Tuesday, June 17, 2014

And we'll never be judges

I don't want to be a legislator or a political appointee heading some bureaucracy. I don't want to be a city or county commissioner or a school board member. I don't even want to be a judge.

But it really chaps my hide to know (not think, not guess, but know) that even if I wanted to pursue any of those jobs, the job I've dedicated myself to thus far would disqualify me. Once a public defender, never an anything else in public life.

We, the public defender community, have long known that we were not going to be able to stay in this role if we someday want to be judges. Fortunately for me, I'm an advocate through and through, so that was never a problem for me. But I have colleagues who would have loved to be judges, and who would have been marvelous judges, who get overlooked at every opportunity. Part of that is the networking angle. We're not attending the right meetings (because we can't afford it and our offices can't afford to cover us), we're not meeting the right people, becoming known in the right circles. Of course, prosecutors get to be judges, but public defenders don't.

It's more than just the financial aspect, though, because even those who do much private criminal defense work don't get to the bench.

It really shouldn't come as a surprise, then, to learn that being a public defender is a bar to all kinds of other jobs. We saw earlier this year how representing a particularly disliked death row defendant, no matter how tangentially and no matter how meritorious the issue, disqualified an attorney from joining the Justice Department. And now we see that the ratio of former prosecutors and judges to former public defenders in Congress isn't a fair fight, either. The key comparison: right now, the House has 32 former prosecutors; since 2000, only 5 former public defenders. I'd be curious to see the resumes of those former PDs, too, because I'd guess they had work between being public defenders and running for office. Prosecutors can run for office; public defenders have to have transition jobs before they can run.

The Washington Post story has examples of attack ads that have run against those defenders who do try to run for public office. Defend one accused murderer or child rapist and that'll be the first thing your opponent points out about you. I know exactly which case of mine would be the first mentioned in the attack ad against me if I ever tried to run for office. I think I can guess which would be second. After that, though, there's a whole slew of stuff to choose from. They'd need to buy a full half hour ad to properly rake me across the coals for all the bad guys I've tried to help.

What is this about? Why is public defender work so disrespected? Except it goes beyond disrespect. Public defender work is downright despised. I can't even work up a whole lot of anger about it, anymore. The public defender hate just leaves me feeling so defeated.

We're good people. We're good lawyers. We're not idiots who just couldn't get better jobs. We actually do this work because we believe in it. It's work you should believe in, too, if you like the Bill of Rights. It doesn't just stop at the Second Amendment, you know. There are, in fact, 4 Amendments that focus on the rights of those suspected of and charged with crimes. One of them even guarantees every criminal defendant the right to the assistance of counsel. So you could even say we're true patriots, doing a job specifically outlined in the Constitution. You're welcome, by the way, for all that security in your person and effects against unlawful searches.

But instead of getting thanks, we get crapped on. We're laughed at, derisively called "public pretenders." (Yeah, that's really original and we've never, ever heard it before.) We're confronted at parties with outraged queries of how on earth we can sleep at night. We're vilified on comment forums. We're the red-headed step-children of state agencies, being asked to do more and more work with half the resources of other state lawyers (I'm looking at you, prosecutors). Then when we still manage to do good things with those limited resources, we're just more hated. And to top it all off, we're not allowed to have any role in public policy discussions because there's always someone there to point out that the work we do is somehow "incompatible with justice."

It's a sin and a shame that the perspectives that we have aren't valued, that our experiences aren't represented in state houses or Congress, that we aren't desired contributors to policy discussions. We would actually have something worthwhile to contribute, if you'd all stop insulting us and hating us long enough to listen.

But you won't and I'm too tired to fight. So, go on. Keep hating and disrespecting me, my colleagues, and the work that we do. Just know, though, that if any of you anti-public defender folks ever get arrested for DUI or accused of rape or murder, one of us will be there to stand beside you in court, no matter what sort of mud and disrespect you've flung at us. We don't pick and choose who is worthy of a defense. We stand on the principle that everyone has Constitutional rights that should be respected. Even you jerks who wouldn't vote for one of us because of our principles. We're just that damn principled.

Tuesday, June 10, 2014

Gitmo: The elephant in the Bergdahl room

The President struck a deal to get an American soldier held by the Taliban in Afghanistan back and the world went crazy. By the world, I really mean tv pundits and Republicans who knee-jerk oppose anything and everything this President does. People who just weeks ago were criticizing him for not getting Bowe Bergdahl back were all of a sudden incensed that he struck a deal with the Taliban to do just that. (And don't even get me started on Andrew Napolitano's ridiculous "he could be charge with giving aid to terrorists for releasing these guys" nonsense.) It's been fascinating to watch from a political standpoint.

