The Shinnecock Native Americans can trace their ancestry back more than 10,000 years to the very first people on Long Island. There are now about 1,500 tribal members, and many of them live on an 800-acre reservation in Southampton.
The Shinnecock no longer have native speakers, so in their quest to secure the future of their language, they’ve decided to enlist some of their youngest members: preschoolers.
Suffolk County is suing Connecticut-based Purdue Pharma along with a number of other pharmaceutical companies for deceptive practices that it claims led to the county’s opioid and heroin epidemic.
Historian Robert Lewis is a descendant of one of the district’s oldest and most well-known families. After one of Christian Avenue’s most historic homes was sold and torn down, he founded the Higher Ground Inter-Cultural and Heritage Association, which has spearheaded efforts to gain federal recognition for the district.
U.S. Attorney Robert Capers says Mangano extorted restaurant owner Harendra Singh for vacations, gifts and a $450,000 no-show job as a food taster for his wife, Linda Mangano. Capers says the bribes were in exchange for loans and lucrative contracts to provide food services to the county.
Donald Trump was on Long Island Wednesday night to hold his first rally before New York State’s April 19th Primary.
The Republican front-runner declared it's “great to be home” before an estimated 10-12,000 people who filled a movie sound stage at Grumman Studios. Trump shrugged off a defeat in Wisconsin a day earlier and instead, predicted victory in his delegate-rich home state.
I’m With the Brand: Behind the university’s “image enhancement” plans
Stony Brook University (SBU) has struggled to become, as some called it in the past, “The Berkeley of the East,” and it has tried to separate itself academically from lesser known public colleges and universities. Now professionals have joined with university administrators to craft and define a narrative that sells.
Suffolk County has changed its policy on how its police hold immigrants wanted for deportation by the federal government. For years, it required a judge’s order to do that but now, its sheriff, Vincent DeMarco, says they will honor those requests from the federal government without a judge’s order.
New York state has begun testing the underground water supply in Bethpage, Long Island, amid concerns that a plume of toxic chemicals has been steadily seeping into the aquifer near a Northrup Grumman factory that once built military jets.
Former Stony Brook University student, Sarah Tubbs, filed a lawsuit against Stony Brook University (SBU), State University of New York (SUNY) and her alleged assailant on Jan. 23. The complaint filed alleges Tubbs was “sexually assaulted in her assailant’s dorm room” last January.
Two days later, on Jan. 28, 2014, Tubbs reported the assault to the campus police. The complaint goes on to catalog a series of alleged missteps on the part of SBU, including a hearing where Tubbs was forced to act as her own prosecutor by cross-examining her attacker with “a paper screen” separating the two of them.
The argument rests on proving whether Tubbs’ Title IX privilege of equal access to educational opportunity was denied by SUNY’s “deliberate indifference and woefully inadequate response to her report of sexual assault.”
The Two Systems of Public Defense on Long Island
Lou Mazzola isn’t convinced that Brandon Davis committed murder.
He’s not convinced that on Christmas Day in 2013, Davis shot and killed Taliek Bristel during a robbery at Whitey’s mechanic shop in Medford. Mazzola is certain of one thing though—Davis didn’t get a fair shake from the criminal justice system. He considers Davis's conviction and sentence—life without the possibility of parole—an injustice born of a system in which New York's 62 counties struggle to adequately fund and administer competent defense for indigent defendants.
Mazzola has been an attorney with the Suffolk County Legal Aid Society for more than four decades. He is appealing Davis’s conviction, and he’s almost certain he’ll lose. Mazzola says he has seen cases like Davis’s repeatedly throughout his career—cases with convictions that spring from what he and others regard as New York's failed and inequitable system of public defense. The consequences can cost a 19-year-old, like Brandon Davis, his freedom.
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Mazzola began his career as a criminal defender in the 1970s. Now he works strictly on appeals. He’s trying to get Davis a retrial by arguing the lawyers assigned to defend him failed to follow through on motions, meet with their client and prepare for trial. The root of that appeal—ineffective assistance of counsel, in legal parlance—goes back to a decision made by New York state in the years following a landmark U.S. Supreme Court case.
