Categorypublic defenders

For Public Defenders, ACJP Is A Godsend

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It’s a sad fact that fifty years after the Gideon v. Wainwright decision mandated representation for every person charged with a crime, Public Defenders are still drastically underfunded, understaffed, overworked, and often disrespected by prosecutors, judges, court personnel, and sometimes their own clients.

As illustrated in my novel, Gideon’s Children (http://www.amazon.com/Gideons-Children), Public Defenders are outnumbered by prosecutors by as much as 3 to 1, depending upon the jurisdiction. When I served as a Los Angeles County Public Defender in the late Sixties, and was stationed in the Compton Judicial District, I faced calendars of 10 Felony Preliminary Hearings or 25 Misdemeanor cases alone, while the prosecution had two or three Deputy DAs handling the State’s interests. And while the prosecution had the assistance detailed below, I had me, myself, and I.

The job of a Public Defender is both difficult and lonely in equal measure. It is difficult because the power of the State is enormous. The prosecutor has at his or her disposal the officers who arrested the defendant, an investigating officer, handwriting experts, ballistic experts, a crime lab, and if further assistance is necessary, the services of the FBI. And it is lonely, because against this arsenal, the Public Defender almost always stands alone with the responsibility of defending his or her client resting solely on his or her shoulders. Even the defense’s placement at the counsel table reflects the unequal footing between the prosecution and the defense, with the Public Defender and the defendant seated furthest from the jury box and the prosecutor, who represents The People, closest, an implied good-guy/bad-guy status.

I cannot therefore emphasize strongly enough the tremendous value of the services offered today to Public Defenders by the Albert Cobarrubias Justice Project (http://acjusticeproject.org/) and their invaluable program of Participatory Defense!

In organizing communities and educating them with respect to the workings of the Criminal Justice System, then encouraging the active engagement of families in the defense of a loved one who is currently involved in this System, ACJP is providing an extremely helpful service to communities, the families of one charged with a crime, and to the overworked Public Defender who is representing the defendant. By knowing where to go to obtain a copy of the arrest report, family and/or friends can familiarize themselves with the allegations, contact witnesses on behalf of the jailed defendant if there are any, and take photos of the crime scene if relevant. Recalling my own experience as an overworked Public Defender struggling to give each and every defendant on an overcrowded court calendar the best representation possible, and the countless times I wished that I had an investigator to perform such tasks, the value of what ACJP is providing for Public Defenders is incalculable.

And building upon this foundation, ACJP then makes the further contribution of offering training to Public Defender Offices around the country on how to engage client communities and form partnerships with local stakeholders in order to increase the effectiveness and capacity of the program outlined above.

There are few win-win-win situations in life. But in helping individuals in our poorer communities gain knowledge of their own rights within our Criminal Justice System, then training them to further use this knowledge to assist a loved one charged with a crime, and in so doing, lessen the highly stressful burden under which Public Defenders operate in providing the best defense possible under the circumstances for each and every person they represent, ACJP is acting as a Godsend to all parties involved. As a former Public Defender, and one who has never lost his passion for pursuing social justice, heartfelt thanks to everyone at ACJP for the vitally important work they do!

I’m pleased to donate all of the proceeds from the sale of my book, Gideon’s Children, during the month of November to ACJP in support of their continued efforts to promote equality and justice.

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

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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.

How the Original Atticus Finch*, the Righteous Lawyer in To Kill A Mockingbird, along with Other Dramatic Works, Influenced My Becoming A Public Defender And Writing My Novel, Gideon’s Children

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When 1960 opened the door to the tumultuous decade of change to follow, I was in my sophomore year in business school at the University of Southern California. That summer I read the recently released novel, To Kill A Mockingbird, and was profoundly impressed by its lessons that emphasize tolerance and decry racial prejudice. The novel’s protagonist, Atticus Finch, who displayed tremendous courage in representing a black man accused of rape in the face of open hostility by the white community in which he lived in the American Deep South, made a like impression, serving as he did as a moral hero and model of integrity. And as these teachings filtered through my conscious mind and touched a nerve deep inside me at the same time that the fledgling Civil Rights Movement began to occupy center stage in newspapers and on television, the idea of becoming a lawyer and fighting racial injustice in the courtroom took hold.

