We are all products of the sum total of our life's experiences. I am no exception; therefore, my observations about representing the indigent defendant and the "criminal justice system" in which the "defense" of that defendant occurs is based on my experiences and perceptions.
When I first started practicing law, it was as a Maricopa Deputy County Attorney back in 1971. The Warren Court had opined several cases protecting the "defendant's" rights to neutralize the excesses of police misconduct. Miranda had been decided, and the police were complaining about how their hands were tied to catch criminals.
The judges in superior court, in my view at the time, were receptive to motions to suppress filed by defense counsel. Yes, there used to be active motions practice - motions to suppress confessions, motions to disclose identity of informants, motions to suppress evidence seized as a result of unlawful searches and seizures, etc. There were even motions to dismiss the entire case before the Rules of Criminal Procedure were changed to allow only dismissal of technically defective charges. What is most noteworthy about all of those motions is that they were frequently granted.
It was trial by ambush with neither side having to provide discovery except upon order of the court. Preliminary hearings would last sometimes for days or even weeks because the defense attorneys would ask to review the police reports of the police after they testified, to cross-examine them.
Prosecutors and police (and I was one of them) complained about how the system favored the defendant because the defense could cross-examine prosecution witnesses (including and especially the victim) at the preliminary hearing, and the state never knew what the defendant was going to say at trial unless he made a prior statement to the police. Of course, the state had certain advantages such as free investigation and legal services while a criminal defendant had to hire and pay for his own resources. There were many extremely competent criminal defense attorneys to choose from, but they cost money to hire. If a defendant could not afford an attorney, he was appointed a public defender.
Public defenders often take a "bum rap" from the "unknowing" who say they want to be defended by a "real attorney", but in my opinion, some of the best criminal defense attorneys I witnessed in the system came from the old Public Defender's office. Some of those attorneys are now superior court judges. Often, public defenders, either at the state or federal level, acquire high proficiency because of their vast experience. As a member of the panel for the Federal Public Defender's office, I sometimes rely on the advice or input from the attorneys in that office.
But, back to history. I used to think the judges were liberal, and the system favored the defendant (when I was a prosecutor). I used to be a real hard-charger for the state - I prosecuted the complex, novel, or tough cases (e.g., street crimes, organized crime, wiretaps, government corruption, State Fair case, Jerry Buss case). I used to teach the cops how to conduct better searches, take better confessions, prepare better cases - all to help swing the pendulum toward the state to make the system fairer for "us" - not fully appreciating who the "us" were. I even developed procedures for the grand jury and supervised its operations and emphasized greater use of it. All to make the system fairer for "us".
Slowly, but surely, the pendulum swung toward the state It swung so far that now there is now an unprecedented overwhelming advantage and bias for the government prosecuting, convicting, and sentencing persons accused of crime.
Look at the movies and the television action shows - they are about "cops". The policeman is the new cultural hero, the good guy to stop all that is bad in our society. Jurors, when they are voir dired, take far more pride in answering the questions relating to their relationships with police rather than their relationships with lawyers. Jurors are voir dired about whether or not they would give greater weight to the testimony of a police officer and of course almost all say "no". That is one of those things they call a legal fiction - you know it, I know it, and the judges know it. Yet they, the judges, voir dire from their form questions in their notebooks, and we all know that the juries are tainted and prejudiced against defendants by virtue of cultural orientation.
Our society equates crime with evil, but the truth of the matter is that our society is highly prejudiced against minorities - Blacks, Hispanics, Orientals, Arabs, Native Americans, the poor. Our society is prejudiced against "criminals" having rights because "everybody knows he is guilty".
The O.J. Simpson trial has now made John Q. Public an expert in the criminal justice system because he knows what is wrong with it. Almost nobody talks about the Furhman tapes - how only two of numerous boasts of beating "niggers" and planting evidence were presented to the jury. Part of the defense was the allegation of planting evidence and racial prejudice, but the issue of the tapes is almost forgotten.
I wonder if we still have a Fourth Amendment anymore. Cops can search the entire car on a traffic stop. It didn't used to be that way. They can make everyone get out of the car. It didn't used to be that way. They can seize a car and deny the spouse the community property interest in it. It didn't used to be that way.
Remember the old "two prong" test to determine whether the evidence seized based on the word of a "confidential, reliable informant" was admissible? Those standards have been watered down. And do not forget what I call the "dumb cop rule" - it really means "Golly, I really do not know anything about the law of search and seizure, but I meant well and had good faith when I searched". You know it as the "good faith exception to the exclusionary rule".
What about confessions? The truth of the matter is that we will never know which confessions are obtained by coercion and which are not. Just watch any regular cop show on T.V. or at the movies and watch them beat the hell out of a "bad guy" to make him talk. Watch the cops make fun of having to read the Miranda rights to a suspect in custody.
How about discovery? As a defense counsel, have you ever had to prod the judge to get the prosecution to disclose what it is supposed to disclose by law? Frequently, maybe?
What is it like defending an indigent client at trial? If he is in custody, it is more difficult because you have to visit him in jail or in those neat little holding rooms if it is a federal case. It is just not the same trying to prepare a defense in that situation rather than if he is free to come to your office.
