Thursday, December 31, 2009


To introduce the revolution, a small public defender story:

A couple of weeks ago, I was in court for the “in-custody omnibus docket,” which sounds important, but is really just a calendar to enter agreed scheduling orders and a big waste of time. The goal at omnibus (or "omni-booos," as the judge calls it), is to get through the 15-20 cases on the docket in the allotted 30 minutes. Oh, and because the defendants are in jail, the hearings are conducted electronically, with the judge presiding from his well-appointed courtroom, while the lawyers and clients appear from the jail via TV. Because too many lawyers and clients are stuffed in the jail courtroom, a dank, cinderblock cell in the jail's basement, we call the omnibooos docket the "stinky docket."

On that particular morning, I sat in one of the plastic chairs at the temporary counsel table with one of my clients. The case was settled, so there was nothing to do except move the trial date to accommodate the plea hearing. The prosecutor told the judge, “Your Honor, we’ve settled this case for a misdemeanor, so we’re asking to move the trial date two weeks to accommodate the plea date.”

The T.V. judge said, “All right, we'll move the trial date two weeks.”

I stood up to make way for the next lawyer (my theory is: if you don't need to say anything at a hearing, don't say anything) when the judge said, “Oh, Ms. Defender, I forgot to ask if that was OK with you.”

Because I was already standing up and the camera was filming my midsection, I bent over where the camera caught my face and an unintentional cleavage shot, and said, in what I considered a friendly, efficient manner, “Yep!” and moved out of the way, since the next lawyer was already half-sitting in my chair.

Since I had a few minutes before the judge would call my next case, I went into the inmate waiting room to talk to my next client--a scared, sweet, 18-year-old meth addict who kept getting arrested and then bonding out, and then missing court and getting a new charge, and then getting arrested and then bonding out and then missing court and then getting a new charge … This had been going on for about a year and a half, and now there were 6 felonies pending. The girl, though, despite all the charges, had never been convicted of anything, and was, now that she was sober, terrified about what was going to happen to her.

When it was our turn, my client and I sat at the counsel table, planning to ask for a continuance to consolidate all of her cases. My client was so visibly terrified that I put my hand on her arm for vague reassuarance. Before the prosecutor could introduce the record, though, the TV judge looked directly at me. “Ms. Defender!” he said, “While I appreciate brevity in this courtroom, I don’t see that there is that much difference in a ‘P’ and an ‘S!’”

My brain was running a dozen analyses—What the hell was he talking about? He was obviously very mad. What had I done? The prosecutor scooted his chair away from me, out of the range of the camera. “Ummmm …” My mouth was trying to respond, but my brain hadn’t processed the situation.

The TV judge’s face was red. “‘Yep’ and ‘Yes’ take the same amount of time to say, wouldn’t you agree, Ms. Defender?” He was practically shouting at me. “Do you understand what I am saying?"

Don’t say “Nope!” Don’t say “Nope!” my brain screamed at my mouth. Finally, cautiously, I said, “I think the court is saying that it doesn’t like ‘Yep?’”

“Yes, Ms. Defender," the judge said, and then added in slow speech for dummies, "Do you understand what I am saying to you?”

Don’t say "Yep!" Don’t say "Yep!"’ “Why, Yesssss, I certainly do, Your Honor.”

The judge stood up and disappeared from the TV screen, but the prosecutor, client and I remained seated--I was trying to think back to anything I had done wrong, the prosecutor was waiting until it was completely safe to roll his chair back into camera range, and my client was trying not to cry. "Why doesn't the judge like you?" she whispered to me.

I have been abused by judges so frequently that something like this shouldn't bother me—the judge's tantrum was rude and bizarre—but my calluses are pretty thick, maybe too thick. But I wanted to shout: You want to berate me for some ridiculous nonsense? I wish you wouldn’t, but don’t do it in front of my fucking client, don’t make her more scared than she already is, and don’t be a chickenshit and do it on the record, where I can’t talk back.

