5 Things You Don't (Want to) Know About Your Justice System
You've heard it in 10,000 cop shows:
As much as people tend to hate on lawyers, that moment when you have your face crammed into the hood of a squad car is when most decide those appointed lawyers are wonderful gifts from Heaven. These (free!) defense attorneys are called public defenders, and often they're the only thing between you and a system that would prefer to just toss you into a cell rather than listen to a bunch of nonsense about how you didn't actually commit a crime at all.
Unfortunately, if you don't happen to be the wealthy sort, the system is stacked against you in countless soul-crushing ways. To explain why, we sat down with a former public defender in the state of Georgia. He said ...
The Judges Are Biased Against You
Let's say you've been accused of murder (maybe just a typical situation where you, say, killed 13 members of the Yakuza with a katana in a rampage of bloody vengeance). You've seen court shows on TV, so you know your trial is going to be based on several factors: how good your lawyer is, how much evidence the prosecution has, whether or not the jury is biased. The one thing you probably don't stop to consider, but should, is the fact that your judge is probably running for election soon. Sitting up on that bench is a politician, and your life is now a campaign issue.
Why does this matter? Well, judges win elections by being tough on crime. Don't take my word for it, just watch their campaign ads:
This one even boasts that the candidate is a "former prosecutor":
Think about that -- they're not touting being impartial or having the best knowledge of the law. They're literally promising to be friendly to the prosecution, because that's what the voters want. So, right away the accused -- guilty or innocent -- has no one who sympathizes with them. Even after reading this, most of you will still assume an accused person must have done something, otherwise why would they have gotten arrested?
Well, in my circuit, I once saw a judge void a previous sentence as soon as he was no longer in danger of losing an election. Nothing else about the case had changed -- it was a sentencing he made at the time to keep his seat and advantageous reserved parking spot. Then, once his retirement loomed near, he vacated it. See, because then he could actually follow his conscience. So don't feel bad if you think you got railroaded at trial and sentencing -- it's probably nothing personal, just a judge who didn't want to look soft on crime. That should make you sleep easier in your overcrowded prison cell.
"I knew I should have complimented his tie ..."
I once had two clients with nearly identical cases. Two single mothers, both charged with forgery, both first-time offenders. They appeared in court back-to-back, both dressed in casual clothes. They were both given blind plea offers, meaning the judge got to decide their sentences. Oh, there was one difference -- one was white, the other black. Here's where it gets as surprising as the plot of a Nicholas Sparks novel: the white mother was given probation and the black mother was sent off to county.
You can scream "racist judge!" all you want, but the system's deep, dark secret is that it doesn't require a racist judge -- just one who knows that for certain constituents, being "tough on crime" is code for keeping a certain type of person off the streets.
"Three to five for parking tickets!?!"
"It's an election year."
Not that there aren't personal biases at play. There was another judge where I practiced who owned a lot of rental properties. During a rash of copper thefts, the outdoor AC units on those rental properties were ripped apart to take the metal from inside of them. From that point on, whenever this judge had a copper theft case in front of him, he'd go on a long diatribe to the whole courtroom about how much he had to pay to get his AC units repaired. Not surprisingly, every person accused of stealing copper would get a much harsher sentence than even the prosecutor thought was appropriate. Right now he's probably off writing a book about a copper-avenging vigilante.
The Prosecutors Are Quick to Break the Rules
If you've watched pretty much any courtroom TV show, the district attorney's office (that is, the prosecutors) is always portrayed as the champion of justice and protector of the innocent, while the defense attorneys are either privately hired, smug douches or state-appointed, evil sewer rats. The prosecutor wants only to protect the public by getting monsters off the streets; the defense attorneys want to set them free so that they can rape and murder again. And, most importantly, the prosecutors always play by the rules, while the defense is always trying to game the system (such as setting the guilty free on "a technicality").
Well, in my experience, getting fair and appropriate treatment by the state (you may know this as "the foundation of the justice system") is an anomaly in most parts of the country. In fact, when South Carolina State Supreme Court Justice Donald Beatty said the court wasn't going to stand for any more prosecutorial tomfoolery, prosecutors literally revolted against him.
"You can't tell me not to be an asshole -- I'M A LAWYER! I'm allowed to."
