CategoryGideon’s Children

The Problem Of Race In American Society: Part II

King Memorial, Hopes and Dreams

On Martin Luther King Jr. Day, I wrote a blog post in which I referred to a New York Times OP-ED by Nicholas Kristof last August 27th in which he posed the portentous question: Is Everyone a Little Bit Racist? And in my subsequent discussion, I confessed that after honest examination I had to admit that I fit within the class of individuals revealed by recent research “who intellectually believe in equality, who deplore discrimination, yet who also harbor unconscious attitudes that result in discriminatory policies and behavior,” and suggested that if most of my fellow Americans were scrupulously honest with themselves, they would come to the same unhappy conclusion.

On February 12th, James Comey, the Director of the FBI, delivered an unusually candid speech at Georgetown University about the difficult relationship between the police and African-Americans in which he confirmed this unhappy conclusion. As reported by The New York Times, “He started by acknowledging that law enforcement had a troubled legacy when it came to race. ‘All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty,’ he said. ‘At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups,’” a sad situation graphically depicted in my novel, Gideon’s Children, set in the tumultuous and transformative 1960s, and scheduled for release on March 3rd.

Further, Mr. Comey stated that “there was significant research showing that all people have unconscious racial biases. Most cannot help their instinctive reactions,” he said, but law enforcement officers need “to design systems to overcome that very human part of us all.” (italics added) The Times article then articulated how Comey proceeded to “lay out several measures that he said could ease the tension, including more interaction between the police and those they are charged to protect. ‘It’s hard to hate up close,’ he said. He then concluded by quoting Dr. King, who said, ‘We must learn to live together as brothers or we will perish together as fools.’ And Comey concluded his remarks with: ‘We all have work to do—hard word to do, challenging work—and it will take time. We all need to listen, not just about easy things, but about hard things, too. Relationships are hard. Relationships require work. So let’s begin. It is time to start seeing one another for who and what we really are.’”

Unlike Mayor Bill de Blasio of New York and Attorney General Holder, who were roundly faulted by  police groups for their critical remarks about law enforcement, I am highly pleased to report that Mr. Comey’s thoughtful and nuanced remarks were praised by a number of high-ranking officials from various police organizations.

I, too, want to commend Mr. Comey for his honesty and courage in urging all of us, police and citizenry, to face the human part of ourselves and work to overcome our biases so that we can learn to live as brothers.

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.

The Public Defender Crisis, Part II: Possible Solutions

As I outlined in my last Blog Post of December 3rd, 2014, 50 years after the Gideon decision mandated representation for defendants in criminal cases, Public Defenders across the United States are as underfunded and overwhelmed as the initial wave of PDs represented by the cast of characters in my novel, Gideon’s Children. And as I also  indicated, the following Post would be devoted to possible solutions.

Okay, to begin, let’s understand that complex problems defy simple solutions, and that  while the ideal of absolute perfection is a worthy goal indeed, significant steps in that direction that can be accomplished and which enhance the performance of our Criminal Justice System are no less valuable.

Step One is to address “underfunded.” There are simply not enough Public Defenders to handle the tremendous volume of cases, so even in an era of tight budgets, legislative bodies need to adjust priorities and provide the funding necessary to adequately staff Public Defender Offices. As detailed in my last Post, in New York, Governor Cuomo has seen this and is pushing his legislature to provide the required funds.

So, to those of you reading this Post, I urge you to take a minute and email your federal and state representatives and express to them your desire to see these funds provided now! Remind them of that the Rule of Law is based on the respect of our citizenry, and that if minorities and the poor can no longer believe that they can receive proper representation when charged with a crime, then a large hole is torn in the essential element of respect that founds the Rule, and violence such as experienced in Ferguson will reoccur on a growing scale.

Step Two is for the enormous number of the minor cases that clog the criminal courts to be reduced by legislation, and the exercise of executive, judicial, and prosecutorial discretion.

Numerous states have legalized the use of marijuana, which eliminates untold numbers of simple possession cases. In other jurisdictions that have not legalized marijuana such as New York, in New York City, Mayor DeBlasio unveiled a plan whereby people found with a small amount will typically be cited for a violation instead of being arrested and charged with a crime.

Actions such as these not only help unclog crowded court calendars, thus freeing Public Defenders to work on cases involving serious crime, but they also allow the police to focus their efforts likewise.

