Life and Death

Two items about what counts as “justice” in our society:

First, at the age of 13 Joe Sullivan was sentenced to life in prison for the crime of rape. He is now 33 and is asking the SCOTUS to find his sentence cruel and unusual so he will have a chance at parole.

Second, Paul Kennedy reminds us that we live in a society where actual innocence is no bar to execution.

You couldn’t make this stuff up…

Public Defenders Overpaid? Right.

So says a hatchet job article in the Boston Herald. The comments do a pretty good job of pointing out how misleading and inaccurate the article is. It’s sad when something like this can be called “news.”

But and so, what the heck has happened to Public Defender Stuff? It’s been silent for a month and while that’s pretty normal on this here blog, it’s very not normal for PD Stuff. Gideon is still posting regularly on his main blog, which is good, but… I miss PD Stuff. Anyone know what’s going on?

Balancing budgets on the backs of the indigent accused.

Everybody in the public defender world is talking about the NYT article from last week about PD offices refusing cases because they don’t have enough resources to adequately handle all the clients being assigned to them. It’s sad, and something rather difficult to understand. What are we saying to these people? “I’m sorry, you do have rights guaranteed by the U.S. Constitution but we just can’t afford to honor those rights at the moment. Maybe if you find yourself penniless and accused of a crime in a few years things will be better.”

I’m sure Scoplaw might have much more to say about this if he weren’t in the middle of it. I can’t fault any of these offices around the country who are refusing cases for lack of resources, but what I don’t understand are judges who are ruling that this is ok. It’s not ok, not by any stretch of the imagination. I guess at the moment the judges, like the PD offices, have little choice. But where are the lawsuits from the ACLU or other groups against state and local governments for failing to meet their constitutional obligations? Times are tough, but this is one governmental function that can’t just be cut — especially when we’re not cutting the ranks of cops and prosecutors.

Meanwhile, public defenders in Minnesota are moonlighting to make ends meet. (Not that I’m in favor of paying PDs any less anywhere, but the salary mentioned for Ms. Sherman is more than I was making and her monthly loan payments are half of what I have, so what is she doing with her money?)

One thing is certain: Now is a very bad time to be looking for a job as a public defender.

One Person On Your Side

Golden Gate University Law School Professor Peter Keane is featured on today’s edition of This I Believe on NPR. The good professor was the chief assistant public defender in San Francisco for 20 years and he believes that “everyone, no matter what they have done, deserves to have one person on their side.”

Me, too, Professor Keane, me too.

It’s a great essay. I highly recommend it. Professor Keane makes a good case for the layman who asks of public defenders: “How can you defend those people?” It reminds me of one of the best answers I’ve ever heard to that question, which comes from Blonde Justice, with some further interesting discussion of the question itself. Also highly recommended.

Perhaps these discussions resonate with me at the moment because, well, right now, I *don’t* defend those people. Currently I am unemployed. For personal reasons I have moved to Chicago and am now searching for a job. I would like nothing more than to continue to be a public defender, so if any reader out there has any connections, however tenuous, with anyone in the Chicago criminal defense community, please let me know!

Lowering the bar on probable cause

Earlier this week Justice Roberts took pains to call attention to the fact that he wants to reduce the level of evidence and suspicion necessary for cops to stop a suspected drug buyer. The SCOTUS denied certiorari in Pennsylvania v. Dunlap (see the last paragraph of that article), in which the Commonwealth of PA appealed its high court’s decision that cops did not have probable cause to stop a dude after observing him make a quick, hand-to-hand exchange of something small for something else small. The cops argued it was a cash for drugs exchange and Roberts emphatically agreed that the cops had plenty of reason to stop the guy and investigate after seeing this transaction from a distance. In fact, Roberts wants so badly for the world to know he thinks cops should be able to act on hunches that he wrote an attention-grabbing collection of sentence fragments to say so. Awesome.

Last night in the presidential debate John McCain kept repeating: Elections have consequences. Roberts’ dissent in this case shows once again how true that is.

More here and here from Orin Kerr and his readers.

Raising the Bar?

Of course I watched TNT’s “new hit drama,” Raising the Bar. I loved it! Fun, funny, public defenders telling judges they are petty tyrants — what’s not to love!?

Ok, so I’m also a fan of the series’ real creator, David Feige, based on his blog and his book, the latter of which I also thoroughly enjoyed and found to be a terrifically realistic account of working as a public defender (granted the many differences between the urban NY setting and my own experience in what is a basically a rural locale). (I wrote about it, but currently the Now Reading plugin upon which I rely for that sort of thing is leading to all 404 errors and I can’t figure out why. I hate blogs, sometimes.)