Evidentiary rulings can kill your defense, but you make the motions with the idea that perhaps the judge will give them the respect they deserve. Some judges are respectful to both the prosecution and defense, and other judges forgot what it was like to try to insure that the client's, AKA defendant's, rights are protected. After all, isn't that what it is supposed to' be all about? Protecting rights of the people. Some police, prosecutors, and some judges just do not get it. We do not represent "criminals"; we represent people. That "presumption of innocence" is not just a cutesy phrase to make our system sound fair; it is supposed to be at the core of our system. What has happened; however, is that everybody wants to be the "toughest sheriff in town". Not only the sheriff, but the street cops, the prosecutors, the legislators, the judges, the probation officers - everybody wants to be "tough on crime".
Crime, however, is like beauty, it is in the eyes of the beholder. Do you notice how the Republicans want to go after street crimes more (e.g., the minorities) while the Democrats go after the white collar guys (e.g., government and business)? Politics should not be involved in our criminal justice system, but is, and this contributes to the perception of injustice and corruption in the system. One of the presidential candidates said he will appoint more conservative judges, yet as a senator he confirmed the ones appointed by a Democratic President.
The President says that he wants a national curfew for children. He wants more cops on the streets. He wants his "terrorism bill" (which he got) to go after people the Department of Justice loosely suspects to be "terrorists".
This is the environment - legal, social, political - in which we live and in which we defend citizens accused of crimes. The environment is hostile - there is not a level playing field - the deck is stacked greatly in favor of the government. With mandatory sentences, biased elements of the criminal justice system, and a public who also wants to be "tough" on crime, the accused and his counsel have many challenges. It is even more difficult for the indigent defendant who often cannot make bond, cannot afford his own attorney, cannot pay for extensive private investigation, cannot hire expert witnesses, and simply cannot sustain a lengthy defense. He cannot afford his own private presentence investigations, and he cannot afford his own attorney on appeal.
This country was founded out of revolution, and the founding fathers created a constitution which emphasized the citizen rights over the government. Somehow, that intent became obfuscated as our society separated the classes and emphasized control and prosecution of the minorities and the poor. The Charles Keatings and high corrupt governmental officials are not dealt with - prosecuted - until the public demands it; but the minorities and the poor fill the courtrooms, jails, and prisons to prove how "tough" on crime the politicians (in all three branches of government) are.
Those of us who work in the system know the score, but once in a while we need to step back and look at the total environment as I have tried to describe some of it in this article. We need to know the "environment", and we need to keep trying to change it for the better; or it will get even worse.
When I first started practicing law, it was as a Maricopa Deputy County Attorney back in 1971. The Warren Court had opined several cases protecting the "defendant's" rights to neutralize the excesses of police misconduct. Miranda had been decided, and the police were complaining about how their hands were tied to catch criminals.
The judges in superior court, in my view at the time, were receptive to motions to suppress filed by defense counsel. Yes, there used to be active motions practice - motions to suppress confessions, motions to disclose identity of informants, motions to suppress evidence seized as a result of unlawful searches and seizures, etc. There were even motions to dismiss the entire case before the Rules of Criminal Procedure were changed to allow only dismissal of technically defective charges. What is most noteworthy about all of those motions is that they were frequently granted.
It was trial by ambush with neither side having to provide discovery except upon order of the court. Preliminary hearings would last sometimes for days or even weeks because the defense attorneys would ask to review the police reports of the police after they testified, to cross-examine them.
Prosecutors and police (and I was one of them) complained about how the system favored the defendant because the defense could cross-examine prosecution witnesses (including and especially the victim) at the preliminary hearing, and the state never knew what the defendant was going to say at trial unless he made a prior statement to the police. Of course, the state had certain advantages such as free investigation and legal services while a criminal defendant had to hire and pay for his own resources. There were many extremely competent criminal defense attorneys to choose from, but they cost money to hire. If a defendant could not afford an attorney, he was appointed a public defender.
Public defenders often take a "bum rap" from the "unknowing" who say they want to be defended by a "real attorney", but in my opinion, some of the best criminal defense attorneys I witnessed in the system came from the old Public Defender's office. Some of those attorneys are now superior court judges. Often, public defenders, either at the state or federal level, acquire high proficiency because of their vast experience. As a member of the panel for the Federal Public Defender's office, I sometimes rely on the advice or input from the attorneys in that office.
But, back to history. I used to think the judges were liberal, and the system favored the defendant (when I was a prosecutor). I used to be a real hard-charger for the state - I prosecuted the complex, novel, or tough cases (e.g., street crimes, organized crime, wiretaps, government corruption, State Fair case, Jerry Buss case). I used to teach the cops how to conduct better searches, take better confessions, prepare better cases - all to help swing the pendulum toward the state to make the system fairer for "us" - not fully appreciating who the "us" were. I even developed procedures for the grand jury and supervised its operations and emphasized greater use of it. All to make the system fairer for "us".
