I sat in court limbo, waiting for my attorney, in those clackety, chocolate-colored wooden chairs that weigh about 50 pounds each. The New Haven courthouse’s historic preservation prevented the installation of the sinners’ pews in more modern courthouses. Of course, the chairs, like their inhabitants, were flawed. Ecru lines, scrapes, and scratches ran up and down the legs, on the sides of seats, either because of the violence of a defendant or the carelessness of a marshal who had to align them each night for the morning, all facing a blank wall because the bench and the parties are off to the left in this dogleg room, an L-hole, that was never designed to accommodate growing ranks of the criminally accused.
By the time I got there the chairs were already screwed up. Tilt here. Moved to another row there. Nothing wild but defendants making sure to deposit some disorder before left the courthouse. It made my rectitude even harder in those high-backed chairs. I didn’t bother turning mine so I was slanted toward a public defender – one whose real-life friendship with Attorney Betty Anne Waters played out in matinees in the movie Conviction, the story of a woman who went to law school with the sole goal of freeing her innocent, wrongly incarcerated brother – urge her client to admit violating her probation.
Her client had failed to pay restitution, even though the defendant couldn’t afford to pay it as she subsisted only on Social Security disability checks. If this defendant had taken her public defender’s advice, all the money she had received and lived on would have been considered an ‘overpayment’ that she needed to pay back. From representing people in this situation myself, I knew how the Social Security Administration gets overpayments paid back: they let the beneficiary collect disability in legal status only; every check gets reversed to the government. On paper, you look like you’re receiving benefits – and become ineligible for other entitlements – but you’re not getting the actual benefits. You get no money from any source. You’re unable to live because your checks are held until you pay back all you owe.
This lawyer was setting her client up to be liable for restitution on two fronts when she hadn’t been able to keep up payments on one front. That’s why she was in the courtroom that day. The attorney, in defending a client who was unable to afford her restitution orders, essentially doubled what she owed. It made no sense. It was typical. Abandon all hope, ye who need counsel.
I can ask my gynecologist about an earache. She’ll refer me to an otolaryngologist eventually, but before I leave her office, she will tickle in the inside of my ear with one of those black cones to see how serious my problem is before she’s done with me to make sure I’m not a walking emergency. She can do this because the practice of medicine requires baseline competence. The practice of law doesn’t.
Public defenders don’t take the time to understand the administrative law that governs the collateral consequences of the convictions they shove their clients into. As criminal defense counsel, they think they’re specialists who deal with only one type of problem. What they don’t get is that specialists are just general practitioners with more training; doing criminal defense doesn’t excuse you from knowing about other policies, especially when working with an indigent population whose lives are affected by administrative law (health benefits, entitlements), civil law (lawsuits), family law (termination of parental rights) and probate law (mental competence).
Suddenly the court had to adjourn, probably because the courtroom marshals were needed in lockup for an emergency or something so the client didn’t get to admit to anything. I walked right up to the public defender as she headed for the courtroom exit, her arms loaded to her chin with folders of cases she had already handled that day.
“Listen. Don’t let her take that deal,” I said and pointed back to the bench she just stood before to double her client’s debt. “She’ll lose her disability to an overpayment. You know overpayments? She won’t get any cash for months. Even years. Are you not going to use Bearden v. Georgia [the Supreme Court case]? It says she can’t violate her probation or a restitution order if she didn’t have enough money to pay it,” I explained to the attorney.
“Who are you?” the attorney asked me, a reasonable question. She saw me come over from defendants’ purgatory and my situation markedly reduced my credibility so I didn’t know how to respond, how to justify why a criminal defendant could give sound advice to a licensed attorney.
I dont know how Dante Alighieri thought all of the levels of hell could be limited to 9. There’s at least one more depth, a special place for the prideful. People who insist on showing off all they know – people like me – endure there in the Tenth Circle. They’re filled with knowledge but the power to use it is stripped of them. They chase after people with almost no knowledge who have all the power. The educated people, because they’re powerless, can’t convince the people with power to do things differently, can’t teach them anything. The Tenth Circle is powerless omniscience running after ignorant omnipotence and it’s torture. This is the only time in my life I’ll be a 10 and stay one for good.
Souls in circles one through nine have all the fun pushing boulders back and forth, standing against gale-force winds and other punishing games. My penance is never seeing a public defender take into account the multi-faceted problems that their clients face. Not once. I’m in the last, forgotten circle of hell watching this unfold every time I go to court, knowing how much people lose when they’re supposed to be protected.
“I’m nobody. But I know what I’m talking about,” I explained to the lawyer. She nodded, backed into one of the wooden doors with her hip to open it and walked into the hallway, the Ninth Circle, icy lake of Treacherers, to locate another client who wouldn’t have a meddling wannabe like me monitoring her proceedings, achieving nothing.
THREE IDEAS IN CRIMINAL JUSTICE REFORM FROM FEBRUARY 20 – 26, 2017
As of Thursday, the federal government will start using private prisons again. Attorney General Jeff Sessions became the Wayne to former Assistant Attorney General Sally Yates’ Garth after she called “Car” and moved the private prison contest to the side of the beltway when the Department of Justice decided last year not to pursue any more contracts with private management companies. Game on. Party time…Excellent for these businesses on the NYSE.
Novelist Michael Patterson took an Alford Plea – meaning he maintained his innocence but conceded that the prosecution had enough evidence to convict him of killing his wife – to a charge of manslaughter in Durham, North Carolina on Friday. His murder conviction was overturned in 2011. Peterson said making an Alford plea in the death of his wife 16 years ago is one of the most difficult things he’s ever done because he gave up the fight. I know the feeling because I’ve done it myself. It’s the classic choice between being right or being effective. Why is that even a decision that has to be made when we’re talking about justice or someone’s untimely death? It shouldn’t be.
On Wednesday, the U.S. Supreme Court sided 6-2 with Duane Buck , a Texas death row inmate whose own expert witness told jurors that Buck would be more dangerous in and out of prison because he was black. This constituted “ineffective assistance of counsel,” according Chief Justice Roberts in Buck v. Davis. “The law punishes people for what they do, not who they are,” he wrote. Justices Thomas and Alito dissented – shocker. In some ways, this is huge victory because courts almost never find that a defendant received ineffective assistance from an attorney. In other ways, it’s a tragedy. Duane Buck had to go all the way to the Supreme Court to get a court to say that you were harmed when your attorney hires and calls an expert witness who testifies why you should get the death penalty. It seems like a lower court should have said this earlier.