And, so, ok, it’s not perfect. We have a criminal trial where the highlight for the defense is the closing argument in a case where the State’s witnesses lied. Where is the devastating cross that reveals these lies!? We have the public defender and the prosecutor on the case sitting down for a drink together after work in the middle of trial. Really!? I mean, ok, so I went to lunch w/the prosecutor (and the judge, strangely enough) on a trial once after we’d finished and were waiting for the jury to deliberate. I found that absolutely surreal. But to go out for a drink in the middle of a trial? And the idea that the defenders and prosecutors and judicial clerks regularly seem to socialize? Um, again, really!? What planet is that? Is that really how it is in NYC?

Let’s see… I won’t even touch the fact that the defense attorney and prosecutor appear to be sleeping together at the end of the episode. Whatever. Also problematic is how much the show dwells on the supposed agonizing of the prosecutor whose heart is apparently in the right place but who has a hard time doing the right thing b/c neither the judge nor her boss will let her. Let’s praise good prosecutors a bit more, shall we?

And of course the show throws out red meat in the first episode by focusing on a case where not only does the jury acquit on the main charge (rape) but also there is apparent factual innocence in the form of a confession by someone else to the same crime. That happens like, never, but it should be good to see how the show deals in the future w/the cases where guilt/innocence is not so clear. Will we still be praising the prosecution then?

All of that said, it’s television! What can we expect, really? What I loved particularly, of course, the red meat for me, was the defense attorney telling the judge exactly what he thought of her. Boy do I know that judge! And boy do I know the feelings and thoughts that public defender expressed! And boy have I been there — exactly there — including where the judge says “I’m punishing your client b/c I don’t like you” but then says, “well, I didn’t exactly say that, did I?” And also I’ve been exactly there where the judge demands/requires an apology, whether I mean it or not. Kiss the ring the judge says. My situation was not in the middle of some case or contempt charge so it was a little different. My supervisor didn’t go to the judge on my behalf; instead, the judge complained to my supervisor about me so I’m the one who visited the judge and actually did apologize in a general way, explaining that I was just trying to do my job and I hope the judge understood that, then biting my tongue when the judge didn’t seem to hear a thing I’d said and then told me that the best way I could help my clients was to make sure I did not anger a judge, because, well, judges try not to hold it against a defendant when the judge is mad at the defendant’s attorney, but that’s not always easy so the best thing to do is just not make the judge mad in the first place. See? Got it bucko? My way, or the highway! So, yeah, different, but boy can I relate!

And who among us has not had that experience where basically we do win, and everyone is saying we won, but we feel like we lost? Where we win the motion to set bail pending appeal and then the judge sets bail at some obscene amount he/she knows our client could never ever post? Where we maybe even win our client’s release on some sort of plea or something, but know that he had to take some charge of which he was totally innocent just to placate the “system” — namely, the prosecutor and/or judge? You can’t just focus on the positive of the “win” because the gall of the loss is just too great. The show captured that well in this first episode, I thought, and was entertaining to boot.

It’s not perfect. It’s television. Here’s a pretty good summary from a reviewer who Feige says “gets it”:

Raising the Bar follows a collection of young lawyers who work against each another, as prosecutors and public defenders.

But in Raising the Bar, as in real-life courts, most of their ”work” consists of a minuet to avoid the mutually assured destruction of an actual trial, which nobody on either side has the time or resources to deal with. The prosecutors threaten draconian prison sentences, the defenders bluster about scorched-earth battles over pre-trial motions, and eventually a bargain is struck.”

Trial as mutually assured destruction. I like it. I wish. When you’ve got a second prosecutor on the bench and your opposition has far more resources than you to prepare for trial, it’s more like self-destruction for a defense attorney to go to trial. But hey, it’s obviously not that way everywhere. Still, the above is a pretty accurate description of both our justice system and what’s depicted in the show. (But as for the rest of the review, how can throwing lawyers in jail w/their clients not be dramatic!? How is it not dramatic for the young prosecutor to be sleeping w/the young public defender?) I’ll definitely be watching next Monday and I highly recommend you do the same!

