The appellate division of the New Jersey Office of the Public Defender is never short on work.
The 1,300 appeals per year the OPD takes on for indigent clients can often take up to a year and a half each, according to Deputy Public Defender Joseph Russo. To help with the case load, the office developed a pro bono partnership with 13 private New Jersey and New York law firms. Launched in April, the partnership is already handling 35 appeals.
The goal is two-fold, said Russo, who runs the program with First Assistant Deputy Public Defender Alison Perrone: to shorten the time between receipt of a case and filing an appeal and to provide every indigent client the best possible representation.
Reasons for appeals are numerous. Perhaps a trial judge didn’t take mitigating evidence like age into account and sentenced a youthful offender to more time than necessary. Or maybe evidence was deemed admissible even though it had been acquired illegally by police without a search warrant.
“It’s our job to balance the scales of justice,” Russo said. “The constitution is meaningless unless it applies equally to the rich and poor.”
Know it cold
For partnering private firms like McElroy, Deutsch, Mulvaney & Carpenter LLP, the program is an opportunity for younger lawyers to hone their writing skills and become accustomed to preparing an appeal.
“It looks one way in TV dramatization, but it’s not so much what you say on your feet. Most of the work is done before the lawyers go to court,” said Peter Gaudioso, the McElroy partner in charge of the OPD pro bono partnership program. “There are papers that have to be prepared and researched. They have to know the record cold. It gives our younger lawyers an opportunity to work more closely with the preparing of these appeals and the arguments of them, and the opportunity to argue an appeal doesn’t happen every day. It’s invaluable experience they’ll get in written advocacy and real advocacy at a very high level.”
Most pro bono opportunities are for minor cases at the municipal court level, like driving while intoxicated, Gaudioso said. Through the appellate section of the OPD, lawyers work on appeals for cases like first-degree murder and drug possession with intent to distribute.
One of McElroy’s OPD appellate clients has been sentenced to life plus 28 years.
“I don’t know that any of our firm’s pro bono work has handled a collection of cases this numerous, this diverse, and as heavy as these cases are, where there could be significant legal issues below, and you’re representing clients facing a significant amount of their life incarcerated. It makes it both exciting and, of course, a challenge to have to manage it all,” said Gaudioso.
Of the 35 cases already assigned, McElroy has taken on 19.
They’ve got their work cut out for them. According to Russo, for one appeal, a lawyer might have 50 volumes of transcripts from the lower court to go over with a fine tooth comb.
“The question becomes ‘was a defendant deprived of a fair trial?’ Every defendant has a constitutional right under the Sixth Amendment to effective counsel and a fair trial. And appellate lawyers, their job is to review the transcripts to make a determination if the defendant received a fair trial,” Russo said.
The appellate lawyers aren’t just left to their own devices to manage the appeal. Ten OPD staff attorneys provide hours of training and support in Newark, which Connell Foley partner Jennifer Critchley calls “remarkable.”
“The attorneys and staff at the OPD are consistently helpful when CF attorneys have had questions,” said Critchley, who leads Connell Foley’s involvement in the program. “The attorneys behind this effort at the OPD are also highly regarded, very intelligent and very willing to teach and guide attorneys who have not had much experience with this type of practice.”
Connell Foley has taken on three appeals.
Because oral arguments are automatically granted upon request in the appellate division, the partnership also provides an opportunity for lawyers looking for appellate argument experience — a rarity, according to Lowenstein Sandler Senior Public Interest Counsel Natalie Kraner, whose team is handling two appeals.
“There aren’t that many opportunities for pro bono appellate work in New Jersey, and this is a really focused opportunity for associates who are trying to develop skills in appellate advocacy,” Kraner said. “We take it very seriously – the stakes are very high. You’re talking about an individual’s freedom.”