(This is a very long post today, so I will understand if you don't want to read all of it. I have a lot to say on this topic recently, so this got a bit longer than I originally expected it to be. Sorry!)
Public defenders get a bad rap. We are often mistakenly considered poor quality lawyers, inexperienced, not invested in our clients or their cases, in cahoots w/ the prosecution, etc. And on top of the negative stereotypes about public defenders, we also deal w/ the stigma of being a criminal defense attorney, the lawyer who "defends those people" or who gets guilty people off on "technicalities." So, you have to have a thick skin to be a public defender, and to a certain extent, a defense attorney. Because what people don't understand is that our job isn't simply to "defend those people" or get criminals off. Our job is to protect the public from government overreach. Our job is to ensure that things are done right & fairly. Our job is to police the police & to make sure that prosecutors are following the rules. Our job is to prevent the government from having unchecked power & authority. Our job, at its core, is fundamental American ideals in action.
I want to make it clear at the outset that I am not anti-police nor anti-prosecutor. As I have mentioned on several occasions, I know several prosecutors who I consider my friends & I have friends from law school who became prosecutors. I love these guys dearly & I respect the work they do. There obviously needs to be a prosecution sector of the system bc yes, some people do bad things & need to be held accountable. I also have gotten to know many police officers in my work & I think highly of the work they do & of them & we get along very well. They know I have an essential role in the system & they don't take it personally when I challenge things & they do their work in an ethical manner. So, I don't have a problem w/ officers or prosecutors based just on their job titles.
I have a problem w/ the officers who act like cowboys, who flagrantly & routinely violate people's rights, & who refuse to ever consider that maybe they should modify their actions. I have a problem w/ prosecutors who see this behavior in their officers & who don't correct it, who don't explain to the officers why this is not legal & needs to be changed, who proceed on w/ cases that have shoddy police work & obvious rights violations, bc damnit, they need that conviction.
I'm not talking about situations where I think there is an issue & the prosecutor disagrees & there is a legitimate argument to be made for both sides. I'm talking about situations where there is no legitimate argument to be made that the police conduct was permissible & yet, they still proceed w/ it.
I will share a few examples of how it should work, examples that have actually occurred w/ my cases & w/ my prosecutors.
First, a few years ago, when I was just doing misdemeanors, I had several clients on traffic tickets that would tell me that the cop searched their vehicle. In Minnesota, an officer is only allowed to search your vehicle during a traffic stop if they reasonably believe they will find evidence of a crime. So, if you're pulled over for speeding & the officer doesn't observe anything else suspicious, they can't search your car bc there isn't going to be any evidence of speeding in the car. So, I had lots of clients tell me they were getting their cars searched by the cops on cases for driving w/o a license or something like that, where no evidence of the crime would reasonably be found in the car. The problem was, the cops weren't finding anything illegal in the cars, so I couldn't challenge anything in court. When we challenge things in court, we are most often trying to get illegally obtained evidence suppressed. No evidence = nothing to challenge. But I still found this routine car searching to be troubling, so I mentioned it to the prosecutor. He was horrified by this information & wanted me to let him know how often it was happening. I kept track for a bit & reported it to him. He later came to me & said he had taken the info & spoken w/ his officers. He told them they couldn't search cars like they had been & that from now on, he wanted clean searches & seizures. No more random, suspicionless searches.
Second, in Minnesota, there is a law that allows officers to arrest someone for an alleged domestic assault up to 48 hrs after the incident occurs. After that, they would need an arrest warrant. I had a case where the person was arrested w/o a warrant more than 48 hrs after the alleged incident & was interrogated by officers after being arrested. I moved to have his statements suppressed bc the arrest was unlawful. The prosecutor reviewed the statute & the reports & ultimately came to the same conclusion: the arrest was unlawful & the statements shouldn't be allowed in. We ended up not needing to have the court hearing on the issue.