I've heard stories about district attorneys in other circuits who would hide exculpatory evidence (evidence that favors the defense) or encourage police officers to lie under oath in order to get convictions. During her time as an assistant district attorney, the blonde, drawling troll doll Nancy Grace was reprimanded by the Georgia Supreme Court for withholding evidence, among other ethical breaches.
In a perfect world, petty trickery would jeopardize a district attorney's chances at reelection. In this world, we love loose-cannon cops and vigilantes -- the people who bend the rules to put "bad guys" away are heroes (Batman doesn't even read you your rights, he just hits you with a batarang and swings away on a grappling hook). Hell, they can even run for judge -- who's more "tough on crime" than somebody who doesn't let things like "the rights of the accused" get in the way?
"I will turn you into a corpus if you bring up that habeas shit up again."
You probably remember when those three Duke lacrosse players were accused of rape in 2006. A lot of people wanted the heads of those players on sticks, including and especially the lead prosecutor on the case, then-District Attorney Mike Nifong. Nifong talked to every news outlet that would interview him, making misleading and inflammatory remarks about the accused players and alleging the rape was a hate crime. Combine a well-known university, rape culture, athlete privilege, and hate crimes and you've already got yourself a landmark case no matter how it ends.
For Nifong, it ended in disbarment. The North Carolina Bar filed charges against him for intentionally trying to ruin the players' reputations and sway public opinion on the case, as well as lying to the court and state bar investigators. Oh, and the little matter of withholding DNA test results from the defense attorneys (during his trial, Nifong admitted to knowing there was no DNA evidence connecting the accused players to the case when he indicted them). He agreed to resign, and the state bar agreed to just take his license and ban him from practicing law.
Side note: the document Nifong submitted along with his license stated that he never received his state bar membership card, his middle name was misspelled on his license, and that his dog tried to eat it. We're not joking about that last part: he included an apology for the license's condition due to damage inflicted by "a puppy in her chewing stage."
"Why should I have to treat it with any more respect than you did?"
All right, so now let's take a look at my (equally bleak) side of the equation:
Your Public Defender Will Probably Be Young and Inexperienced
To many, it seems like becoming an attorney would be one of those money-printing careers in which even the bad jobs pay more than what most working folk take home in their wildest dreams. The reality is that attorneys fresh out of law school are faced with the same problems as many graduates: crushing student loan debt and job listings that insist on years of experience before they'll do anything other than wipe their ass with your resume.
"The firm cut expenses 2 percent by eliminating toilet paper."
Young, desperate job-seekers who can't find firms to hire them become public defenders. We do it knowing the pay is terrible but that it'll at least get us much-needed experience. That's why yearly turnover for public defenders can be very, very high. Where I live, most new PDs don't last more than 12 to 18 months before they switch over to private practice or a DA's office. And 12 to 18 months isn't nearly long enough to train a competent lawyer. This is who you'll be trusting your life and freedom to.
For at least a year after I got out of law school, I constantly felt like I had no idea what I was doing. I mean, yeah, I had a law degree and I did pass the bar exam, but law school doesn't teach you what you need to know to represent real people in serious situations. One time, a judge actually pulled me aside during a trial to ask what kind of training we were giving new attorneys because (in reference to another attorney), "It's obvious to everyone in that courtroom that he doesn't know what he's doing."
"I'm sorry, your honor. If you could just grant a recess so I can consult some Franklin & Bash episodes."
Sure, someone can stay in the job if they just feel like it's a noble pursuit, but they'll be doing it at the cost of their own finances -- no elected official wants to shower public money on the people responsible for keeping criminals out of prison. So, in 2010 the average public defender made $47,500 a year, which sounds decent for a job right out of college, but when you tack on law school loans averaging $1,200 a month, you're looking at a salary that even public school teachers would scoff at. Comparatively, first-year attorneys working at huge private firms (500-plus attorneys) averaged $135,00 and first-years at small private firms averaged $80,000.
I was a public defender for six years -- but I was able to last that long only because my wife and I both worked full-time (and even then once had to borrow money from family when my wife had a health emergency). Obviously, this isn't about feeling sorry for me (many of you have it far worse) but I want to give you an idea of why you're not getting the best/most experienced representation from the Free Lawyer bin the Constitution guarantees you. Now add in the fact that ...
