Challenging Judge-Centered Culture
This article was first published on www.jonrapping.com. It is republished here with permission from the author.
“Those most resistant to change are destined to receive the most of it.”
Ray Marshall (Secretary of Labor for President Jimmy Carter and Gideon’s Promise Advisory Board Member)
Recent events in Jackson, Mississippi remind us of the importance of building a strong community of public defenders with the courage to stand up for poor people accused of crimes. There, Judge Jeffrey Weill has decided to remove public defenders from cases and to appoint private counsel instead, who apparently will be more deferential to the judge. The conflict began when the judge removed one particularly zealous public defender from all her cases, barring her from his courtroom.
The Hinds County public defender office protested this blatant violation of the Sixth Amendment right to counsel and refused to acquiesce to continued demands that they abandon their clients. Judge Weill, apparently believing he has the authority to replace lawyers for poor people at his discretion, decided to continue reassigning public defender clients to private counsel. When Judge Weill subsequently decided to reassign a public defender client to a private lawyer, the client’s public defender asked to be heard. Judge Weill refused to allow the lawyer to speak and demanded that he “stand down.” When the public defender refused to abandon his client without making a record the Judge held him in contempt. When the head of the Hinds County office tried to support her lawyer, Judge Weill held her in contempt too. More on this story can be found here.
I have written a piece about these events for Talk Poverty which can be found here and wrote a letter to the Jackson Clarion Ledger that can be found here.
I am proud that the Hinds County public defender office is a partner of Gideon’s Promise and that the lawyer who refused to be bullied out of making a record to protect his client is a graduate of Gideon’s Promise. These public defenders are standing up to a “judge-centered” culture that undermines zealous advocacy for the poor across the country.
I was fortunate to begin my career in Washington, DC, with a public defender office that is fiercely client-centered. I was the beneficiary of the experiences of three decades of public defenders working to set a standard of representation in D.C. Thanks to these lawyers who shaped a culture that demanded public defender excellence, it was expected that I would fight hard for my clients; that I would insist on making a record when I felt there was an injustice. That while I would be respectful to the court, I would not “stand down” from my obligation to my clients. That culture, set by the DC public defender office, ultimately shaped the expectations of judges, prosecutors, and every player in the system. Everyone understood that public defenders were tenacious, well prepared, and devoted to those they represented. The highest level of advocacy, and complete fidelity to our clients, was the norm.
But when I left DC to begin working on the reform effort in Georgia, I was introduced to this “judge-centered culture.” In January 2005, a new statewide public defender system was launched and I was the Training Director. That month, I ran the first training program for this new community of public defenders. One session was a workshop on litigating common constitutional violations –the type defense lawyers routinely raise in every case–focusing on issues essential to preparing for trial and preserving a client’s most fundamental rights. In a decade of practice, I never had a case in which I did not file similar motions, and I knew no competent lawyer who had not either. So I was taken aback when one of the Chief defenders approached me afterwards. “I really enjoyed that session,” he said, “but we can’t do that where I come from.” Perplexed, I said, “Sure you can…this is the United States Constitution.” At the risk of stating the obvious, I continued, “It applies here in Georgia, I assure you.” Undeterred he continued, “I understand that, but where I practice, if we file motions our judges get angry.” This new public defender leader was well-intentioned. But he was shaped by thirty years of practicing in a judge-centered environment.
In the months following this experience, I worked with young, passionate public defenders who tried to establish a motions practice in jurisdictions where the judge had little patience for litigation. These lawyers understood their obligations to their clients but appeared before judges who did not. “That’s not how we do things around here counsel,” was a common refrain. And while some of the new Chief defenders certainly supported their lawyers who fought to change this culture, others did not. It proved to be an experience that taught me a lot about the importance of leaders who are willing to stand up to a status quo that has lost sight of justice for the poor and to support their lawyers who are willing to fight for their clients.
Two years later, I went to New Orleans to help with the effort to build a public defender office in the wake of Hurricane Katrina. There was an opportunity to reform what was one of the nation’s most dysfunctional public defender offices. Before Katrina, lawyers were assigned to judges, rather than clients. They served as part-time public defenders, receiving a set salary for handling all of their court-appointed cases, and supplementing that income by taking retained clients. Due to the structure of the indigent defense system, the judges had control over what lawyer would be the public defender in their courtroom. Judges would help funnel paying clients to those public defenders as well. In this culture, deference to the judge was a priority. The adversary system so essential to our system of justice ceased to exist. Poor people were processed through this system en masse with little resistance from their court appointed lawyers.
