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!

PDR Manifesto

We will fight for anyone.

We will fight for the innocent, the underdog, the unlucky, and the guilty. We will fight the power. Because if we know anything as public defenders, we know that people in power tend to abuse it. We may not have known this when we started our jobs, but we learned it about 5 minutes into it, when the prosecutor wanted to send our first client to jail for a year for driving without a license. We learned it when the judge put our client in jail for being 5 minutes late to court (and we then tried to figure out what to do with the client's dog left locked in the car). We learned it when the judge told us we had to go to trial on a case he had just appointed us on.

Maybe we didn't know how to fight at first, either. But we learned it when we told the prosecutor that if he wanted a year for driving suspended, he could prove it at a jury trial, with a constitutional challenge thrown in for fun. We learned it when we took the dog to the client's girlfriend's house, against all office policy. We learned it when we told the judge we would not do a trial unprepared. We learned how tough we can be when the judge threatened to put us in jail, and we just shrugged, "Go ahead, but I'm not doing this trial." The lesson became a part of us when the judge backed down and gave us a continuance.

But there's one thing we haven't figured out: How to fight for ourselves. I don't know if we're too busy, or too tired, or only like fighting other people's battles--but we haven't figured out how to advocate for our own public-defender rights. It seems so strange that lawyers who specialize in questioning authority seemingly bow to it regarding systems of public defense. We have no real organized voice, and because of this, allow the people in power to define our world.

I know this sounds a little theoretical, but the real-world implications abound. I am going to get to the details of my argument in coming posts, but first, for today, let me clarify my thesis: We, as street-level public defenders, have to unite. We have to unite and advocate for the changes we know we need. We can't leave it to our bosses, or the courts, or the bar associations, or legislatures to do it for us. We have to fight for ourselves, because no one else really wants to do it, or can do it.

And here's how I can sell it to you: By fighting for ourselves, we're really fighting for our clients.

So, join PD revolution--it's not my revolution, it's ours, and we've got to get going!

THE POWER OF YEP!

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.