Your Public Defender Doesn't Have the Time to Work Your Case
Recently, New York agreed to settle a major lawsuit that claimed its public defense system is underfunded and violates poor people's rights to counsel. A lot of defendants who can't afford an attorney often don't even get to see a public defender. It's not that we're lazy -- it's that we're already seeing more clients than the government considers "responsible" or "sane." The maximum felony caseload should be about 150 a year. But 500 to 800 is more common, and in New York before the suit, it wasn't unheard of for a public defender to manage 1,600 cases.
Pictured: Serial Seasons 2 through 755.
Don't worry, though! This lack of public defenders doesn't slow prosecutors down. It's just led to a skyrocketing number of plea bargains. In many cases, this means defendants plead guilty for crimes they haven't committed just so they can get the whole process over with. This makes sense when you realize the pretrial wait required before a defender is freed can often keep the accused locked up longer than the actual sentence for their "crime." Knowing that the deck is stacked against you anyway, why risk it? Even if you're innocent, you're better off just taking the deal.
At least you'll have plenty of time to think about what you haven't done wrong.
If it sounds like constitutional rights are being ignored harder than Bruce Jenner's kids on Keeping Up With the Kardashians ... well, that's because they are. Out of 10 to 30 cases that should go to trial, only one or two cases actually do. The rest are given a plea deal and a date to come back to court for sentencing, which is usually a day where a judge sentences defendants in rapid succession. No right to an attorney. No due process. Just you and the long, vengeful dick of the law thrusting itself deep inside the hole where your Fifth Amendment rights used to be.
And yet ...
You Might Still Be Better Off With the Public Defender
Let's say, just for fun, that the legal system isn't a cesspool of belly-button funk and you find yourself charged with a crime and you somehow come up with the tens of thousands of dollars to hire a "real" lawyer. Well, now you've equaled the playing field! Instead of some low-rent public defender, the prosecution is going to be facing a smooth-talking lawyer who must be awesome, considering they charge new car prices for their services. You're like Ben Affleck in Gone Girl! Tyler Perry is on the case, baby!*
*If your attorney is the actual Tyler Perry, you are probably going to jail
"The defense is convinced that all women are philandering she-devils, your honor."
Well, the thing you failed to consider is that, while we public defenders are underpaid and overworked, we also spend the entirety of our jobs working for people just like you on cases just like yours. All those extra clients we're forced to take as part of our ridiculous workload? The advantage is that in our brief year or two on the job, we're able to see a shitload of cases. That means we know which judge is more sympathetic to single mothers and which prosecutors seek excessive sentences. Meanwhile, private attorneys spend most of their time in family or corporate law -- rarely do they do criminal cases full-time, and they don't see a fraction as many as we do.
There was one private attorney who, literally right before a murder trial started, turned to my boss to ask what the maximum penalty was for murder. Maybe if the answer was something complicated like, "47 Hail Marys, eight jumping jacks, and finishing in first place at the Nathan's Famous Hot Dog Eating Contest," it'd make sense that he was a little fuzzy remembering the details. But the maximum penalty for murder in the state of Georgia is the death penalty. It's pretty straightforward (I should note that this attorney was also known for always keeping two chicken biscuits in his jacket pocket in case he got hungry as the day wore on, like Napoleon Dynamite, Esquire).
"Is that a fried chicken biscuit in your pocket, or are you just indifferent to represent me?"
So why is the perception of public defenders so shitty in comparison? Studies have actually looked into this and found that the primary reason PDs win fewer cases is because they attract more clients with unwinnable cases. We work with a lot of innocent people, but a shitload of guilty people are too poor for lawyers too. It's our job to give them the best defense possible, and unlike private attorneys, we don't get to pick and choose our cases.
I'm not saying everybody in prison is an innocent victim of The Man, obviously. But in a system where conviction rates can run 88 percent or higher, one thing is clear: you're probably going to jail, whether you're guilty or not. That's just the way it is, and that's apparently how the people want it.
For more insider perspectives, check out 7 Things I Learned as an Accomplice to Mass Murder and 7 Horrifying Things You Didn't (Want to) Know About Prison.
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