Further, as illustrated in Gideon’s Children, Prosecutorial Offices, particularly at the City and County level, often file minor cases such as Drunk In Public (not driving under the influence). The Police, particularly in minority areas, are prone to arresting on this charge because it allows them to then conduct a search incidental to arrest in hopes of discovering drugs. And District and City Attorneys are pleased to file this misdemeanor, because they are most often plea-bargained, i.e., the defendant pleads guilty and receives a sentence for the amount of time he or she has already been incarcerated by the time of trial, and is given credit for time served and immediately released. The heads of District and City Attorney Offices are elected officials, and it is helpful come election time if they can point to the number of successful prosecutions that their administrations have produced.

What should occur is that if no evidence of a more serious crime is recovered at the time of arrest, the police should simply release the arrestee after he or she has dried out during the overnight stay in jail, and if the police persist in pressing charges, the District and City Attorneys should not file a formal complaint. In that the obsession with building  statistics is present, however, judges then need to pressure prosecutors to drop the charges at the time of arraignment, their argument from a position of power being that there is an array of more serious cases that need attention. And if cooperation is not forthcoming, then the judges need to dismiss these cases on their own motion.

Step Three is to cut down on the rate of recidivism, which is far, far too high. Numerous programs are being introduced into our prison systems to provide convicts with vocational skills and even college degrees so that upon release they can find employment and rebuild their lives. In addition, working toward the same goal, many states have programs to curb bias against ex-cons.

These programs must be enlarged. If society does not want repeat offenders, employment opportunities commensurate with their education and skill levels must be available, or a return to crime appears as the only other option. In a future Blog Post I will detail these programs, as they are so important as to deserve a separate Post.

Also requiring a separate Post is judicial bias against Public Defenders, and I will address this extremely difficult problem in my next offering.

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

The Public Defender Crisis

As I indicated in my opening Blog Post, subsequent additions would focus on separate parts of the Criminal Justice System. As the first Post also emphasized, our democratic society is based on the Rule of Law, and as the sad situation in Ferguson demonstrates, when trust in that basic concept of justice breaks down, order is threatened.

Even sadder is the fact that while Ferguson clearly has tragic implications, this incident is far outweighed by the current crisis in the Public Defender System, because Ferguson is a single event, while every single day across the width and breadth of America Public Defenders struggle to provide representation and insure fairness in the operation of our Criminal Justice System in thousands of cases, with the potential for erosion of the respect for law and order obviously magnified.

As my novel, Gideon’s Children, illustrates, the first wave of Public Defenders created by the 1963 Gideon decision’s mandate for representation were underfunded and frequently overwhelmed. What’s truly frightening is that today, 50 years after the landmark Gideon decision, working conditions are as bad or even worse. As the brilliant commentator Leonard Pitts, Jr. pointed out in his syndicated newspaper column of March 17, 2013, a single Public Defender in many jurisdictions “can be expected to try 400, 500, 600 cases a year,” a burden that makes full investigation and proper representation impossible (http://articles.baltimoresun.com/2013-03-17/news/bal-gideons-promise-still-unfulfilled-20130315_1_clarence-earl-gideon-attorney-criminal-court). Further substantiating this dire situation, on February 19th, 2014, The New York Times reported “that defender agencies in Missouri and Miami have won, in state Supreme Courts, the right to refuse cases they cannot responsibly handle” (http://www.nytimes.com/2014/02/19/us/public-defenders-turn-to-lawmakers-to-try-to-ease-caseloads.html?_r=0 ), and on October 21st, 2014, the same source reported that in New York, Governor Cuomo “has agreed to settle a class-action lawsuit that accused New York State of failing to provide adequate legal defense for the poor in several counties, committing the state to paying for bigger and better public defender offices” (http://www.nytimes.com/2014/10/22/nyregion/in-new-york-cuomo-pledges-more-aid-for-indigents-in-court.html).

Now, you might ask, is the Public Defender Crisis limited to large and heavily populated cities and states? And the answer is, no, it is not. Similar conditions to those detailed above exist nationwide, and like the violence connected to Ferguson, threaten to tear far larger holes in the fabric of our society unless corrected.

