Friday, October 8, 2010

This is Public Defense

Sometimes Trial Chicken is a warrior, ready to take on the world!
And sometimes the world wins.

***

I met my client Kim (not her real name) for the first time at her arraignment this summer.

I arrived late for the 8:30 docket call, like most days lately, having lost the ability to care about things like lateness as much as I should. I skimmed the docket posted outside the courtroom, looking for my name, because I hadn’t had time to stop by my office to check my calendar or grab the file. Slightly in my defense, the hearing was an out-of-custody arraignment that required nothing more than the entry of a not-guilty plea, which I was fairly confident I could handle without a file.

I saw my name near the bottom of the list, as the lawyer appointed to represent Kim Templeton, charged with Arson in the First Degree. My interest was piqued by the charge, because I didn’t get a lot of arsons, except for the bullshit arsons the state liked to lay on special needs kids who threw matches in trash cans at their group homes.

I tried to be subtle finding clients I hadn’t yet met in the courtroom, only as a last resort calling out names. I counted 4 women sitting in the court’s audience section. Two looked 60, but were probably meth addicts in their 40s; another was pregnant and scarcely 18; the last sat in the front row, and I could only see her pony tail and the back of her white summer shirt. I went back and checked the docket, because it also listed defendants’ birthdates. Kim, my new client, was born in 1977, making her 33--I would try pony-tail gal first.

I slid into the row behind her, touched her shoulder lightly, and asked, “Kim?” When she turned, I considered apologizing and turning to the meth addicts, because her beauty startled me. I have debated whether her beauty is necessary to this story; but—how do I say this nicely? —there isn’t a lot of beauty at docket call, which made her appearance all the more stunning. Her features were perfectly arranged and symmetrical, in a way that made you feel like you were looking at art, but something, maybe the light freckles on her nose and cheeks, made you think she would be nice. No smile touched her eyes, but her face wasn’t hard, rather somewhere between sad and serene. Dozens of purple-red scars crosshatched her forearms.

While we waited for her turn to say “not guilty,” I read through the affidavit of probable cause, wondering what this sad, beautiful woman had burned. Oh, for fuck’s sake, I thought once I read the summary of facts, the state had charged Kim with arson for trying to commit suicide by setting herself on fire. Because nothing will help a suicidal, depressed person like charging her with a felony.

I had planned on scheduling an appointment with Kim in a week or so—I didn’t have the police report yet, and I wasn’t up to anything more complicated than an arraignment after yet another night of fighting at home.

As we walked out of the courthouse into the sunny morning, I said, routinely, “Nice day, huh?”

She shrugged. “I guess.”

I cringed, feeling like an ass for trying to make bullshit small-talk, when I could tell that meaningless chatter wasn’t the way to handle this gal. I stopped walking and said, “I remember what it’s like to look at the blue sky on a beautiful day, and think, I remember I used to enjoy a beautiful day, but I can’t seem to remember why … or what it feels like.” I could remember this feeling because I was experiencing it at that moment. It had been a long time since I’d enjoyed anything.

“I want to remember ...” she said.

“Me, too.” I started walking again. “Let’s go over to my office so I can get some background and tell you what will happen next.”

I tried to keep my tone professional in my office, but Kim’s arms made me want to weep. Jesus, I thought, how much pain must she feel to do that? I felt ridiculous for feeling sorry for myself with my middle-class life and professional job. I was despondent and felt like someone had poured pudding in my brain, but I wasn’t cutting or burning myself.

“So, where are you living?” I asked this because the attempted burning of herself had rendered her house unlivable.

"With my soon-to-be ex-husband. Not the greatest arrangement ..." I was encouraged by the irony I heard in her comment.

"Oh, I'm doing that too," I said, trying to ignore the voice of a therapist who had lectured me about over-sharing and boundary issues. “It’s fucking awesome, isn’t it?"

She looked straight at me for the first time, trying to figure out if I was messing with her.

"In fact,” I said, “I might need to borrow a razor." I hoped that the pain I’d been slogging through was apparent enough to make the joke OK. After assessing me for another moment, she let out a loud laugh, which made me laugh too, partially in relief.

"You carry razors with you, right?" I asked. “Like in case of an emergency?"

"Of course. I’m ready for any suicide emergency.” Ah, irony and beauty coexisting in one person. My heart melted a little and I laughed loudly at this strangely hilarious conversation—so inappropriate, and yet …

Still laughing, I couldn’t stop the joke now. "Maybe you could market … a suicide emergency kit …” I prayed that I wouldn’t snort. Sometimes I snorted when I laughed really hard.

“Only if you’ll help with the legal paperwork,” she said with a delightful giggle. “Can I get a package deal on a business license and a last will and testament?”

I snorted. Loudly. And a snorting, inappropriate lawyer must have been the funniest thing that Kim had ever encountered, because she began rolling with laughter, which caused me to snort again, which caused us to begin laughing so hard we were crying; both of us, I suspected, from something other than sadness for the first time in a long time. I wondered what we might look like to an outside observer: an attorney and her client, cracking the fuck up, not based on the lawyer-client relationship, but on a connection formed from mocking a shared, if unequal, affliction.

***

And so, my public-defender friends, it’s been a little rough lately. A depression that I had been fighting off for a while hit me hard this spring and summer. I experienced it twice before, the first time about six or seven years ago, when a lot of things in my office began to suck, and the second time in 2008. With the Great Sadness 1, I had no idea how to cope with the despairing feelings, so I started getting up and writing every morning at 4:30 a.m., and ended up with a draft of a public-defender novel after a couple of years. Even back then, I knew that I was writing more to save myself than to tell stories.

I probably started this blog to fend off a new depression I sensed coming--there were so many fucked up things in my life and I felt powerless against most of them. I was sick of getting beat up for doing my job or for not grinding cases away fast enough on the plea-assembly line. I was mad at myself for not always being the best lawyer I could be. I was pissed that our system didn't care whether I was a good lawyer or not. A dismaying unionization fight had polarized our office, and the vibrant place I loved had become a dreary crypt where lawyers kept their doors shut and their eyes down.

I also had to take on some judges in fights, which is labor intensive and draining, and even if you win one of these fights, you’ll pay in the long run. On top of that, my marriage was grinding toward its painful end. Finally, and perhaps most distressingly, I had lost a couple of important friendships through a complicated collision of the above and my own self-pitying neglect of the relationships. I’m not trying to say I’m a victim or nothing was my fault—just that everything pretty much sucked.

***

When I felt myself slipping, despite the blog and the solace I found in connecting with other public defenders, I should have posted a “Back in 3 Months” sign. I couldn’t post that sign, however, because every new day was going to be the day I started to write again. But my thoughts were disjointed and sluggish. I could barely write an email conveying basic information.

Maybe it was time to quit this crazy public-defender job? But the few moments of beauty that I had were with clients or their families, and as much as going to work was killing me, even a long weekend at home made me feel worse. Kind readers and friends said, “Forget the blog and writing, take care of yourself.” But writing is how I take care of myself. And it’s no good when I can’t do it.

I told myself not to write about this, to simply make a breezy excuse and get back on that blogging horse. When I wrote about refusing to do a trial I wasn’t ready for six or so months ago, another legal blogger derided my description of my “panic” after the judge denied my motion to continue a serious trial I wasn’t ready for. I thought about responding—something like, How wonderful it must be to never experience doubt or worry! But, his world is different than mine, his audience different, and I mainly felt like he was yanking my pony tail. In the back of my mind, however, his criticism must have festered. Because I didn’t want to write about this. It’s too emotional. Maybe I am being too much of a girl for writing a whole (long) post about feeling sad.