In 1963, the high court ruled that criminal defendants had the right to counsel, regardless of their ability to afford an attorney. "The right of one charged with a crime to counsel may not be deemed fundamental and essential to a fair trial in some countries, but it is in ours,” Justice Hugo Black wrote in the unanimous decision. While some states created a statewide funding system for public defense, New York state decided individual counties would provide all indigent defense services and cover the costs associated with those services.
“Unlike 28 other states [and the District of Columbia] we don’t have a statewide system, and we don’t have state funding,” said Anne Rabe, the organizing coordinator at the New York State Defenders Association (NYSDA), which advocates for improvements in the state's public defense system. “So that’s 62 counties with different kinds of public defense programs. Some are great. Some are total failures.”
In 2006, the state's chief judge, Judith Kaye, created a commission to examine the effectiveness of indigent criminal defense services across the state. The commission heard from prosecutors, public defenders, private attorneys, judges, bar associations, community groups and defendants and their families. The panel's conclusion: the indigent defense system in New York was in a state of crisis.
In her State of the Judiciary address that year, Kaye said she had “not seen the word 'crisis' so often, or so uniformly, echoed by all of the sources, whether referring to the unavailability of counsel in town and village courts, or the lack of uniform standards for determining eligibility, or the counties' efforts to safeguard county dollars, or the disparity with prosecutors, or the lack of attorney-client contact, or the particular implications for communities of color.”
The commission's report called the system “balkanized” and said it had “serious disparities in the quality of representation afforded indigent defendants simply by the mere happenstance of geographic location.” The only way to fix the disparity in funding and quality among the counties, the commission asserted, was to create a statewide system like those in other states.
A decade later—late last year—it seemed that New York was finally going to overhaul its long-criticized system. A bill to fund and administer a new statewide system of indigent defense was passed by both houses of the state legislature—almost unprecedentedly—without a single vote against. But on New Year's Eve, Gov. Andrew Cuomo,—one of the nation's most progressive governors—vetoed the bill, saying it would put too much of a burden on the state budget.
The bill would have extended requirements that the state had agreed to meet in a settlement of a seven-year-long lawsuit brought by the New York Civil Liberties Union in response to the Kaye commission's report. The group claimed that leaving it to the counties to fund their own public defense offices denied poor defendants their Sixth Amendment right to effective representation.
"In Suffolk County, clients often complain that their attorneys do not return their calls and only want to talk about plea bargains," according to the lawsuit. "Clients are often pressured to accept plea bargains without any explanation of alternative options. Incarcerated clients rarely meet with their Legal Aid attorney outside of court appearances."
The settlement required New York State to fund and oversee four key improvements: counsel at arraignment, where pleas are taken and bail is often set; caseload relief, which limits the number of cases a lawyer can carry; initiatives to improve the quality of indigent defense, which includes access to investigators, experts training and supervision; and the creation of eligibility standards for representation, so there is an equal measure for who can access public defense services. There was a catch though. The terms of the settlement applied only to the five counties named as plaintiffs in the suit: Schuyler, Onondaga, Ontario, Washington and Suffolk.
The bill that passed unanimously in the legislature, would have extended those reforms to the state's 57 other counties. Cuomo rejected the plan and its estimated $800 million price tag. “The Legislature framed this bill as 'indigent defense' bill. It is not. This bill is nothing more than a backdoor attempt to shift costs from the counties to the state taxpayers under the guise of indigent defense," Cuomo said.
“We are deeply disappointed that the governor has vetoed the most important criminal justice reform legislation in memory,” NYCLU Executive Director Donna Lieberman said. “He has rejected a groundbreaking and bipartisan fix to our deeply flawed public defense system and left in place the status quo, in which the state violates the rights of New Yorkers every day and delivers unequal justice.”
The patchwork system described by the Kaye Commission means that the fate of a person who cannot afford a lawyer may rest on where he is arrested—a county that commits resources to adequate legal aid or a county that doesn't. The inequality may become sharper between Long Island's two counties with the settlement of the NYCLU lawsuit. Suffolk, with the aid of millions of dollars from the state, is now in the middle of an overhaul of its public defense system. But just across the county line in Nassau, funding is tighter, caseloads aren’t capped and there’s no guarantee of any of the terms that are being implemented in Suffolk.
