MonthAugust 2015

Lady Justice’s Blindfold Is Tear-Stained

On August 12, 2015, I read an OP-ED in the New York Times by Law Professor Julie Seaman of Emory University, http://www.nytimes.com/2015/08/12/opinion/when-innocence-is-no-defense.html?_r=0, the essence of which aroused in me intense feelings of frustration and outrage, to the point of tears.

In 2001 a young woman in Thunderbolt, Georgia was sexually assaulted by a burglar wearing gloves, whom she discovered upon arriving home. Subsequently, the police found stolen items in the home of Sterling Flint’s girlfriend, who told them Sterling had stated that they were his. Thereafter, Flint made a deal with the prosecutor and testified at trial that an acquaintance of his, Sandeep Bharadia gave the items to him. Flint received a 24-year sentence, and Bharadia, who maintained his innocence and claimed he was 250 miles away at the time of the crime, was sentenced to life without parole.

Mr. Bharadia’s trial attorney, for unknown reasons, did not request DNA testing of the gloves worn by the burglar-assailant, but his appellate lawyer did, as well as made a motion for a new trial. The appellate court granted the request, and the testing showed female DNA on the outside and male DNA – but not Mr. Bharadia’s – on the inside, but the appellate court declined to allow DNA testing of Flint, and no new trial occurred.

Several years later, however, the Georgia Innocence Project took up the case in 2012, and had the DNA results run through the national Codis DNA database, and scored a hit: The male DNA belonged to Flint.

Great news for Mr. Bharadia, right? WRONG! “Under Georgia precedent, a defendant is not entitled to a new trial based on new evidence if the court finds that he could have discovered the evidence at the time of the original trial, had he or his lawyer been diligent enough. Such requirements, which are common, are designed to prevent convictions from being endlessly re-examined.”

First of all, the overwhelming majority of convictions are not endlessly re-examined. And in this case if the appellate court had allowed Flint’s DNA to be tested, the result that it was his that matched the gloves would have been discovered in the first and only re-examination. So where does endlessly come into play here?

But far more importantly, while no one knows why Mr. Bharadia’s trial attorney did not request DNA testing of the subject gloves, why should a defendant be held responsible for his lawyer’s mistake? As described in my novel, Gideon’s Children, Public Defenders (and private defense counsel) when they begin practice are inexperienced, and frequently exhausted by the overwhelming caseload they do their best to handle. Maybe that was the case here, I don’t know. What I do know is that no person charged with a crime, let alone a serious one, should never be penalized for his attorney’s mistake!

I ask you, dear reader: Stop and fully concentrate on the above-described situation. Then, ask yourself how you would feel if you were in Mr. Bharadia’s shoes, having already served 12 years in prison for a crime you most probably did  not commit, and now having a court agree with that proposition, but advise you that because of your attorney’s  mistake, and the expediency employed by the Criminal Justice System to avoid endless re-examination of convictions, you’ll still have to spend the rest of your life in prison.

I feel confident that if you do so, you’ll join me and Lady Justice in feeling outrage so intense that it spawns tears!

Criminal Justice Novels Can Inspire Future Lawyers

Typewriter With Special Buttons

Recent Reviews of Gideon’s Children on Ms. JD and Forbes.com Suggest That Dramatic Works That Entertain While Educating Can Not Only Contribute To Judicial Reform, But Also Inspire The Next Generation Of Lawyers

In my last blog post on July 14th, I wrote about how Atticus Finch, the righteous lawyer in the novel, To Kill A Mockingbird, along with other dramatic works such as the movie, Inherit The Wind influenced me to go to law school, become a Public Defender, and write my novel, Gideon’s Children.

In a footnote to that post, I referred to a New York Times book review on July 10, 2015, of Harper Lee’s latest novel, Go Set A Watchman, that indicated same harshly contradicts the original Atticus Finch, and thereby tarnishes the reputation of the iconic righteous lawyer.

This deeply saddened me, because in the tremendously troubled times in which we live, heroes such as the righteous lawyer were never more important, and to lose such an icon was tragic. Subsequently, during a two-week road trip that I enjoyed with my wife Linda, I reflected on this concept, and decided that fortunately the ideal of the righteous lawyer wasn’t really lost. Atticus Finch was a fictional lawyer, but in Inherit The Wind, the heroic character is based upon the very real lawyer, Clarence Darrow, who in the Scopes trial demonstrated how one lawyer, with courage, dedication, fortified with careful preparation, could fight for truth, justice, and a free society of ideas. A righteous lawyer indeed! And following in his real, not fictional, footsteps, every day all across America thousands of Public Defenders face off against the tremendous power of the State and give their all to ensure that their clients’ constitutional rights are protected and justice is achieved. As portrayed in Gideon’s Children their job is a very difficult one. Their caseload is too heavy. The power of the State is enormous, with the prosecutors having the benefit of investigating officers, fingerprint and ballistic experts, and other governmental agencies such as the FBI if needed. The hostility that society, and all too frequently the judicial system, holds for those accused of crimes, spills over to PDs. And far more often than not, all the PD has to work with in trial is his or her knowledge, experience, and grit. Day after day, case after case, he or she must summon the courage to stand alone against the awesome power of the State and give a voice to those who are otherwise powerless. It should also be pointed out that PDs do not grow wealthy or gain prestige from their service, that they serve because they believe in justice. As such, they are the true righteous lawyers, flesh and blood noble warriors who deserve to be highly respected.

I wrote G.C. to educate the public about the invaluable role Public Defenders play in our Criminal Justice System, and hopefully inspire readers to appeal to their elected officials to take action on the numerous problems facing that System, including the inadequate funding of PD Offices.

Recently, on June 24, 2015, Ms. Ani Torossian posted a review of G.C. on the Ms. JD website (http://ms-jd.org/blog/article/book-review-gideons-children) in which she opined that G.C. could educate and inspire those interested in a career path in law.

And on July 15, Mr. Walt Pavlo posted a review on Forbes.com (http://www.forbes.com/sites/walterpavlo/2015/07/15/a-novel-based-on-life-of-a-public-defender-gideons-children/) in which he opined that “If you’re a law student or have an interest in law, there is no better way to learn than by reading an entertaining story of a young, idealistic attorney who went to work in the public defenders office in Los Angeles in the late 1960s.”

In conversations with Mr. Renwei Chung, who writes for the website Above The Law and interviewed me with respect to G.C. (see Interviews on howardgfranklin.com), Renwei, who just completed his second year at SMU’s Law School, also expressed to me his conviction that G.C. should be required reading in criminal law-school seminars.

Because I have always believed that criminal defense attorneys are not born, but instead evolve, the prospect of G.C. joining the body of dramatic fiction and non-fiction and inspiring those searching for their place in the law to consider careers as PDs truly delights me.

I also want to take this opportunity to thank Ms. Julienne Givot, G.C.’s social media consultant, for her positively brilliant work on Twitter that brought Ani, Walt, and Renwei into my life. They have become friends, as has Julienne, and I am wholeheartedly grateful to have their support of my mission to contribute to the growing conversation about the urgent need to reform our Criminal Justice System as part of the New Civil Rights Movement, fifty years after the original.