Apr. 12, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Cardozo Law School clinical professor Ellen Yaroshefsky, just appointed as the Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School.
Q. You are the “go-to” expert on criminal law ethics, and appeared as a witness on behalf of Orleans Parish Public Defender Derwyn Bunton at a hearing before Judge Arthur Hunter. Did you figure this is where you would end up when you decided to go to Rutgers Law School back in the Stone Age? What made you want to be a lawyer? Was it crim law going in, or did you have something else in mind? Was it crim law coming out, or was that an accident?
A. It is ironic to me that I ended up as a legal ethicist. Legal ethics did not exist as a field when I was in law school and even if it did, I am certain that I would not have been interested. We were not required to take the proverbial ethics course and I can hardly even remember reading the required ethics code before becoming a lawyer. I ended up here through a circuitous route that began in the 1960s pursuing what we now call “social justice.”
It was the early 1970s. I was working in affirmative action and decided to either go to law school or graduate school in education and urban planning. The Rutgers Dean convinced me to choose law. I then met several of the students who were National Lawyers Guild activists. The school was dubbed the “People’s Electric Law School” because of its activist agenda and was the only law school in the country that had clinical education (besides Northeastern Coops).
I was hooked and then mentored by Arthur Kinoy, a founder of the Constitutional Litigation Clinic and New York’s Center for Constitutional Rights. We had a remarkable faculty who were excellent visionary lawyers and teachers. Kinoy was a historian-lawyer and he, Morton Stavis and William Kunstler had been the architects of civil rights litigation in the South in the early 1960s. Arthur Kinoy instilled in us the importance of being “people’s lawyers.” It was inspirational and quite a unique time.
Q. After law school, you went as far from New Jersey as you could get, Tacoma, Washington, to work for the Puyallup Indian Tribe. While going west is completely understandable, how did you end up representing the Tribe? What sort of law were you handling? Were you prepared, coming out of Rutgers, to represent the Puyallups? Was there something about that position that made you think, “criminal law sounds like fun”?
A. I was not sure what kind of law I wanted to practice. I still had an abiding interest in education law as well as constitutional litigation. I spent the summer of 1968 in San Francisco and knew that I wanted to move West. So when the National Lawyers Guild sponsored the first summer projects, I chose the Native American Summer Project.
It was 1973, the year of Wounded Knee, and the shooting of Native Americans on the rivers in Washington in a longstanding dispute about fishing rights. I chose the project in the Northwest. We had no idea how to do much other than research to help regain land, help lawyers on cases where Natives were arrested, and learn a great deal about particulars of injustice against Native Americans.
It was an eye popping summer, replete with stories about South Dakota Wounded Knee arrests. Many NLG lawyers, including the legendary William Kunstler, were involved in Wounded Knee. I returned to the Northwest the following year to co-lead the project and then decided to move there after law school to open the first Puyallup Tribe law office with my project co-leader. We had no idea what we were doing, but that did not stop us from our unwarranted exuberant confidence. We worked on fishing rights, economic development and I represented a number of tribal members in criminal cases.
Q. After a year, you started with the Seattle-King County Public Defender. As you know from Orleans, many public defenders offices are drowning in cases. Was it like that in 1976 when you started? What type of work were you doing? What about your first trial? Too confident? Scared to death? What did you take away from it? What was your favorite part of trying a case?
A. My roommate, Kate Pflaummer, who had moved to Seattle from New York, thought I was nuts to be in Tacoma, Washington and encouraged me to be a Seattle public defender. She was one of two women in felony division in the entire city of Seattle at that time. I was inspired by her work. I loved the stories, the David and Goliath aspects, the righteous representation of indigents in the face of terrible odds. Many NLG activists were criminal defense lawyers, working to keep people out of jails and prisons.
She, and many others, thought I had the “trial lawyer” in me and they knew I loved representing people in what most perceived to be a stacked deck system of justice. The State and the government were called the system of “just-us.” Yes, it was the 1970s!
The Seattle Public Defender Office had, and still has, the reputation of being one of the best public defender offices in the country. Caseloads were manageable. Resources were available. We had social workers, investigators and even though we felt overworked, our clients did not suffer.