But there's a really important legal, criminal defense even, point that must be emphasized. What we should learn from the Bergdahl incident is this: Gitmo is now and has always been a terrible, horrible, no good, very bad idea and we have got to end it. We are running out of time to find a graceful way to end it and denial about the need to end it isn't helping.

For centuries, the world has recognized certain rules about how to handle captured enemy soldiers during war. Countries were allowed to keep those soldiers, rather than release them so they could wind up back on a battlefield killing again, but within accepted parameters. And when the war was over, everybody sent the captured soldiers back home. The more amorphous war on terror, where we weren't really fighting a defined foreign power made things a tad more complicated. We weren't at war with Afghanistan itself, just the nasty elements that were allowed to grow in the more lawless regions of that country.

When the prison/detention camp thingy in Cuba was first created, it was a creative extension of normal international prisoner of war standards. We called the Taliban and Al Qaeda fighters we captured "enemy combatants" so we could detain them under international prisoner of war standards rather than trying to put them all through criminal court. It was definitely uncharted territory, which made it so tricky.

But that was over a decade ago. At some point, we had to know we couldn't just hold these guys for the rest of their lives. Some who had provable ties to actual terrorist acts, like Khalid Sheikh Muhammad, we could try in criminal court, where presumably they will be convicted and we can then hold them forever. Because due process and international law both allow people convicted of murder in criminal court to be incarcerated for life. Combatants captured on a battlefield, not so much. We were never going to be able to make criminal charges stick against most of them, the vast majority of them, even. At some point, we were always going to have to start sending them home, even the really bad, high-ranking Taliban guys. It doesn't matter how much they hate us or how much harm they might hope to do to us. The French and the British didn't stop hating each other the moment a war ended, but they still sent each other's men home. Even if that meant they'd face off in battle again some day. We just don't get to keep them forever.

So since we have to accept that reality that eventually we will have to close Gitmo and release most of its inmates, we might as well get something for them when we can.

In the wake of the Bergdahl swap, it would be nice if we could have a serious discussion, then, about what we are going to do with all the rest of them. When and how will we release them (there is no "whether"), to which nations, and with what, if any, conditions. It would be lovely if we could calmly and rationally face this reality head on, if we could think about what other things we might negotiate about as we release more detainees. Instead of speciously whining that we made America less safe on behalf of the son of a man who looks too Muslim.

Tuesday, June 3, 2014

Q: When is a 12-year-old an adult? A: NEVER!

Way back in my law school days, I interned at a public defender office in Wisconsin, working on juvenile cases. I saw a wide range of cases, from Pokémon card theft to vandalism to battery. There was arson and some plain old runaway stuff. I saw a case involving a teen girl subjected to a search of her bra that wasn't too different from a US Supreme Court case. I saw kids from all different kinds of families, different socioeconomic backgrounds. And I saw kids of all kinds of ages, as young as 8, as old as 17.

Know what I didn't see? I didn't see one single juvenile I might have mistaken for an adult. Didn't matter what they were charged with or how old they were. They were universally just scared kids. (And I knew from scared kids as I was a 26 year-old broke law student.) The 14 and 15-year-olds I saw would have gotten crushed in the adult criminal system.

So I come with that perspective when I say I cannot fathom what on earth the prosecutors in Waukesha County are thinking by charging two 12 year-old girls as adults. It boggles the mind.
 As I've ranted before, Teenagers really aren't adults, so we shouldn't treat them as if they are when it comes to crime and punishment. But these girls aren't even there yet. They're still looking ahead to their teenage years! Go to any 7th grade classroom anywhere and try to find me even one kid who you would feel comfortable putting in adult court. I'm telling you now, that kid does not exist.

I can't believe I have to write this. I don't want to have to keep beating this very sad drum. But there is no justification for charging and trying a 12 year-old child as an adult. None. Doesn't matter what the crime is, what the child's IQ is, or what the child says about why it happened. All 12 year-old kids are kids and need to be treated as such.

Please, prosecutors of the nation, stop making me have to rant about this. Just stop doing it. We have a juvenile justice system for a reason. It's to deal with the 12-year-olds who commit crimes, yes even very serious crimes. Trust it. It actually can work if you let it.

Did you hear the one about the judge beating up the defense attorney?

I don't know what's going on in Brevard County Court. I don't know if their courts are hopelessly back logged with defendants waiting for court dates. I don't know if the prosecutor's office there is charging too many cases, refusing to negotiate deals, if the public defender's office is stretched too thin due to understaffing, or some combination of all of the above. But there is clearly something happening, leading to some simmering tension.