Later the same year, I viewed a movie, Inherit The Wind, based on the play by Jerome Lawrence and Robert Edwin Lee (no relation to Harper Lee, Mockingbird’s author), and fuel was added to the proverbial fire. A fictionalized account of the 1925 Scopes “Monkey” Trial, in which Scopes, a high school teacher was prosecuted in Tennessee for teaching evolution, and in which the famous attorney, Clarence Darrow in defending him faced off against the equally famous William Jennings Bryan who led the team of prosecutors, as the drama unfolded, I was once again mesmerized by the idea of how one lawyer, with courage and dedication, fortified with careful preparation, could fight for truth, justice, and a free society of ideas.

In 1963, I entered the Boalt Hall School of Law at the University of California, Berkeley, and that year, the U.S. Supreme Court handed down the landmark case of Gideon v. Wainwright, standing for the proposition that if an individual is charged with a crime and is too poor to afford counsel, one will be provided to him or her free of charge. Reading about the story behind the case in Gideon’s Trumpet by Anthony Lewis, a non-fiction book whose author possessed the narrative power of a novelist, in 1964, my focus was fixed on the Criminal Justice System. Realizing that the decision compelled the birth of large-scale Public Defender Offices, during the summer after graduation in 1966 I clerked for the L.A. County PD Office, and became a Deputy Public Defender thereafter.

Stationed in the Compton Judicial District, a low-income area hosting a large minority population of African and Latino Americans, it was my privilege to serve there for several years, and alongside my colleagues to fight for fair treatment and justice for that population.

Today, all phases of the American Criminal Justice System are in crisis. And that is why I was inspired to write my novel, Gideon’s Children, to educate readers about the birth of the large-scale Public Defender Offices in the 1960s, and the mini revolution they created in the courtroom as part of the greater Civil Rights Movement. And my hope is that while the reader is being entertained by a fascinating drama, that he or she will also learn about the workings of the Criminal Justice System, the supreme value of individual constitutional rights, and the crucial role Public Defenders play in protecting same.

With the latter under attack today by the Patriot Act, the No-Fly Rule, and government spying at all levels, and racially-tainted tragic events in Ferguson, Detroit, Staten Island, Cleveland, and North Charleston propelling a growing discussion of the desperate need to fix our broken Criminal Justice System, G.C. seeks to contribute to enlarging that discussion and further stimulating the New Civil Rights Movement that is now underway fifty years after the original.

I chose the novel form to bring this vital message to the attention of readers, because of my belief that the drama that this genre offers presents the best opportunity to capture and hold an individual’s attention over a period of time sufficient to allow the message to sink in and become indelibly imprinted. As I looked back at the books that made such a profound impression on me, I found that all of them first entertained me to capture and hold my attention, then with me intensely focused on the drama, effortlessly educated me about the need to banish racial prejudice, the First Amendment’s freedom of ideas, and the right to counsel, before finally inspiring me to become engaged.

The heroic courage and high moral standards exhibited by Atticus Finch, Harper Lee’s fictional righteous lawyer, and echoed by the characters based on the real-life Clarence Darrow, entertained and educated and ultimately inspired me to participate, to become a Public Defender, and to write Gideon’s Children. And my wholehearted hope is that G.C. will entertain you, and educate you about the workings of our Criminal Justice System, and the crucial role Public Defenders play in protecting the supremely valuable constitutional rights that each of us enjoys. And ultimately, I pray that you will be inspired to support our Public Defenders by lobbying your governmental representatives to provide the funds to vastly increase their numbers so that their caseloads will be reduced to reasonable and they can labor at their best to serve the interests of justice.

Public Defenders are today’s righteous lawyers. They are real, flesh-and-blood men and women who day after day, underfunded and overworked, and mostly alone, face off against the massive power of  the State, courageously seeking justice for their clients and protecting our precious constitutional rights. They are noble warriors, and they deserve  the support G.C. urges you to give.

