Last week I attended a meeting of judges from around my state.  A very nice affair and before I get to the point of this article let me say, there were a number of judges I was very happy to see, visit with, and for whom I have the greatest respect.   I was having a very nice conversation with one of these respected judges and was introduced to another judge I did not know.

“This is the state public defender” was part of the introduction.  This new judge does not say “hello” or “nice to meet you” but says “Oh, the dark side.”  And it is not said in a humorous way, or even quasi-jokingly – he is dead serious and offended by my presence – a public defender at his judicial conference, a travesty, if I read him correctly.  I am taken aback, not that I do not know there are many judges who privately think this way but somewhat shocked that he is so public with his bias.

I responded by smiling and saying, “Judge, I am not sure I understand.  If you mean defending the 4th amendment, the right to remain silent, the right to due process, and most of the other fundamental rights in the Bill of Rights that have been assaulted by the government, then I guess I am not sure what is so wrong with what I do.”  He then started on a diatribe about how ‘his money’ (yes, he identified it as his, as if it were coming out of his pocket) was being wasted paying public defenders/appointed counsel.  

I smiled politely, thanked the friendly judge who’s company I actually had been enjoying and departed, unable to enjoy any more of the evening and mostly worrying about the clients who appear daily in front of someone with such a biased attitude.  For if he thought I was the dark side, I had to wonder what he really thought of our clients and what meaning did the presumption of innocence have in that court.

And many of you are wondering what Pollyanna world I live in that I am writing about a judge like this, as if it is novel or new.  You all know this judge and many more like him.  You all struggle everyday against the tide of unfairness and bias.

And yet, I still wonder when our founders ideals became hijacked in the name of fear mongering and retribution.  Think of the ideals expressed in the Bill of Rights.

  • Establishment clause
  • Free Exercise clause
  • Freedom of speech, press, assembly,
  • Right to petition
  • Right to bear arms
  • Right to privacy
  • Due Process, double jeopardy, self-incrimination
  • Trial by jury, confrontation clause, speedy trial, public trial, right to counsel
  • Civil jury
  • Excessive bail, cruel and unusual punishment

These noble ideas are the entire basis of our country.  And every single one of these rights has been attacked by the government, restricted in application by the courts, and assaulted by those who claim our founders only believed in the morality they want to impose on others.  Free speech and flag burning, voter suppression, illegal seizures, public protesters arrested (the 99|PERCENT|), and so many other fundamental rights are continually under siege by prosecutors and other government officials.

It is defense attorneys who head into the breach every day, doing battle to protect these fundamental rights.  Yet, somehow, we have lost the public message of the value of our work.  We have seen the ‘founding father’s principle’ taken over by those who would willingly do away with most of these fundamental rights.   And, I suspect, they would welcome a return to an era when people of color counted as less than full person.

It is noble work we do, protecting people from the ominous and misused power of the government as it assaults the very principles it was based upon.  If protecting rights is the ‘dark side’ then I am proudly part of that but I worry about our future when defending liberty can be publicly demeaned by a person who wears a robe.