That tension boiled over yesterday when Judge John Murphy asked assistant public defender Andrew Weinstock what he wanted to do with a case and the PD doggedly said more than once that he wasn't waiving. The conversation was about whether Weinstock's client would get a speedy trial. It sure seems the judge was determined to get a waiver of that constitutional right. The judge was certainly annoyed at the PD's refusal to cooperate. It can be very inconvenient for courts when defense attorneys actually insist on protecting their clients' rights. The judge told the PD he was pissing him off, told the PD to sit down. The PD said he had a right to be there and to stand up for his client.

What happened at first isn't all that odd. It's the kind of exchange that most judges and PDs will have at some point. "Please waive your client's constitutional speedy trial right because my docket is a mess and I don't know how we'll fit it in," says the Judge. "Not our problem," replies the PD.

It's what happened next that sets this one apart. The Judge said he would throw a rock at the PD if he had one. Then he suggests the two should go outside. And the PD does. The video doesn't follow the pair into the hallway, but an altercation can be heard, some thumps, and I thought I heard some profanity. This article includes the video.

The PD says as soon as they got into the hallway, the judge started punching him. No discussion, no attempts to work out their personal differences, just punching. After a minute or so, the judge comes back into the courtroom (to some applause, yikes) and takes a minute to gather his breath. Doesn't seem like the PD returned fire at all. For all the bravado he exhibited leaving the courtroom at the judge's invitation, he surely knew a lawyer punching a judge is a career-ending move sure to land that lawyer in jail for at least a night.

Now, I can get plenty ranty about what this judge did to the PD. The PD was absolutely wrong to leave the courtroom as he did, though, of course, one rarely exhibits the best judgment in the heat of the moment. Ideally, the PD would have stuck to his guns on the waiver issue and then asked for recusal after the threat of physical violence. But the judge is totally at fault here. You don't get to punch people! You definitely don't get to punch defense lawyers for having the gall to defend their clients' rights!

This judge should be removed from the bench. I'd be ok with him not facing criminal charges if he suffers that consequence. He does not belong on the bench, with people's lives at stake, if that's how he handles conflict, especially when the conflict is purely because a defense lawyer refuses to bend to his will. What defense attorney would feel comfortable appearing before this judge now? I wouldn't. Even if he wouldn't hit me, the real physical intimidation that occurred in this case with this attorney will linger in his courtroom. So far, the only statement has been that this judge will not sit on any of this attorney's cases, but I don't think that begins to address the problem. This may have been the only attorney to have suffered actual physical injury at this judge's hand, but it won't be the only attorney affected.

But there's much, much more to this than has been covered in any of the articles I've read about the incident. The judge went on to do something else that should get him removed and that sheds more light on what his real motivations were.

The entire time this incident was occurring, the poor defendant stood quietly and respectfully at the podium. He was still there when the judge, and the judge alone, returned to the courtroom. He stood there quietly as the judge composed himself and regained his breath. And then, the judge addressed him.

The judge asked the defendant what he wanted to do. Not about sticking with that attorney or being reassigned, not about sticking around to see if another PD could show up to continue the scheduling hearing. Nope, he asked the defendant a substantive question about setting a trial date. Did the defendant want a trial date or did he want to waive his speedy trial right? That's right, the judge went back to a defendant who was represented by counsel but whose counsel was not in the courtroom because said counsel had just been beaten up by the judge and asked the defendant to waive the very constitutional right his counsel just got beat up for refusing to waive! Of everything that happened, that to me is the most outrageous. The judge couldn't get that damned public defender to cave, but maybe not that he's out of the way, the defendant will.

A judge doesn't get to interact that way with a defendant who is represented by counsel. He certainly doesn't get to create a conflict with the attorney so the attorney can't come back in the courtroom and then treat the defendant as an unrepresented defendant. What is a defendant supposed to think at that moment? If I don't waive my right, what will this judge do to me? A defendant shouldn't have to worry that he will suffer consequences for invoking a constitutional right.

Fortunately, this defendant stood firm and refused to waive his right. Had he waived it, that should have been a slam-dunk win for the defense because no way would that waiver have been valid. But none of that takes away from how unacceptable it was that the judge asked the question in the first place. He had no business conducting any business with that defendant while he stood in court without his appointed attorney. I wonder if any other defense attorneys (or prosecutors, for that matter) were in the courtroom when the judge addressed the defendant. I would hope one would have stood up and suggested no hearing should proceed in that fashion. But what lawyer would want to challenge that judge after what had just happened?

What this judge did is despicable and it is behavior that has no place on any bench in any courtroom.

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