After 2 years in the office I, and two colleagues, were assigned to work full time on our office’s first death penalty case. For nine months, I devoted all my attention to the case of Carey Webster, a Native American charged with the killing of a taxicab driver. We were lucky to have spared his life. It was an incendiary environment for a young Native American on trial for murder and it was frightening for me to have that responsibility. I did not want it, but my supervisor thought I was up to the task. I don’t recall sleeping much during that time or being able to have normal interaction with other people. Our team was in some ozone. We were in “team defense” before our time. I had to fly to upstate New York to examine the then-existing “expert” on blood spatter. It was hardly a science, as we now know, but we did not know that then. It was my job to debunk the expert conclusions and led us to excess alcohol consumption when our expert called a few weeks before trial to let me know that some of his calculations were incorrect.
At the Seattle PD, I started off representing clients in civil commitment cases because that was the job available. I learned a great deal about mental illness and cross examination of psychiatrists. My first trial was hilarious. My mentally ill client was a guy who set his couch on fire because he repeatedly fell asleep with cigarettes in his hand. I was outraged, of course, that the State would seek to commit him because he was “dangerous to others.” We had a jury trial; he testified. He tore the prosecutor to shreds on cross examination. We won and he then went home to set his chair on fire. He told them all to go to hell as they picked him up, once again, to commit him to an institution.
I rapidly moved from those cases to first degree robbery and homicide cases without much additional training. I was scared to death when my next trial was a defendant charged with robbery with a sawed-off shotgun while high on Dilaudid. Somehow I pulled it off.
The Seattle PD job remains perhaps the most cherished for me and many others. It was the bonding experience of our youth. There were only 12 felony lawyers in our office and only two women criminal defense lawyers in all of Seattle at the time. But the best reason is that we had 4-2-4 options, that is, 3 lawyers shared 2 jobs. We worked as a team where each of us worked 4 months, were off two months and then worked 4 months again. With good teammates, it worked seamlessly. You never actually got a full 2 months off because if you were in trial, you had to complete it and spend at least a week turning over cases to your teammate. But, it helped burnout and we travelled a lot. Two thirds salary at the time was $8000 a year. We lived well. REALLY. Some of my closest friends, who went on to become judges, academics, the U.S. Attorney, and leaders in firms, concur that our days in that office were inspirational. We got to practice at a high level, made a difference in many lives and had a lot of fun.
Q. In 1980, you started a firm practicing criminal defense in Seattle. Was the transition from public defense to private practice easy, hard, what you expected? Did private practice suit you? Were you busy from the start, or did you sit around waiting for the phone to ring? Did you like being your own boss or did it prove to be harder than you anticipated?
A. I wanted to be in private practice where I could choose criminal cases and also do civil rights work. Five of us from around the country had been meeting for some years to form a law collective– everyone was paid the same and we had a social justice mission. We got to do great work.
I worked with the New York Center for Constitutional Rights on women’s self-defense issues and undertook the defense of Sherry Allery, the first major “battered woman self defense” case in Washington State. We lost at trial because, among other issues, the Judge did not believe the battered woman’s expert and would not admit her testimony nor instruct properly on self defense. It was a sweet victory to have the conviction reversed by the Washington State Supreme Court. The case became a seminal one for the country.
We worked on civil rights cases including a case against Philippine government leaders for the assassination of two labor leaders in the cannery industry. It was the best of being a “people’s lawyer.” I look back now and realize the opportunities we had. Elizabeth Loftus, now the country’s leading expert in eyewitness identification, was a witness in my criminal cases in the early 1980s. Her first testimony was an offer of proof because the courts would not permit her testimony.
Q. You left Seattle in 1982 to work with the Center for Constitutional Rights, when (if I can remember that far back) former Attorney General Ramsey Clark was running the joint. What was that transition like? That was more civil rights than criminal defense. Was that where you wanted to go? Any really interesting work on your plate back then?