The problem is, I do my best writing when I get as close to the truth as I possibly can. My process is to vomit all of my thoughts on the page, edit out the bullshit, and use what is left to help me find what I really think and want to say. When I tried to skip writing about The Great Sadness 3 by publishing the breezy post about being back from vacation and ready to go, it was just bullshit, which was a disservice to all you nice people who come to read this, but most of all to myself. It doesn’t matter whether I want to write about this (and believe me, there are other reasons not to: potential employers, prosecutors, bosses, friends, family, clients, etc. The internet is forever, man)--it comes down to this: If I want to write, I have to write the truth the best I can, and this is it.

***

I actually like to be upbeat. I think my baseline personality setting is pretty optimistic and happy, although I’m starting to wonder. I try to put a ridiculous positive spin on everything (Jurors deliberating for 8 hours is almost a win!). I have to admit that I was pleased in the past when I saw that bloggers or commenters had praised me for not engaging in the whining they described as prevalent in most PD blogs.

Several times over the years I’ve overheard prosecutors talking amongst themselves complain about some PD “whining” to them. I think they’ve even said it to my face, that they took my plea for mercy for a deserving client and categorized it in a neat box called “whining,” which excused them from analyzing how they were fucking with people.

While I agree that gratuitous whining should be avoided, there are also legitimate complaints that should be aired, wrongs that should be exposed, or experiences that should be shared—and these stories should not be suppressed for fear of being labeled “whining.” Just because the prosecutor dismisses my client’s tragic life story as whining, doesn’t mean I stop telling it. I may try different ways of relaying the facts, or adjust my attitude to one I think the prosecutor will respond, but I can’t stop telling the story because people don’t want to hear it. The problem isn’t that my client’s story is whiny or untrue or unsympathetic, or my client undeserving, the problem is that the people who should be listening don’t have any desire to hear about my client as a human being, and the more tragic the story, the more they don’t want to hear it.

We shouldn’t be afraid to tell the truth about what’s going on in PD offices and how it affects us and our families because some might call it “whining.” I’ve talked to enough PDs out there to be able say: Most PD offices in this country do not encourage and promote ethical, zealous advocacy—and it’s not the fault of the idealistic new lawyers who go into these jobs—it’s the fault of a system that sets up an impossible paradigm, and of the legal and judicial establishments, the bar associations, the law schools, and everyone else who claims to care about justice, but blame the lawyers rather than the system, or bemoan the problem without being willing to take on the political forces that shape the system.

***

Among other sins of pride I have committed, I’ve prided myself on being tough. I’ve brashly conducted back-to-back trials, thinking it a sure sign of nerve—until I realized the second (or third or fourth) client was getting screwed. I’ve volunteered to take tough cases I didn’t have time for. I’ve stood up to judges, and well, almost everyone. I think most of us consider ourselves tough, and we probably need that toughness in order to take on the cops and the establishment. I love the chutzpah, the bravado, the sick jokes that synthesize into the je ne sais quoi of PD offices.

But that toughness screws us, too. Because it becomes a point of pride not to crack under pressure—when maybe we should be cracking. It becomes a point of pride not to ask for a break in your caseload because that would be admitting you couldn’t take it. Or, we mock PDs who can’t handle the hard cases, or break under pressure, or ask for an easier job assignment to save their sanity.

Recently, a successful civil-litigation lawyer from Seattle flew to town for my client’s sentencing, because he was a friend of my client’s family. He had actually helped me immensely with the case, because he had been a public defender some 20 years earlier, and was able to reassure my client’s parents about the advice I was giving. At lunch after the sentencing, I asked the lawyer why he had decided to leave the PD’s office.

“I had two back-to-back robbery trials,” he said. “I was thrilled when I won the first one—I had thought they had my client dead to rights, but the jury hadn’t convicted. The second one, though, was innocent. Innocent except the jury found him guilty. I kept thinking—why didn’t I have the innocent one go first? That night, I remember sobbing in the arms of the woman who is now my wife, because I couldn’t take it any more.”

Shortly after that night, he left the PD’s office, opened his own shop, and started suing the police. He later moved his practice to a respected law firm where he is a partner and successful litigator. Sometimes, I thought after he told me his story, it’s not a personal or moral weakness that causes us to crack, but rather a system that gives us too much to do, inadequate resources, with too much at stake. In many cases, we probably should be cracking, and stubbornly refusing not to do so isn’t so much a show of strength as a sacrifice of our clients and ourselves.

***

When I was facing the Great Sadness 2, I came across an obituary regarding David Foster Wallace’s death by suicide. I had admired him as a writer, his essays are masterpieces, but I have to admit I never made it through what is widely considered to be his masterpiece, Infinite Jest. I had first discovered him when I came across "Shipping Out: On the (nearly lethal) comforts of a luxury cruise," in Harper’s Magazine, which confirmed my vague instinct that I never wanted to go on a cruise ship. When I read about his death, I cut out his obituary photo and stuck it on my bulletin board, where it remains:


I didn't really think about why I put his picture up, at the time I wasn’t thinking about a lot of things. Something touched me, and I pinned his picture on my board, and then looked around for other works of his to read. Ironically, the work I found that provided the most comfort wasn’t a written piece, but rather a commencement speech he gave in 2005 at Kenyon College, "This Is Water: Some Thoughts, Delivered on a Significant Occasion, about Living a Compassionate Life."

He begins his speech with "a standard requirement of U.S. commencement speeches, the deployment of a didactic parable-ish" story:
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes "What the hell is water?"
Wallace tells the graduates that the real value of education isn't knowledge, but beginning to learn how to harness your thoughts to create your experience of life:
The liberal arts cliché about teaching you how to think is actually shorthand for a much deeper, more serious idea: learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience. Because if you cannot exercise this kind of choice in adult life, you will be totally hosed.
His speech resonated with me, because I had been trapped inside my head, where I felt like a prisoner of my own thoughts, but hadn't been trying to exercise discipline or will to get out.
The capital-T Truth is about life before death. It is about making it to 30, or maybe 50, without wanting to shoot yourself in the head. It is about simple awareness--awareness of what is so real and essential, so hidden in plain sight all around us, that we have to keep reminding ourselves, over and over: This is water, this is water … It is unimaginably hard to do this, to stay conscious and alive, day in and day out.
Maybe you are thinking: perhaps you shouldn’t seek life advice from a depressed writer who killed himself. But then, if you think about it, of course this is where I should seek guidance. Maybe what’s most important isn’t the ultimate result, but the struggle. David Foster Wallace wasn’t a failure, I like to think, because he ultimately couldn’t vanquish this thing. It must have been too strong from the beginning. Wisdom, I am told, is gained through experience and adversity. I don’t want advice about coping with despair from someone who never faced it; I want it from someone smarter and more talented than I am, who was fighting a bigger monster than mine.

