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.