Slowly, but surely, the pendulum swung toward the state It swung so far that now there is now an unprecedented overwhelming advantage and bias for the government prosecuting, convicting, and sentencing persons accused of crime.
Look at the movies and the television action shows - they are about "cops". The policeman is the new cultural hero, the good guy to stop all that is bad in our society. Jurors, when they are voir dired, take far more pride in answering the questions relating to their relationships with police rather than their relationships with lawyers. Jurors are voir dired about whether or not they would give greater weight to the testimony of a police officer and of course almost all say "no". That is one of those things they call a legal fiction - you know it, I know it, and the judges know it. Yet they, the judges, voir dire from their form questions in their notebooks, and we all know that the juries are tainted and prejudiced against defendants by virtue of cultural orientation.
Our society equates crime with evil, but the truth of the matter is that our society is highly prejudiced against minorities - Blacks, Hispanics, Orientals, Arabs, Native Americans, the poor. Our society is prejudiced against "criminals" having rights because "everybody knows he is guilty".
The O.J. Simpson trial has now made John Q. Public an expert in the criminal justice system because he knows what is wrong with it. Almost nobody talks about the Furhman tapes - how only two of numerous boasts of beating "niggers" and planting evidence were presented to the jury. Part of the defense was the allegation of planting evidence and racial prejudice, but the issue of the tapes is almost forgotten.
I wonder if we still have a Fourth Amendment anymore. Cops can search the entire car on a traffic stop. It didn't used to be that way. They can make everyone get out of the car. It didn't used to be that way. They can seize a car and deny the spouse the community property interest in it. It didn't used to be that way.
Remember the old "two prong" test to determine whether the evidence seized based on the word of a "confidential, reliable informant" was admissible? Those standards have been watered down. And do not forget what I call the "dumb cop rule" - it really means "Golly, I really do not know anything about the law of search and seizure, but I meant well and had good faith when I searched". You know it as the "good faith exception to the exclusionary rule".
What about confessions? The truth of the matter is that we will never know which confessions are obtained by coercion and which are not. Just watch any regular cop show on T.V. or at the movies and watch them beat the hell out of a "bad guy" to make him talk. Watch the cops make fun of having to read the Miranda rights to a suspect in custody.
How about discovery? As a defense counsel, have you ever had to prod the judge to get the prosecution to disclose what it is supposed to disclose by law? Frequently, maybe?
What is it like defending an indigent client at trial? If he is in custody, it is more difficult because you have to visit him in jail or in those neat little holding rooms if it is a federal case. It is just not the same trying to prepare a defense in that situation rather than if he is free to come to your office.
Evidentiary rulings can kill your defense, but you make the motions with the idea that perhaps the judge will give them the respect they deserve. Some judges are respectful to both the prosecution and defense, and other judges forgot what it was like to try to insure that the client's, AKA defendant's, rights are protected. After all, isn't that what it is supposed to' be all about? Protecting rights of the people. Some police, prosecutors, and some judges just do not get it. We do not represent "criminals"; we represent people. That "presumption of innocence" is not just a cutesy phrase to make our system sound fair; it is supposed to be at the core of our system. What has happened; however, is that everybody wants to be the "toughest sheriff in town". Not only the sheriff, but the street cops, the prosecutors, the legislators, the judges, the probation officers - everybody wants to be "tough on crime".
Crime, however, is like beauty, it is in the eyes of the beholder. Do you notice how the Republicans want to go after street crimes more (e.g., the minorities) while the Democrats go after the white collar guys (e.g., government and business)? Politics should not be involved in our criminal justice system, but is, and this contributes to the perception of injustice and corruption in the system. One of the presidential candidates said he will appoint more conservative judges, yet as a senator he confirmed the ones appointed by a Democratic President.
The President says that he wants a national curfew for children. He wants more cops on the streets. He wants his "terrorism bill" (which he got) to go after people the Department of Justice loosely suspects to be "terrorists".
This is the environment - legal, social, political - in which we live and in which we defend citizens accused of crimes. The environment is hostile - there is not a level playing field - the deck is stacked greatly in favor of the government. With mandatory sentences, biased elements of the criminal justice system, and a public who also wants to be "tough" on crime, the accused and his counsel have many challenges. It is even more difficult for the indigent defendant who often cannot make bond, cannot afford his own attorney, cannot pay for extensive private investigation, cannot hire expert witnesses, and simply cannot sustain a lengthy defense. He cannot afford his own private presentence investigations, and he cannot afford his own attorney on appeal.
This country was founded out of revolution, and the founding fathers created a constitution which emphasized the citizen rights over the government. Somehow, that intent became obfuscated as our society separated the classes and emphasized control and prosecution of the minorities and the poor. The Charles Keatings and high corrupt governmental officials are not dealt with - prosecuted - until the public demands it; but the minorities and the poor fill the courtrooms, jails, and prisons to prove how "tough" on crime the politicians (in all three branches of government) are.
Those of us who work in the system know the score, but once in a while we need to step back and look at the total environment as I have tried to describe some of it in this article. We need to know the "environment", and we need to keep trying to change it for the better; or it will get even worse.
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