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Brandon Davis was arrested on March 7, 2014, two years before the Office of Indigent Legal Services, in accordance with the settlement, issued guidelines for improving public defense in Suffolk and the four other counties. One key provision required improvements in so-called assigned counsel cases. These are cases in which a judge appoints a private attorney to represent an indigent defendant either because the public defender's office is already representing a co-defendant or because the county's legal aid office doesn't handle murder cases.
That's the case in Suffolk. Lawyers in the county who volunteer to be assigned counsel are known as 18-B attorneys—for the county law that created the system—and they are overseen by what's known as the conflicts panel. "In 2006, only 2% of the assigned counsel program’s reported expenses were attributed to expert services," according to the lawsuit.
“One of the things [the NYCLU suit] said was, 'Look, you’ve got your conflicts panel operating on a part-time basis. That’s not good enough,'” said Dan Russo, the new full-time director of the Suffolk County Assigned Counsel Program. The state agreed to a full-time administrator who would assign cases, pay vouchers, and evaluate lawyers. “It’s not just a matter of appointing someone. That lawyer not only has to show up but he or she has to meet with the clients, and they have to go to the jail, and they have to file motions,” Russo said. “You actually have to show you’re giving that person the same representation that you would a wealthy client.”
Davis was accused of first degree murder and he was a co-defendant in the case, so he was assigned an 18-B attorney. On Christmas Day, Davis is alleged to have shot Bristel in the head while robbing the auto shop with co-defendants, one of whom was also armed. Davis claims he was not part of the robbery and therefore could not have shot and killed Bristel. Davis was convicted solely on the testimony of the co-defendants, says Mazzola, and both were given reduced sentences.
Mazzola says the record shows the 18-B attorneys assigned to represent Davis failed to meet the most basic obligations for a defense attorney. The trouble began with Davis’s first lawyer, Paul Barahal. During Davis’s arrest, the arresting officer questioned Davis prior to reading Davis his Miranda rights. It was a simple question,
“Do you have a job?”
“No. I just get money.”
It may not sound like the most incriminating statement but Davis was accused of killing Bristel during a robbery. Instead of an oral argument over the suppression of Davis's statement, the judge asked for a letter brief. “Well the defendant’s attorney doesn’t do that. Doesn’t bother,” Mazzola said. The record doesn’t state why Barahal didn’t submit the letter and Barahal did not return repeated requests for comment. But Mazzola says Davis got the hint that his attorney was a “schlub.”
Davis then turned to private counsel. Craig McElwee represented Davis for less than a month and made three appearances on his behalf. “The family was trying to put together funds,” McElwee said. “I sat down with the mom and the dad and about two weeks later, they came to me and advised me that they would not be able to do it.” McElwee declined to disclose his fee agreement with the Davis family. They turned back to the public system and were assigned another 18-B attorney, Steve Fondulis.
Fondulis was assigned on January 7, 2015 but he didn't meet Davis in jail until a month later. The next time he visited Davis, according to the jail records, was in August, just before the trial started. Davis’s mother, Sabrina Sarubbi, claims she had called Fondulis on multiple occasions. "When I finally saw [Fondulis] at the courthouse and confronted him, he said, 'It’s not my job to hold his hand,'" Sarubbi said. Fondulis did not respond to repeated requests for comment.
None of the 18-B attorneys submitted requests to hire investigators. Davis was convicted after one day of jury deliberation on August 26, 2015 and sentenced to life in prison October 6, 2015, the day of his 21st birthday. “Now, I’m not going to say he’s a choir boy. He’s not,” Mazzola said. “Is he guilty? I really don’t know. But I’m not confident he got, what I would think, is a fair trial.”
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Suffolk County has been operating with millions of dollars in federal money to begin implementing quality improvements in the county’s public defense system since the settlement required the governor to include added funding in the 2015-2016 state budget. Nassau County has not.
