Public Defenders and Political Advocacy: What Is a Public Defender's Role?

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Chayila Kleist:  Hello, and welcome to this Federalist Society Webinar call. Today, May 4, 2023, we discuss "Public Defenders and Political Advocacy: What Is a Public Defender's Role?" My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, as The Federalist Society takes no position on any particular legal or public policy issues. In the interest of time, we'll keep our introductions brief. But if you'd like to know more about any of our panelists, you can access their impressive full bios at fedsoc.org.

 

Today, we are fortunate to have with us as our moderator, Matthew Cavedon. Professor Cavedon is a Robert Poole Fellow in Law and Religion, and Senior Lecturer in Law at the Emory University Center for the Study of Law and Religion. Prior to his time at Emory, he served for nearly four years as a public defender in Northeast Georgia, representing clients in misdemeanor, felony, and juvenile cases. I'm going to leave it to him to introduce the rest of our panel.

 

One last note: throughout the panel, if you have any questions, please submit them via the question-and-answer feature, which you can find at the bottom of your Zoom screen, so our speakers will have access to them when we get to that portion of today's webinar. With that, thank you all for being with us today.  Professor Cavedon, the floor is yours.

 

Matthew Cavedon:  We're talking about an important and lively topic this morning.  We're going to be talking about the debate that has erupted over the past several years, within the world of indigent defense, about the degree to which it is appropriate, or, indeed, vital for public defenders to be involved in political advocacy of different sorts. I expect that we'll hear some different views today, as well as dig into some nuances of when political activity is appropriate, and when it may or may not be. 

 

      Our two participants this morning will be Maud Maron, who is the Interim Executive Director of FAIR, the Foundation Against Intolerance and Racism — she is a former public defender in the Manhattan and Bronx offices of the New York Legal Aid Society; she also taught in the clinical criminal defense practicum at the Cardozo School of Law — and Tiffany Williams Roberts is our other participant.  She is the Public Policy Director of the Southern Center for Human Rights. As the Director of the Public Policy Unit, she focuses on issues affecting systematic issues around criminal justice reform and civil rights. She has practiced criminal defense since 2008, first as a public defender within the Atlanta Judicial Circuit Public Defender's Office, and then as a solo practitioner.

 

      So, without further ado, let me hand it over to each of our speakers to make an opening statement of about five to eight minutes. Ms. Maron, the floor is yours first, by agreement before we started.

 

Maud Maron:  Thank you so much. Thank you to Chayila, and to Matthew and Tiffany for being here today, and to The Federalist Society and everyone involved in planning today's event for inviting me, and for this great conversation topic. When I first began practicing as a public defender, we were charged with being zealous advocates for our clients. And I always liked the sanctioned zealotry. My job was to represent my clients fully.

 

As young public defenders, we were taught to press every advantage; to argue every case as fully as the law allows; leave no stone unturned, in terms of investigating and pleading your case, whether your case was going to end in a plea bargain or a bench trial or a jury trial, or whether a pretrial suppression hearing was going to be determinative in the case. You were your client's zealous advocate.

 

      That language left the professional code of conduct in New York in 2008. And public defenders are no longer asked to be — in New York, at least — no longer asked to practice with zeal. But I would say, I would argue that there's still a lot of zealotry involved in the public defense practices in New York. And forgive me, I'm going to talk about New York, because that's where I practice. That's what I know. But I do think these arguments apply across the board to public defender's offices everywhere.

 

      In New York, that zeal, that zealotry, has been redirected into political lobbying efforts to change state laws, and now, to defend those changes in the face of widespread criticism and condemnation. In New York, in particular — although bail reform laws are, again, everywhere — but in New York we have three laws that have come under scrutiny: the bail reform law that changed what judges are allowed to set bail on; parole reforms laws, in New York, called Less is More; and juvenile law changes called Raise the Age.

 

      The question put to us today is: to what degree is it appropriate, or, indeed, vital for public defenders to be involved in political advocacy? I would say, to a high degree, it is appropriate, and can and has achieved some good things for indigent clients that cannot be accomplished on an individual lawyer level. But it's much harder to make the case that it's vital because the advocacy has costs, and costs that are often unacknowledged and borne disproportionately by the communities from which many indigent clients often come, as well as our cities as a whole, and other communities.

 

      Let me give you one example. And this is an example where I think there's really all upside, and no external costs. It was Legal Aid Society lawyers in my former office. And it was Legal Aid Society's political advocacy in New York City that led to the switch from a model of horizontal representation to vertical representation. And, I don’t know how much folks know, who are watching, but, just briefly, in case anyone doesn't know, horizontal representation is a system where specialized public defenders handle a case at various stages.

 

So, a client would have a different lawyer at arraignments, at a pretrial hearing, or even at a trial. And it was really political advocacy. The Legal Aid Offices were involved in unionizing at the time. And so, it is a unionized office. And that was explicit political advocacy. But it was that advocacy that switched from horizontal to vertical representation. This was better for lawyers and for clients. And it was won by that political advocacy. These days, the wins from political advocacy are less about work-related improvements.