***

There were days this summer when the only way I could get to work was by promising myself that I could quit before noon. I apologize for the last post, because, like I said, it was complete bullshit. But I was bullshitting myself more than anyone. I did take three weeks off, but only because I knew I had to get away and had arbitrarily marked the time off on my calendar. I had lots of things I wanted to do, definitely too much, but in reality I lay on my couch and watched the sunny days pass by. When I felt better, usually around midnight, I made jewelry, which helped a little. I didn’t write a word.

A few weeks ago I was thinking, I wasted a summer, and I love summer up here. But now I wonder, is anything ever wasted? Maybe future summers will be better appreciated for this lost one … or maybe that is just more of my Polly-Anna-ish delusional thinking. If it is possible to be both optimistic and depressed, that’s how I am. Gee, I would think, I know something is terribly, terribly wrong with me, but I bet it will be better tomorrow! Finally, on the last day of the third week, I remembered that during the Great Sadness 2, I had finally called my doctor in desperation and asked for antidepressants. I had resisting taking them, but was finally so tired of the constant bleakness that I was willing to do anything. I wish I had decided this the first day of the three-week “vacation” rather than the last day … but so it goes.

It appears that I am finally getting back in gear. I’m not quite there, although I’m not quite sure where “there” is. But the fact that I’m writing speaks volumes.

***

I saw Kim the other day—I hadn’t seen her since our last meeting—I had been buried at work, and, well, depressed. She looked brighter; not happy or anything, but like a slightly brighter sun was shining on her. Her tone was definitely less flat, which made me become a clown in an effort to get her to laugh again. “You will observe once we step into the courtroom that I am going to run around looking frantic and disorganized as I attempt to juggle my clients while the judge is calling the docket. This is all an act to keep the prosecutors off their guards. Please do not be fooled.”

She put her hand on my arm, and smiled with one corner of her mouth, a beautiful, ironic half-smile, “Don’t worry,” she said, “I stopped at the hot dog stand before I came in, and the hot dog guy said that you’re good.”

“You’re kidding! The hot dog guy said I was good??" I held out my arms the best I could with my files and briefcase, and looked up to the heavens. “By God, I’ve finally made it!”

“Of course you have,” she said. “It was a fucking great hot dog.”

***

I was lucky that the last week of September was unseasonably gorgeous. Sunny, 80 degrees, flowers were at their peak, a moment from fading, but not quite, leaves were on the verge of falling, but hadn't yet. That week, for the first time, I started taking my dog, Millie, on walks again rather than only throwing the ball for her to fetch. Last Monday was such a bright, sparkly summer/fall day that I went home at lunch and walked Millie through a historic park near my house, where the formal gardens were lush with flowers, and the dahlias, my favorite, were magnificent. I tried to let go of thoughts of the lost summer, lost marriage, maybe lost career—to let go and be present in that moment with my dog, who had been with me through it all—always happy to play fetch although she’d rather go on a walk, always came to me when I cried—she was so excited to have me back walking. Surrounded by the bright sky, giant pine trees and exuberant flowers, it was easy to be just in that moment—feel the sun, marvel at the colors, absorb Millie’s enthusiasm, and as I walked along, I felt what I faintly recalled as joy, and repeated to myself, This is water, this is water …

***

I don’t know how much longer I’ll be able to remain a public defender. Like I said, some days I’m not sure I’ll make it to lunch. But it seems like every time I make up my mind—I’m out of this place!—a client will say something about the hot-dog guy, or whatever, and I know I’m in for another day. Or, a couple of times a neighbor or acquaintance has made hollow jokes about the soul-crushing emptiness of his job. The best thing about being a public defender is that we never have to search for meaning in our work. Because as impossible as some of this is to bear, a job where you feel that your efforts are ultimately without meaning would be worse. This pure purpose we have—to fight against the forever-overreaching power of government and to do the best we can for our clients—is something we should remind ourselves of every day--that our mission is righteous and the need is great. This, my public-defender friends, is water.

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Monday, August 2, 2010

Back from Vacation-Sleuthing

Although it may appear that I have been on vacation, all of you PDs out there know that my vacation alibi is baloney, because PDs are never really on vacation. I have actually been performing top-secret investigation that could only be accomplished in "deep cover."


(I also watched all of Burn Notice on my vacation. I am now a secret operative.)

I've also been involved in research and development for jewelry for the PD Revolution Etsy store.


All of the usual stuff: trial-chicken earrings, no dump-truck pendants, not-guilty dangles ...



Oh look, a little glass bottle designed to contain a powerful elixer. What to put in it ...




Ultimately, a variety of PD Charms were developed.

Oh little getting-out-of jail men: Why aren't you facing the same way?

The magnets weren't quite right ...

And who would ever thing that knitting copper wire would be a good idea?

Fortunately, after extensive testing, a few designs made the cut. Watch for new listings in the etsy story in the next couple of days.






Thursday, July 8, 2010

Who's the Boss of Your Boss?

You know how it was when you first become a pd--it was all so terrifying and kick-ass and exhausting and overwhelming and exhilarating--and you certainly didn't have time to see the big picture. Big picture? I usually couldn't see ahead to lunch, much less understand the systemic pressures that had landed me where I was.

I had no idea if I was doing a good job or not--I was trying my best, but how could I know if that was enough? Now I know I was doing some things well, and others not so much (to the kid I pled guilty to MJ possession for a pop can that tested negative, I am sorry. I should have known better.) It's hard to see how big the ocean is much less understand what is causing the waves if you are busy trying not to drown.

After a while, I noticed some curious things. One of these curious things came to my attention when I moved to a public defender office in another county on the other side of the state. (Ah, love.) At this point I had about 5 years experience, and had worked in 2 different PD offices, so I had a little perspective. My 5 years had involved a lot of trials and a chaotic schedule--working through weekends, but some days leaving early for drinks.

In my new county, the boss called a meeting of the misdemeanor attorneys (as a new hire, I had to start at the bottom in misdemeanors again), and at the meeting said that he wanted all of us to start marking if we left early or took a long lunch, and by how many minutes. (I now know this is against rules for exempt employees). He said that any minutes one of us was late or left early, would be counted as vacation time.

My fellow misdemeanor attorneys were all relatively new, and hadn't known anything different, and resignedly nodded assent. I thought the idea was crazy and unfair. I said, "So you mean if I work 20 hours on the weekend getting ready for a trial, and then the trial ends at 3:30, and I leave to go get some sleep, this will count as an hour and a half vacation time? Don't you think we need our vacation time?"

"Yes," he said, "I'm doing it myself, and I have to say that it hurts some."

"But, if it hurts you, and it hurts us, why are you making us do it?," I asked. "Is someone making you do it?"

"No," he said, "but the county commissioners are going to be reviewing our budget, and I want to show them that we are working hard."

"But shouldn't you be the judge of whether we are working hard? Or our clients?"

"They think we don't work that many hours, and I need to ask for additional funds for more laywers, so I need to prove to them that you are working appropriate hours."

Oh, if I could just go back in time and tell myself to shut up. That boss was a kind man with good intentions, and even if I disagreed with his methods, at least he was trying. Docking our vacation time never came to be, but the encounter planted a question in my brain. Why was the boss willing to sacrifice our vacation time and perhaps our sanity to look good to commissioners for something we were already doing? It wasn't our clients who were complaining. I remember thinking, Hmmm, because the county commissioners appoint him, part of his job becomes appeasing the county commisioners, when it really should be his job to lead us in battle. He should be fighting against anyone who tried to take away our vacation time, rather that offering it to appease the money gods.