A. For personal and professional reasons, I had a hankering to come back to New York, particularly to work at the Center for Constitutional Rights. It had been my dream job since law school. Michael Ratner was the legal director and Morty Stavis and William Kunstler were its active founders. I was so fortunate to be hired and got to work not only on significant criminal cases but I learned the art of litigating important international human rights cases in what colleague Jules Lobel calls “Success without Victory.”
Ratner and the late Rhonda Copelon led the way in litigation challenging U.S. supported and sponsored violations of international human rights by death squads in El Salvador and Nicaragua. It was the Reagan era. We successfully used litigation to organize and publicize US actions. Even though the lawsuits were dismissed, the litigation helped spark political action to stop unlawful intervention.
As an outgrowth of Central America work at CCR and in the National Lawyers Guild, I became one of the lawyers for the year long Sanctuary trial in Arizona. The Government charged priests, nuns, and other religious and lay workers with transporting, harboring and otherwise assisting Salvadoran and Guatemalan refugees in the United States. Twelve defendants were charged with some 81 counts of criminal activity. We won about 70 counts but were devastated to lose the others.
I still consider that trial one of the highlights of my career. The clients were remarkable. A priest from Mexico travelled daily to Arizona to stand trial even though the government would have preferred that he stay home. People in town wore buttons that said “If They are Guilty, So Am I.” The judge had it out for us and our clients. We were not allowed to use the word “refugees.” The day before the trial started, the Judge took away our defense of intent. It was all a travesty that taught much of the religious community a lot about the operation of law in political cases.
Q. You turned back to private criminal defense in 1988, then went to Cardozo Law School as a clinical prawf in 1994. What made you decide to teach? Was that a scholar inside you yearning to get out? Did you tire of working in the trenches, or did your interests change? When you started, did it turn out to be what you thought it did? Was working with students your “thing”? What about the ancillary aspects of the legal academy? For a trial lawyer, the bureaucracy can be a bit hard to take. Any problem going from solo trench lawyer to professor?
A. I loved CCR but I needed to earn a living and our salaries there were extremely low. In 1988, Barry Scheck and Larry Vogelman, then directors of the Criminal Law Clinic at Cardozo Law School, offered me an adjunct position in the Clinic and a partnership in law practice. We set up an office in Soho where I worked 2/3 time and then worked the rest of the time at the Clinic. We directed Cardozo’s Intensive Trial Advocacy Program.
It was interesting, engaging and fun. I liked the students, my colleagues and the opportunities that law school teaching offered. I never intended to teach full time but serendipity and unpredictability seems to define my career. Someone once told me “Make your own steps” and I suppose that I followed that advice.
I thoroughly enjoyed clinic teaching. In addition to misdemeanor supervision, I had students work with me on cases including the first sexual harassment case at the United Nations. We represented Catherine Claxton, a brave woman who came forward to complain. Alan Dershowitz represented the high level UN harasser. The students who worked on that case and sat through the 4 week trial — all done in “secret” at the UN — have subsequently talked about the impact of that experience.
We handled a wide range of criminal cases through the Clinic. In my private practice, I worked with artists and represented Karen Finley, an avant garde artist who received federal funding and who was attacked by right wingers in the Congress who sought to defund the NEA due to support of her work. This was known as the “NEA wars” of the late 1980s. The right wing wanted to stop funding the artists whose work they abhorred and we undertook that battle.
Q. Your focus at Cardozo was on legal ethics, and you became the Executive Director of the Jacob Burns Ethics Center. How did you come to focus your interest on ethics? You’ve done remarkable work in the area of criminal law ethics, from Brady disclosure to plea bargaining to indigent defense. How did you end up there? Was your interest in ethics there when you were still in the trenches trying cases, or did it come later? Do you have a philosophy that guides your perspective in ethics? Is there one side, prosecution or defense, that’s more or less ethical? Are there more pitfalls for one side?
A. Personal reasons had much to do with why I ended up a fulltime academic. I became a parent in 1990 and my husband died unexpectedly in 1994. I was not sure I would return to work for many months (and did not), and I certainly could not imagine the stressors of trial work on a long term basis.