Scott Banks, who became chief attorney of the Nassau County Legal Aid Society (NCLAS) last September, says he has an idea of how want the agency to run if funds were unlimited. It’s called the holistic defense model and it focuses on melding together the legal and social needs of clients to keep them out of the criminal justice system—but it requires much more than the $6.5 million it received in 2016 from the county and state grants.
“People who are charged have a whole slew of problems,” Banks said citing the growing heroin crisis that plagues Long Island. Social workers and counselors provide attorneys with information about clients that they’re not equipped to get on their own, Banks said, especially on mental health and substance issues. But right now Nassau County Legal aid has two social workers for hundreds of clients. “Everything we deal with is about resources," Banks said. "We don’t do [holistic defense] here because we don’t have the capacity.”
Nassau also does not have a caseload cap. The American Bar Association has standard guidelines but there is no mandatory requirement in the county and not enough staff for NCLAS to meet one even if there was a requirement. Banks called staffing his office’s biggest problem. “People leave and a lawyer could be handling 50 cases and he might get 10 more cases from a lawyer that leaves.” According to a report issued by the National Advisory Commission on Criminal Justice Standards and Goals, lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.
“What’s happening in Suffolk is they’re getting money for hiring new attorneys, money for new office space, more investigators, more social workers. We could probably use all of those things,” Banks said. “But it’s a funding issue with the county.” Despite these shortcomings, Banks said he believes Nassau was not part of the lawsuit because the office is already doing things right.
“That’s just not true," responds Jonathan Gradess, executive director of the New York State Defenders Association. "Nassau was not selected because the NYCLU needed a representative cross-section. The NYCLU could’ve thrown a dart at a map of the state and found a county with the same sort of systemic problem.”
Gradess says Nassau County is not unique in its lack of funding and resources to provide effective assistance of counsel and sometimes, it provides no counsel at all. Defendants continue to be arraigned without lawyers.
In a hearing held by the state's Office of Indigent Legal Services in August of 2015, Elizabeth Nevis, a Hofstra University law professor who head's the school's criminal justice clinic, said “I have observed, alongside my students, gross violations with regard to the constitutional and statutory right to counsel in Nassau County.”
Nevins said she had seen people charged with jailable offenses being denied counsel in Nassau County District Court. “They were not being advised that they were entitled to counsel," she said. "Even people who stood up there and said, ‘I can’t afford this, and I don’t want to plead guilty,’ were not being assigned counsel. Now, there is a sign outside of the entrance to the courthouse. It says you can ask for a lawyer."
In April, the ILS released a report on the criteria and procedures for determining who is eligible for assigned counsel, as was agreed to in the settlement. In Nassau, according to the testimony of Nevins and others, there was no single method for determining eligibility. Most counties including Nassau use a net income of 125% of the Federal Poverty Guidelines to determine eligibility. The ILS recommended increasing that to 250% (which testimony from advocates in both Nassau and Suffolk said was important in an area with a high cost of living. Gradess actually suggests the eligibility should be closer to 450% for Long Island). The ILS also recommends that non-liquid assets not be considered including ownership of a car.
“So far none of those recommendations have been implemented,” Nevins said. “At a bare minimum, whether it’s required or not, all of the things people were testifying about in terms of appointment of counsel—they are not followed in Nassau.”
Nevins also argues that it simply takes too long to get through cases in Nassau. She automatically tacks on three or four months of administrative procedures, from arraignment to when someone says they cannot afford a lawyer. Then, the court discovers there is a conflict and the defendant is ultimately assigned an 18-B attorney. It takes time and multiple court appearances.
“Statutorily and constitutionally there is a right to a speedy trial,” Nevins said. “I can’t tell you the number of clients I’ve had plead guilty because they just can’t come to court anymore. It’s not like this everywhere,” said Nevins, who worked as a public defender in Washington D.C., earlier in her career. “Not only are cases not investigated, it’s also a psychologically challenging process, and then you just wind up pleading guilty anyway.”