Also, a few years later: There came a time in felonies when we were all dying. There were about 12 felony public defenders and 25 felony prosecutors (in a county where the vast majority of cases go to the defenders). We couln't keep up. Even the judges were telling our boss we needed more lawyers, and that they would support us in asking for funding for more lawyers. But our boss kept insisting we did not need any more lawyers, and that our "numbers were fine." By numbers, he meant caseload standards, which can be a double-edged sword. Numbers are fine, but the lawyers are dying.

That is when a little bell went off. Why wouldn't a boss ask for more lawyers? Even if he thought he might not get the lawyers, why not ask? I finally asked an older, respected lawyer, who said, simply, "Who do you think his boss is?"

Tuesday, June 15, 2010

Thursday, June 3, 2010

We Are All Public Defender Revolutionaries! Part I


When I met San Francisco Public Defender Jeff Adachi the week before last, he was hosting an innovative justice summit, engaging the media on the crime-lab scandal, running his defender office, and, oh yeah, had just finished a misdemeanor jury trial he personally conducted.

The previous evening, I met with some of the lawyers from the San Francisco office (at the invitation of Gunnar Rosenquist, a PDR Facebook member—thanks, Gunnar!), who were enthusiastic in their description of Jeff's trial. (Oh must you again tell me how he took off his suit jacket, and then put on a t-shirt over his shirt and tie to help demonstrate a point in his closing argument? OK, but only one more time.)

When I asked Jeff about the trial, however, he didn’t tell me about his theatrics, or the adoring crowd in the audience; he told me how he felt when he thought he had screwed up. Apparently, the judge ruled that Jeff had opened the door to some previously excluded evidence during his opening statement, and that this damaging evidence would now be admitted against his client.

“My client wanted to stop the trial and plead guilty right then. But I asked my client to have faith in me—even though at that particular moment I had no idea how I was going to win it.”

Jeff stayed awake through the night, worrying about the case, and trying to come up with a solution. Somewhere in that sleep-deprived darkness—a time familiar to every PD in trial (if I go to sleep now, I can still get 4 hours of sleep … if I go to sleep now, I can still get 3 ½ hours of sleep ... )—inspiration came, and he found the way to win. I don’t recall the specifics of the solution, but Jeff convinced 11 jurors to acquit his client, and the case will not be re-tried (for any non-defense lawyers out there: this means he won).

Like any good trial lawyer, Jeff Adachi wasn’t telling me about not sleeping to tell me about not sleeping—he had a point to make: That we, as public defenders and criminal defense lawyers, are problem solvers.

We often find ourselves in an impossible situation, in trial, for example, facing a mountain of evidence, outnumbered, with a grumpy judge who favors the state, a terrified client, and no hope—except … our defense brain won’t stop churning, it can’t stop trying to find an angle—anything—and then, like a blessing, a solution comes. Sometimes the solution is elegantly simple, but it can also involve staggering complexity; it also might not work; but the defense brain won’t stop thinking and trying until it corrals a possible solution. With that solution, you might win or lose, you never know ... but it’s the persevering search for a solution (and the ability to believe in that solution no matter how ridiculous it might seem after trial) that matter.

"We are the ultimate problem solvers," Jeff said. "And public defense is a problem that we can solve--if we all attack it together."

***

When I first argued that the public-defender establishment should include line PDs in their reform efforts 1) I had no idea anyone was going to listen to me; and 2) I wasn’t really saying that they needed to involve me personally. However, thanks to this blog and the public-defender interest it has garnered, I found myself attending two conferences the week before last, one in Knoxville (the ABA National Public Defense Symposium), at the urging of Professor Norman Lefstein, and the other in California (the San Francisco Public Defender's Justice Summit) at the invitation of Jeff Adachi. (Which explains how I found myself, below, being introduced as an attorney and blogger at the San Francisco Library alongside panelists with resumes far longer better than mine.)



Because the conferences were back-to-back, I flew overnight from San Francisco to Knoxville, which invited comparison between the two events. The San Francisco Summit was innovative and energetic—it opened with the performance of a monologue (scripted by Jeff Adachi) regarding “The Life and Times of Clara Foltz, Founder of the Public Defender Movement;” featured panels of speakers who were encouraged to brainstorm ideas to spark reform; and was attended my public defenders, court personnel and San Francisco citizens. At the close of the conference Jeff debuted a Public Defender Public Service Announcement, Innocent Until Proven Guilty, which is basically a public-defender P.R. commercial and an idea I have advocated here.

The Knoxville conference was more formal and scholarly, with professors and legal experts presenting their suggestions regarding excessive caseloads. I came to the following conclusions after listening to the speakers: every public defender and every public defender client deserves the same resources, training, and caseload control that the Washington D.C. public defenders flourish under; that litigation is not the best method to achieve this change (takes too long and mixed results); that individual lawyers should take a stand against excessive caseloads but need help to do this; and radical action is required to make these changes.

Prior to the conference, my introduction to Professor Norm Lefstein stemmed from an email rant of mine about the Knoxville conference. Dennis Murphy, an email friend from New York, had forwarded my comments to Norm, with my first formal e-introduction: Norm meet Carol; Carol meet Norm. Because I had read and admired Norm’s work, I felt lucky to meet him, and even luckier that he was willing to correspond with me and share ideas. After years of reading and talking and writing about these issues, and mostly running into brick walls, I can’t tell you how nice it was to hear someone respected by the public defender establishment say, What do you think about that? Or even, You’re right!

Norm Lefstein is certainly old-school, but in a way that combines scholarship with an open mind, and pairs decorum with recommendations for radical action. I don’t think Norm is a habitual radical (nor am I, really); both Norm and I are radicals regarding indigent defense reform because the continuing failure to fund and provide adequate assistance of counsel requires radical change.

Even though their styles differ, Jeff Adachi and Norm Lefstein deserve credit for innovation and insight in public defender reform. I think they deserve credit for involving me—not because I personally am great—but because I am trying to represent and encourage line defenders, who (undeservedly) shoulder many of the problems and much of the blame regarding the mess that is indigent defense, while at the same time being excluded from the development of a solution.

While I credit the San Francisco Summit with greater energy, there was certainly drama in Professor Lefstein’s understated comments, but a drama so subtle that any other audience would miss it. "There is a need for greater aggressive action--the tools are all there," he said in his remarks. "And now you all know what a radical I really am.”

I believe that if we are going to change, we all have to become public defender revolutionaries—every PD, every law professor, every law student, every law dean, every citizen who cares for justice—every one of us has to engage our problem-solving brain and take action. The fact that we underfund our systems, overload idealistic but human lawyers, but allow reform to be someone else’s cause in not acceptable. Our current system is unfair to clients, to public defenders themselves, and to a nation that thinks it has a justice system that is fair.

I’m not arguing that line defenders need to be involved so that I might travel to conferences or meet people I admire. I’m advancing this position because without us—without all of us—targeting our problem-solving brains at reform, our public defender systems will continue to stagnate and decline.

The problem we face is staggering. Whether one considers the small counties in Texas where the appointment rate is 8 % (or lower) or places like Washington where people are appointed lawyers but serious flaws are masked, these problems have persisted for over 30 years, we’ve known that these problems existed for over 30 years, numerous studies have documented that the problems did and do exist, and yet our systems of public defense are getting worse, rather than better.

