By Joshua Brownlee
Before getting bogged down in yet another article, ask yourself these questions:
Are 95% of people who are arrested guilty?
What percentage of people who get arrested are innocent?
Does police misconduct or overzealous prosecution increase convictions rates?
How do police know when they make an illegal search or seizure?
What happens to innocent people who are wrongfully accused?
Sadly, people from different communities and backgrounds will have very different answers to these questions. For some, it may be tempting to say “Hey I follow the law, so this doesn’t apply to me” or “Most defendants are guilty of something, right?” The five questions mentioned above are important because the answers have serious consequences for society as a whole. Tragically, most of these questions cannot be answered in the present judicial system. The purpose of this article is to demonstrate the ramifications of not answering these questions.
The ecosystem of the United States criminal justice system is based on adversarial relationships. Judges, prosecutors, law enforcement, and defense attorneys make up separate parts of that fragile ecosystem. Like any functional ecosystem there must be a balance. The system ceases to function properly when parts lack the power to keep the others in place. These checks are not just power point slides from a high school civics class. These entities wield real power that affects hundreds of thousands of everyday people. Let’s start with Defense Council. Public Defenders handle the overwhelming majority of criminal defense cases at both Federal and State levels. HBO host John Oliver recently ran a segment discussing Public Defenders’ lack of funding and overwhelming caseloads on HBO’s Last Week Tonight. If you haven’t seen it check it out. Last Week Tonight Public Defender Episode.
The HBO host does an excellent job covering funding and case load issues plaguing indigent defense and public defenders across the country. Among other things, John Oliver highlights that 90-95% of criminal cases end in a guilty plea (regardless of whether they have a public defender or private attorney). Mr. Oliver goes on to make a number of sound moral arguments about why we should care about funding Public Defender Offices. Unfortunately, at the end of the episode it still feels like a poor person’s problem. This isn’t John Oliver’s fault because it’s a mistake we all make. The American Civil Liberties Union (ACLU) reported that it’s currently suing the State of California for lack of funding for Public Defenders in a civil rights case. Again, at first glance it still seems like a poor person problem. The law suit claims lack of funding for Public Defenders “collectively result in the constructive denial of counsel.” See: Phillips v. State of California. This means a majority of the cases going through that system might as well have no attorney at all. The complaint in Phillips v. State of California lays out some compelling evidence to back that quote up. See also: Justice Policy Fact Sheet.
The evidence presented by John Oliver, the Phillips case, and justicepolicy.org demonstrate that most negligent, improper, or illegal actions taken by judges, prosecutors, and law enforcement in criminal cases not only go unnoticed and unchallenged, but may even be encouraged. The collective result of this practice leads to unconstitutional habits that infect the entire ecosystem. Institutions in the criminal justice system are designed to challenge the other parts. They are not designed to hold back and let a weakened adversary take a breath when it is at a disadvantage. At best this turns into accidental oversteps and at worst it turns into outright abusive bullying by judges, prosecutors, and law enforcement. And here good friends is the awkward part. An average person doesn’t have to look very far to find a fair judge, committed prosecutor, or dedicated police officer. For me, this is the most terrifying fact. Despite dedicated legions of well-meaning loyal public servants, the system is failing. This failure can best be summed up in a very common scenario:
A young police officer makes an unknowing illegal arrest and search in a case. The Defendant is too poor to hire an attorney and gets an appointed lawyer. At arraignment the court room has an overloaded calendar. Judges, prosecutors, and public defenders all have high caseloads. In response to high caseloads, the judge gives higher sentences to those who lose at trial and openly hostile towards attorneys and defendants who ask for evidentiary hearings. In response to high caseloads, the prosecutor adds more charges to accusations to increase the likely hood of a conviction and is encouraged by supervisors and third party activist groups (like MADD) to not reduce cases to lesser charges. In response to high caseloads, the public defender attempts to get the best deal for his clients as quickly as possible so he can talk to the forty other clients on the arraignment calendar. At arraignment (defendant’s first court date), a plea is offered along with a discovery package from the prosecution. After only a momentary glance at the police report and before the evidence can be thoroughly examined by the defender, Defendant pleads guilty to the charges. The officer never testifies and is never made aware that his arrest and search were illegal. Officer congratulates himself on getting a bad guy off the street and remembers “what works on the street”. At the end of the day, Judge nods approvingly at prosecutor and public defender for getting through another loaded calendar.