*It has come to my attention via a book review in The New York Times on July 10, 2015, that in Harper Lee’s latest novel, Go Set a Watchman, the reader is presented with a second version of Atticus Finch that harshly contradicts the original character in To Kill a Mockingbird, portraying him as a racist who attends a Klan meeting and rails against desegregation.

I have not read Watchman, no do I plan to. It is my opinion that those persons responsible for the publication of this book, which tarnishes the reputation of the iconic “righteous” lawyer in what amounts to a paragon of crass commercialism, should be ashamed of themselves, and I refuse to contribute to their profiteering, and urge others to do likewise.

The Rule Of Law: Without Trust It Fails

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I focused on two of the World Justice Project’s four elements that form a working definition of the Rule Of Law, namely: Accountability and Even Enforcement. In that post, as well as several prior ones, I have stressed that the Rule of Law founds our society, and that in turn, trust founds the Rule, and Accountability and Even Enforcement found trust.

Yesterday, in The New York Times I read that two weeks ago four members of the British Parliament (two from the Labour Party and two from the Conservative Party) had traveled to Washington D.C. to argue for the immediate release of Shaker Aamer, a detainee at Guantanamo Bay Prison.

Mr. Aamer has been in American custody since he was apprehended in Afghanistan in 2001 where he was doing charity work. And after a stay in Bagram Prison, where he was tortured, he was transferred to Guantanamo in February, 2002, where he has remained for thirteen years without ever having been charged with any crime.

In our Criminal Justice System, the law requires that when a person is arrested, that he appear before a judge in court within a specified time period, usually 48 hours, and learn the charges against him. Under the Patriot Act, an enemy combatant has no such rights, and while I understand that in order to combat terrorism, those charged with the responsibility of doing so must be given some extra leeway, that flexibility to gather evidence and formulate a case should still be consistent with the concept of due process. Not being a terrorism expert, I’m not sure of what the time period for filing charges should be. However, I am sure that the Rule of Law requires the application of the principle of reasonableness, and that indefinite unequivocally fails to meet this test. Our federal government has never explained why, to keep us safe from terrorists, that if they suspect a person of being connected to terrorism, they cannot gather enough evidence to charge that person with a crime within a reasonable period of time.

So: Accountability score: Zero, as in none.

And to make matters worse, in 2007, during the Bush Administration, Mr. Aamer was cleared for release, but remained incarcerated. And in 2010, under President Obama he was again cleared for release after six agencies, including the CIA, FBI, and the Departments of State and Defense unanimously concurred, but remained in prison. And even after England’s Prime Minister, David Cameron, while visiting President Obama earlier this year, asked for his release and President Obama promised to pursue the matter, Mr. Aamer still remains in Guantanamo.

Why? There may be some security issues, is what the four members of Parliament were told. After 13 years, without a single charge being made against Mr. Aamer? When he’s been cleared for release twice? Utterly unconscionable! is the only term that comes to mind to describe the actions of all three branches of our federal government.

And a serious blow to the essential element of trust, to boot. For if government officials at the highest levels are blatantly unaccountable, why should we trust the Rule of Law?

But it’s only one case, runs the counter-argument. Well, stop and consider that the same Patriot Act that has resulted in Mr. Aamer’s tragic situation also applies to you and me, so just pray that some official in our security apparatus doesn’t designate one of us as an enemy combatant.

For an encore, this morning’s New York Times reported that Kalief Browder, a young man who was held at the Rikers Island Jail in New York City for three years without ever being charged with a crime, committed suicide three years after his release. It appears that Kalief was unable to recover from repeated beatings by correction officers and fellow inmates, and the two years he spent in solitary confinement after refusing several offers from prosecutors to take a plea deal. His mother reported that while Kalief did obtain his GED and started community college after his release, he was never able to recover from the years he spent locked alone in his cell for 23 hours a day and suffered a steady deterioration of his mental health.

Where was Kalief’s Public Defender, and why was he not arraigned in accordance with New York state law within 48 to 72 hours? And how can that misfeasance swell to 3 years? And who is responsible for this tragic miscarriage of justice? No answers to any of these questions exist in the article, and I was unable to discover any by researching the issue on the internet. New York’s mayor, DeBlasio, has called for a major reform of Rikers, and in a statement, said: “Kalief’s story helped inspire our efforts.”