When a new, reform minded Board took the helm after Hurricane Katrina, the judges were defiant. The new Board sought to implement a system of vertical representation, where lawyers are assigned to clients rather than being tethered to courtrooms. It did away with part-time public defenders, insisting that public defenders could not handle outside cases that create a disincentive to focus on their impoverished clients. And while continuous representation and independence are widely recognized as essential components of effective public defense [See ABA Ten Principles of a Public Defense Delivery System].
The judges were fiercely resistant. Afraid of losing control of the public defenders’ office they did everything in their power to maintain the status quo. They tried to disband the reform-minded Board. They routinely held the head of the public defender office in contempt. They fought to keep passionate lawyers from across the country from joining the effort to transform indigent defense in New Orleans.
Many of the defense lawyers in New Orleans sided with the judges. They were accustomed to, and the beneficiaries of, a judge-centered world view. But with a strong leadership willing to recruit client-centered lawyers committed to changing the existing culture, reformers in New Orleans prevailed. While there is much work left to be done in New Orleans, there is now a professional public defender office, staffed with full-time attorneys, providing vertical representation to those they represent. They have investigators and provide holistic representation. But the change took time, and the will of a community of lawyers who were willing to resist the status quo.
So, as I have followed the events in Jackson, I am reminded of the courageous defenders I have worked with in connection with Gideon’s Promise who are willing to stand up to an existing system that is more concerned about processing cases than supporting zealous advocacy for the poor. I recently visited a website that has the audio recordings of the hearings in which Judge Weill held Greg Spore and Michele Purvis Harris in contempt, as well as the briefs filed in conjunction with this matter. It was clear from the audio that Judge Weill was determined to appoint the client in question a private lawyer despite the fact that he had been appointed to the public defender in another court. Judge Weill refused to even let the defenders be heard. He demanded they stand down and held them in contempt for not quietly cowering. Since neither Mr. Spore nor Ms. Harris were willing to acquiesce, the judge put them in an untenable position. He demanded they abandon their constitutional obligation to their clients or be held in contempt.
If a judge is allowed to silence a lawyer by simply threatening contempt, our adversarial system of justice will cease to protect us.
The Sixth Amendment recognizes that the lawyer is the vehicle essential to protect the individual against the system. A judge who refuses to respect this role is a threat to justice. A lawyer who stands up to that judge is our last line of defense against tyranny. But I was especially thankful for these public defenders when I read the comments in connection to the audio recordings. Some commentators who attacked these public defenders identified themselves as lawyers in Jackson. They were more offended that a lawyer would not back down from their Sixth Amendment obligation than they were that a judge would not even allow a lawyer to be heard. They were a reminder that many lawyers are shaped by a judge centered culture where deference to a judge trumps our duty to our client. It is a culture that believes the courtroom belongs to the judge instead of the people. It is a culture that forgets the judge is a servant of the people – not their master – and that defense lawyers represent the people.
Judges frequently have interests that are inconsistent with the needs of the accused. They often make it a priority to move many cases through the system quickly and efficiently. For judges who is also shaped by a system that is forced to handle far more cases than can be treated consistently with justice, calendar management becomes the most important goal. They prefer lawyers who will not file motions, demand too much for their clients, or put up a fight. But the lawyer has one overarching obligation – to serve the client with fidelity.
In a culture that is so easily offended at a public defender who challenges the status quo, we would do well to remember the words of that famous English barrister, Henry Lord Brougham:
[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.
His wisdom about the duty of an advocate is forgotten far too often when the advocate is a public defender. But if we believe in equal justice we must demand that our public defenders be as zealous and dedicated as the lawyers we would hire if we were in trouble. We must build a movement of public defenders who are committed to resisting the status quo and supported in that effort. This is the mission of Gideon’s Promise and we are thankful to count Hinds County as one of our partners.
If a judge tried to take away the lawyer I hired and give me someone I did not request, I would expect my lawyer to refuse to stand down.