This scenario is how bad practices begin to take foothold throughout institutions. These bad practices have a powerful effect on anyone implicated with a crime as well as innocent people who have done absolutely nothing wrong. Look on any news channel for examples. James Blake, a world famous tennis player is leaning against a wall and then out of nowhere he is tackled by a police officer and thrown to the ground. See: Video of James Blake being attacked. Police end up apologizing because he is a world famous tennis player and there happens to be video. James Blake was the 4th best tennis player in the world and he got slammed to the ground for no reason. What about all the people who can’t afford lawyers who are not world famous tennis players?
The problem is made worse when the boundaries between prosecutors, judges, and law enforcement start to get blurry. Recently, the Atlanta Police Chief had the audacity to tell reporters “judges and prosecutors need to be on the same page” to get more jail time for repeat offenders. See: Atlanta Police Chief demanding higher sentences.
A Police Chief has no business encouraging a prosecutor and judge to have exparte sentencing arrangements in a court room. What kind of ecosystem of equal adversaries do we have if law enforcement, judges, and prosecutors are all on the same play book? Police officers, judges, and prosecutors must remain separate, not gang up on criminal defendants. The very same law enforcement, prosecutors, and judges that buddy up are the same ones who will prosecute and sentence a corrupt public servant if he or she commits an illegal act. How can they not be biased?
We can’t rely on 1983 civil rights lawsuits to make up for criminal defense council. Most city police officers are good police. Sadly there is a cultural problem within the command staff and the city governments. Police leaders are all too happy to throw individual officers who make mistakes under the bus rather than correct bad habits and have the city be accountable for common practices or policies. Take City of Atlanta for example. Whenever there is a constitutional law suit against the City of Atlanta, the City is quick to deny any and all wrong doing regardless of what they know. If evidence is presented clearly showing wrongdoing authorities abandon the individual officer to avoid the City paying out. This means individual officers who may have been improperly trained or directed by a superior are left to fend for themselves when it comes to damages rather than have the City or Police Department held accountable. Bad habits go unchecked because there is no fiscal incentive for cities to fix problems until they get epidemic. Is it really that bad? The Federal Northern District Court recently held Atlanta Police Department in contempt of court for failing to follow the court’s orders on protecting civil liberties. See: Southern Center for Human Rights article on Judge Batten’s Order. After reading Judge Batten’s Order, one is tempted to call the Police Chief and City of Atlanta leaders repeat offenders.
Police have a difficult job, but all the more reason to be clear about the rules of warrantless searches and seizures. The best way to ensure officers understand their legal parameters is to have their work checked in the adversarial system. By the time civil rights lawsuits come along, it is usually too late. Take DeKalb County earlier this month. Three officers break into a house without a warrant, shoot the family dog, and then shoot an unarmed man. All of this action was based on an alleged 911 call about a suspicious person that was vague a best. See: DeKalb County Police Shooting.
Three officers participated in a search that had no exigent circumstances justifying a warrantless search. Their lack of training almost killed an unarmed father with his child in the next room. Some fathers, brothers, and sons are not so lucky. Let me be clear, I am not saying police shouldn’t defend themselves. People who point guns or knives at police have a death wish. That being said, some police have bad habits that go unchecked for a long time, and those bad behaviors can quickly and randomly hit anyone in a community.
Good public defenders counter balance bad police behavior and overzealous judges and prosecutors. A well-funded and well-staffed state wide public defender system is absolutely necessary for our legal system to function. Despite this fact, every year the Georgia Legislator tries to dismantle or chip away at the public defender system and replace it with the old appointed system. The appointed system saves the government a lot of money because it usually passes on the cost to the defendant. For private attorneys taking appointed cases, there is a strong fiscal incentive to get lots of cases and plea them out early. See: Blog on Georgia Legislature. There are amazing public defender offices but there’re understaffed. Which is amazing considering most legal magazines point out every month how there are currently more attorneys than legal positions available. Despite the glut of attorneys on the market, individual Public Defender Offices have to get by with less staff and more cases every year. This is a funding problem. We need more prosecutors, judges, and most of all public defenders to handle the case loads. It should not fall on a judge or prosecutor to ease up on litigating criminal cases because the system is overloaded, that isn’t their job. Police can’t be expected to manifest objective scrutiny on their search and seizure techniques, that’s not their job. It’s the responsibility of defense counsel, and most importantly public defenders, to challenge those elements in the judicial system with evidentiary hearings and jury trials to bring balance to the adversarial process. Our legal system requires fairness and equality before the law. Not giving those principles to the majority of people that pass through that system, renders Federal and State protections meaningless for society as a whole.