I think that the main groups that we have considered to be in charge of reform have institutional conflicts of interest with true reform and suffer from an abundance of bureaucracy. I think many of us have pointed the blame at someone else. I think many of us have looked the other way, because it’s not our problem. We have to let go of all that. The problem belongs to every one of us. I think every single one of us needs to a) stop being defensive b) be openminded about change; c) take action.

When I think about the different perspectives of management, line defenders and legal scholars, I realize they are all necessary. Sometimes, at my own office, I get frustrated because I think the newer lawyers aren’t listening to what some of the older lawyers have to say. I have found myself thinking, Why can’t you understand that I’ve learned something by living and working in this job for the past 17 years?

On the other hand, I once found myself tempted to discourage a young lawyer who wanted to try to change something that would be hard to change. I had tried to change it myself, and failed. Luckily, I stopped myself from discouraging her, and gave some advice about how I would handle the situation if I were crazy enough to pursue what she wanted to do. And she did it. Success came because she wanted to right the wrong, but also because I had tried and failed, and learned some things along the way. Mostly, though, success was due to her naïve insistence on pursuing the right thing.

When I write about problems of the system, I hope that you don’t think I am blaming you, my fellow defenders. In fact, it is the blaming of public defenders for the problems of public defense that mightily pisses me off and motivates some late-night writing. I am pissed about the clients and how they wait too long to talk to me or get a visit, that their cases take too long, and that some should get better results. In some places, horrendous results are the norm.

For the purposes of this blog, though, I am pissed about what this job does to us. In his remarks, Norm discussed excessive caseloads, and then said, "What those caseloads do to lawyers is heartbreaking." Some of our most idealistic lawyers enter this profession, and many have their confidence and idealism ruined. Near the end of the speech, regarding his call for more aggressive action, Norm explained, "I've become impatient."

I’m impatient, too. How many lives are we going to continue to allow to be screwed up—both clients and defenders—before the problem is fixed? How many of our most idealistic, young lawyers are we going to sacrifice? How many clients' freedom will be a casualty? How can we continue to rationalize that we fail to protect the poor against the power of the government; we fail to provide justice; and we look the other way?

Obviously, radical change will not come from repeating efforts and methods that have previously failed. Radical change will not come from involving only the same people or groups previously involved in reform efforts. Radical change will only come if all of us in the criminal-defense community—public defenders, directors, professors, every single goddammned one of us—gets personally involved in reform, engages the problem-solving brain, and takes action.

Coming Soon: More specific ideas for the revolution; a bit of a travelogue with the SF PDs; and dare I attempt it? A Johnny Cash Giving the Finger to the Man lined envelope!

Tuesday, June 1, 2010

Martha Stewart + PD Revolutionary =

Between traveling the week before last, and fighting, fighting, fighting last week, I'm behind on my posts about the San Franscisco Justice Summit and the ABA National Public Defense Symposium in Knoxville. Excessive fighting steers me toward making things, rather than writing things, but I put the time to good PD Revolutionary use by devising some Defender Stationary this weekend (note to self: it would be a lot easier to send thank-you notes if you would just buy cards at the freaking store; note to those deserving thank-you notes: they're coming and quite lovely; note to history: depicted below may be the first ever Sisyphus-lined envelope). Also, the conferences sparked so many ideas that I've had to break the subject down into a series of posts. Thus, coming tomorrow, the first post in a new series: We Are All Revolutionaries!





Wednesday, May 26, 2010

Google Works!


(Click to Enlarge)


In case you can't read the fine print:


Search Engine: google.com
Search Words: public defenders treated like shit
Visit Entry Page: 
http://pdrevolution.blogspot.com/2010/03/chicken-shit-bingo-and-other-stories.html
Visit Exit Page: 
http://pdrevolution.blogspot.com/2009/12/power-of-yep-i-am-going-to-start-my.html

OK, technically the "shit" in "chicken shit bingo" may have played a role, but I still say this counts as a google miracle.


Real posts coming soon.  Promise.

Tuesday, May 18, 2010

San Francisco Justice Summit


We interrupt this blog for its first totally-biased event endorsement:

2010 Public Defender's Justice Summit
THERE MUST BE JUSTICE
Wednesday, May 19
San Francisco

According to the event organizers, the 2010 Justice Summit will examine ways to expose and prevent systemic failures of our justice system, an especially relevant topic in the wake of two law-enforcement misconduct scandals. The Summit, which is co-hosted by San Francisco Public Defender Jeff Adachi, will feature "experts on wrongful conviction, prosecutorial misconduct, and media, along with bestselling authors, law professors, reporters, and celebrity attorneys [and one regular public defender]." The subject-matter is timely, according to Mr. Adachi, given a pair of scandals that rocked the justice system in San Francisco: A lab tech whose cocaine theft unmasked rampant evidence tampering at the Police Department crime lab and a revelation that prosecutors failed to disclose the criminal convictions and misconduct of more than 80 officers who testified in criminal prosecutions.

“There couldn’t be a better time to have a frank discussion about the every day injustices that make it difficult for ordinary citizens to get a fair shake,” Adachi said. “Our speakers will explore how to prevent systematic failures like the ones we’ve seen in San Francisco and discuss just how commonly these miscarriages of justice occur.”

In addition to recognizing and preventing “ordinary injustice” in the legal system, panels will focus on remaking the image of defense attorneys and statewide criminal record reform. Among the speakers are Amy Bach, attorney and bestselling author of Ordinary Injustice; Gerald Schwartzbach, whose high-profile cases included the murder acquittal of actor Robert Blake; Jami Floyd, former Court TV Anchor, John Terzano, co-founder of The Justice Project and expert on prosecutorial misconduct; and Dr. Stephen Richards, a former federal inmate-turned-law-professor devoted to re-entry issues.

The media image of criminal defense attorneys will be the subject of one panel discussion [and include one regular public defender panel member]. "While the portrayals of defense attorneys throughout time has ranged from positive--To Kill A Mockingbird, Perry Mason--to the extreme negative -- The Devil’s Advocate(as the devil incarnate) Shark (defense attorney turned prosecutor) and even the comedic -- My Cousin Vinny (the stuttering public defender)," according to the event organizers, "the media image of the defense attorneys continues to be a matter of controversy. This panel examines how and why defense attorneys are often depicted in a negative light, and what can be done to change this."

The materials for the event include depictions of defense attorneys in popular media:


And I have to say that the montage looks better with a defender-gal addition:


The free event, which is open to the public, will be held 9 a.m.-2:30 p.m. in the Koret Auditorium in San Francisco Main Library, on Wednesday May 19th. Find event details and speaker bios here. Seating is limited and all attendees must register at sfpublicdefender.org

Thursday, May 13, 2010

For All You Bullies Out There

Now that my iphone keeps all of my random notes in one place, I will miss the pleasure of finding that loose piece of paper in the back of my drawer where I jotted a description of a siutation too funny/crazy/horrific to risk forgetting. Like this one:



Many years ago, in a County and State far, far away from most of you, an accomplished criminal defense lawyer I know got a phone call very early in the morning from an agitated lawyer in another state. The previous evening, the lawyer relayed, one of his partners and an investigator had been arrested for witness tampering and were currently in This Here County Jail.

