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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.
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.
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.