE: In the past, the Broome County Jail Project – which is what Professor Price was involved with – wasn’t a legal thing, it was just –

JW: Social.

AE: Yes. “How’s your health?” But sometimes it can be sensitive. At first I think they had that first kind of visit, private, with a notepad. Then at some point the relationship soured… Now it’s back to the general visitation. Do you think it’s a possibility that those types of private visits would be possible for people who aren’t attorney’s?

JW: Gentlemen, let me tell you this. There’s a court room back there behind visitation that parole has their parole hearings in. They were kicking parole out at 11:30am as they were kicking everyone else out for chow. They bitched and moaned because they had to conduct a court hearing. They then said, “You can stay, parole. But everyone else has to get out.” So I left it up to my individual attorneys. “You want to conclude the hearing? Do it. You want to go to lunch? Get up and get out. We’re no better or worse than anybody else. And if that’s sets back parole’s time, too damn bad.” They would not extend the courtesy to us to visit clients through that hour that they’re down. You understand? They’re shut two hours a day. We cannot see clients two hours a day that we actually work here. So a lot of my attorneys have to go up on their own time, if they have to see somebody, to get it done. Now, we have ability to see clients through video that no other people have. So if court’s cancelled today because the judge is sick, we can get the message to somebody. Also they have a direct line to us that they don’t have to use collect calls. I have one line for 470 people. So a lot of times they can’t get through, and there’s nothing I can do. Nothing.

SS: Is this video conferencing working now?

JW: It’s not set up because the library downstairs isn’t set up. But we’ve been doing that for years. We were one of the first counties to do that, we have special lines. There was a grant for a quarter of a million dollars. Now it’s like skype. I don’t know what that is, but you guys do.

SS: So they bring people into a special room –

JW: Non-contact room one. There’s a tv set there. Boom. Goes right to our computer. Bim bam boom boom. Now, subject to, I never speak confidentially about a case to someone in there. Because its loud, you got the window. But I do tell them, “Hey court was cancelled. Your mom’s gonna try to visit you today.” Nothing about the case itself, because people can hear you.

AE: What would be reception to – or are there regulations around – let’s say we’re meeting with someone in jail for whatever reason, and they have a particular legal issue, could we contact the public defender on the case, and say, “Hey I’ve been meeting with this gentlemen. He thinks this or this…”

JW: I’m not in favor of that, guys. And the reason is, you’ll cross the lines and be murky. You certainly don’t what to have people up there – and I’ve had this before – inmates, law librarians, practicing law without a license. And be wrong. Because if you’re wrong, you cannot get those people to believe you and it caused a whole host of problems. I have no problems you calling and saying, “such and such needs some assistance.” I had a client recently in Tompkins County, it’s something called OAR I believe. You might want to contact them. Because they call me and say, “So and so is in there, they need you to do this and that.” And it had to do with people – god, I wish I had the number – but it might even be a county agency. But its OAR, whatever that stands for in Tompkins County. And I think they did a great job. More of a middle man liason. But I think you’ll be in a tough spot with me and my staff if you say, “You need to do this or this. The client needs to see you on X issues.” That’s different. You know what I’m saying?

AE: What is practicing law without a license? Can it be as simple as saying, “I think it’s a good idea to approach this or that.” Any legal advice whatsoever?

JW: Yeah. I wouldn’t do it. They were saying stuff – well I’m not going to get into details – like “this isn’t right.” That’s not what the law. I spent a hell of a lot of money to go to law school. I’ve been doing this for 21 years. If for someone to step in when someone has a felony, and say to do this or do that, there’s implications with people’s lives. You gotta understand that. You’re wrong, you go home every night. Right? That person could be in the state penitentiary for ten or fifteen years just because they relied on somebody’s misapplication of the simple principle, “should I get out now or wait?” Well you get out now, you don’t get police reports, you may not get an offer, BOOM there gonna go to trial. You’re a second felony offender, you get indicted, all bets are off, there’s no negotiation. Stakes are high. Now, do I know that goes on there with the other inmates? Absolutely. My client calls the ball. What I do, CYA. And I have a big one gentlemen. You’re gonna sign a trial affidavit. You want me to do this. Or I’ll bring you down to court and put it on the record. My wife likes the house the way it is. I’m not going to let any other inmates get it. You practice defensively. You got to.