Just a week earlier, the jailed lawyer had been appointed in his state on a decades-old "cold" case where the death penalty was being pursued. Before the arrest, the defendant had been living in This Here City. When the defendant's name became connected with the murder, Detective Burbridge, a local cop, interrogated the defendant and procured a purportedly incriminating statement. After the interrogation, the defendant was extradited to the state where the alleged murder took place.

Soon after being appointed, the attorneys met with their new client at the jail. As the lawyers left the jail's visiting room, one mentioned that he and an investigator were traveling to This Here City to interview the client's former roommate and former girlfriend. The roommate and former girlfriend were not perceived as fact witnesses--they had not even met the defendant at the time of the alleged murder. Rather, the defense hadn't yet received discovery, and thus the diligent lawyers were getting started on mitigation evidence and background.

The lawyers arranged the interviews in advance, flew to This Here City, and talked to the witnesses in their home. The witnesses had little to offer, but did mention that the defendant had left a message for them. The attorney told the witnesses that under no circumstance were they to talk to the client. The attorney gave the witnesses his business card, and asked them to get in touch if they thought of anything to add.

Meanwhile, back in the other state, when the attorneys had been at the jail, a bailiff had overheard the lawyers tell the client that they were going to interview his former roommate and girlfriend in This Here City. The bailiff called the prosecutor, and the prosecutor (who was familiar with Burbridge from the police reports and his interview of the defendant) called Burbridge and asked him to contact the witnesses.

Burbridge arrived at the witnesses' home after the lawyer and investigator had departed. According to Burbridge, the witnesses said that the lawyer and investigator "ordered" them not to talk to police (not true). Police also said that the investigator identified himself as a "Detective from Other State." (This is interesting, because Burbridge called the lawyer and investigator at their hotel. How did he know which hotel to call? He knew from the business card it was written on, which the lawyer had given the roommate and girlfriend. The card did not say "Detective.") After Burbridge left the witnesses' house, the roommate called the lawyer at his hotel and told him that he thought the police were coming to arrest them.

The lawyer and investigator agreed to meet Burbridge in the lobby of their hotel, thinking they would be able to explain any misunderstanding. Burbridge walked toward the two men; however, instead of offering an outstretched hand, he loudly and brusquely ordered, "You over in that corner, and you over there!"

Standing his ground, the lawyer replied, "Well, that ain't gonna happen."

The cuffs went on.

The accomplished local attorney agreed to represent the two men at their first appearance. The local attorney talked to a higher-up at the prosecutors office, who agreed that there was no need to hold the two. However, once they appeared at the hearing, the easy, agreed release began to slip away. The first-appearance prosecutor apologized and said that he was going to have to ask for high bond, based on a conversation he had with, you guessed it, Detective Burbridge. Additionally, the court's pre-trial service evaluation recommended against release because the men were from another state and thus a "flight risk." I remember watching the drama unfold, and feeling the tension as the judge, who appeared to be overly-cautious in weighing the issue, asked the accomplished attorney, "Can you personally vouch for these two men?" The arrested lawyer, who was sitting at the counsel table, winced and looked down, probably because he hadn't met our local attorney but 10 minutes earlier.

"Absolutely," the accomplished lawyer said.

Afterwards, a group us had drinks at a downtown bar, and the story was told and re-told from every angle, as only happy criminal defense lawyers in their element can do. The out-of-state partner had arrived, and I remember noticing how much he resembled other criminal attorneys I knew--cocky, funny, and knew how to tell a story. The arrested attorney, though, ruled the session, even as his exhaustion validated the tale: He had told his "Cellie" that he drove truck, understandably keeping quiet about being a lawyer, but then spent the night inventing trucking stories to a roommate who couldn't sleep due to the over-consumption of amphetamine.

"The whole thing was ... harrowing," he said. (One reason that we are better story-tellers than prosectors is that we allow ourselves to admit weakness.) "I was so relieved when I saw him," he said, pointing at the accomplished attorney. "I felt such happy relief knowing I had a lawyer there with me. And then I said the dumbest thing I possibly could have said, a line I've heard from inmates a thousand times over. I said to him, 'I am innocent of these charges.'"

"And do you know what that asshole said to me?  He said, totally flat, 'Yeah, that's what all my clients say.'"

"I was in such a freaked-out state--my usual perception was compromised," the lawyer told us. "I started to think I had been thrown into some secret hole of hell where lawyers came and messed with me as a punishment for all of my sins.  I kept asking myself as we walked up to the counsel table, 'Did he mean that? . . .  Was he fucking with me?'"

"But then," the lawyer said, "just as the judge was coming on to the TV screen, I couldn't help myself--I grabbed his sleeve and asked the second-dumbest question I possibly could have asked: 'When can you get me out of here?'"

***

I'm telling this story of a bully cop arresting a defense lawyer, because, after a week of being bullied myself (and it's only Wednesday as I write): You bullies may get away with bullying most of the time; you may even think you're immune; but the more cocky and consistent you are in bullying, the more likely you are to get busted.  Video and transcripts help.

Like, for example, Karl Thompson, a police officer indicted for criminal civil rights violations and obstruction involving the death (caused by Thompson) of an unarmed handicapped janitor. This document filed by the government in the case against Thompson, provides a fascinating look at the police cover-up and its exposure by the feds, while also providing insight the rest of us can use when attempting to expose their web of lies.

And who is also implicity incriminated in the cover-up? You guessed it--Detective Burbridge.

Tuesday, April 27, 2010

How to Be a Public Defender Revolutionary, Professor Version

It may be difficult to persuade you to join a public defender revolution just on my say-so. Maybe I am an extremist or overestimate the power of solidarity or the ethics rules. Maybe I suck. As overheard by a witness to the debate by the Board of Directors of the Washington Defender Association about whether to publish an article of mine: "Who does she think she is?"

I have advocated that we use of Formal Opinion 06-441 (ABA Committee on Ethics and Professional Responsibility, 2006) and the Eight Guidelines of Public Defense Related to Excessive Workloads (ABA Standing Committee on Legal Aid and Indigent Defendants, 2009) to precipitate the end of excessive caseloads. I realize, however, that my crazy tales of PD-life and intermittent profanity may not provide the level of authority and credibility necessary to allow you to challenge your caseload and the people who employ you.

To bolster the credibility of my thesis that public defenders have the power and authority to refuse excessive caseloads, I offer an article I only recently came across, Restraining Excessive Defender Caseloads: The ABA Ethics Committee Requires Action (Lefstein and Vagenas, The Champion, 2006). For a while now, I have been reading every public-defender study, report, article, or compendium that Googles its way onto my computer screen, and I am at a loss to explain how I missed a piece so relevant to the revolution. I am tempted to believe that I read it and then forgot about it--but this article is not the type of thing that I forget.

I'm glad I unintentionally saved reading this article until now, though, because it validates the message in my "How to Be a PD Revolutionary" posts (basically, that line public defenders should use ABA Formal Ethics Opinion 06-441 and the ABA 8 Guidelines to refuse to accept excessive caseloads), but thankfully supplies needed scholarship and gravitas.

