Justice on the Cheap

For many indigent defendants, the right to a lawyer doesn't mean much.

May 3, 2001 | This article appeared in the May 21, 2001 edition of The Nation.

Next, the judge would ask whether the defendant wanted a preliminary hearing without counsel or to be waived into a higher court. Most chose to waive to a higher court, giving up their chance to have a preliminary hearing, and with it the chance to determine the prosecution's case against them, begin investigation, get a state's witnesses on record before the prosecution can shape testimony or create the basis for motions to suppress evidence. "They are losing a critical opportunity that will prepare in getting an adequate defense," Chartoff says. When defendants did ask for preliminary hearings, the judge immediately called police and witnesses to testify, and then asked the unrepresented defendant to do a cross-examination. Most defendants, poor and uneducated and almost certainly without law degrees, declined. The judge would then ask the defendant to make a statement. Inevitably, the defendant began to ramble about being guilty of some things, but not of others. "He basically asks them to incriminate themselves in open court," Chartoff says.

About the Author

Amy Bach

Amy Bach is the author of Ordinary Injustice: How America Holds Court.

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The Liberal Riposte (Law)

Imitation is the highest form of flattery. But liberal groups who want to counter the Federalist Society have no wish to flatter; they hope to engage liberal law students in a broad battle against the conservative legal movement.

On July 30 a cast of heavy hitters kicked off the American Constitution Society (www.americanconstitutionsociety.org), which grew out of an effort at Georgetown Law School to establish a networking and intellectual base for centrists and progressives. Speaking to loud cheers and standing ovations at Georgetown were former US Attorney General Janet Reno, NAACP Legal Defense and Educational Fund president Elaine Jones, former judge Abner Mikva, Harvard Law Professor Laurence Tribe and former Solicitor General Walter Dellinger. Judge Stephen Reinhardt, Judge Alex Kozinski's ideological adversary on the Court of Appeals for the Ninth Circuit, flew in from Los Angeles. Since an article appeared about the group in the New York Times in May, the number of law schools with students and professors hoping to open chapters has gone from twelve to eighty. The chapters will begin by sponsoring forums and debates, and lawyers' chapters are set to follow in metropolitan areas.

"One can always puzzle over the timing--where have we been for the past ten years?" said Chris Edley, a law professor at Harvard who is on the board of advisers. Former New York State Governor Mario Cuomo has also agreed to be on the board. Cuomo says he sees the group as a counterforce to make sure the Constitution is interpreted in a "reasonable" way. "Once you put that much weight on that side of the boat, you better put weight on the other side of the boat," he says. "We're the weight on the other side of the boat. We need to right the boat and keep it even."

Also during the summer, fifty-eight professors and lawyers met in Berkeley to form the tentatively named Equal Justice Society (www.equaljusticesociety.org), which will sponsor discussions on how to protect civil rights. Eva Paterson, the group's founder, who directs the Lawyers Committee for Civil Rights in San Francisco, said she realized the necessity of a coherent response to the right after giving a speech at a convention of black federal judges. "Judges came flying forward," she said. "They said, 'Could you just bring us some theories? We sit there in our chambers and don't have any theories.'" The problem, she admits, is that liberalism is more fractured politically and more complicated judicially; being opposed to government intervention is easier than the messy business of creating government action. The first national conference will be held October 12-13 at Harvard Law School. The host will be Professor Charles Ogletree.

A third organization, the New York-based Institute for Democracy Studies (www.idsonline.org), also plans to establish student chapters this fall "to do detailed research on the conservative legal movement" at New York University, CUNY and Columbia. The chapter at Columbia will be headed by Professor Jack Greenberg, former director-counsel of the NAACP Legal Defense and Educational Fund, who helped litigate Brown v. Board of Education.

Amy Bach

Why would a judge make a habit of not assigning counsel or, in a contract system, condone lawyering that is like nothing at all? Perhaps for the same reason that, in 1996, Congress decided to prohibit legal services lawyers from bringing class-action suits, even when using private funds (the Supreme Court found the law partly unconstitutional this February, in Legal Services Corporation v. Velazquez): It helps keep costs down and prevents poor people from clogging up the courts.

At the end of another day in Greene County, there are only three people left on the empty courtroom benches. One is Quentin Strong, a winsome 18-year-old charged with two sales of cocaine within 1,000 feet of a school to an undercover officer. He's sitting with his friend Deloise Jones, who is here to see her son's hearing in an unrelated drug charge. They have waited two days. This is Strong's fourth time in court for this case alone. A judge has already continued it three times for reasons he doesn't understand.

While a more impetuous teen might have given up coming to court and had a bench warrant issued for his arrest, Strong has an incentive to get his case over with. A high school graduate who has been taking the year off to make money, he wants to do his time before the fall, when he moves to Alabama to begin a full basketball scholarship at Tuskegee University. He is concerned about the evidence against him, and managed to talk with Surrency for fifteen minutes on the phone the previous week. The state has offered three months in county jail.

When his case is finally called, however, there is another snag. Mitcham, the assistant DA, isn't sure whether there are two or four counts against him. As Judge George is about to continue the case for the fourth time, Strong interrupts, explaining that he needs to do his time before he begins his scholarship in the fall. "If you have a basketball scholarship you don't want to enter a plea in something you didn't do," Judge George says, deciding to return to the case on a different day.

Afterwards, it is Surrency, not Strong, who is piqued. Following Strong out of court to the corridor, Surrency yells, "You want me to be your lawyer you can't talk! You gotta let me be your lawyer. You're jumping out there and disobeying me." Strong is astonished. Meanwhile, Deloise Jones sees an opportunity to get a chance to talk with Surrency. "What is going to happen to my son's case? Trial today?" Surrency doesn't answer her. Surrency shoots Strong an angry look and reaches for the courtroom door, which he shuts tightly.

For a moment they both stare at the door. But after a beat, Strong realizes what has happened and begins to rant. "He got upset with me? He can't get upset with me because I want to tell the judge something about my case!" He curses. But Jones knows this is no time to reflect. She runs after Surrency. If she reaches him before the judge calls the next case, which could be her son's, she may get a minute.