AE: Do you ever deal with immigration issues up at Broome County Jail? Does I.C.E. get involved?

JW: All the time. But it’s clear: we do not do immigration work. We’re not even allowed to give them advice on that. Through the New York State Defenders Association. I feel that’s probably one of the weaker areas that defense attorneys could do better. Because if you plead to a civil petty larceny, that’s a moral turpitude crime, that person could be deported back to a country they haven’t been to since they were little.

AE: I’m meeting with a gentlemen right now who’s going through these issues. And he hasn’t been able to get any answers. I’m trying to get him simple answers like, “Does immigration and customs have a detainer on you?” But nobody can give me that answer, and he hasn’t gotten that answer.

JW: Well, sometimes they don’t have them on them until it’s time for them to clear and get out and then BOOM it hits. And they go to Batavia. I went to the court the other day – can’t give you the clients name – I went to court, all of a sudden we walk out and its [makes wooshing noise and claps hands]. I say, “what the hell is this?” “Immigration control. Your client is an illegal immigrant from Canada.” I say, “Ah, you’ll go to Batavia, they’ll parole you out, don’t worry about it.” They say, “Oh no no no. He already paroled out 19 years ago. Boom. He’s up in Canada now.” I’ll win my case because they won’t be able to bring him back. But that’s it. He lived in this country for 19 years. There’s also a provision in the law when they take pleas or are sentenced that the judge is supposed to go over the immigration stuff but… It shall not be ineffective if this is not done. So you can have people who have already plead but a lot of time you gotta blame the people themselves and I’ll tell you why. We ask, “Are you a citizen of this country?” If they say, “yes,” hello! Too late now isn’t it? They want to do 4-40s. A 4-40 – I apologize – is an application to open up the case again because of new evidence. Here’s the problem: you’re not entitled to a lawyer on a 4-40. We will not do those. I have enough doing the stuff I’m supposed to do, I don’t have any resources to do the stuff I’d like to do, optionally. Can’t do it.

AE: What kind of reforms at the county, state or federal level would you like to see that would make your work easier?

JW: Very simple. I would like to see passage and implementation of the indigent defense commission and have all public defender offices be made state agency.

SS: Take it out of the county?

JW: Yes. I’ll be honest with you: basically it’s an unfunded mandate. We’re full time. This is all that I and my staff do. You go to Tioga county, they’re part timers. They have to chase a buck. People don’t realize: this is all we done. We don’t have to worry about closing or duel will. All we have to worry about is the new legislation, things like that. I would like for it to be run by the state because I think you would take a lot of the politics out of it. I think the person in the head should be paid the same as the attorney general like Cuomo. They should have an independent budget. There is legislation that is pending in the state for the past two years.

AE: Is it the Campaign for the Independent Public Defense Commission?

JW: Yes.

AE: And that’s sitting in assembly or state senate?

JW: Sitting in committee. We wanted to be able to take $3 million a year for three or four years from the ISLF money to set up the commission. Because if you set it right today, the commission says, “Ok, we’re on the commission!” It’s gonna be two or three years before it actually gets up and running. So you gotta think 3 or 4 years down the line. I’d love to see it before I go. I’m not holding my breath. I think it will come eventually. There has been one lawsuit. The lawsuit was thrown out with some re-judgement. There will be other lawsuits. That’s how you’re going to win it: lawsuits. MY personal belief, and I’ve told everyone at the state level, file all the lawsuits, that’s the only way you’re gonna get things done. And if you wait because you wanna be nice, where do nice guys finish guys?

AE: Last?

JW: Hello! You’re looking for money. That’s what you gotta do: sue.

SS: Great. What do you think? Part of my problem is I don’t know all the questions to ask but I do appreciate your time.

