We are the Ones Who Defend the Constitution

Often, as I hear individuals discussing events as they unfold in other countries, statements such as “that wouldn’t happen in the U.S.”, “it is a ‘police state’, we are lucky here” are thrown around with pride and an almost superior air. What we know as public defenders is: “IT” does happen here and we are slowly watching our rights and freedoms being stripped away by often unbridled and unchecked police, prosecutors and government officials.

I have been a public defender for over a quarter century and witnessed first-hand police and prosecutors lying and cheating to get convictions in Cook County, IL and in Minnesota. I know my experiences are not unique. I’ve listened during hearings/trials words come out of “professional witnesses” mouths that are more than speaker’s embellishments – the damning statements are made with the sole purpose to convict an individual. In the “old days” I used to believe in the Karma of it all – police being indicted by the feds, etc. Rarely this held true; too often not. And, just like the kid that kept getting away with something and not getting punished, too many individuals in power continue to bully, pick on and push around those who have a hard time sticking up for themselves.

A few years ago, while Chief Public Defender in Hennepin County, MN, I received a call that a judge was going to grant a search warrant request to the Minneapolis Police Department. The court was going to allow them to search my office to look for and seize evidence (our client’s cell phone) they said we had in our possession and that we were obstructing their investigation. I have to say that was a first for me. Without going into the details, I chalked this up to an inexperienced member of the bench and overzealous members of the force and county attorneys office. After much discussion and confrontation, the warrant was never issued and the phone was never turned over. However, it was another lesson about fighting for what is right – and not being shocked that the attempt was made in the first place.

The arrest of Jami Tillotson, an assistant public defender in San Francisco is unconscionable. Ms. Tillotson – as all can see in the YouTube video – was simply fulfilling her duties and, I believe, her ethical obligations to her client. While unconscionable, to me, it is not shocking – not in these times. It is clear from viewing and listening to what transpired, the officers involved didn’t give this a second thought. The unchecked bullies continue to do what they have always done – and will always do – because the prosecution and often the bench either look the other way or don’t want to stand up for what is right for all of us as citizens.
As a body, we in the United States have allowed the bullies to go unchecked. From the Patriot Act to condoning the use of intrusive tools to peer into our lives and homes we looked the other way. In the PR of getting the “bad guys” – read “terrorists” – we have basically rolled over and said uncle. We should be ashamed of ourselves.

All of us as public defenders have known for years that we REALLY are the last line of defending our freedoms. We really are the ones who defend the Constitution. Guess what? The police and government know it too. However, instead of recognizing our vital role, we have to deal with threats, intimidation and now even arrest.

What began as seizing bank accounts of private attorneys in the 90’s – presumably under the guise that the money was drug money being used to provide a defense attorney – has now turned into the arrest of Jami Tillotson for simply doing her job. And by the way, if you haven’t read the article, an assistant public defender was arrested in Pennsylvania for what appears to be doing his job (ABA Journal: Public defender is arrested, charged with lying to court staff about his client).

I used to joke that at some point our government would seriously consider embedding chips into all of us so they could know our every move. I also used to joke that a lot of people probably would go along with this just fine. Well, the joke is on me. We’ve embedded ourselves with our own chips – our smart phones. Now the government can not only monitor our every move, they can monitor what we text, tweet and say. Know what? People seem to be just fine with it.

I know that we as public defenders are not fine with it. We need to band and stand together against the reprehensible conduct of the arrest of Ms. Tillotson – and, unfortunately the others who will face the same consequences for standing up for the rights of their clients. Consider this a “WTF?” moment. WTF? We cannot believe the police actually arrested Ms. Tillotson. WTF? What were the police thinking? WTF? What even gave them the hubris to do this in the middle of a hallway in front of a lot of people including the client? WTF? If the police do this in plain sight, think of what they do on the street.

What we don’t what, what we can’t have is a WTF? moment several years from now. WTF? Why didn’t we stand up against and fight against this behavior?