MonthJanuary 2015

Good News for Gideon’s Children

Gideon's Children

For the past few weeks, I’ve been discussing the various components that comprise the American Criminal Justice System, with appropriate references to my novel, Gideon’s Children, which will be released on March 3rd.

Recently I received a very positive review, which I would like to share with you:

“Want to know what really goes on down there where Justice is rightly portrayed as blind? Read this book. Fifty years after the Supreme Court upheld the right of every felony defendant to counsel, people charged with crime are often given only token representation as they are hustled through an assembly line process from arrest to guilty plea to incarceration. Against this tide of injustice are public defenders with courage, wisdom and skill. Their case loads are too heavy, their resources often slim. Judges may treat their efforts at principled and zealous representation as obstructing the “orderly” process of processing cases in crowded courtrooms. This process takes place in courtrooms that most people never visit. So along comes Howard G. Franklin, to show us what is going on. His protagonist is a principled and articulate defender in a California town. Here are the prosecutors, judges, clients and cops. You won’t get this kind of a picture on television or in the movies. Howard Franklin has been there.”

– Michael E. Tigar, renowned litigator and legal scholar, with seven appearances before the U.S. Supreme Court, professor emeritus at both the Washington College of Law and Duke University School of Law, and author or editor of more than a dozen books, including Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency and Fighting Injustice.

Martin Luther King, Jr., Day: A Time For All Of Us To Reflect, Then Renew Our Resolution To Expand Freedom and Equality

King Memorial, Hopes and Dreams Today we celebrate the birthday of Martin Luther King, Jr., the great leader of the 1960s’ Civil Rights Movement. And living in the decade that marks the 50th anniversary of the tumultuous 1960s, fresh traumatic events, from Ferguson to New York City to Cleveland to Los Angeles, mandate serious reflection on both eras.

For despite the progress in civil rights that has been achieved, race remains the foremost social, economic, and political issue that divides America and threatens to tear holes in the fabric of our society.

In a timely OP-ED in the New York Times last August 27th, Nicholas Kristof raised the portentous question: Is Everyone a Little Bit Racist? And the honest answer is: YES! For “research in the last couple of decades suggests that the problem is not so much overt racists. Rather, the larger problem is a broad swath of people who consider themselves enlightened, who intellectually believe in equality, who deplore discrimination, yet who also harbor unconscious attitudes that result in discriminatory policies and behavior.”

Wow, I thought, could that be me? Could I, who participated in the Civil Rights Movement as a Public Defender, and who recently authored Gideon’s Children, a novel arguing for fair treatment and justice for individuals of all colors in the Criminal Justice System, harbor such an unconscious attitude?

After much soul searching, I concluded that the answer was sadly: YES! And I think that if most of my fellow Americans are scrupulously honest with themselves, they will come to the same unhappy conclusion.

How can that be? How can such a subconscious condition originate? were the next questions I asked myself. And while I am not a psychologist, sociologist, or philosopher, after due deliberation Human Nature is the answer that tumbled into mind, a quick review of history then confirming it. For throughout the long story of mankind, someone or some group has always needed to rise above another, to be on top and hence better. And while this need to set ourselves apart from our fellow beings, to make ourselves feel special and better can, of course, produce constructive achievement if guided and guarded by conscience, if the rising is accomplished by pushing and keeping others down, while shelving conscience’s dictate to act appropriately, then a tension is created that leads to trouble with a capital T.

Most of us lead ordinary lives, and are not directly involved in the higher levels of the power structure that governs our society. However, that human need to be special, to be better, is still present and can unconsciously form attitudes that lead to harmful discriminatory policies and behavior.

So, to truly honor the great man whose birthday we celebrate today, I would like to suggest that amidst our environment of busy-busy-busy, fast- faster-and-faster-yet, leading to information overload and shrinking attention spans, that we stop for an hour or two, and honestly consider how we think and feel about how we relate to our fellow beings.

Then, let us resolve to do better. As Lincoln advised, let us summon the better angels of our nature, and taking one tiny step forward each day, be the change in the world we want to see.

Happy Birthday, Martin! And God bless!

Public Defenders: Noble Warriors, Often Maligned

In my final Blog Post for 2014, I indicated that to conclude our discussion of Public Defenders the next Post would explore the extremely difficult problem of judicial bias against them.