JW: You got my number. If I could give you advice or anything I will, but to try to get in there, it’s better to have the informational meetings, because the more that they see you up there, you gotta understand. They see you guys as rocking the boat and enemies. You gotta know that going in. Personally, NAACP comes in, here you go! They can call all the time. Go ahead, come on in, review the case. You sit down with them some times, get an authorization or a waiver from the client to do that, there’s usually never any problem. But that’s an uphill battle. You do have an uphill battle. I would say though, you may not be at the apex but I think you’re getting close because of all the reentry grants. There’s Elizabeth Hayes, have you spoken to her?

SS: Not yet.

JW: She’s with the ministry. She’s trying to do reentry. Larry Parham. There’s local reentry people. But I’m not on that committee, I don’t know why. It’s one of the ones I want to try. Reentry is going to be crucial, crucial, in the next 3-5 years. It’s cost. I don’t believe they’re letting these people out because they’re so magnanimous, “Ok we were wrong.” It’s money guys! It’s money! About $35,000 a year for one person to be in state prison. You know, the building, the medical.

AE: Are there many privately owned and operated prisons in New York State?

JW: Not in New York State.

AE: Is there a law against that or has it just not happened here?

JW: Probably both. There’s private prisons in Arizona, and that’s where they got a lot of their people from Alaska. They do.

AE: A lot of inmates or the people who work there?

JW: Inmates! Put them on a plane. And that’s money too. Don’t forget, if you’re a resident of Alaska, what do you get? You can that $1,100 or $1,500 a year check for being a resident there. Guys it’s always the money, you know that. Follow the money. Do I ever see that happening? No. You know what the chief employer of many of the counties, frankly, of St. Lawrence, Essex is? When they say, “I’m going upstate,” that’s what they mean. You sometimes fighting to get a prison. Good jobs.

AE: Have the reforms in the Rockefeller Laws – has that impacted anything yet?

JW: Yeah, I’m doing them all.

AE: Did real substantive change come out of that?

JW: Yes. You’ve had people who were wasting away for minor, mid-level crimes. I did one, walked out of the courtroom. He was out already, but for post-release supervision and I have others who will get greatly reduced prison time. I’ve been in it from the A-1 level to the A-2’s and now we’re at the B level. The problem is that I see is, I would love for it to be expanded to the C’s, because you gotta understand, what we were fighting for all the time was, give me the C, not the criminal sale, criminal possession B, but second felony offender, the minimum sentence was 4 to 9. You get the C, now you’re looking at 3 to 6. Minimum. 7 and half to 15. So while your client got a break initially, back then, he’s still doing a hell of a lot of time. Or they may have given him the C 11 1/12 to 15. I don’t know how many of those there were. I think presently, last year and this year, and above, 15 years for resentencing. You couldn’t file those until October 9th. But you have to be in custody. If you’re out, no one can file. If you’re out on parole, I can’t help you. I don’t know how successful we’ll be. A lot of it will depend on the state economy. But if you look at the numbers, 30% of them are there because of drugs, if not more. The experiment failed. It was a total failure. And I think people are realizing it. Look at the federal system with mandatory minimums. They did away with the sentencing guidelines now. That’s huge. But you gotta understand, we just do state. If you have a client they really want because of state laws on some things are not as harsh on the federal, forget it. We’re taking them across the street to the feds. Child pornography. Those cases. A lot of time. 30, 40 years.

AE: Is that because of the climate in the attorney general’s office?

JW: Just look at the ones on the DWI’s. Look at the lady on the parkway. Now if you’re driving with a child under 16, it’s a felony first time. If you have three kids, it’s three counts. That’s what you call a knee-jerk reaction. It’s to appease the Mothers Against Drunk Driving, it’s to appease everybody. Is it a good idea? Well maybe. But you’re going to create a sub cottage industry for defense lawyers because those people are your soccer moms and dads and they’re going t have to fight that. You know what the felony will do? That’s front page news. There goes your job. Gentlemen I have to run.

AE: Thanks so much for your time.

JW: Anything I can do feel free to call.

Permalink