By JANE FRITSCH with MATTHEW PURDY

Of all the things that went wrong during Amine Baba-Ali's journey through New York City's criminal courts, perhaps the most jarring was the performance of his court-appointed lawyer.

The lawyer, J. Edward Cardoso, neglected to subpoena a crucial witness who could have refuted the charge that Mr. Baba-Ali raped his 4-year-old daughter. Mr. Baba-Ali said Mr. Cardoso rarely returned his calls. And the lawyer made little effort to recruit medical experts for the defense. He made a few telephone calls, court records show, but gave up after getting busy signals.

Mr. Baba-Ali was convicted of the charge and spent two years in prison before the judicial system decided it had no case against him and set him free. An appeals court in 1992 called Mr. Cardoso's work so poor "as to doom the case to failure."

The episode occurred under a loosely organized city program that provides private lawyers to criminal defendants who cannot afford them. The program has grown so rapidly in recent years that officials have little ability to monitor the work of lawyers like Mr. Cardoso and more than 2,000 others who are assigned to defend suspects each year.

Originally intended to provide lawyers in just a sliver of cases, the program, called the Assigned Counsel Plan, now provides private lawyers for 40 percent of the indigent defendants in New York City.

The Legal Aid Society of New York, a private organization that functions like a law firm, is supposed to handle nearly all the indigent cases in New York City for a fixed sum each year. Its lawyers are paid salaries and are closely monitored by layers of supervisors.

Lawyers for the Assigned Counsel Plan, in contrast, work on their own -- at $40 an hour in court and $25 an hour out of court -- and their performance is virtually unmonitored.

The use of the assigned lawyers has grown by happenstance, not design. The city's system of indigent representation has been patched together in the 30 years since the United States Supreme Court guaranteed the right to counsel in the case of Gideon v. Wainwright. The courts have repeatedly turned to the Assigned Counsel Plan over the years to solve immediate problems, like a 1982 Legal Aid strike and a 1986 slowdown over caseloads.

Although Legal Aid says it now has enough lawyers to handle indigent cases, some judges say they are uncomfortable with the courts' dependence on Legal Aid lawyers. And as they seek to clear their crowded calendars, judges often find private lawyers already in court and willing to take a case at a moment's notice. As a result, far from its original design, the program has become a permanent -- if unwieldy -- institution.

"Suddenly, you've created, without legislation, without discussion, without authorization, a second legal aid society, untrained and unsupervised, for private attorneys," said Melvin Schubert, a Legal Aid supervisor in the Bronx.

In the last decade, spending for the private lawyers has quadrupled and next year the city is expected to spend $55.8 million on the program, up 12 percent from this year. The Legal Aid Society will get an increase of less than 1 percent next year, for a total of $79.4 million.

With the explosion in the use of private lawyers have come questions not only about the quality of their work, but also about the accuracy of their bills and the city's ability to monitor them.

From interviews, records and decisions of appeals courts, a picture has emerged of a system whose flaws have led to a range of problems. One assigned lawyer slept through large portions of a trial, snoring audibly, according to participants. Some simply fail to show up in court, some do not interview their clients and some do little preparation. And one, according to his bills, managed to represent 533 clients through the program in one year.

Although New York City's courts are run by the state, the state requires the city to pay the lawyer's bills, and the city has done so for decades virtually without question.

"It's essentially an open spigot," said Frederick H. Cohn, the chairman of the committee that admits lawyers to the program in Manhattan and the Bronx.

"Whatever gets put in and approved by a judge gets paid."

While the city has begun to examine lawyers' bills more closely, the responsibility for monitoring the performance of assigned lawyers remains with the judges before whom the lawyers appear.

Acting Justice Harold J. Rothwax, of State Supreme Court in Manhattan, said the quality of court-appointed lawyers varies from poor to very good, but added that he has removed some lawyers from cases because he found them incompetent.

"I'll notice that motions papers are very poorly drafted," he said. "Sometimes a defendant will say, 'I haven't seen my lawyer in months,' so I'll relieve him."

Some appointed lawyers are "clearly incompetent," said Steven Zeidman, a professor at the New York University Law School who is on a committee to review the quality of appointed lawyers. "If you're poor and you're arrested," he said, "you've got to keep your fingers crossed."

Mistakes When the Defense Has No Defense

Mr. Baba-Ali was a defendant who was not lucky. In 1992, an appeals court ruled that his appointed lawyer, Mr. Cardoso, was largely to blame for his conviction on charges that he raped his four-year-old daughter. Mr. Cardoso had presented virtually no defense to the prosecution's medical evidence.

Mr. Baba-Ali, now 38, was a book editor from Queens when his estranged wife first raised suspicions about the abuse of their daughter in 1988. He said he was unable to afford a lawyer because of the cost of his divorce proceedings.