In my novel, Gideon’s Children, there are numerous scenes that depict this sad situation, several of which lead to vitriolic confrontations, the ugliest of which occurred as follows: “‘What’s the matter, Jew-boy, jigaboo-lover,’ Judge Steiggerman snarled out through a crooked smile, fuming in chambers at my refusal to continue a case. ‘Well, I guess you haven’t learned that all a Public Defender is, is a kike like you, defending your nigger clients from the good-guy WASPs like me!'” And if your first reaction is: Could this really happen? Under oath, let me assure you that it did!

In fact, two recent reports highlight this cancerous condition. On June 3rd, 2014, Ian Millhiser reported in Think Progress (http://thinkprogress.org/justice/2014/06/03/3444530/judge-caught-on-video-telling-public-defender-that-ill-beat-your-ass/), that during a tense courtroom discussion between a public defender and Judge John Murphy, His Honor was caught on video telling the public defender, “I’ll beat your ass,” and then offering to fight him immediately outside the courtroom.

Then, on September 10th, 2014, in an online article (http://www.publicdefenders.us/?q=node/526), Timothy Young, Director, Office of the Ohio Public Defender, reported that while attending a meeting of Ohio judges, a judge who he respects introduced him to another that he did not know. This judge didn’t say hello or nice to meet you, but instead greeted Mr. Young with: “Oh, the dark side.” And when Young responded by stating that he did not understand what was wrong with defending the 4th amendment, the right to remain silent, the right to due process, and other fundamental rights in the Bill of Rights, the Judge then launched a diatribe about how “his money (yes, he identified it as his, as if it were coming out of his pocket) was being wasted paying public defenders/appointed counsel.”

Now, true, the above examples are unusually harsh ones. And let me make it perfectly clear that a great percentage of judges do not harbor such totally hostile feelings. However, the bias against defense counsel does exist, and arises primarily from two sources:

(1) Judges’ failure to put into actual practice the fundamental principle on which our Criminal Justice System is based: The Presumption of Innocence.

Judges, of course, are human. And operating under the relentless pressure of overloaded calendars that fosters an intense desire to force accommodating plea-bargains, consciously or subconsciously they operate from the position that the police have made an arrest, and the District Attorney has filed a complaint, so the defendant is obviously guilty of something. Therefore, they reason, the Public Defender ought to make a deal, and be grateful for it, and significant pressure via the power to sentence is placed on the Public Defender.

It should be noted that if the Public Defender elects to go to trial, he or she is the one accused of clogging the court’s calendar, not the District Attorney who filed the heavy load of cases, many of which are for minor offenses calculated to build conviction statistics on the assumption that they will be quickly disposed of via plea-bargaining for sentences that match the time defendant has already served in custody awaiting trial.

(2) Judges transfer the negative feelings they harbor for the accused to their representatives, Public Defenders. During my four-plus years as a Public Defender, almost on a daily basis I found it necessary to remind judges that it was my client who was accused of committing a crime, not me, and that as an Officer of the Court I was entitled to the same respect given to the District Attorney.

Moreover, this negative attitude by the judiciary spreads to court clerks and bailiffs who follow the judges’ lead, further compounding the hostile atmosphere in which Public Defenders must perform their duties.

Now, do I have a solution to this problem? No, I do not. As Immanuel Kant warned, “No straight thing can be made from the crooked timber of humanity.” However, as I suggested in my last Post, the overly congested court calendars could be greatly improved for judges, prosecutors, and defense counsel alike if more jurisdictions would follow New York City’s example of issuing citations for minor narcotics violations, and if state legislatures would reorganize their priorities so as to provide adequate funding for Public Defender Offices, which would relieve the onerous workload they are operating under.

My title for this Post referred to Public Defenders as noble warriors. Noble? you query. How?

Well, just imagine for a moment that you are charged with the responsibility of representing a man or woman charged with a crime and facing jail. At the counsel table, you are seated furthest from the jury (Why? Because you’re the bad guy, even though a presumption of innocence exists.), while the District Attorney is seated closest. He or she has the assistance of an investigating officer, the arresting officers who are experienced in testifying, an array of expert witnesses, i.e., fingerprint, ballistic, medical, and if needed, the full resources of the FBI.

You, on the other hand, have your legal knowledge, your wits, and your voice to summon on behalf of reasonable doubt. And alone on this uneven battlefield, against the awesome power of the Government, you sally forth to protect your client and his or her constitutional rights with every ounce of courage and strength you can muster.

Valiant? Yes, indeed. Noble warriors, tried and true!

As always, thanks for listening. And let’s chat again soon.