In my next Blog Post I will set forth a multi-tiered program for alleviating the serious problem outlined today. In closing, however, I want to stress the fact that while it is uncomfortable for all of us Americans to address, in the richest society in world history, we nevertheless have a significant number of our fellow citizens living at or below the poverty line. And if we expect our economically stressed class of citizens to maintain respect for the Rule of Law, and act accordingly, then we must insure that they can honestly believe in the ability of our criminal justice system to perform fairly for all citizens. And, I would add for your consideration, that it was never more necessary for this essential value to be preserved and strengthened than during an era of ever growing economic inequality.

As always, thanks for listening. Please feel free to respond. And let’s chat again soon.

An Overview Of The American System Of Criminal Justice And Why It Is So Important

This is my very first Blog Post, and in that I don’t know who exactly constitutes my audience at present, Ralph Waldo Emerson’s advice to write “always for the unknown friend” smiles warmly at me as I begin.

My general subject for the foreseeable future will be the American Criminal Justice System. As my website (howardgfranklin.com) indicates, I am the author of a novel entitled Gideon’s Children, which tells the story of the birth and enlargement of the Public Defender System in the 1960s, and the revolution it sparked during that era as part of the greater Civil Rights Movement. My purpose in creating G.C. was to contribute to the growing conversation today about our Criminal Justice System and Civil Rights with which it is so closely intertwined that for most purposes they cannot be separated, and my blog posts are intended to further that discussion.

Conversation implies a dialogue between two or more persons, so I very much hope that readers will respond and a genuine discussion will ensue. In the meantime, unknown friend, let’s chat. Now, for openers, you might be thinking, I don’t commit crimes, so the Criminal Justice System doesn’t directly affect my life, so why should I be concerned?

And the answer is, that while fortunately most crime is committed by less than three percent of our population, all of us are subject to: (1) the Patriot Act, which suspends our right, if arrested, to know what the charge against us is at an arraignment proceeding, and to a timely trial at which with the assistance of a lawyer we can defend ourselves; (2) the No-Fly Rule, in which at the moment there is no legal or administrative process in place to permit an individual to know whether he or she is on the list prior to flying, and even more importantly, if one’s name should appear on the list, likewise no way to find out why, or how to clear one’s name if an error has occurred; and (3) NSA surveillance of all Americans, which has spread to state and local governments also performing 1984-like spying on you and me, which is out of control and therefore without probable cause due to insufficient court supervision.

In future Blog Posts, each of the above issues will be discussed separately in detail. But for now let’s talk about the argument that if one has done nothing wrong, he or she has nothing to worry about. That’s a reasonable first thought. But unfortunately, it’s not wholly true, because the possibility of human error is always present, and society’s good guys are not always good guys, which I will demonstrate in a future Blog Post that focuses on Police and Prosecutor misconduct that clearly demonstrates why our individual constitutional rights must be obeyed and protected.

For if the fear of terrorism becomes so great that it causes us citizens to surrender our constitutional rights that form the fundamental base on which our democracy rests, then  terrorism wins because our governmental authorities are acting exactly the same way that dictatorships do. True, America cannot fight terrorism and its evil perpetrators by conducting our defense by the Marquis of Queensbury Rules. However, so as to not become just like our enemies, we can and must tailor our technological weaponry, along with proper court supervision, so that it effectively protects us physically, while at the same time also protects and preserves our basic freedoms provided by our Constitution.

This need to protect and preserve our basic freedoms as guaranteed by the Bill of Rights was never more important than now when Americans have suffered a large loss of faith in the ability of our government to properly function. Recently, in an article in Politico, Doug Sosnik cited a Gallup poll from late June of this year that showed that only 30 percent of Americans expressed confidence in the U.S. Supreme Court. And while this figure compared favorably with the President’s rating of 29 percent and Congress’ seven percent, the Judicial branch’s rating is saddest of all.

Why? Because our society is based on the Rule of  Law. And if we as a people lose our respect for the law and our courts, and therefore allow our Judicial branch, the ultimate check on the Executive and Legislative branches and the dispensary of justice, to fail, then our entire way of life will also fail.

Our Criminal Justice System, a crucial component of our Judicial branch, is composed of many parts: police, prosecutors, public defenders, private defense lawyers, trial courts, appellate courts, prisons, and probation and parole officers, both at a state and federal level. Future Blog Posts will focus on each of these vital components, and explore both problems and solutions to each.

First up for discussion is the Public Defender Crisis due to the fact that a large percentage of the criminal courts’ business involves minorities and the poor, a significant segment of our society that is being underserved and hence represent a tinderbox for violent social disturbance.

Thanks for listening. Let’s chat again soon.