Third, I had a case for aiding an offender. The statute requires that the offender be wanted for a felony offense. My client was charged for allegedly aiding an offender who was wanted for misdemeanor offenses. I caught this, did some research to make sure that was actually what the statute required (it was), & went to the prosecutor & explained what I had found. The prosecutor checked out my research & agreed that the charge was improper, given the facts of this particular case, & dismissed w/o needing a hearing challenging probable cause.
These are examples of good prosecution work & I highly respect all three of those prosecutors. There are certainly situations, more often than not, where there are arguments on both sides & that's why we have a hearing & have a neutral judge decide the issue. But sometimes, things are just blatantly incorrect & shouldn't necessitate a hearing. They shouldn't require anything more than a discussion btwn the two sides to correct the error. Mistakes happen, of course, & they should be corrected when it's easy to see them.
And don't think I don't do the same thing on my side of it! I do. Of course, I don't have a full police force, but I have clients who want me to file motions that have no legal basis or who I have to sit down & explain that, while it might not seem fair to them, the police officers' conduct was lawful & that evidence will come in.
But not all prosecutors are willing to call their officers out on things that are improper. They let them think that evidence was suppressed bc the shady defense attorney made a mountain out of a molehill or the judge was wrong in the ruling or whatever excuse they can find to not correct the improper conduct. And when the police never get told to reign in their unlawful conduct, when it's never their fault that evidence was lost, they never change. And their actions become more & more egregious. They begin to think that whatever they do is fine, especially if it uncovers evidence of a crime. They begin to think that they can do whatever they want. They begin to be cowboys.
Anal probes don't seem beyond the pale for unchecked officers who never get told to reign in their conduct.
Shooting a mentally ill man as he stands there & does nothing, then lying in their police reports to say he came at police in an aggressive/threatening manner is not a problem for officers who think that as long as they use the magic words in the reports, no one will ever question them.
Tasing a man 2 to 3 times & then arresting him for trying to get back into his burning house to rescue his 3-year old step-son isn't problematic for police officers who have the mentality that they can act, tase, or shoot first & ask questions later.
Shooting six rounds & killing an unarmed teenager after his dad called in that the teen had taken the truck & after police dispatch told officers in pursuit to back off the chase is perfectly acceptable to officers who never are called out on the carpet for their actions.
Police officers who are never expected or required to answer for the actions they take begin to think they can do no wrong. They begin to act more & more unlawfully, improperly, & unnecessarily aggressively. Some good, ethical prosecutors will not let officers get away w/ such outrageous conduct & those prosecutors are fantastic examples of seeking justice. Some officers are ethical & would never intentionally do things in violation of people's rights and wouldn't take extreme, but easier, measures when more moderate, but perhaps more difficult, measures will work.
But, prosecutors rely on police to build their cases by gathering evidence. Prosecutors have a close relationship w/ their officers (as one would expect). And it's not always easy to call someone out that you have to rely on day after day.
So, we are there: the public defenders, the defense attorneys. We are there to police the police. We are there to make that officer come into court & answer questions about what they did & why they did it. We are there to be the ones to call them out & to get unlawfully seized evidence suppressed. My hope is always that, if I am constantly calling the same officers to task over & over & over again, they will start to correct their errors. If I grill them about a report that is woefully thin in detail, perhaps they will start writing more thorough reports. If I question them about an improper pat-search & a ton of important evidence is lost, perhaps they will learn from that mistake & do better searches. Perhaps if they are made to account for their actions, they will act in such a way as to avoid constantly having to face me in court.
Society may hate the defense attorney, and especially the public defender. But, they need us, whether they know it or not. Every battle I have in court on a particular case makes society a little bit safer from unchecked police & state power. Every time a defense attorney makes an officer come to court & have his or her actions scrutinized, every citizen is a little bit more protected from cowboy cops. Every time we square off on one case, we are squaring off for the entire public & standing between the public & absolute government power.
You're welcome, America.
