Posted on by rjonakait · 2 Comments

Confessions From a Beginning Public Defender

Over the last fifteen years, I have volunteered at several public defender offices. I started my legal career as a public defender, and going back to that work after decades made me remember how hard that job is. It certainly was difficult for me at the beginning of my career.

          Because of plea bargaining and dismissals, many defenders and prosecutors try few cases. The overwhelming majority of cases end without a trial, and new attorneys might go a year or more without doing a trial. I, however, tried a lot of cases shortly after being sworn in as an attorney.

          After getting a graduate law degree, I joined the Legal Aid Society, then New York City’s public defender. I was a favorite of the chief attorney of the organization because he and I were both graduates of the University of Chicago Law School. He advanced me quickly, and I was in a major trial position three months after I started, having already done a few misdemeanor trials.

          Federal money had come into New York City for special drug courts, and I and five others were assigned as public defenders in these newly-opened courts. Cases were transferred there from all around the city. Because of the backlogs in the other courts, many of these cases were old, no acceptable plea bargains had been negotiated, and a mountain of cases was awaiting trial. The new courts were designed to try such cases. As a result, for about a year and a half, I started a new trial about every two weeks.

          The pressure was intense. I never was not thinking about my cases. I carried a notebook—at movies, parties, dinners, the subway, wherever—to jot down notes about the cases because I could not shut them out of my mind. I put the notebook by the bed because almost every night I would wake up thinking about my clients.

          Mostly I lost the trials. I knew that this was normal. Defendants are convicted 75% of the time or more, and the conviction rate for the kinds of drug cases I was trying was even higher. A legendary attorney who mentored me said that it would be a miracle if a defender won half the cases. Even though I knew these facts, I had not yet mastered the essential requirement for a public defender: coping with losing. I consider myself sane and balanced, but this was the one time in my life that I felt close to a nervous breakdown. Of course, it may not have been my fault that a person was convicted—the evidence against him was simply too strong—but even so, each time I questioned whether I was competent to do the work.

          Especially hard was a loss when the defendant had been free on bail. When convicted, he was immediately handcuffed and shoved into a cell behind the courtroom. I dreaded seeing that person at that moment, but I felt that I had to. The bars that separated us always gave me a chill. They haunted me. This feeling always comes back to me when I see the final scene of the movie “The Maltese Falcon.” Although I have enjoyed this film many times, I often turn away at that closing shot, which gives me the creeps. Mary Astor is being led away by the police, and she is hoping that Humphrey Bogart will save her. In a great monolog, he makes it clear that he won’t. The cops take her to an old-fashioned elevator with a gate, and the gate is closed with her on one side and Bogart on the other. The gate’s shadow falls like bars across her face. The horror of what awaits her has now sunk in. She panics. The scene brings back the memory of the queasiness I felt when I went to see Abraham S. in the cells after he was convicted. His was the real-life face of Mary Astor’s character. Worse yet, it was not clear to me that he was guilty. Sleep was only a velleity that night.

          I did win a few trials, but these did not prove to me that I had the right disposition to be a public defender. After a not-guilty verdict I did not feel elation or gratification. I did not even feel satisfaction about my trial attorney skills. I was only relieved that I had not lost. The win did not make me feel good; it only staved off the depression of a loss. After one acquittal, I talked with the friendly presiding judge, and I explained these feelings to him. He responded that with such emotions, I should not be a public defender. I knew that he was right, but I had no idea what to do to survive in the work.

          After trying cases at what seemed like a non-stop pace for a couple years, I left the trial bureau and went into a test case unit of the Legal Aid Society. Doing legal research and drafting memoranda and briefs without having to pick a jury gave me time to reflect on my experiences, something I could not do when I was involved with trial after trial. I thought hard about what I had done well and what I had not done well. I thought that I was being objective when I concluded that I had performed much better than I had given myself credit for. Yes, I was a good trial attorney, and my clients, even the ones who had been convicted, were lucky to have had me.