Accountability score: Zero, as in none. And another serious blow to the element of trust, so essential to the Rule of Law.

And to demonstrate how trust is being replaced by distrust in the minds and hearts of many of our fellow citizens, this morning’s New York Times also reported that in Cleveland, “Community leaders, distrustful of the Criminal Justice System, said Monday that they would not wait for prosecutors to decide whether to file charges against the police officers involved in the fatal shooting of 12-year-old Tamir Rice last year.” Ohio is one of a few states that have a statute that allow residents to request an arrest without approval of the police or prosecutors. And not trusting the prosecutors in Cleveland, who work closely with the police, and who will proceed by the secret grand jury process, community leaders have instead chosen to directly petition a judge, so as to obtain an open hearing with evidence provided by all sides involved.

Who can blame them, after so many unarmed African-Americans have been killed by police, and with rare exception were the incidents fairly and openly investigated?

For a significant portion of our fellow citizens, and in particular people of color and the poor, events, from Ferguson, to Cleveland, to Detroit, to North Charleston have seriously eroded the trust that is essential for the Rule of Law to continue governing our society. As my novel, Gideon’s Children, illustrated, the growing conversation about the crucial need to fix the serious problems in all phases of our Criminal Justice System needs to grow larger and louder now! Please let your municipal, state, and federal representatives know that reform should be at the top of their list of priorities. Nothing is more important than ensuring that the Rule of Law continues to found our society and all of the citizens who comprise it!

The Rule Of Law: Accountability Requires Recognition Of Everyone’s Humanity

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I noted that four principles formed the World Justice Project’s working definition of The Rule Of Law, and thereafter focused on accountability as one of the two most crucial factors in building the essential element of trust that underpins this Rule on which our society is based.

In an article by Gary Younge, the brilliant New York correspondent for The Guardian newspaper, which I received via a blog post on Goodreads (Younge post), Gary pointed out that all lives matter, and the failure of U.S. governmental authorities “to keep track of how many people its police kill” detracts from their humanity. In agreement with this opinion, and the loss of accountability that it entails, I responded to Gary’s post on Goodreads as follows:

Gary,

Your point is well taken. In the era of high-tech, where computers have made record keeping easy+, one could validly argue that the failure by governmental authorities to record the names, ages, race, and other vital statistics of every person killed by police is deliberate, and intended to dehumanize these individuals.

As my novel, Gideon’s Children, illustrates, Public Defenders must constantly remind judges, juries, and other court personnel, that their clients are human beings. Cases begin with the Judge stating: The People versus Joe or Mary, and prosecutors constantly cloak themselves in the aura of The People, i.e., The People will prove, the People contend, the People object etc. As my characters do in Gideon’s Children, when I was a Public Defender, when the jury was being selected, I would ask potential jurors if they realized that the term, defendant, was just that, a term, and that my client was a person. Thereafter, I used to object in open court to these constant People references, so that I could remind the judge and the jury that my client was a person, a real live human being, and one of the many individuals who comprise the People of the State.

This effort to dehumanize by the white power structure, which was begun in the era of slavery, then furthered fostered during the Jim Crow Era, was poignantly illustrated by Ralph Ellison in his classic novel, The Invisible Man. And while American Society has made progress on the issue of race, it remains a serious issue as recent events in Ferguson, Staten Island, Cleveland, North Charleston, and Baltimore serve to illustrate.

Under The Rule of Law which founds our society, everyone must be accountable, and that includes the individuals who comprise our government.

In conclusion, I would emphasize that the essential element of trust underlying The Rule of Law cannot be maintained if those responsible for enforcing the law are not subject to the critical principle of accountability!

The Force Behind Gideon’s Children

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Recently I have received emails referring to my novel, Gideon’s Children, inquiring as to why I wrote it, and why I believe it is so very relevant to today’s happenings in our Criminal Justice System. The best answer to those questions, as well as several others that naturally flow from them, were set forth in a telephone interview I participated in with Renwei Chung, the brilliant young columnist for the highly popular and well regarded website, Above The Law.