From the beginning, he said, he felt uneasy about Mr. Cardoso because he never returned phone calls and missed several court dates. "I was naive," Mr. Baba-Ali said in an interview. "I didn't know anything about the law. I trusted him because I didn't have any other choice."

The crux of the prosecution's case was testimony from a city health department doctor who said there was evidence of abuse, including the absence of a hymen. But Mr. Cardoso neglected to subpoena a doctor in Philadelphia who had examined the girl and had found no signs of abuse, the appeals court decision said, and the lawyer never had the girl examined by any other doctor. If he had, the outcome might have been different. A third doctor examined the girl in 1992, after the appeals court ordered a new trial, and found the hymen intact.

Within days of that finding, the case was dropped and Mr. Baba-Ali was freed.

Prosecutors also bore some of the blame, the appeals court said. They delayed disclosing to Mr. Cardoso the existence of the report from the Philadelphia doctor until the eve of trial. Such circumstances underscore the importance of diligent work by the defense.

In an affidavit, Mr. Cardoso explained his handling of the case. He said he had contacted the doctor, but he refused to travel to New York for the $500 witness fee offered by the Assigned Counsel Plan. Mr. Cardoso said he did not know he had the authority to issue a subpoena to force him to testify. In an attempt to find a local doctor, he called a service that provides expert witnesses, but "always got a busy signal."

A year after Mr. Baba-Ali's trial Mr. Cardoso was barred from handling any more cases through the Assigned Counsel Plan. Officials declined to say why he was barred.

Mr. Baba-Ali, whose case received press attention while he was in prison, is now suing the city for malicious prosecution.

Recourse First Defense May Be Only One

Mr. Baba-Ali's case aside, appeals courts in New York are extremely reluctant to overturn a conviction because of complaints that a lawyer did a bad job.

"It is one of the toughest issues to prevail on," said William Hellerstein, a professor of constitutional and criminal law at the Brooklyn Law School. "A lot of judges view it as a last-gasp attempt by defendants." He said it is crucial to have a competent lawyer from the beginning.

In a series of cases over two decades, New York courts have held that some mistakes by lawyers can be tolerated.

In the case of Dale Tippins, an appeals court ruled that his appointed lawyer had represented him adequately even though he had slept through portions of a trial and had attempted to extort money from Mr. Tippins's mother.

The lawyer, Louis Tirelli, was appointed to represent Mr. Tippins on a drug charge in Rockland County. Several times during Mr. Tippins's six-week trial, Mr. Tirelli's head fell forward and he dropped his pen as he slept, a court stenographer testified at a hearing in 1988. "He was snoring," she said. "We heard it."

The judge, William K. Nelson, said that he had admonished Mr. Tirelli "to please stay awake and represent his client." Mr. Tirelli "slept every day of the trial," the judge said. "How many times during the day, I didn't keep track."

Mr. Tippins was convicted of a drug charge and sentenced to 18 years to life in prison. Mr. Tirelli was convicted of attempted grand larceny for requesting $5,000 from his client's mother, who said she paid him because he said "it would make him work harder on the case."

In a 1991 ruling, the appellate division of the Second Judicial Department in Brooklyn said that despite Mr. Tirelli's criminal conduct and "reprehensible" sleeping during the trial, Mr. Tippins had received "meaningful representation."

Volume From an Exception To a Practice

New York's Assigned Counsel Plan was organized to handle two types of matters: cases with two or more defendants where Legal Aid would be in conflict if it represented more than one, and death penalty cases, which it was believed might overtax the newly hired Legal Aid Society 30 years ago as it was preparing to handle a vastly increased caseload.

The Assigned Counsel Plan was never intended to be a full-time job for any lawyer, but in recent years some have made it their entire practice. Some lawyers do such high-volume business that it raises questions about how much attention they can give to individual cases.

Last year, 2,609 lawyers, investigators and expert witnesses were paid by the program. While the majority got less than $10,000, about 300 earned more than $50,000 each and 15 earned more than $100,000.

1 Lawyer, 1 Year, 533 Cases

One lawyer, Leslie D. Ching of Manhattan, submitted bills totaling $134,248 for 533 cases, most of them parole matters, more than any other lawyer in the city. Mr. Ching is among about 20 lawyers who specialize in parole cases, said Donald O. Weinberger, administrator of the assigned counsel plan for Queens, Brooklyn and Staten Island. He said that last fall he began restricting Mr. Ching's cases because he had so many.

"I'm up at 7:30 in the morning and I'm home at 9 o'clock at night," Mr. Ching said. "You review your files on off days and holidays."

Anthony Mascolo, a Queens lawyer who was paid $127,429 to handle 252 cases last year, said the high volume "was very difficult to handle." But he said he took most cases because judges asked him to. "If you're in a courtroom where an attorney doesn't appear, a judge will look out in the courtroom and say 'How about if you take this one?' " Mr. Mascolo said.

