That Sneaky Cur, The Defense Lawyer

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

The Right Body Language For A Court Appearance

On Wednesday morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct stemming from my arrest during a civil disobedience protest staged outside the office of the governor of New York State, Andrew Cuomo, on March 24th. The day proceeded along lines similar to those I had reported in my previous day in court (back in 2014, after protests outside the Israeli mission during the Gaza crisis): meet my fellow defendants; meet our union’s lawyers; wait to be called into courtroom; wait to be called up before judge. We would, in all probability, be granted an ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped. Unlike my last appearance in court, this time my name was called out in the first group itself.

I walked up to the front of the courtroom and stood in front of the judge. My fellow defendants–three of them–stood next to me. As I stood and waited, I crossed my arms in front of my chest. Seeing this, a court guard–who was handing papers to the judge–walked up to me and told me to put my arms down. He didn’t specify an alternate location; just that the current one wouldn’t do. I complied; I had no intention of arguing with a police officer in a courtroom, thus risking another arrest for ‘disorderly conduct’ even as I was appearing in court for another such charge.

But the business of being told to adopt the ‘correct’ or ‘appropriate’ body language was intriguing and revelatory. So much of what happens in the courtroom is pure performance, a legal theater: the judge’s seat placed on high, the imposing architecture, the formal, stately, convoluted language, the solemnity, the tightly circumscribed procedure, all the better to impress upon legal subjects–sinners, penitents, and legal officers alike–the awe-inspiring power and majesty of the law. Respect; deference to authority; unblinking conformity–these are the values to be reinforced in this space.

My act of crossing my arms was, I suppose, in this context, an insolent gesture: I did not convey the appropriate respect. I was certainly not causing any disruption; I did not talk; I had not raised my voice.  I was not a threat of any sort–in case, you think that crossing arms allows for the concealment of weapons–because I had already been searched upon entrance to the court. No, quite simply, I had to be bent into that shape which would convey the appropriate respect for the court. And also the particular and peculiar blend of humility and servility that the law is looking for in those who ‘commit crimes.’ The guard’s admonishment was a reminder I was not following the director’s stage instructions.

A minute or so later, it was all done, and I headed to campus with a warning from the judge to ‘stay out of trouble.’ That will not be easy if the Governor of New York State does not restore funding to the City University of New York, if the CUNY administration does not sign a new contract with its faculty and staff.

Hating On The Phrase ‘All Lawyered Up’

You’ve heard it in police procedurals on the television and the big screen. I know I heard it in The Killing and The Wire. A couple of weary beat cops or detectives, battling crime on the streets, fighting the noble War on Drugs perhaps, keeping us law-abiding citizens safe from the depredations of the big, bad, mostly black criminals out there, grimly acknowledge that they cannot make a move against a suspect because he is ‘all lawyered up.’ (The Wire threw in the offensive stereotype of the sleazy Jewish lawyer defending criminals for good measure; as noted elsewhere briefly, that show overreaches at some points.)  He has legal counsel; he won’t talk; he won’t confess; he cannot be interrogated in the way the cops would like; he has withdrawn into a safe space, protected by a mere ‘technicality’ called ‘due process.’ A collective groan goes up from the audience: goddamn criminals and their lawyers, artful dodgers both, have slipped loose once again of the restraining strong arm of the law. If only those weasel lawyers would get out of the way, the police, prosecutors, and judges and juries could get on with the business of sending the most decidedly guilty to jail. The ends justify the means, right?

In a nation suffering from a mass incarceration crisis, which arrests twelve million of its citizens every year (defended by fifteen thousand public defenders), where police-induced false and coerced confessions are among the leading cases of wrongful convictions (including homicide cases), whose Supreme Court has systematically eviscerated the rights of criminal defendants in every domain of criminal procedure ranging from initial arrest to admissible evidence to jury instructions, where plea bargains result in innocents serving jail time for crimes they did not commit, the phrase ‘all lawyered up’ must rank as one of its most bizarre cultural productions.

It contributes to, and is part of, a cultural and political state of affairs whereby most Americans imagine that the law is too easy on crime and criminals; that the rich, powerful crook capable of hiring a $500-an-hour defense lawyer is the average arrestee; that the law’s protection of those detained or arrested by the police is a cumbersome obstacle to be bypassed or evaded. It contributes to the buildup of a groundswell of anger and frustration that all too often results in an urge to ‘throw the book’ at defendants, to harsher sentencing regimes, to a vindictive and retributive philosophy of punishment. Many folks possessed by such attitudes do not just serve on juries; they also serve as judges.

The American mass incarceration crisis has many components to it; it is enabled by many systems and agents. Among them is a cultural industry that specializes in keeping us scared and angry and hostile to the rights of our fellow citizens; the police are the thin blue line, restrained and helpless, unable to protect us because the forces of obfuscation and bureaucracy, law and lawyers, waving antiquated scrolls marked ‘Constitution’ and ‘Criminal Procedure’ will only hinder and obstruct the work of angels.

What a crock.

Protesting Gaza: After Gaol, A Day in Court

This morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct (blocking traffic)–these stemmed from my arrest during a civil disobedience protest staged outside the Israeli mission to the UN on July 29th. My half-day in court was not as tedious and onerous as my day of imprisonment. It couldn’t possibly be, but it had its moments all the same.

I arrived promptly at 9AM, and soon thereafter, met–besides those who had been arrested and charged similarly–attorneys from the National Lawyers Guild, who would represent us at the hearing (three, I think, were present in all; I am grateful to all of them for their help.) I was quickly advised about my legal options: accepting the charge of ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped; a plea of ‘guilty’, which would result in a $125 fine and a misdemeanor conviction that would stay on my record for a year; a plea of ‘non-guilty’, and thus the possibility of a trial. The consensus seemed to be that accepting the ACD was the way to go–in case I was offered that option by the state (which seemed likely, as I had no priors.)

From there on, the waiting began. From our total of twenty-nine, groups of three or four were called in to the courtroom, and their cases disposed of. Unfortunately, it soon became apparent that I would be among the last to be called. I soon found out why; the papers pertaining to my case were nowhere to be found. I groaned. Perhaps I would have to return to court on another day? Fortunately, a little later, at 11:45 AM or so, the papers were sent over from the DA’s office and my arraignment proceeded.

I waited in the courtroom for a little over ten minutes. In that time, two other defendants–not from our group–went up to be arraigned, both on charges of marijuana possession; one of the two young men had been arrested in the public housing building he lived in. (Great, I thought, a perfect use of police and court time.) Soon thereafter, our numbers were called; we walked up, heard the charge and the offer of the ACD. I accepted, and that was that.

As noted above, my case remains open for the next six months. In all probability, the charges will be dropped at the end of that period. If I am arrested again in the interim, this current charge will appear on my record as a prior, thus possibly complicating the charges at my next arraignment.

My many thanks again, to those who spent the day in gaol with me–all of whom I met again today (including Norman Finkelstein, Corey Robin, and Benjamin Kunkel). It was a pleasure to renew their acquaintance. And to be reminded of the reason why we were handcuffed, imprisoned temporarily, and then made to appear in court today, some six weeks later.

I would do it again.