Renwei and I connected through exchanges on Twitter, and after he read G.C., we agreed to a chat, which afterward was reduced to written form to insure accuracy. That format is what appears below, and most hopefully provides in-depth answers to the subject queries.

  1. What motivated you to write the book?

The current decade, 2010 to 2020, is the 50th anniversary of the 1960s and the Civil Rights Movement’s struggle for freedom and social justice. I wanted to highlight the role of the newly created Public Defenders Offices in fighting to protect individual constitutional rights in pursuit of justice, in particular for persons who are poor and of color, as part of that revolution, and because those very rights are under attack today due to the War on Terrorism which has spawned The Patriot Act, The No-Fly Rule, and virtually unrestricted spying on Americans by the FBI, CIA, and NSA.

  1. Tell me about your career, what motivated you to become a public defender?

Gideon v. Wainwright, which expanded the right to counsel when charged with a crime to persons unable to pay for same, was handed down by the U.S. Supreme Court in 1963, my first year in law school. And as I watched the Civil Rights Movement expand during 1964 and 1965, I realized that while the opportunity to participate in Freedom Rides and marches like Selma had passed, I could still join the struggle by becoming a Public Defender and fighting for justice in the courtroom through protecting individual constitutional rights and insuring that poor people and people of color were treated equally and fairly.

  1. How has the profession changed since you started?

When I began as a Public Defender in 1968, the U.S. Supreme Court under the leadership of Chief Justice Warren was focused on expanding the meaning and enforcement of constitutional rights, in particular, the 4th, 5th, and 6th Amendments. Today, the Court has a conservative bent under Chief Justice Roberts, and has grown more restrictive in interpreting those Amendments, making defense counsel’s job more difficult.

  1. What would you do differently if you could go back to any point in your career?

My years as a Public Defender during the late 1960s and early 1970s were the most rewarding years of my 30-year legal career, so I wouldn’t do anything differently with respect to that period. Looking back at the years spent in private practice afterward, the one change that I would make is to have become much more involved in my local bar association, as well as the state bar association, so as to advocate that both groups work harder in designing and executing programs that foster social justice in the private sector, and use their influence to lobby local and state governments to prioritize programs to alleviate poverty and inequality.

  1. What advice do you have for aspiring public-service attorneys?

If you are going to be a Public Defender, nourish your passion for justice, and remind yourself daily that the work you are doing is both noble and valuable. Representing a fellow human being who is charged with a crime, is lonely in the sense that you stand against the awesome power and resources of the State, and because the hostility focused against crime and your client spills over onto you, you will not be popular with the police authority, the prosecutor, court personnel, and often your own client. Therefore, it is essential that you maintain a strong sense of how noble and valuable your contribution is to our system of criminal justice is, so that you can fully appreciate the difficulty and the rewards of your work.

  1. What is the greatest injustice or discriminatory policy you believe we are fighting today? What are the biggest injustices we have overcome?

American society has a long history with the problem of race. It began with the importation of slavery at the time of Jamestown and the Pilgrims, and was further augmented with the extermination and subjugation of Native Americans. After 250 years of slavery and 150 more of Jim Crow, even though we achieved some progress during the Civil Rights Movement with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, this problem of race, of color, still bedevils our society, economically, politically, and in our Criminal Justice System. A few months ago, Nicholas Kristof in an Op-Ed raised and explored the question of: Isn’t Everyone a Little Bit Prejudiced? Inspired by his discussion, I explored the question in a Blog-Post on my author’s website on January 19th, and just yesterday in a speech, James B. Comey, director of the FBI stated: “Maybe it’s a fact we should also face: Everyone makes judgments based on race.”

We are all human beings: average citizens, political leaders, police officers, teachers, CEOs of international corporations, and so on. And as human beings, consciously or unconsciously, we all make judgments based on race, as well as many other factors such as good looks, gender, status symbols etc., but racial differences are at the top of the list for factors clouding our judgment. There is no easy solution to this problem, but what is necessary is for us to admit that this problem does exist, and for each of us to summon Lincoln’s better angels of our nature and remind ourselves daily to do better, to try harder to treat others as we ourselves would like to be treated.

