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Challenging a system that's designed to victimize
A public defender's view

January 19, 2007 | Page 12

AS A former public defender from Jamaica, Queens (scene of the recent Sean Bell murder), I'd like to share some insights on the role of police brutality and its place within the overall scheme of the criminal injustice system.

First, police brutality stems from an institution whose job is to control that population that is most likely to rebel against the establishment: Blacks and Latinos. Brutality aims to keep people in fear, and less likely to protest and organize.

Second, police brutality is tied to the overall prison-industrial complex in the way of monitoring, threatening and controlling the masses. This takes many different forms, such as the infusion of drugs into ghetto neighborhoods beginning in the 1960s (see the book Dark Alliance).

More recently, it has taken the forms of police brutality, the massive expansion of the prison system, stiffer criminal sanctions resulting in longer sentences and the massive increase in so-called child welfare prosecutions.

In New York City Family Courts, for instance, in my experience, about 90 percent or more of those charged with juvenile delinquency and child welfare violations are minorities.

In my opinion, many such cases are the result of bogus arrests, overreaction and the systemic failure to provide much-needed services. Several clients I represented had felony charges against them for such things as throwing a snowball at someone, "stealing" a bag of potato chips from a schoolmate and flicking a lighter while standing in the hallway of a public housing building.

This leads me to my third point: I submit there are more arrests in Black and Latino neighborhoods not because there is substantially more crime there than in white neighborhoods, but simply because there are more cops there.

Cops need to justify their presence--we have all heard of the "quota system," in that cops need to write a certain amount of tickets or make a certain amount of arrests. If there are more cops in a certain area--such as a Black or Latino neighborhood--then there will be more arrests. But assuming there is not substantially more crime in a particular area, then a portion of the arrests will be the result of cops simply making up charges to justify an arrest.

I have personally seen the result of these policies when I was a public defender. More than a few of my clients were the victims of NYPD's Street Crimes Unit or "Drug Sweep Teams." The former's intention was to load three or four white thugs into an unmarked car and drive around the city harassing Blacks and Latinos. The latter does the same thing as the former, but inside public housing developments.

Taking a step back and looking at police brutality within a larger context leads me to my fourth point: We cannot change a rotten system by changing the actors, but only by changing the system itself.

There have been calls to reform the system by having more minority cops, or community policing, or stricter regulation of cops. However, as stated previously, police brutality exists within the context of the criminal injustice system.

In New York, the mostly minority criminal court and family court defendants are represented by public defenders. Aside from the Legal Aid Society, the paychecks of public defenders in New York are actually signed off on by the judges. That's right--public defenders owe their allegiance not to their clients, but to the judges. This is in stark contrast to prosecutors, who are paid by the county.

As a result of this arcane method of paying public defenders, they have an inherent conflict of interest: They must zealously represent their clients while at the same time being sure not to displease the person responsible for paying them, the judge.

My own case is a good example of how this method results in perpetuating injustice. I have a lawsuit currently pending in the Brooklyn Federal Court (Bliven v. Hunt) in which I am suing several judges and the city of New York. After one year on the public defender panel, some judges recommended my removal for "filing too many motions." In other words, it was recommended that I be fired from my job because I did my job.

After surviving the removal hearing, the judges (who again must approve my salary on each case) began cutting my pay. There was no stated reason for the reduced pay. I would simply receive my vouchers back from the judges with a line drawn through the proposed amount, and the judge would write in his/her own reduced amount.

The vouchers at first were cut by "only" a few hundred dollars. Later on, each voucher was cut by several thousand dollars (sometimes representing 40 or 50 percent or more of what I earned in each case). The message was clear: Do your job and zealously represent your client, and you challenge the establishment--thus, your pay gets cut.

If one doesn't do their job by putting up only a token defense, then the establishment is pleased, because you've furthered their agenda. Indeed, many public defenders fail to do essential things to better their client's chances of winning. Many fail to inspect the scene of the alleged crime or get investigators assigned to assist them. Many file woefully inadequate motions to challenge the prosecution's case (or some aspects of it), and some don't file any motions at all.

Many public defenders make the judge's (again, the person holding their purse-strings) job easier by convincing their clients that it's better to plead guilty--even if they've committed no crime--than to face an even stiffer penalty if found guilty after trial. Many such clients, especially if they've never been in court before, rely on their attorney's recommendation. This results in many, many more convictions than is warranted and serves as an after-the-fact justification of the initial bogus arrest.

Additionally, the system is replete with public defenders who don't care about their job, don't care about their clients and/or who are too lazy to put up an effective defense.

I have one colleague who brags that being a public defender is "the best job in the world. I go to court three days a week, sit around and talk with my friends, I don't do any out-of-court work (though I bill the city for working seven days a week)--all this and I get paid a six-figure salary!" This same colleague finished at the bottom of his class in law school and doesn't know relatively basic legal concepts, yet is responsible for representing hundreds of minority defendants each year.

And this is just the tip of the iceberg. Another elderly colleague was caught by a judge sleeping during a very critical stage of a child abuse trial. I had just made an application on behalf of my client--and my colleague had to join me at that moment, or his client would lose the right to make the same application. He instead woke up just long enough to remark, "I will continue to fight for my client's rights," whereupon he fell back asleep.

The important thing to note is that public defenders like I've mentioned (those who do little for their clients) not only get renewed every year to the public defender panel, but they also importantly do not get their pay cut and get paid everything they ask for by the judge.

There is no oversight and no scrutiny. The only losers are the thousands of minority defendants who make the mistake of entering the courthouse thinking that justice will be done.

This all relates to the issue of police brutality because, again, the issue is one of controlling a population. If that's the end the establishment seeks, then the means don't matter. What we need is a movement that will challenge the very root of the problem--the criminal injustice system itself.
David Bliven, Jamaica, N.Y.

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