          Six months into the test case unit, I went back to try a big drug case involving a defendant arrested by an elite, but corrupt, unit of the police. Conviction meant an automatic life sentence, but now I had the confidence that I knew what I was doing. The client, however, was scared and tried to get me replaced, but his mother—a sweet, sweet woman, who, in spite of everything, loved her son–said that she had a vision from God that I was Mikey’s savior. So, he began to cooperate with me. I did do a terrific job, and to his surprise he was acquitted of the most serious charges. He went to jail, but did not get a life sentence.

          From that time on, I felt I was able to assess my trial performances more dispassionately. Even when there was a conviction, I could examine without prejudice whether I had done a good job. I looked back on a trial not to flagellate myself, but to see if there was something to learn for the future. I learned that I and only I had to try each case. In other words, I could not let other people tell me how to try it because I was the one who had to live with the result. I learned that sometimes risks had to be taken and the safe path was not always the better one. The safe path, the one that others can’t criticize, often leads to a conviction because that is the usual result in a criminal case. Risks would leave me open to criticism, but I owed my client my best effort, risky or not. If I thought that the risks increased the likelihood of an acquittal, even though an acquittal was still unlikely and even though I would be criticized if a conviction resulted, the risk was worth it. I learned to have confidence in my judgment, or at least I learned that I knew the case better than any observer and my judgment about my own case was better than anyone else’s. I eventually went back to regularly trying cases and trusted that I really knew how to do it. I would like to think—do think—that I served my clients well. I still felt bad after a loss, but now I found satisfaction in winning.

          But there was another side to being a public defender. Mikey’s big drug case, while giving me new-found confidence, also led me to an ethical breach…not a particularly serious one, but… Defender ethics prohibited me from taking anything from the client or his friends or family. But after the case, Mikey’s mother kept insisting that she had to do something for me. She settled on a Saturday lunch that she would prepare. I said no again and again, but she persisted. She could not understand the reason for the refusal, and I could see that I was hurting her feelings by continually declining her invitation. I decided to bend my ethics and relented. She then insisted that I bring the spouse. I’m glad we went.

          She lived in a cramped apartment somewhere in what was then the shadow of Shea Stadium, the home of the Mets. We quickly learned, however, that after coming from Cuba (well before Castro), she had lived in the Bronx and was a Yankees fan. Her accent was thick, and she kept talking about her love of the New York “Jankees.” I tried not to smile every time she said it. There were religious artifacts around her living/dining room, but then I noticed pictures of a handsome man in the kind of fancy dress that I associated with Cuban performers. When I asked about the person in the picture, she lit up. That was her husband who had died but still lived in her memory. I did not know how to react when I found out that he was a Cuban band leader who primarily led orchestras playing on cruise ships plying the waters to Havana. I did not ask her what she thought of “I Love Lucy,” but here was a woman who had been married to a real-life Ricky Ricardo. She was fascinating talking about that life.

          She had us sit at a small Formica table, and she brought the spouse and me food. After we ate it, she brought more food. After a few minutes, she brought even more, and after that was sampled, another dish, and another. She had prepared a banquet for ten!  I hoped each time she served us it was the last time, but I also felt that I would look ungrateful if I did not continue to eat. She had worked on this meal not just for hours, but for days. The spouse and I kept urging her to sit and eat with us, but she refused. She was only there to serve us.

          If we talked about her son (who was serving a nine-year sentence), it was only for a moment. She tried to give me money, but I was insistent on giving it back to her. I didn’t see her again after I waddled down the steps, but for years, until she died, I got a Christmas card from her sent by her son. I don’t think that she could read or write English.

Posted on by rjonakait

The Job Comes with Pay, Power, Prestige . . . and Criticism . . . . and Billionaires’ Gifts

I learned it when I became a professional baseball umpire. As a high school student, I umpired games of younger kids, and I was paid. As a sports fan, I already knew that umpires could draw criticism. And, of course, although infrequently — because I assure you I was good at the job — or perhaps because times were different and people were more civilized, or perhaps because few adults attended the daytime games, a call of mine was questioned.

When I took the job, I knew that I would have to tolerate criticism, for criticism came with the job.