  1. What made you successful in your career?

Two Ps: Passion and Perseverance. I believed wholeheartedly in protecting my clients’ constitutional rights and in doing everything I could to insure that they received fair and just treatment at all stages of the Criminal Justice System. And in pursuing justice for my clients, I prepared as assiduously as time permitted, spent much of my off-time reading and studying case and canon law, and in the courtroom followed a firm resolution to never, ever, give up, no matter how dark the outcome appeared.

  1. If you started today, what causes would you fight for?

As recent events from Ferguson to Cleveland to Los Angeles illustrate, the struggle for freedom and social justice that was highlighted during the tumultuous and transformative 1960s is still very much with us today, fueled by the historical legacy of racial bias. So if I started as a Public Defender today, I would still fight to protect my clients constitutional rights and make every effort to ensure that they received fair and just treatment at all stages of the Criminal Justice System.

In addition, as a member of the state bar association, I would work to move that association to exert its power to educate the public to the terrible danger to our democracy presented by the abrogation of our constitutional rights presented by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA,

  1. What is currently keeping you busy?

As part and parcel of publicizing Gideon’s Children., I am blogging on my author’s website (www.howardgfranklin.com) on the Criminal Justice System, its component parts, the problems it faces, along with possible solutions, in an effort to contribute to the growing conversation in this area.

10.  What specifically can lawyers do to change the system? What can ordinary citizens do?

Lawyers can work through their state bar associations to advocate that the associations use their power and influence to press mayors, governors, and state legislatures to place improving the Criminal Justice System at the top of their list of priorities and provide the necessary funding for example to hire more Public Defenders so that their caseloads can be reduced to a level that allows time for full and proper representation. Recently, Governor Cuomo of New York requested their state legislature to provide substantial funds for this purpose, and state bar associations across the country need to lobby government officials for like funding. Likewise, additional funds must be provided to the various police authorities who provide extremely valuable services, and do so under dangerous conditions, so that they can: (1) Improve the training of officers, particularly in the area of dealing with mentally ill persons; and (2) Enlarge their efforts to meet with and better understand the communities they police, leading to a better understanding of the extremely difficult job officers perform, and hence more cooperation, thus building essential trust on both sides.

Average citizens can contribute to this effort by emailing and telephoning their governmental representatives to support the programs outlined above. And the value of thousands and thousands of emails pouring in to express support for such necessary funding of these programs should not be underestimated.

11.  Anything else we should know about your book?

I wholeheartedly hope that my novel, Gideon’s Children, will make a positive contribution by educating its readers about the workings of our Criminal Justice System and the critical need to improve those workings, as well as the equal importance of protecting our individual constitutional rights in the face of their abrogation by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA.

Selma Revisited

Typewriter With Special Buttons

Last Sunday marked the 50th anniversary of Bloody Sunday, when 600 protestors, led by Martin Luther King, Jr., began marching from Selma to Birmingham in support of voting rights. They were met on the Edmund Pettis Bridge by Alabama State troopers dispatched by segregationist Governor George Wallace, who attacked them with tear gas, leather whips, and billy clubs, an unprovoked act of violence whose bloodshed outraged most Americans and was a major factor in the subsequent passage by Congress of the Voting Rights Act of 1965.

When I picked up my newspaper on the following Monday, the front page featured coverage of the celebration of that anniversary, highlighted by a photo of President Obama hugging Representative John Lewis of Georgia, who marched alongside MLK, Jr., and was bloodied during the tragic events of that historical day. And as my mind flooded with memories of the 1960’s Civil Rights Movement, the question Have we overcome? also trailed into view and set off an intense reflection.

Well, we have done better, I concluded. After Brown v. Board of Education desegregated schools, we further reduced discrimination in commerce and transportation via the Civil Rights Act of 1964, and with respect to voting courtesy of the Voting Rights Act. And, I noted with a smile, in that photo my eyes were focused on the President of the United States—an African-American. That’s something I wasn’t sure I’d ever live to see, flowed my next thought, so yes, we have progressed, some positive change has occurred. But, Have we overcome? still lingered to narrow my smile.