In 1997, I tried my last major case before Judge Reena Raggi. As you may know, she runs an efficient courtroom and the trial schedule was punishing. I got 3 hours sleep for days, hardly saw my son, and despite a nice victory, decided that such a life was not sustainable. Luckily, Cardozo benefactor Jacob Burns gave Cardozo an endowment so that we would teach ethics with the simulation method that we used to teach our Intensive Trial Advocacy Program. Barry Scheck and I set up the Jacob Burns Center for Ethics in the Practice of Law.
I knew nothing about legal ethics. Barry Scheck and I co-taught the course for a semester and then he went off to Los Angeles for the famed OJ Simpson case. I slowly, or maybe quickly, learned the field. Barry returned and we held some Ethics Center programs and developed video simulations to teach ethics. It was fun, it was interesting.
Barry could not undertake the remarkable work of the Innocence Project while simultaneously directing the Ethics Center, so it was mine as of the mid 1990s. And so it was that I changed course a bit, while maintaining an abiding interest in criminal justice. Barry and I still collaborate and I often provide advice to the Innocence Project and work closely with them on prosecutorial and defense attorney ethics.
I focused the Ethics Center on Access to Justice issues. We held a yearly talk. Michael Tigar delivered, “How Market Forces Distort the Search for Justice.” Along with my Fordham colleague, Bruce Green, we concentrated on Brady issues and held many conferences including one on disclosure issues. We filed amicus briefs. I became engaged in the various bar associations and national organizations that focus on legal ethics. Engaging in the Criminal Justice Section of the ABA was significant and we were able to pass resolutions on numerous issues including Brady rules, plea waivers, and prosecutorial misconduct versus error.
I like legal ethics work. It raises interesting and difficult questions. How should the profession operate? What are necessary and appropriate rules? How is criminal justice ethics different from that of civil justice? Negotiation vs. Litigation. What can we do to move the ball forward? Maybe your eyes roll over and say REALLY? I guess this does make me an academic.
I dislike the distinction between lawyers and academics. I aspire to be both and would hope that more academics engage in the world of lawyering. In particular, I would expect that academics write to be useful to the practice of law. I think we need to help overworked lawyers step back, examine the practice, and figure out ways to improve the justice system. Ethics rules should play more of a role in the way judges, prosecutors and defenders view their respective roles.
My early interest could be traced to a program at NYU in the late 1980s when Steve Gillers invited me to an ethics program on criminal defense and victims’ rights. My perspective was not particularly well received by the prosecutor and former judge on the panel. I did not know why! I actually wrote an article debunking the popular view of the role of victims in the criminal justice system. My first scholarly piece. It still holds up.
I did not know that I would like scholarly writing. I do, to some extent, although the hundreds of footnotes to make a basic point can be frustrating, particularly in this era of short attention span. Who reads these articles? If they are useful, hopefully lawyers and judges can use the hundreds of footnotes and ideas in briefs, motions and opinions. Maybe that is just an academic pipe dream.
Q. Your work in criminal law ethics has made you one of the foremost legal ethicists in the area, which explains how you ended up as Bunton’s expert witness in Orleans. There seems to be little question that, as you opined, that risked becoming “nothing more than a plea mill.” So is this an ethics question or a financial question? At what point does a public defender have to say “no,” he will no longer be complicit in less than adequate representation? Is Derwyn Bunton right to refuse cases? Should every overworked, underfunded, PD just say no?
A. Louisiana–Lawyers at the NOLA PD called and asked if I would testify and I did. The situation there, and throughout the State is shocking. It is simply not possible for lawyers to perform the basic tasks of representation: interviewing and counseling their clients, conducting basic investigation and making appropriate motions. It is a basic ethical and constitutional precept that lawyers must provide competent counsel. They are unable to do that.
I testified that the situation is little more than a plea mill. Lawyers are not performing, and cannot perform the basic tasks. It is not ethical to represent clients in such fashion. Many systems around the country are terribly underfunded and place lawyers in compromised positions. Lawyers constantly have to decide whether they should go to a supervisor, say that they cannot handle any more cases, and the supervisor then has to decide upon action. Perhaps lawyers do not do so because defenders have become so accustomed to triage — to picking and choosing which cases are worthy of defense rather than a quick plea — that they are loath to even recognize where they should say “NO.”
