Stand up for Sixth Amendment
Published 5:41 pm Tuesday, April 19, 2022
By Jim Grandfield
It starts early in your career. You take the July bar exam, and the results come out in October. You are licensed to practice law!
If you are truly fortunate, you end up in a public defender office. You are an assistant public defender. You are really a lawyer, with your very own clients. You are tasked with bringing the Sixth Amendment to life, and ensuring that your clients are afforded due process when prosecuted by the government.
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The first instance usually happens at Thanksgiving. Your parents are simply excited, that after three years of law school and a mountain of student debt, you have a job — any job. You are as well. But within weeks of starting your job, you realize what a truly special job it is.
And then, THE QUESTION. Perhaps it’s a well-meaning relative. Perhaps it’s a relative trying to be “cutesy.” Maybe the relative doesn’t understand the adversarial system. Worse, maybe they do, and they ask THE QUESTION, because they truly feel that way.
“So, what’s it like representing all those people?” Or maybe it’s the other version: “How do you represent someone you know is guilty?”
As a young lawyer, you know that you have entered a profession in which civility is not just encouraged, but required. You also know that the family holiday table is not the time for a civics lesson, even though your relatives could certainly benefit from one. So you smile and answer politely, brushing off the question with a fairly benign, “Everyone is entitled to a defense. Now please pass the potatoes.”
The next instance happens about a year or two into your practice. You have mastered the incredibly steep learning curve that comes with being a brand new public defender, and are morphing into an excellent trial lawyer. You zealously represent a client and get a good result. The client is happy and appreciative of your efforts.
Intending to compliment you, the client asks, “Hey, you’re pretty good. When are you gonna get promoted and go over to the prosecutor’s office?” The client doesn’t mean anything bad by it. But hundreds of hours of television and movies, with too many episodes of “Law and Order,” have subconsciously ingrained even in the very clients you serve that prosecutors are the good guys and that being one would be a step up.
As a public defender, you practice primarily in one jurisdiction. You get to know the prosecutors and the police officers. And as your professional reputation grows, so does the good-natured kidding. “How long you gonna stay on the dark side?” “How do you sleep at night?” “When are you going to come join Team America?”
And while all these comments are said in jest, the undertone is clear: A lawyer truly interested in helping society would become a prosecutor. Having found that humor is a far better reaction than taking offense, I have replied to many police officers that public defenders are also in law enforcement (wait long enough for their umbrage to kick in); we are the quality assurance division.
Maybe, just maybe, you don’t spend your whole career as a public defender. One day you find yourself sitting before the Senate Judiciary Committee at your confirmation hearing to be an associate justice of the Supreme Court of the United States. Remembering back to those questions at the Thanksgiving table, you keep your composure and answer the questions politely.
The following, while not specifically asked during the hearings, are quotes from four U.S. senators in various forums about their views on Judge Ketanji Brown Jackson and her time as a federal public defender.
- Sen. Ted Cruz, in a recent interview: “There are public defenders, people go and do that because their heart is with criminal defendants. Their heart is with the murderers, with the criminals, and that’s who they’re rooting for. Many choose a career as prosecutor because they want to put bad guys behind bars. On the flip side, public defenders often have a natural inclination in the direction of the criminal.”
- Sen. Tom Cotton, during floor debate before the final vote: “You know, the last Justice Jackson — Robert H. Jackson — left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis. This Judge Jackson might have gone there to defend them.”
(The good senator failed to mention that the defendants at Nuremberg were in fact afforded defense counsel. Of the first 22 major actors charged, three were acquitted.)
- Sen. Chuck Grassley, in a written question during her confirmation process to the D.C. Circuit Court of Appeals: “Senator Booker invoked John Adams representing British soldiers accused of murder during the Boston Massacre as a reason why you are the right person for the job. Please list all the cases where you represented a client whose views you disagreed with or whose alleged crimes you found offensive.”
Here’s a clue, Senator Grassley: The answer for public defenders would be “just about every case.” Every public defender I know would love to be a victim of our own success. If we could steer clients away from the behaviors that got them in trouble, we’d be the first to do it. Crime is offensive. I have represented people on matters from traffic offenses to murder. I condone neither bad driving nor murder. What I do “condone” is a fair system with capable, competent, zealous defense counsel who make sure that the government plays by the rules.
- Sen. Ben Sasse, written questions to Judge Jackson during her confirmation process to the D.C. Circuit Court of Appeals: “Were you ever concerned that your work as an Assistant Federal Public Defender would result in more violent criminals — including gun criminals — being put back on the streets?” “While working as an Assistant Federal Public Defender, why did you choose to work on behalf of Guantanamo detainee Khi Ali Gul? If you did not have a choice as to whether working on behalf of this client, did you ever consider resigning from your position?”
Perhaps a better question from the senator might have been this: “Would you have wanted to have been part of legal system in which there was no defense counsel? If you were part of such system, would you have worried that people would have been ‘taken off the street’ with no due process?” Public defenders are like firefighters in representing our clients. The court rings the bell and appoints us, and we come, with lights, sirens and the zealousness the law requires. No judgment, no reservations, no declining the call because you were smoking in bed.
The preceding are sadly illustrative but not exhaustive. The Sixth Amendment reads in part, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” Like all other amendments, is not self-executing. As the recent confirmation hearings for now Justice Jackson illustrate, it is not just well-meaning relatives or professional colleagues who denigrate what we do. When sitting United States senators make such comments or ask such questions, one can only conclude that the Sixth Amendment, if it is to provide protections to all and not just some, must be vigorously, vocally and publicly defended.
The tradition begun by John Adams (successfully) representing the British soldiers accused in the Boston Massacre is carried out by today’s public defenders. So the next time someone asks you how you sleep at night or invites you to leave the dark side, I invite you to recall (and paraphrase) the words of Jack Nicholson as Col. Nathan Jessup in the iconic “A Few Good Men.” Tell your inquisitor that you resent any person who sleeps under the blanket of due process you provide, and then questions the manner in which you provide it.
Every public defender I know works not just to help the client with their legal case, but to help the client restore their life after involvement with the criminal justice system. A lawyer in my office started a drug treatment court from scratch. Two more lawyers are working on the formation of a mental health docket in General District Court. My mitigation specialist and paralegal have assisted countless clients in signing up for GED prep courses, find mental health placements, obtain substance abuse training, and such seemingly simple but vital tasks as to obtain a valid ID or a driver’s license.
It’s not about rooting for murderers, but helping people. Any Virginia public defender, whether just starting out, or 26 years into it like I am, need only look to the Mission Statement of the Virginia Indigent Defense Commission, to find our marching orders: “DEDICATED to protecting and defending the rights and dignity of our clients through zealous, compassionate, high quality legal advocacy.”
That is what public defenders do day in and day out: serving both their clients and their community.
Jim Grandfield is a veteran public defender in Suffolk. His email address is firstname.lastname@example.org