In view of recent events, the answer to that question is a resounding no! First off, in 2013, the U.S. Supreme Court gutted the key enforcement provisions of the Voting Rights Act, removing the Federal Government’s authority to supervise electoral requirements in our states and insure that discriminatory practices were not in play. Then, further, as David Love reported in via the Tribune News Service, “the Tea Party-led Republican Party has made voter disenfranchisement and suppression a top priority. Voter ID laws across the country have put up obstacles for blacks, Hispanics, Asians, the elderly, young people, and others. Some state legislatures have reduced voting days, including the Sunday before Election Day, when black churches organize campaigns to go to the polls. Moreover, as Al Jazeera has reported, Republican officials in 27 states have initiated a program that could purge 7 million voters from the rolls, particularly brown and black Americans.”

And, why? To prevent voter fraud is the answer provided, despite the fact that study after study after study reveals that voter fraud is so insignificant as to be almost non-existent. The real reason is that the voters sought to be removed from the polls overwhelmingly vote for Democratic Party candidates!

So, a new version of the poll tax, calling into mind the phrase, the more things change, the more they stay the same. And what is truly tragic is that most Americans, including most of our citizens who identify themselves as Republicans, are not in favor of retreating from the racial progress America has made, but are witnessing a regression fostered by a small, highly vocal, and extremely well funded right-wing minority that has hijacked the Republican Party and is dictating dangerously undemocratic policies that threaten to undermine the fundamental right to vote of millions of their fellow citizens.

No, indeed, we have not yet overcome. Race remains a huge problem in America, and if anyone doubts that sad fact, recent events in Ferguson, Missouri, make the truth of that assertion clear and undeniable.

In a community that is 67% black, the police department is almost exclusively white. An accident? No. And after a thorough investigation of the events and the culture surrounding the Criminal Justice System in Ferguson, on March 5th the Justice Department issued a scathing report, describing the Ferguson police and Municipal Court “as a system whose primary function was to make poor African Americans pay as many fines and fees as possible for petty offenses, real or invented.”

After reading accounts of this report in The Oregonian, once again that haunting phrase, the more things change, the more they stay the same, echoed into mind and triggered a vivid memory of the first jury trial I was involved in when I was a Deputy Public Defender in Compton, California, almost half a century ago. Depicted in detail in my novel, Gideon’s Children, the main character, Matthew Harris is defending a male African American charged with having been drunk in public. And when the jury panel of 200 persons from which twelve would be selected for trial is seated in the courtroom, Matt is stunned by his observation that not one of them is black, even though the community from which they are drawn is upwards of 80% African American.

The good news is that while Matt Harris was defeated by the stacked deck a half century ago, today the outrageous situation in Ferguson is being corrected. In the past few days, the officials responsible for the conspiracy of discrimination at work there have resigned or been removed, including the city manager, the police chief, and the municipal court judge. Unfortunately, the anger from years of persecution has unleashed violence from a few members of the community, resulting in two police officers being shot. Most hopefully calm will prevail so that plans for a new and better government in Ferguson can be implemented. I also believe that it would be helpful if those persons responsible for the utterly despicable actions in Ferguson were prosecuted for civil rights violations, thereby sending a message to all who would engage in like actions.

What worries me is that if the regressive forces at work are allowed to prevail, and millions of people of color are disenfranchised, and other Ferguson-like conditions are not ferreted out and remedied, then violence of a more significant magnitude will occur. For if a huge segment of our populace is not allowed to participate, and also feels that the Criminal Justice System is targeting them for grossly unfair treatment, then the respect for the Rule of Law necessary for it to govern disappears.

All of us lead busy lives. But each of us needs to make the time necessary to contact our local,  state, and federal representatives, and let them know that we are adamant in our desire for a new Voting Rights Act that insures voter participation by all segments of our society, and urges them to foster and nourish programs designed to promote excellent relationships between police and the communities which they serve.

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.