Guilty Pleas Encouraged?

Lawyers are able to handle a high volume of cases because most defendants agree to plead guilty. In fact, some experts say that the assigned counsel system encourages the excessive use of guilty pleas. Lawyers can make more money if their clients plead quickly than if they are forced to do the low-paying, out-of-court work necessary to prepare for a trial.

Chester Mirsky, a law professor at New York University who has studied the Assigned Counsel Plan, said that because the assigned lawyers rely on judges to get cases and approve their bills, they are more likely than other lawyers to do what judges want.

The pressure to move cases puts a premium on plea bargains, he said. "That means no investigations, no motions, no hearings, no trials."

Investigators and expert witnesses are hired in a only a tiny percentage of cases. For example, of the 38,741 bills submitted in Queens, Brooklyn and Staten Island last year, only 678 were from investigators and expert witnesses.

As part of a new support program for assigned lawyers, the city has compiled a list of experts who are available for assigned counsel work, but it can be unreliable, as one Brooklyn lawyer learned during a trial last month.

Alan B. Stutman, who was appointed to defend a man charged with vehicular homicide, called as an expert witness a private investigator whose background the lawyer had not checked. Prosecutors, who had done their homework, surprised Mr. Stutman during cross-examination by revealing that the investigator had been granted immunity from prosecution in a Federal case and had admitted in Federal Court that he had committed perjury. The investigator, Frank E. Laine, had been recommended by the Assigned Counsel Plan.

Supervision Little Oversight After Approval

The ability to get work through the court-appointment program has become increasingly important to lawyers as hard economic times have hit the legal profession. To qualify for the cases, lawyers must first be approved by panels of Bar Association lawyers, who investigate their backgrounds. But once they are approved, there is little oversight of their work.

The lawyers get cases generally by signing up for arraignment sessions, where defendants enter the court system after their arrests. What happens after that is almost completely between lawyer and client.

In an effort to evaluate the quality of the lawyers' work, administrators of the program have begun a re-certification process. Lawyers are being required to complete lengthy questionnaires on their experience, and to submit samples of their court filings.

Some lawyers have bristled at the process and have organized to oppose some elements of it. They say they have been told by officials that lawyers may be removed from the program with no explanation and no right to appeal. They complain that they are being judged by academic standards rather than by the practical needs a high-volume court system where most motions are made verbally.

"We're being treated like people who don't deserve any rights," said Eric Greenbush, the president of the Lawyers Due Process Defense Committee. But he added, "We certainly agree that a re-certification process is needed."

Deceptive Billing

The inadequacy of financial controls within the system has long been documented. In 1987, Mr. Mirsky and another New York University Law School professor, Michael McConville, examined the bills in 124 cases and found that in 27 percent of them lawyers billed for appearing in court even though records showed they were not there.

In 1989, the New York City Comptroller's Office found that lawyers regularly billed the city for more than 16 hours of work on a single day without explanation. The office recommended that more documentation be required.

In 1991, the Comptroller's Office found instances of double-billing and billing for court appearances that had not been made. Again, the office called for tightened controls.

The bills of assigned lawyers normally are approved by the judges who hear the cases. But judges are overburdened and ill-equipped to keep track of the activities of hundreds of lawyers who appear before them, said Katherine N. Lapp, the New York City Criminal Justice Coordinator. "It is an unreasonable expectation that a judge has the time and the resources and the capacity to check all these vouchers," she said.

Remedies Trying to Change A 'Lousy Solution'

Because of the vastness of the system, its recent growth, and the lack of computerized records, city officials say it is difficult to determine some basic facts about the Assigned Counsel Plan, including precisely how many cases it handles. The city has begun to use a computer scanning process to record information about the bills of individual lawyers, Ms. Lapp said.

The information will be used by the city to assess what changes should be made.

One of the issues facing the city is whether to require Legal Aid to take a greater share of the cases. Ms. Lapp said an argument can be made that Legal Aid is better equipped to handle the cases. "It's an institutional situation where you have investigators and social services," she said.

But some judges interviewed recently said they fear that if the system were more dependent on Legal Aid, a strike by the lawyers could shut down the courts.

Archibald Murray, the executive director of Legal Aid, said some judges are overly concerned about the possibility of a strike, and as a result have encouraged the growth of the Assigned Counsel Plan. "Perhaps it is a desire for a lot of assurance that there will always be someone there when they need someone to take a case," he said.

Mr. Murray said Legal Aid is ready and willing to take on a much greater share of the indigent cases. For both defendants and lawyers, the current program is a "lousy solution" to the problem of providing for the defense of the poor, said Mr. Cohn, who is stepping down next month after three years as the head of the screening panel for Manhattan and the Bronx. "It's a horse-and-buggy system that hasn't translated well to the jet age."

Copyright 1994 The New York Times Company