Even though I hadn't seen the article until recently, I am familiar with the author, Norman Lefstein (Professor of Law and Dean Emeritus, Indiana University School of Law - Indianapolis)(who wrote the article with co-author Georgia Vagenas), because in my avid yet haphazard reading of public-defender reform publications, I had noticed his name attached to many pieces that resonated with me--writings or guidelines that helped me understand what I have been living through. He was one of two reporters and major contributor for Justice Denied, for example, which I briefly wrote about here. I also quoted Professor Lefstein in the same post (from this article in the New York Times): “I think the quality of public defense around the country is absolutely deteriorating. … In my opinion, there should be hundreds of such motions or lawsuits.” He was the reporter for the Eight Guidelines of Public Defense Related to Excessive Workloads, and member of the committee which produced and adopted the ABA's Ten Principles of a Public Defense Delivery System.  He was also instrumental in lobbying the ABA Committee on Ethics and Professional Responsibility to address caseload issues in a formal opinion, which, ultimately, lead to the ABA Ethics Committee's issuance of Formal Opinion 06-441.

In their analysis of Formal Opinion 06-441, which is both scholarly and revolutionary, Professor Lefstein and Ms. Vagenas assert: "[T]he new opinion is enormously important because it furnishes potent ammunition for defenders seeking relief from excessive caseloads before judges and from those in charge of their offices." This statement backs the opening paragraph of my "How to Be a Public Defender Revolutionary" series (except the 8 Guidelines did not yet exist): "We have the power to stop excessive caseloads. We have this power because two reports—the ABA’s 2006 Formal Opinion 06-441, Relating to Excessive Caseloads and its 2009 follow-up: Eight Guidelines of Public Defense Related to Excessive Workloads—give us the authority and ammunition to end the wide-spread reality of untenable caseloads."

Before reading the Champion article (which was published in December 2006, a few months after Formal Opinion 06-441 was issued), I hadn't realized the controversy the opinion had generated, with some public-defender heads adamantly opposed to its adoption. With such controversy and drama at the upper levels of national committees--some predicting a hostile takeover of offices by "under-performing" lawyers, others expecting righteous reform--those involved expected, I imagine, something in the wake of the opinion's issuance. In reality, though, the opinion caused "barely a ripple." (Note to all committees, symposiums, summits: if you exclude line defenders from your work, we may not notice when you do something, no matter how good it is.)

The lack of response to the issuance of Opinion 06-441 apparently dismayed Professor Lefstein, who wrote, some two and a half months after its adoption, "The ABA ethics opinion should be understood as a call to action by both individual defenders burdened with excessive caseloads, as well as by supervisors and heads of defender programs. The sad truth is that it seems not to be. The opinion was issued in mid-July 2006 (although dated May 13, 2006), and we are writing this conclusion at the start of October. During the past two-and-a-half months, however, the opinion seems to have created barely a ripple among defenders throughout the country."

I wonder what Professor Lefstein would have written if his future-self had somehow relayed that four years later the effects would be much the same.

While the most important message to be taken from Formal Opinion 04-441 and the Champion article is that in every state, pursuant to professional conduct rules, every lawyer is ultimately responsible for his or her own ethical conduct, I found the controversy over the opinion's adoption the most telling regarding the institutional problems that many public defenders face. At the heart of the controversy is the opinion's clear endorsement of a line defender's duty to withdraw or refuse to accept additional cases if the workload is excessive, even if this action contradicts a supervisor's directive, if the supervisor's directive is unreasonable.

The Champion article summarizes a defender's ethical duty to take action regarding an excessive caseload:
"If the supervisor’s decision in the matter [regarding a defender's excessive caseload] is not reasonable, however, the opinion states that 'the public defender must take further action.' '[T]he lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender's office.' And, if relief is still not obtained,the opinion indicates that there are still two additional steps that the attorney may pursue: (1) take the issue to the governing board of the agency, if any; and,(2) if still no relief is obtained, the lawyer may file a motion seeking to 'withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.'"
While I appreciate the clarity with which the opinion spells out this duty, the model rules have long provided that a lawyer should follow the opinion of a supervisor unless the supervisor's opinion isn't reasonable. (Parenthetically, I have never understood the ethics rules' endorsement of subservience to supervisors. Doesn't history show a greater danger from people using the excuse of superiors' orders to justify unethical behavior than it shows the danger of uppity rookies disrupting law and order? Perhaps the reason for the endorsement of subordination lies in the fact that lawyers on these committees tend to be former or current supervisors?)

Apparently, however, this idea--that line defenders should take action to alleviate an excessive caseload, even when contrary to a supervisor's order, if the supervisor's order is unreasonable--caused a few head defenders to protest the proposed opinion in writing and to predict public-defender anarchy if the opinion were to be adopted. Describing this reaction, Professor Lefstein and Ms. Vaganas wrote, "While the ABA Ethics Committee was preparing its opinion, several California public defenders sent letters to the committee and to other ABA officials, arguing that individual defenders must be absolutely bound by the decision of the head defender respecting whether a defender’s caseload was excessive."

One wonders how any defender--how any member of the bar--could advance this opinion. It is undisputed that many public defenders are assigned caseloads that are grotesquely excessive. Did these California defenders really mean that individual defenders should be absolutely bound to carry these impossible caseloads and irresponsibly provide inadequate representation, simply because a superior ordered it? Perhaps the Professor Lefstein and Ms. Vaganas misunderstood the California defenders' criticism?

It is, however, difficult to find ambiguity in a letter from Michael P. Judge, head of the Los Angeles County Public Defender Office, to the ABA's Standing Committee on Legal Aid and Indigent Defendants and to the Ethics Committee. The following is an excerpt from this letter, quoted in the Champion article:
"It [the proposed opinion] could easily make Public Defender offices unmanageable. It, inter alia, could substitute the judgment of a rookie lawyer, lacking experience and perspective for the discretion exercised by my attorney managers and me. Attorney managers in my office are all former trial lawyers who possess at least 15 years experience. Many like I have more than 30 years of such experience. It would set in motion an adversarial relationship between me and my lawyers such that resort to punitive measures such as discipline would likely occur. . . .The proposed rule (sic: ethics opinion) would be the source of much grief and mischief."
Mr. Judge sent a similar letter to the president of the American Bar Association, predicting that the proposed ethics opinion “would be exploited by under performing lawyers, who instead of complying with remedial efforts … would demand caseload relief and claim retaliation if any personnel action is taken by managers or the Chief Defender." According to the Champion article, chief defenders from several other California counties also wrote letters expressing concerns similar to those of the Los Angeles County Public Defender.

The logic of these letters fails to persuade me. Let's assume, for the sake of argument, that Mr. Judge and his managers are infinitely reasonable, and assign and monitor only reasonable caseloads. Mr. Judge's argument would then be that because he and his managers are reasonable, no line defender in the country should have the power to take action against the directive of a superior regarding an excessive caseload, because this power would make public-defender offices unmanageable. Given the documented problem of excessive caseloads throughout the country, doesn't this seem myopic? Doesn't this position ignore the fact that the rule only allows action against a supervisor's advice if the supervisor's position is unreasonable?

The content of these letters signal a deeper problem, a problem I've lived with, but is difficult to describe. Because I have worked in several different defender offices (by choice, not termination, so far), I've noticed that some bosses see themselves as leaders who support and inspire the troops. Others, however, seem to model themselves as assistant principals, charged with the duty of monitoring "under performing" lawyers.

My guess is that a boss who worries about the exploitation of ethical rules by under-performing lawyers, already has, inter alia, an adversarial relationship with his lawyers--a relationship that has nothing to do with an ethics rule. When you act like the assistant principal, you not only dimishish your own ability to inpire and lead, you diminish the lawyers, their faith in themselves, and ultimately harm the clients.

