While the criminal law ecosystem is somewhat fragile, the players managed to live together. We didn’t necessarily get along all the time, but we realized that we were all necessary parts of the system. Begrudgingly, perhaps, we admitted that each of us was necessary to make the system work. Even the most vicious of prosecutors, cops, understood that the defense had to exist.
This is why the indictment of New Orleans Public Defenders investigator Taryn Blume is so shocking. And dangerous.
“One Taryn Blume late of the parish of Orleans, between the first day of January in the year of our Lord, two thousand and fourteen, and the first day of April in the year of our lord, two thousand and fourteen in the parish of Orleans, did impersonate a peace officer or assumed, without authority, any uniform or badge by which a peace officer is lawfully distinguished …” the indictment read.
“I had no idea why or what that meant,” Blume, now 26, told the Guardian.
Had she robbed a bank or stolen money from Derwyn Bunton’s till, it would be understandable. Having a job on the defense side wasn’t a free pass for committing crimes. But Blume wasn’t indicted for knocking off a grocery store, but for doing her job.
Eventually, Blume discovered the charges stemmed from a misunderstanding. Her client, Curtis Hawthorne, had been accused of posing as a taxi driver and raping a tourist. He had been convicted and sent to prison for life days before Blume found out about her indictment.
The case had been long and ugly. At some point, Blume was asked to go track down a piece of evidence. She went to the housing authority police and gave her business card to the security guards. One of them came to the OPD office to give her the document she was looking for.
Tracking down evidence is why indigent defenders have investigators. How investigators do so is a matter of some curiosity, given that most people’s grasp is based on television shows which tend to play incredibly fast and loose with reality. On the prosecution side, there are cops who get to go out, flash a shield and scare people into compliance. If they have to lie a bit, it’s all good, as deception is a critical tool of law enforcement.
For the defense, however, the rules change. The defense is expected to be pure as the driven snow, and unlike a dirty prosecutor who might get a really stern lecture, the defense fully expects the hammer to drop should they stray from the law and get caught. But Blume didn’t stray.
She wouldn’t find out until later, but one of the officers mistakenly told the housing authority attorney that she worked for the prosecutor’s office. The attorney, annoyed at the idea that the officers would be stuck in court all day, called the DA’s office to ask Blume when they needed the officers to testify.
That moment of confusion would take over her life for the next two years.
There is a tricky detail in here that might well be missed by the unaware. A person walks up to you and says, “I’m investigating this case, and need you to give me this document.” Note that she didn’t say she worked for the prosecutor’s office. She said nothing untrue. In the mind of the listener, an assumption kicks in and, despite nothing having been said, he assumes when the investigator says she’s investigating that she means for the prosecution. If he repeats the story in his head, instead of what actually happened, it suggests a crime. Oops.
That’s not to say this is what happened in this case, as Blume handed over a business card expressly identifying herself as a defense investigator. But who looks at cards, right? The upshot is that she not only did nothing wrong, but everything right. Pure as the driven snow.
Not only did that not save her from indictment, but it didn’t even keep her from big bail.
The prosecutor on the Hawthorne case, Jason Napoli, got a judge to set Blume’s bond at $50,000, an amount more typically used for people accused of violent assaults. The judge later told the public defenders she wasn’t informed that Blume even worked for them.
How that’s possible seems impossible to explain on every level, from bail at all to an astronomical amount for someone who wasn’t a flight risk or serial killer, and yet it did. But more to the systemic point, going straight for an indictment and arrest was a clear message that the defense was under assault.
“I can’t think of any way to justify what the prosecutor’s office has done,” said Bennett Gershman, a professor at Pace Law School who studies prosecutorial misconduct. He said prosecutors could be using their charging power to gain a competitive advantage or to intimidate defense attorneys.
“It’s an abuse of power by Cannizzaro’s office,” he said.
Well, yeah, but this is a far more concrete threat. The sides in the system aren’t equals, though we try to pretend they are. The prosecution has the money and the cops. That’s always the case. But the prosecution also has the bludgeon to beat the defense into submission if it chooses to use it. The power to prosecute if you step too close to the line, or someone mistakenly says you did, is a devastating weapon. Sorry, kids, but nobody wants to be arrested and jailed for being on the wrong side of the courtroom.
This power isn’t used for that reason, that it would chill (well, deep freeze) the defense from zealously defending its clients. Pushing the envelope is what the duty demands, right up to the line of lawful conduct. It’s not that the prosecution should close its eyes to crimes by the defense, but that prosecution is a last resort, not the first salvo, and certainly never used except when there is no option but to do so.
New Orleans has criminal law issues, from the woeful lack of money for indigent defense to a district attorney’s office with mud all over their trial suits. Even though the charge against Blume was dismissed, albeit without prejudice, on the eve of trial, the message was clear.
Attorneys and investigators said there was a prevailing feeling in the office that everyone was vulnerable.
“Investigators are scared,” Blume said. “Because it could have happened to any of us. And it still could.”
It’s not as if the playing field was level to start, but this changes the game entirely. That the judiciary in New Orleans would allow the prosecution to subvert the system by using its bludgeon to strike fear in the defense is telling. They know damn well the system can’t work if the defense can’t do its job for fear of prosecution. That’s a message too.