Gradess, executive director of the NYSDA, called Cuomo's veto of the public defense funding bill “stunning” and a “missed opportunity.” To Gradess, the governor's reason was disingenuous. The state is able to fund correction, paroles, police and prosecutors, he argued, creating a giant disparity in funding between prosecution and defense. He also said the calculation of costs was shortsighted for multiple reasons. Since the 1980s and 90s more and more collateral has been tied to arrests and convictions. That includes housing, loans and employment. People lose jobs, cars, apartments, health care, educations, and Gradess argued that all of those losses have costs too and they fall mostly on the shoulders of a certain group of people. “It’s a planned process—not some accident. The government is saying that people of color are sufficiently unimportant as to be disposable.”
While Gradess calculates the costs in long-term impact on people’s livelihoods, some see the short-term costs as unmanageable as well. Stephen Acquario is the head of the New York State Association of Counties. Acquario and county executives are concerned about the expanded eligibility recommendations (the same ones that Nevins said had not yet been implemented in Nassau).
“There’s a doubling of expansion and those eligibility costs are going to produce a lot of extra costs, certainly extra work for the counties who are operating under a property tax cap. So it’s beyond the capacity of local governments to sustain this state constitutional responsibility,” Acquario said.
In the weeks following the governor’s veto, the counties' association named state-funded public defense as one of its top priorities in the new legislative session, and they even considered a lawsuit against the state to make it happen. But Acquario hopes they can reach a compromise with the governor. “Within the terms of a $163 billion budget, surely there’s room for funding this type of initiative. We hope that the governor will make this a priority this session.”
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On April 7, after emergency extender budgets to keep the government operating, Cuomo and legislative leaders reached a final budget agreement that included funding for top priorities for the governor, like his Excelsior college tuition plan, and “Raise the Age,” which raised the age of adult criminal responsibility from 16 to 18. It had been a sticking point among Democratic and Republican legislators. Among these compromises was a plan to extended the provisions of the settlement — counsel at arraignment, caseload relief and quality improvement— to the rest of the state.
Cuomo hailed it as “true reform to public defense systems that were failing.” But the money isn’t there yet. The budget includes $1.25 million to “develop the framework” for funding the reforms. That also means that the state is not fully funding public defense, just covering the costs for counties to meet a certain standard.
“It’s so basic it’s hard to be incredibly excited about it,” Nevins said, noting that the most positive impact would be on setting reasonable caseload standards. But Leahy of the ILS is optimistic. His office has been tasked with crafting plans for each of the reforms and how to extend them to the remaining counties, including Nassau. The deadline is December 1. “It’s a very happy and optimistic time, but as always, there’s a lot of work ahead,” Leahy said. Reform implementation will be phased in and is not expected to be fully complete until April 2023.
That means that the divide in resources and reforms between Long Island's two counties will exist for at least six more years. Public defenders will continue to be on the “horns of a dilemma,” as Gradess described it, while they conduct triage. And cases, like the prosecution of Davis, might not get the treatment, time and resources they deserve.
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In the meantime, Mazzola continues to work on Davis’s appeal. Davis’s mother is working with other women who claim their sons or husbands were wrongfully convicted. From his cell in Auburn prison, Davis filed for the Rosario material—the hundreds of pages of investigation documents that the prosecutor is required to turn over to the defense after the jury is selected. Davis claims his lawyer failed to review any of this material with him.
The prosecutor in Davis’s case, Glenn Kurtzrock, was forced to resign on May 10 by District Attorney Thomas Spota after defense lawyer found that Kurtzrock had withheld exculpatory evidence from the defense in a murder case. Kurtzrock allegedly failed to turn over notes that indicated at least two other men might have been responsible for the murder of Demitri Hampton. The charges were dropped after the revelation.
Sarubbi is convinced Kurtzrock pulled the same trick in her son’s case. Had Fondulis reviewed the material more thoroughly with Davis, Mazzola believes, he might have caught on that Kurtzrock was withholding information.
“[Fondulis] would have had to review [the Rosario material] with him while the trial was going on or go over to the jail to visit with him after 5 pm. That usually requires making special arrangements with the jail for a visit with an inmate, something that Davis’ attorney was not inclined to do,” Mazzola said. “After all, what is a sentence of life without parole if you don’t have to do it . . .”