On Justice and Other things

A few days ago, Reihan of The American Scene commented on the sometime injustice of the U.S. justice system:

What angers me, and I realize that I haven’t been very coherent, is that a middle-class person can mess up again and again, falling through safety net after safety net, and still thrive, given time and a bit of gumption and stick-to-it-iveness. If you’re not middle class, and you’re not from a stable, intact, literate, ambitious family, you will have a very, very hard time. Your likelihood of death is vastly higher, as is the likelihood that you’ll live at the mercy of a criminal justice system you scarcely understand. (That I, in my infinite idiocy, scarcely understand.)

Jonah Goldberg responded, "I can certainly understand where Reihan is coming from. But I just can't quite get where he's going with this. Is it a shock that the Middle Class have more resources than the lower class? Is it news? Is it unique to the issue of drug addiction? The answer is no on all fronts."  (Reihan responds to Goldberg here.)

There's not really a dispute here; rather, a debate over a dressed-up cliche. (Shorter Goldberg:  Life ain't fair.)  Still, it can be a bit shocking when the essential unfairness of life suddenly presents itself, unhidden and without euphemism, in your full view.  Knowing that life ain't fair in some esoteric sense isn't the same as seeing that life ain't fair in the human being before you.

Now, I don't have much experience with the criminal justice system as an attorney (or a citizen, I hasten to add).  A stint as a law student working at 26th and California in Chicago for Judge, now Justice, Fitzgerald; a little pro bono time donated to the Federal Defender program while an associate at my old firm.  But I suspect that I have more experience than either Reihen or Goldberg in this area.  So let me tell you a story. 

This is a story about the day I met the Smooth Criminal. 

(The story of the possibly insane but clearly innocent alleged arsonist and the ATF agent who decided that Javert was, in fact, the hero of Les Miserables will have to wait for another day.)

The day opened grayly.  (I'm not sure what that means, or even if it's cognizable English grammar, but it seems a promising start.)  I had cleared my morning -- to the extent such a thing is possible by a junior associate -- to spend a day on call with the Federal Defender's office. 

I will admit to having been a bit juiced.  Yes, a bit proud and excited with myself.  Patent law, commercial cases, even cool business fraud and civil RICO cases -- these are all intellectually interesting and generally fun.  But they don't have the style of a criminal case.  They don't have the risks or the heights.  They are, at bottom, just about money.  You can only get so excited about money. 

A criminal case is about life:  the victim's life and the perpetrator's life.  A criminal case reminds you of why you went to law school in the first place.  And, let's face it:  You, too, would rather be Matlock than the balding divorce attorney on L.A. Law.  Admit it.  Yes, even though Matlock was a smuck.

But I digress.

So, there I was in the Federal Defender's office, quite pleased and proud of myself and accompanied by one of the firm's junior partners, a former AUSA and something of a mentor to me.  I'm on my second cup of bad coffee, trying to strike a despondently masculine pose -- the kind of pose that a certain breed of cop (and not necessarily the best breed) can strike effortlessly, but which doesn't come easily to a junior associate at a corporate law firm -- and I'm wondering in a smiling way whether I should've bought a short-sleeve shirt and a clip-on tie for the day.  We get the call:  the cases have just come in.  Rather, brought in.  In handcuffs.  Go do the initial meet and greet.

So we go to the detention facility.  It's a pretty neat and clean facility, as such things go.  (How can I judge?  Again, I worked at 26th and Cal in Chicago, at the time the center of Chicago's criminal courts.  Trust me, I can judge.)  We're meeting a whole buncha folks for a couple seconds to do an initial assessment and offer representation.  The second or third person we meet that morning is the smooth criminal. 

The smooth criminal is white.  (But you knew that already, right?)  Except for an unfortunate accused arsonist (whose story will wait for another day; see above), he's the only white guy in there.  He looks middle class and maybe twenty six or seven.  Maybe suburban or middle-town Kansas, with the look of a large public university still imprinted on him.  Don't be coy -- you know this look.  Like the back of your hand, like walking down the street.  He's out of college but he's not yet, by middle class standards, quite an adult. 

He was caught with a trunk full of individual packets of over-the-counter cough medicine.  A trunk full.  Of individual packets.  I wonder what those could be.  He doesn't know how they got there.  He doesn't know why they were there.  He doesn't know why he was stopped.  He doesn't know what they might be used for.  Anyway, maybe he feels a cold coming on.

(For those who don't know, certain cough and sinus medicines contain certain precursors used to manufacture methamphetamines.) 

He also doesn't think that we're actually attorneys.  You're cops, he says.  Why should I talk to you?  Show me your ARDC cards.  (We show him.)  (How many of you know what an ARDC card is?  He did.  He's been around, you think?)

He opens up.  He's judging us, looking us up and down, hearing public defender and finding us inadequate.  (Note:  In most large cities, the Federal Defender program is staffed by extremely eager junior associates eager to repent for their sins, who are supervised by former AUSAs in private practice.  If they show up on a duty day, think twice before dismissing them.)  He tells us he thinks the search was botched.  His reason is fairly technical.  He did not get it from watching Law & Order.  He may very well be right. We ask him if he wants to retain us.  He says no; he wants a local name attorney (not at the Ed Genson level, but close).  That's fine.  But there's a hearing coming up.  Set bail and all that.  Will you accept our representation for it?  Sure, he says, but I want to get out.  I've got to get out.  I can stay with a friend.  Here's his name.  You get me out.  I'll stay there.