The triage issue is endemic to the public defense system nationally and the subject of constant and ongoing discussion. But Louisiana has gotten to the point of no return. The system of funding is unconscionable. You cannot fund a criminal justice system primarily through traffic tickets or other tickets paid by the public. There must be state and other government funding.
Derywn Bunton, by all accounts, is a thoughtful and courageous leader in the New Orleans defense system. He carefully considered all options and took seriously his ethical and constitutional obligations. He exhausted all options. I believe that, as difficult as it is, he had an ethical obligation to refuse to accept further cases. Several ABA Opinions set forth his course of action.
Q. You ended up taking a group of students to Orleans Parish over a school break to try to help, fill in some gaps and teach them what life in the real trenches was like. That raises some questions: Does it help or hurt to relieve some of the pressure building toward an indigent defense disaster? Does the system need to crash and burn before government takes its duty under Gideon seriously? And are law students ready to provide meaningful help to the unrepresented indigent? Should the poor be used for practice? Don’t they deserve competent representation by admitted lawyers? What made this trek a good idea?
A. I recently organized a trip for Hofstra students to work with the MacArthur project in New Orleans. Cardozo students will soon engage in such work. The Hofstra students worked in Lafayette, Louisiana. They spent a week learning the system, documenting conditions and working with 12 defendants to prepare habeas corpus cases in order to secure their release because they have been held without charge and without legal representation.
Needless to say, their work is somewhat of a drop in the proverbial bucket. There are 70 young men held in Lafayette and even if they could write motions for 12 people and secure their release, this represents a small portion of Louisiana defendants.
So why such a project? Many reasons. First, the students were adequately supervised and actually will help the 12 young men. The work they did was competent and meaningful for those people in jail. Second, the students’ exposure to the remarkable unfairness of the system should reverberate as they write and talk about their experiences. It was shocking for all of them to learn that in Louisiana people can be held without charge for 45 days on a misdemeanor and 60 days on a felony. Without charge!
This issue alone has not received sufficient attention. Hopefully, exposure and increased publicity that results from this and similar projects will snowball and have an effect. Change does not come overnight and it takes many efforts to achieve public awareness that leads to changes. No doubt, the Louisiana public defense system has crashed, but it will take greater public pressure to make a measure of Gideon a reality. Projects such as student projects can help move that forward.
Q. It’s just been announced that you’ve been named the Howard Lichtenstein Distinguished Professor of Legal Ethics and Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School. Aside from that being a mouthful, what is the plan for Monrovia? Do you plan to continue your focus on ethics in criminal law? Will you continue your work as a legal ethics expert as well as scholar? And what will you do next?
A. I am honored and humbled to have been selected as the Director of the Monroe Freedman Institute for Legal Ethics. Monroe was a friend, mentor and a legal ethics hero. And, we share a birthday and he was the first to contact me at 5 a.m. every year to wish me one first!
He was an advisor to untold numbers of criminal defense lawyers around the country throughout his career. He gave of himself to anyone involved in access to justice. His groundbreaking law review article, The Three Hardest Questions, incurred the wrath of Nixon appointee Chief Justice Warren Burger, who sought Freedman’s disbarment in retaliation for his position that, when faced with the dilemma of what to do when the lawyer knows that the client intends to commit perjury, he or she should present that client’s testimony as any other witness.
I hope to enhance Monroe’ s legacy. I am excited that there are sufficient funds to sponsor programs, conference, fellowships and other activities to undertake significant and cutting edge issues in the profession. I intend to work across a broad range of areas but to continue to focus on criminal justice ethics. I am thrilled to begin with a program on September 13 when Dean Strang, the lawyer for Steven Avery in the noted series, Making a Murderer, will inaugurate the Institute with a talk about criminal justice ethics.
I will continue the focus on prosecutorial and defense attorney accountability, but I also want to examine the role of judges in the criminal justice system. There is so much to do. It is an exciting time, as difficult as it may be. I will continue to consult with scores of lawyers and hopefully have time to write articles and essays that are useful as we continue to try to push that rock uphill.
