A few days ago, the notion was raised that courthouses, the place where citizen jurors come to decide the fates citizen defendants, create an atmosphere that places officers in charge and on a pedestal. We pass through magnetometers operated by marshals or court officers. We watch as police officers roam freely, shown deference by everyone in the house because they are, after all, the embodiment of the government.
Eric Johnson at PrawfsBlawg takes it further.
In many places around the country, the United States Attorney’s office is in the same building as the federal courts. I’ve never liked this arrangement. Sure, it’s convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about “avoiding even the appearance of impropriety,” it is unseemly, I think, to have the government’s advocates down the hall from the judges.
That we don’t give this much, if any, thought demonstrates how ingrained our acceptance of the status quo, that they are the government and we are not, is. We talk about the courthouse as a palace of justice. The judges are the Kings, and the others are courtesans. The defense is the perpetual outsider, seeking the largesse of the noblesse.
Why aren’t courthouses built with some available office space for criminal defense lawyers? How do we expect jurors to be herded through the doors and around the courthouses by court officers, who appear (if not in fact are) the first cousins of the police officers we tell them are liars?
And as the lawyers who are in the employ of the government get to assume the name of The People, a group that includes The Jurors, does the fact that they share an elevator with the judge have any impact on their credibility and purpose?
Upon reflection the entirety of the construct suggests that to people that there is an inside and an outside within the judicial system, and we, the defense, are clearly on the outside. Notably, we are the only group not in the direct employ of the government, though we are increasingly in its indirect employ, yet still don’t get the benefit of an inside office.
A few years back, a decision was made that New York City criminal defense lawyers, who were as unworthy of trust as their clients, would be required to pass through the magnetometers like everyone else. Everyone except cops, prosecutors and judges, that is. It was for safety reasons. They could be trusted. We could not.
The president of the NYSACDL at the time, Dick Barbuto, was furious that we would be overtly signaled out as the only regular participants in the legal system who would be treated in this manner, and shot off a letter demanding the criminal defense lawyers be treated no differently than prosecutors. The letter was not only brilliant in its incisive analysis of the situation, but incredibly forceful in its demand of the court administration that criminal defense lawyers not be treated like second (or third) class citizens. within a few days, the administration relented, the policy ended and criminal defense lawyers were allowed to enter with their secure pass, as before.
While I’ve long used the word “prosecution” to refer to my adversary, rather than “People” or “Government”, to avoid the taint that comes from the inherent sense that they represent the good while I represent the person accused of doing terrible harm, there are so many aspects of the courthouse construct that serve to reinforce the message that they are the trusted insiders and we, well, are not.
While there are, as Eric Johnson suggests, some sound economic and safety reasons for the status quo, there are also some subtle, and not so subtle, messages that are sent along with it. These might be considered unintended consequences of the natural development of the criminal justice system, but it’s not entirely clear that they are unintended. It’s also not quite clear that once recognized and challenged, anyone in power will lose any sleep over it.
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First, I want to be clear in saying that I have no idea what it’s like to be a criminal defense attorney. So, I appreciate hearing what you and other criminal defense attorneys have to say on my comments below.
My life experience and my experience as a federal law clerk suggests that citizen jurors don’t pay the prosecution or the police nearly the amount of deference that’s suggested by this post. I don’t know what it’s like for other federal judges or for judges at the state level, but the judge I clerked for was more suspicious and demanding of the AUSAs than the defense or the accused. It’s just the way he rolled.
My family (perhaps because of our skin color) learned quickly that not everything that came from the government was to be trusted. That belief stayed true for the folks in my community (which was predominantly middle class) and seems to be the case for where I live now – suburban New Jersey.
I guess what I’m saying is that I think people think that the police lie all the time and proceed with less than what’s required by the standards of their job. I think that’s the case whether those folks take up an apartment in the same building (many FBI field offices are in those same federal courthouses) or are housed halfway across town. So, I don’t think it’s as big an issue as this posts suggest in practical terms. (The part about not being able to pass right through security is bogus, though.)
Do you think my experience is not the norm?
Victor
I’m sure that there are others who feel as you do. I’m also sure that there are others who feel differently. And I’m also sure that there are still others who get a message without recognizing it as such. The problem is that it’s all about how you individually feel and react to the situation, and others will feel and react differently.
The question is whether this subtle message, for those who see it that way, should be happening at all, or does it undermine the integrity of the system. Just because it doesn’t happen to everyone doesn’t mean it doesn’t happen.
I am a managing public defender in Boston. I see the same problems here – the DA has the entire 6th floor of the courthouse, in addition to their official offices down the street. The DAs, like police and court officials, are whisked through security with their ID cards, while defense lawyers have to show their ID and Bar Card (we are not searched, however). This has always offended me.
But recently, when I thought about confronting the court administrators about this, it occurred to me that I don’t want the public defenders in my office treated as insiders. I don’t want them to feel they share anything with the DAs, or that they are ever part of the court personnel. They should view themselves as outsiders, attacking the corrupt edifice of the courts and identifying more with their clients than with the functionaries inside the edifice.
So I don’t have a problem being treated like an outsider by the court here. I do think that the DA should not have an office in the courthouse. If the judges did not view them as cohorts, it might level the playing field just a bit (from vertical to just steeply inclined). I was told by a defense lawyer from Britain that he was stunned when he found out that prosecutors have offices in the court buildings – in the UK the prosecutor is a supplicant like everyone else.
Think less about our being outsiders as their being insiders, the impact of having the one hand of the law feed and care for the jurors while we call the other hand of the law a liar. Think of the judge being neutral while sharing a building with our adversary. It’s not that I think we need a floor of a federal courthouse for us, but that they have a floor of their own.
How about compensatory perks for defense attorneys such a an exclusive charging station for defense attorney cell phones and laptops.
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“While I’ve long used the word ‘prosecution’ to refer to my adversary, rather than ‘People’ or ‘Government,’ to avoid the taint that comes from the inherent sense that they represent the good while I represent the person accused of doing terrible harm, there are so many aspects of the courthouse construct that serve to reinforce the message that they are the trusted insiders and we, well, are not.”
Interesting, Scott!
There are many entanglements — I have heard stories (true!) that made my hair stand on end. Some, maybe most, are for convenience’s sake. In this time of tiny budgets all around, it’s good to remember that saving time, money, or our aversion to change is not worth the price in the long run.
Change at the Court House
Several days ago , I read a post by Scott Greenfield on his blog Simple Justice . The theme of the post is that the courthouse has changed from a place where the average citizen could seek a fair trial…