I see the calculation in the smooth criminal, only a couple years younger than me (if that).  I have a sick feeling that he's calculating right.  But I'm here to get him out.

We move on to the next cell.  It contains a kid.  Really, a kid. Maybe eighteen.  Thin.  Black.  (But you knew that part was coming too, didn't you?)  He's not middle class.  He can't even come close to passing. He's scared, but has that look of trying to be tough.  Of needing to look tough but being unable to.  You begin to wonder exactly how he's going to fare in prison . . . . and then you stop wondering as quickly as you can.  You don't want to wonder about that.

He doesn't doubt that we're attorneys.  Not a bit.  But he doesn't want to talk.  He was picked up on an arrest warrant for allegedly selling some cocaine in Michigan.  Kalamazoo or somesuch.  Somesuch now wants him back.  He's going to be extradited unless he wants to fight it.  And, even if he fights it, he almost certainly won't win.

Do you have family in town?  My mother.  Where's she live?  Dunno.  She won't come anyway.  Do you have an address?  No. Do you have friends in town?  No.  (This, probably, a lie.)  Wait, I have an aunt.  Where does she live?  Dunno.  Can you call her?  Dunno.   Would she come if you called?  Maybe.

The junior partner pulls me aside.  I don't know what I'm going to be able to do for this kid, he says.  He's not helping us at all.  We could fight it, but it'll just prolong it.  He can't even give us a name or an address or a number.  We shouldn't fight it, anyway; it'll just piss of the AUSA and make the other ones tougher -- and for no reason, because what, ultimately, are we gonna do?  The kid has gotta go to Michigan.  There're no two ways about it.

The kid's looking right at me when the junior partner's talking.  The kid has figured me out.  I'm not going to lift anything.  I'm not going to do anything.  I'm an observer, he's the laboratory rat.  The junior partner's the scientist:  vaguely concerned but ultimately disinterested.  In the fluorescent lights, the kid's envisioning that he's in a lab or clinic. 

But the thick screen that separates us isn't clinical at all.  It reminds him -- reminds me -- of that bulletproof barrier in pharmacies and liquor stores in bad neighborhoods.   You know, where you wheel your money around and the pharmacist or liquorist wheels back your change and a pack of smokes or some Evan Williams or maybe a lonely six back of Bud or possibly a bottle of Anacin.  And then turns his back and goes about his business because, well, the bullet proof barrier is there -- and whatcha gonna do?   

The junior partner turns to him.  I think you should waive your objection, he says.  I don't think it's worth fighting.

O.K., the kid says.  There's no expression on his face.

An hour later, we're in the courtroom waiting for the judge.  Each prisoner is brought in and stands at the back.  The observers and attorneys, there for a run-of-the-mill civil trial, gape at their shackles, the thick-holstered guns on the U.S. Marshals, and us.  Again, that twinge of pride.  That twinge of reality.  I try my bored machismo look out again, but it doesn't work so well against the stiff backs of courtroom's pews.

I see the smooth criminal and the kid.  The junior partner approaches the AUSA.  They know each other, faintly.  The AUSA is about my age.  The junior partner worked with the AUSA's supervisor.  Chit-chat.  Small talk.  You can't hear what they're saying.  Then a small gesture toward the smooth criminal.  A flicker from the AUSA.  The junior partner puts a hand on the AUSA's should and turns his other hand over in the air between them as if he was making bread.  Something snips, snaps at little.  The AUSA stiffens, like a girl who wants to prove she isn't quite so easy.  They part, and each relaxes.  The judge comes in.

With the AUSA's agreement, the smooth criminal is released on his own recognizance.  The kid goes that very day by shackled bus to Somesuch, Michigan.  Three hours later, back at my real office and looking at a patent's filewrapper, the loop and the lake spread out before me seventy-four stories down -- well, I've pretty much forgotten everything.   

(Yeah.  That's what this means.  I've forgotten everything.)  

Comments

[rilkefan]

With apologies to von, here's a link to an article on a common hobby horse around here: Arnold's trying to do something possibly admirable about redistricting in CA.

[Katherine]

the worst thing I have ever heard in law school was one of my classmate's comments in criminal law first semester after we discussed some of the competency of counsel cases:

"Some people drive Lexuses, some people drive Toyotas." My professor--a moderate, cautious to a fault, status quo kind of guy--gave him one of the dirtier looks I've ever seen.

I can't remember if this was before or after he told us that the sleeping lawyer cases were the least of it, and described a case in Texas in which a defendant was found to have received a competent defense from a lawyer who "did not participate in jury selection or challenge any jurors, made no opening statement, cross examined no prosecution witnesses, made no objections, called no witnesses, and made no closing statement". The theory was that he was free-riding off his co-defendant's lawyer. And the co-defendant's defense was to place the blame on the defendant whose lawyer did nothing.

Not a Toyota. Not even a rusty 1960s DeSoto. More like a soapbox derby entry by a kid who was too bored to pay attention, or an invisible engineless car, or the right to hang onto the bumper of someone else's car as they tried to whack you in the head.

And that's leaving aside the possibility that the government might have more of an obligation to give people a fair trial before killing them or imprisoning them for many years in a small cell where there is a real possibility they will be raped, than they have to provide them with the car of their choice.