A decade later I was a public defender. Representing someone charged with a crime was done in a public courtroom. Few people besides relatives and friends of those involved in the trial attended, but they were supplemented by courtroom regulars, usually retired people who went from courtroom to courtroom hoping to be entertained by the plight of others. They were a talkative and opinionated lot. If I stepped into the corridor during a break in the proceeding, someone would invariably tell me how I was doing — especially if they thought that I — or they, if they had been in my shoes — could do better. (I always listened. Perhaps I might learn something.) I was acting in a public arena. I could expect criticism. Criticism came with the job.

The judges, too, were in an open forum and, of course, had to expect that their performances would draw disagreements. Most such criticisms were grumblings from attorneys or spectators and did not reach a wider audience. However, if an atrocious crime had been committed by someone released on bail for other charges, the news media would report the identity, often with outrage, of the bail-setting judge. Some judges dreaded such publicity. Of course, if a defendant was not released on bail, the feared press notice would never come. Even though the only ground for setting bail in New York was to assure a defendant’s presence in court, these timid judges often set bail higher than was required to meet that purpose.

Judges, I also learned, could be touchy about criticism when it suggested that they had misinterpreted or misapplied the law. I was once assigned to do an appeal of a murder conviction. The trial transcript revealed what I thought was an egregiously wrong ruling by the trial judge. The appellate court unanimously agreed with me had ordered a new trial.

I had never appeared before the trial judge when I argued that appeal. I had never even met her, but a few months after the appellate court’s decision, I had occasion to appear before her on a minor matter. I was expecting to have to introduce myself when my case was called, but as soon as I entered the courtroom, she interrupted what she was doing, pointed at me, and nearly spat out, “You are the person who got me reversed.” I said nothing but privately reflected on the fact that she blamed me, never considering the possibility that the conviction was overturned because of her own blameworthy actions. It was my fault, even though I was under a legal and ethical duty to argue the appeal. That a person might be serving a life sentence after an unfair trial did not seem to phase her. (When the defendant was subsequently re-tried, he was acquitted.)

Defensiveness, not reconsideration. That is often the response to criticism, even from judges to whom we look for rationality and justice. And that brings us to Samuel Alito.

Justices of the Supreme Court, like Alito, should feel as little threatened by criticism as any group in our country. They keep their jobs and pay as long as they want no matter what the criticism. They hold their positions for life. (They can be removed through the impeachment process. However, no Supreme Court justice has been removed that way.)

Their decisions are unchallengeable. They face no criticism from a higher court because no higher court exists. Decisions of the Supreme Court cannot be reversed in our legal process.

Yes, Congress has a limited sort of check on the Supreme Court. It can pass a new law if the Court has wrongly interpreted a statute. I am pretty sure that this has happened, but I can’t come up with an example. Perhaps someone can help me out, but such congressional action has been so rare as to be almost nonexistent. Furthermore, federal legislation cannot overturn a constitutional ruling of the Court.

You may have been taught, however, that the amendment process acts as a check on the Court’s constitutional decisions. Horsefeathers! Tell me when an amendment has changed a Court ruling. You might point to the Fourteenth Amendment, which states that all persons born in the country and subject to our jurisdiction are citizens of the United States. You might suggest that this overruled the infamous Dred Scott decision, which gratuitously pronounced that Blacks could never be citizens. However, the Fourteenth Amendment came in the wake of the Civil War and was not adopted by the usual amendment process. The southern states were effectively coerced into ratifying it.

Your trivia question: Name the one normally adopted amendment that effectively overruled a Supreme Court decision. You win the lollipop if you said the Sixteenth Amendment, which authorized an income tax. We don’t need to go through the history of that provision, but that amendment in essence overrules the Court’s nineteenth century ruling that an income tax was unconstitutional. That’s it. It is the one time the amendment process acted as a check on the Court’s many constitutional holdings. From a practical perspective the amendment process has not been an effective check on the Supreme Court.

In reality, a Supreme Court ruling only gets changed when another Supreme Court overrules or modifies a previous decision. The only check on justices are other justices. We say we are a government of checks and balances, but for practical purposes there are none on the Supreme Court.

(concluded July 3)