Constitutional Law Criminal Law

Attack on Public Defenders as Judges Is not Just Wrong Its Unamerican

Clarence Earl Gideon who got everyone the right to counsel

Today is GIDEON DAY. I know most people don’t celebrate it but On March 18, 1963, the United States Supreme Court ruled that the 6th Amendment to the Constitution guaranteed that Mr. Gideon and all others facing serious criminal charges have the right to a lawyer, whether or not they can afford to hire one. Clarence Earl Gideon— an uneducated, 51-year-old man — told a Florida judge in 1961 that the United States Constitution guaranteed him a lawyer when the state charged him with a felony. In 1963, the US Supreme Court agreed. The Court recognized that without counsel even an intelligent and educated person may be put on trial without a proper charge or convicted upon incompetent evidence. The court said that anyone facing criminal proceedings “requires the guiding hand of counsel at every step.” Gideon v Wainwright, 372 US 335 (1963).(The irony is not lost on me, that a pro se defendant won a Supreme Court case saying that everyone needs a lawyer). That decision led to the public funding of Legal Aid Societies across the country.

Now comes Kentanji Brown Jackson’s nomination to SCOTUS. She would be the first public defender ever appointed to the Supreme Court bench (and the first African-American female). But her work as a public defender has brought out harsh comments from US Senators in advance of her confirmation. Sen. McConnell: “So look, nobody is saying that public defenders ought to be disqualified from judicial service. It’s an important role.” But he added “disproportionate share” of Biden’s judicial nominees have background as public defenders. He has no problem that of the current 9 SCOTUS judges a whopping 5 served either as Asst. US Attorney or Assistant US Attorney General and two others served as US Solicitor General. Never mind that 3 current SCOTUS judges represented Bush in Bush v. Gore. As to the weak record of criminal defense lawyers on SCOTUS see my article “A Bench Light on Defense” available here:

The RNC called Jackson “a radical, left-wing activist who would rubberstamp Biden’s disastrous agenda.” The RNC also called her a “Democrat partisan” and described her work as a lawyer representing people detained at Guantánamo Bay as “defending terrorists.”

GOP Senator Josh Hawley’s has already publicly taken issue with her record defending detainees at Guantanamo Bay and her advocacy for reducing the minimum sentence required by law for when someone commits a crime.

Recently President Biden nominated Nina Morrison to a seat on the District Court bench for the Eastern District of New York. Nina Morrison currently is the senior litigator for the Innocence Project in New York, which is certainly a line on a nominee’s CV that hasn’t appeared yet. To date, Nina has served as lead or co-counsel for approximately THIRTY innocent people who were freed from prison or death row based on DNA or other newly discovered evidence. From 2002-05, Nina served as the IP’s Executive Director, supervising day-to-day management of the organization while assisting with litigation and policy reform initiatives. Before joining the Innocence Project, Nina worked for the ACLU and was an attorney with the firm of Emery Cuti Brinckerhoff & Abady PC, specializing in civil rights litigation. From 1992 to 1995 she was an investigator with the California Appellate Project, which represents California’s death row inmates in post-conviction proceedings. Nina is a graduate of Yale University and New York University School of Law, where she was a Root-Tilden-Snow Public Service Scholar. Nina is obviously an accomplished litigator and legal thinker. Her coming on to the bench is gift to the bench. She sold easily get a huge salary and perks at some white-shoe firm that wants to up its pro bono creds to its young overpaid and overworked indentured servants associates.

Instead, she had to sit through some of the most depressing, disheartening retrograde demagoguery from some of the Senate’s most retrograde demagogues: Sen. Josh Hawley (R-Mo.), who solemnly told Morrison, “I will oppose you and anyone else the administration sends to us who do not understand the necessity of the rule of law.” Hawley’s emphasis on “the rule of law” was interesting, given that at that very moment, his campaign was hawking trinkets emblazoned with the senator’s fist-pumping efforts to overturn the 2020 election.

Sen. Tom Cotton (R-Ark.) berated Morrison for representing Ledell Lee, an Arkansas man who was executed in 2017. Four years after the execution, new testing found DNA on the murder weapon that belonged neither to Lee nor the victim, according to lawyers. Cotton seemed astounded that Morrison could still believe Lee might be innocent, given that Lee was convicted with eyewitness testimony. Morrison calmly pointed out that faulty eyewitness testimony is the leading cause of wrongful convictions!!

Unchastened, Cotton demanded to know why Morrison thought “the courts somehow overlooked” Lee’s innocence for so long. saying “Overlooked for over 20 years!!!” But we’ve seen exonerations of people who served 20, 30, even 40 years, some after courts reviewed their cases a dozen or more times. Worse, in Cotton’s home state, once a prisoner exhausts his appeals, the state’s judicial system offers no way for him to get back in court even if he discovers compelling new evidence of his innocence.

Sen. Ted Cruz (R-Tex.) once represented a man who had been wrongly convicted and nearly executed, the late John Thompson. It’s one of the more decent things Cruz has done. So one might think Cruz would have some admiration for Morrison. But Cruz has never let his backbone get in the way of a good sound bite. “The whole of your record is deeply disturbing. Skyrocketing crime rates … are the direct result of the policies you’ve spent your entire lifetime advancing,” claimed Cruz, about a month after he begged forgiveness for once criticizing the lawless terrorists of the Capitol mob.

The importance of criminal defense to the Founding Fathers that these men worship is as self-evident as the truths enunciated in the Declaration of Independence. A large part of the Bill of Rights relates to creating a system of criminal justice that is fair; that curtails the power of the government; and that protects the innocent. The 4th (unreasonable search and seizures); the 5th (privilege against self-incrimination, right to due process, prohibiting double jeopardy); right to counsel; right to speedy and public trial; and the 8th (freedom from excessive bail and cruel and unusual punishment).

According to a 2021 Cato Institute study, former prosecutors and government attorneys outnumber former defense and civil rights attorneys on the federal bench by about seven to one. There hasn’t been anyone on the Supreme Court with significant criminal defense experience in 30 years. But we all must remember that when a lawyer stands next to a criminally accused person – guilty or innocent – and fights to make sure that the government lives up to its burden of proof and the ideals enshrined in the the Bill of Rights, our Founding Fathers – and all who have served in the military ever since – fought and died for that right and privilege. The Founders would praise those lawyers -particularly the public defenders who do so on behalf of the weak, poor and marginalized – as upholding our purest and oldest principles.

The Biden administration deserves praise, not scorn, for addressing the current imbalance and trying to correct it. Both Jackson and Morrison belong on the bench.

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