I rode the elevator our of the jail bowels with the prosecutor. I wondered if I was overreacting by letting the judge’s outburst upset me--maybe I was getting too sensitive—so I asked the prosecutor, “What was that all about, anyway?”

“I don’t know,” he said, “but the judge was really freaking out—I had to restrain an urge to run out of the fake courtroom.”

“He must have been mad about something else,” I suggested.

“It was just weird. Like normally, a judge would just say, ‘Hey, I don’t really like that word, so would you mind saying 'Yes' or something else. …’ This was different.”

At the next stinky docket, I told the “Yep” story to my public-defender friends, and offered $20 to anyone who would say “Yep” to the judge. After negotiation, it was determined that “Nope” also counted, but only for $10.

I scurried out of the courtroom as my friend J--- sat down at the counsel table, but I heard him say, “Nope!”--and it wasn’t a wimpy “nope;” he said it loud and clear. J--- worked two more “yeps” and another “nope” into his dialogue with the judge, who was curiously oblivious to the word.

“Hey,” I said when J--- came out of the courtroom, “that wasn’t 20 bucks per ‘yep.’ I don't have that kind of money.” I worried that if the rest of the lawyers took me up, I wouldn’t have money for food. The funny thing was, though, the rest of the lawyers started saying ‘yep’ for free. One after another, “Are you ready for trial?” “Yep!”

At first, the judge didn't notice the frequent "yepping" and "noping;" when he finally did notice, he also realized it was too late—he had let too many “yeps” go by without response, and all he could do was laugh like it was all a very funny joke, even while we all knew that the joke was on him.

Like I said, this is a very small story. So a judge yelled at me for saying “yep.” Whatever. But the thing is, as public defenders, it is our job to stand up to judges. And judges don't like it when you stand up to them, but they won’t criticize you directly for being an advocate; they’ll pick on you in other ways, big and small. We also have to stand up to police, prosecutors, and the entities that under-fund us. Individually we are too weak--no matter how great individual pd moxie--to be effective against all of these bullies. We can't expect our bosses to stand up for us, either. Some bosses are better than others (and for the great ones out there—I LOVE YOU), but bosses have political issues and have to worry about their own jobs, etc. Don’t expect the private bar to make our cause their own--they have their own worries, and are in some ways in competition with us. Some causes sound sexy to law students and the general public--children’s rights, violence against women, even civil liberties (not to be confused with what we do), but have you ever heard anyone say, I want to be an advocate for public defender rights?

After the "yep" omnibooos hearing, the prosecutor said, "I’ll just have to make sure I never say that word in court again." I could almost see the processing as he deleted the word "yep" from his mental language files. Meanwhile, all of my friends were yepping and noping through all court appearances. I, on the other hand, would say, "Why, yes, certainly, Your Honor," in a way that he knew I meant "Yep." What was the message of our minor insurrection? If you fuck with one of us, you fuck with all of us.

I have been getting irked lately by people telling me, "If you would just use your power for good, you could change the world" (this was mainly in response to my shrinky-dink art frenzy, more on this later)—like I’m not doing good in the world?? Maybe not—I fight for my clients and sometimes despair about the inability to make any real difference; I annoy people in authority—good things, but is there more?

I’ve come close to stopping being a public defender, which for me probably means stopping being a lawyer. But then I see, with the clarity of experience, young, enthusiastic public defenders going through some of the same things I did--municipal judges yelling at a lawyer for setting a case for trial, or describing a passionate female lawyer as "too much like a social worker," etc. And I think, it is not enough for me to just run away. And then I think, where are we? Where is our organized force? We need a group that will advocate our interests and ours alone—not our bosses' interests, not private lawyers', not the bar associations'. We need a group that will say, If you fuck with one of us, you fuck with all of us.

This is PDR’s mission: To foster a national organization that advocates for the rights of public defenders and our clients. If you want to join, email me, and you can be a member of PDR. And since membership is totally free, you can afford it on your public defender salary.