Trophy of Perpetual Futility

Trophy of perpetual futilityThis, my friends, must be origin, cause, and prize for some sort of public defender contest. Perhaps it should be the new award for the overall best blog in the Rodneys. Perhaps it should be for some monumental feat and contest yet to be devised. Example: Public defender w/the most repeat customers in a year wins the trophy! I just had a great one: Guy gets felony DUI (or for some of you crazies out there, DWI — drunk driving, ok?). We move to suppress for lack of good reason to stop. (MT calls the level of evidence needed to make a traffic stop legal “particularized suspicion” — probable cause was just far too high a standard for the law and order folk in the wild wild west!) State concedes on the motion; stop was stinky, case dismissed! Not two weeks later, same dude is back in jail on a new felony domestic assault charge. I didn’t know whether to scream with rage or cry with sadness, so I did neither and instead just went about my business. That’s what we do. As one of my colleagues says constantly, “The hard work of freedom is never done!” That’s why we need a trophy!

Alrighty then. I’m thinking about it, so you should, too. Let me know if you come up w/anything. I just want a chance to win this or give it to someone.

Yes, I know I need therapy.

Public Defenders as witnesses to crime

Blonde Justice recently posed a great question: Can the Defense Ever Be Pro-Proseuction? Her hypo is about a fellow defense attorney “who had recently been a crime victim.” He decided to give a statement, agreed to testify against the arrested suspects, etc. I’m not sure what she means by “crime victim,” but assuming she means that this PD was the person directly injured, either physically or financially, by some breach of the law, then ok; the hypo doesn’t seem that difficult. Of course the PD can choose to cooperate with the prosecution. Possibly “Harry” said it best in his comment to BJ’s post:

Defense attorneys don’t exist to help criminals, but to prevent innocent people from being convicted. The only way to do that is to give the best possible defense to everyone, both guilty and innocent.

Any alternative would require deciding upfront who was innocent and who was not. But if there were a way to do that, no court case would be needed at all.

I am very surprised that a bunch of criminal defense attorneys, of all people, would fail to understand this basic principle.

That Lawyer Dude offers another fascinating perspective:

Good criminal defense attorney’s do not argue for leniency. They argue for a sentence that fits the crime. They argue for another opportunity. They argue to keep the defendant from being just another number and so that if the defendant is convicted of a crime he committed, he is able to rejoin society with as little baggage as possible.

Defense lawyers who bleed all over a courtroom are terrible lawyers. They have failed to take the other parties needs into consideration and as a result rarely “win” a fair or even a good sentence for their clients. Judges ignore them because they know that the lawyer will never be able to guide the court.

Once you’re at the point of arguing sentencing, this seems true — it’s not about leniency, it’s about fairness and a sentence that fits your particular client’s actions and situation in life. By the time questions of lenience v. fairness arise, your client has already entered a plea of guilty or been found guilty at trial; you’re in the sentencing phase. Prior to that time, the battles are different. Unfortunately, public defenders end up spending a lot of their time and effort and energy in the sentencing phase and it takes an incredible amount of work, experience, and wisdom to be effective in that zone day after day, and even multiple times in the same day.

I could go on and on but you should just go read the post and all the responses. Excellent stuff. (As usual from Blonde Justice!)

But returning for a moment to the original question: Should a PD cooperate with the prosecution when the PD has been injured by a breach of law? Sure. I don’t think I would do so in every case; it would depend on the crime and the circumstances, but I don’t think a public defender is per se a hypocrite for deciding to help the prosecution on a case where the PD has been directly injured.

Here’s a twist on the hypo, though: Should a public defender who has not been injured by a crime but has witnessed something relevant to a crime cooperate with police? Should she give a statement? And even more important, should she invite the police into her public defender office in order to give the statement during work hours?


Sucka! (Who, me?)

Ok, I was totally duped. I read on my treo RSS reader that Gideon of the blog “a public defender” was quitting his job to go into private civil practice and I totally believed it. My treo downloaded the post before he updated it to say that it was an April fool’s joke and I haven’t had time to look into it further since reading it, so for two days now I’ve been wondering, ‘How could he do that? What’s going to happen to PD Stuff!?’

Ha. The joke’s on me. Of course, my gullibility has a context. Two of my colleagues right in my office have left in the last month to pursue, um, other things. One left after about 5 years as a PD to become an investment banker (!?), the other is leaving to become a part-time prosecutor w/a private civil practice on the side. That sort of makes me ill.

That brings to a total of three the number of PDs in my office who have quit to become prosecutors since I started at the office 20 months ago. At least one of them was a great public defender and an inspiration to us all, so seeing him go to the dark side like that is demoralizing and sad beyond words. That aside, the idea that such a relatively large number (close to 1/5th of our total attorneys) of public defenders in our office clearly will switch sides to make more money speaks volumes about the defense culture here. I’ll just leave it at that…

Anyway, I’m glad it’s not that way nationwide and that Gideon was only joking.