Note to head defenders: We are not the enemy. We need your help to correct excessive caseloads, but you could use our help as well. Imagine saying to county commissioners, "I know you want me to assign my lawyers 400 felonies a year. If I do that, however, my lawyers will have the ethical duty to decline additional cases, no matter what I tell them to do."

Professor Lefstein and Ms. Vaganas recognize the interplay in the power the opinion gives both line defenders and PD heads:
"We believe, however, that defenders and their offices are not as powerless as they may think they are. And the ABA’s new ethics opinion tells them that they have a clear duty to take action both to protect fully the legal rights of their clients and themselves from furnishing incompetent representation. But it takes courage to stand up to authority – both the authority of judges and sometimes the heads of defender programs. It also takes courage from the heads of defender programs and their boards of directors."
I believe that most state public defenders have excessive caseloads, some more excessive than others, but excessive nonetheless. Many of us achieve remarkable results despite this burden, but these results come with the emotional toll of being stretched too thin, the weight of guilt regarding the corner-cutting necessary to achieve results, and self-doubt that follows the constant criticism from all fronts despite our sometimes heroic efforts. We may not command high salaries or the respect of the community, but courage? Courage we have in abundance, if we remember to use it not only for our clients, but also for ourselves.

Friday, April 16, 2010

How to Be a Public Defender Revolutionary, Part IV


THE REVOLUTION STARTS NOW

Fourteen Public Defenders in Minnesota have filed a labor grievance over their heavy caseloads. This may be the first example of street-level public defenders taking organized action against their bosses to curtail excessive caseloads, as reported here.  (For more about how ABA ethics opinion 06-441 gives PDs the tools to control excessive caseloads, see How to Be a Public Defender Revolutionary, Part I, II and III).  The Minnesota 14's stance is patriotic, in the best sense of the word, and should inspire all of us to stand up to any government agency that attempts to violate our clients' right to receive effective assistance of counsel and our right to provide it.  Public Defenders in Minnesota, we salute you!

(Thank you, Martha, for posting a link to this story on the comments--and on The Power of Yep! :)  )

Tuesday, April 13, 2010

Things I Get Yelled at For, No. 1

I had debated whether to post about Things I Get Yelled at For, because even though Getting Yelled At is a constant, occasionally funny, and typical occurrence in the PD profession, when one talks about it, one faces the possibility of sounding whiny or defensive or in need of getting yelled at. I'm trying to save my complaining for my real-life colleagues, who have to put up with me, rather than directing it at you, my invited blog-reading guests.

I changed my mind and decided to write about Getting Yelled At because I received an email that reminded me how dismaying this treatment can be to newer PDs. My hope is that by showing you guys that I get yelled at (believe me, all the time) you can take comfort in the fact that you're not the only one.

A PD reader wrote,
I was one of the few in my law school peer group to want to work as a public defender but I don't think I was prepared to face the onslaught of disdain one receives from judges, prosecutors and sometimes the client. I love this job, I consider it a privilege, but I don't think anyone could do it without a strong network of dedicated colleagues.

So, Dear PD Reader, this is for you:

FROM THE ARCHIVES, unknown year, subtitled: "And You ALWAYS Grant My Dismissal Motions"

(Background: I had a client facing drug charges, who was taken into federal custody and prosecuted in federal court. One day, the federal hold was released, and he was back in state custody. I expected the state prosecutor to dismiss my case, because I learned that the client had received a lengthy prison sentence in federal court. I believed that the federal prosecution involved the same set of facts as my case, but wasn't completely sure--sometimes cases will overlap, but not involve the exact same facts.

I was surprised when the prosecutor offered the fabulous plea bargain that my client plead guilty as charged to the state charges. I asked the prosecutor if the federal case and my case were the same, and he assured me that they were completely different.

The trial date approached and I obtained a copy of the court file from federal court, and discovered that the federal facts for which my client was prosecuted were the exact same facts that my case involved. Because the crime he plead guilty to as part of a plea bargain in federal court had different elements than mine (maintaining a drug house vs. possession with intent to deliver), though, a dismissal under WA's statutory double jeopardy bar was arguable, but not guaranteed. In my research, I learned that a motion to dismiss on these grounds could be brought at any time, even for the first time on appeal, and noted that the trial was set the week after Christmas and involved a dozen state and federal officers, and called the case ready for trial.

What follows is a redacted, rough transcript of the state's motion to continue, heard on the day of trial. The judge hearing the motion was assigned only to hear the state's continuance motion, and had done nothing on the case prior to this hearing, and was not assigned to hear the trial. (please note that I sound pretty stupid here--and maybe I always do--but I really wasn't expecting to get yelled at on this day and was caught off guard.)

MS. PROSECUTOR: This is State’s motion for continuance of the trial date, I filed a certificate in support of my continuance request. ... The case rests exclusively on the testimony of the law enforcement officers who were present and conducted the search and interviewed the defendant. Both Deputy AAA and Detective BBB are material witnesses for the State and out of the office until January ... In terms of any prejudice in terms of speedy trial, the Defendant is here on a Marshall’s hold, um, he was sentenced to seventy-eight months in federal prison so arguably he’s on a ninety day clock. ... He’ll remain in custody but he’s serving the federal sentence in any event.

This is the first trial date, as the court knows, it’s unusual for a case to really go on the first trial date. The drugs are in the lab, you know, having been tested. It’s not as though I don’t have my physical evidence; I don’t have my testimonial evidence and I found out about that, well, I guess on the 23rd when I submitted my certificate.

COURT: Ms. Defender.

MS. DEFENDER: My client has already plead guilty and been sentenced to about seven and a half years for the exact same conduct that he has been charged for by the State. Those issues aside, when the state made an offer of pleading guilty with concurrent time, that seemed ludicrous to us since he’s already plead guilty and gotten a substantial amount of time for the same conduct and on the same date ...

COURT: Is there gonna be a motion here?

MS. DEFENDER: There will be, but it can be brought at any time even for the first time on appeal, when it’s regarding jurisdiction and double jeopardy, although it’s more statutory double jeopardy than constitutional.

COURT: Wouldn’t it make a little sense to have it at this point instead of putting the tax payers to the expense of another trial?

ME: Your Honor, the Defendant has the right to a trial and the Prosecutor is the one who is electing to pursue this trial, when my client has already plead guilty and been sentenced in federal court. The Prosecutor is the one who is choosing to prosecute him again even though he’s already been sentenced. My client has the right to a trial.

COURT: Why would you want to put him through a trial if you could simply note a motion?

ME: Excuse me, Your Honor? My client has a right to a trial ...

COURT: Ms. Defender, [a gavel may or may not have been banged at this point] Ms. Defender, I don’t appreciate your attitude or your demeanor today. I am asking you respectful questions and I’m, that’s not what I’m getting back from you.

ME: I apologize, Your Honor, I do apologize for my tone. That’s not what I meant. I was a little surprised when the court asked me whether I felt bad about putting my client through a trial which . . . Frankly, I was a little shocked by that question.

COURT: Is there, you’re saying that there’s a valid issue of jurisdiction. Why not bring a motion so that he doesn’t have to go through a trial and perhaps this could be dismissed before he has to go through that?

The judge eventually denied the state's continuance request, and later that day, the case was dismissed.