 

And, by the way, I think that part of the beauty of that win of switching to vertical representation is because it was good for both lawyers and for clients. But these days the wins are less about work-related improvements and more about advancing what is thought to be in the best interests of clients, as part of a broader social change. I'm not timing myself, Matthew, so you have to give me a head's up when you want me to stop.

 

Matthew Cavedon:  I'll raise my hand when you've got about a minute left.  But you're [inaudible 00:06:45].

 

Maud Maron:  Okay, great. In some cases, the changes — bail reform cases — it's really clear that it's better for clients. Not having bail set on non-violent misdemeanor crimes is almost always better for the client. But there are disadvantages and risks in these legal changes that clients never consented to when these laws were enacted. And we all know that lawyers have an obligation to inform our clients of the risks that they face when they make a decision to turn down a plea or to go to trial, or to have a conversation with a district attorney in an effort to get a better plea offer. But indigent clients, as a group or a class, didn't get a say in the political advocacy that's gone on to change the laws.

 

And if you look at this through a political lens — what's going on in our cities right now — I think many people know, especially if you take the long view on politics, that there's a pendulum swinging going on right now. And if you take the long view in New York, I think it's really obvious that the bail laws will be further changed and modified as crime by those who would have been incarcerated under prior bail schemes but are out now pending trial, as those crimes continue to increase — and as the public gets fed up with the fact that we have a small number of thieves who account for the vast amount of petit larceny arrests in our cities, and you can't by a bottle of shampoo in a pharmacy easily anymore because they're under lock and key — you can feel the backlash coming in our cities.

 

And I look forward to talking about the ways in which I think we're going to see our clients, or public defender's clients, pay the price for some of that backlash, in ways that will really undercut the short-term gains that have been won by some of this political advocacy. I think what remains really clear is that what is vital for the actual clients of public defenders is that those public defenders are zealous advocates for the individual clients first, and political actors second. 

 

Matthew Cavedon:  And Ms. Roberts, your response.

 

Tiffany Williams Roberts:  Sure, so thank you for having me. I will start off with a premise that I try to stress with my law students, which is, your profession is not your identity. Your chosen practice field is not your identity. But your job does impose on you certain responsibilities. And, in the context of public defense, it imposes a responsibility of zealous advocacy.  But also, I believe that public defense demands client-centered representation, the very best client-centered representation that one can provide.

 

      Having considered what that means, I also believe it's impossible to center your client, when you do not know who your client is. It is not possible to center your client when you do not appreciate the social circumstances that brought your client into your care, under your counsel. And so, there is one question, which is: what must public defenders understand about the continuum of violence inherent in the criminal legal system? What must public defenders understand about how that impacts their clients, how it impacts their own resources in their offices? And then, there is the question of whether public defenders can be effective advocates if they do not appreciate the limitations of criminal legal litigation.

 

      I was a public defender in the Atlanta Judicial Circuit, which is Fulton County. It's the county that sends more people to Georgia prisons than any other county in the state. And I was in felony litigation in what was called the non-complex unit, which handled anything that was not sexual, was not high dollar, was not violent. And so, the bulk of the caseloads that we had were people who were dealing with unaddressed problematic substance use, unaddressed mental health needs, or people who were dealing with extreme poverty, where everybody other phase or every other sphere of our society had failed them, and, in many instances, had deliberately failed them.

 

      And so, some of us began to organize, because we did appreciate the limitations of litigation. What does it mean to win a motion to suppress and get a case thrown out, but, because your client is still poor, they get arrested again for selling or possessing a controlled substance, which, by the way, in Georgia, there are no misdemeanor drug offenses, except for less than one ounce of marijuana?

 

      What does it mean for us, when we continue to see the same clients brutalized by tactical units in the city of Atlanta that have now been disbanded because some public defender, some social workers, some impacted people came together and formed a community organization to focus on community oversight of police, addressing the violence within our tactical units? And the name of the organization was Building Locally to Organize for Community Safety.

 

And it was unique because it came at a time that was not unlike this.  It came at a time where there was a group that was pushing for harsher penalties for young people, especially any young person who was suspected of being in a gang, based on one tragic murder that happened in an in-town community at a white bar. We started to see the political circumstances outside of our office change the material condition of the clients in our courtrooms, changing the attitudes of judges, changing the practices of prosecutors. And the thing that we kept seeing remaining unaddressed was the violence of poverty and systemic oppression.

 

So, it wasn't the entire office that got involved in BLOCS. There was a critical number of us. And there was backlash. There were people in government who addressed our chief and asked why his lawyers were out in the community talking about the Civilian Review Board, talking about the Red Dog Unit. The decision that I made was to leave the public defenders' office and to start my own practice. And I was not forced to leave, but I did acknowledge that the work that I most enjoyed was the work that was unrestrained by the limitations of the criminal legal system. But, for my friends who stayed, what we were able to do together was I was able, with community organizations, to fill gaps that public defenders saw as lacking.

 

      Gideon's Promise was my first opportunity to be trained in an environment -- which is an organization that focuses on training public defenders specifically, that provided care for the whole defender, the second-hand trauma that we experience when representing people, as well as building up the trial skills. And I still maintain that Gideon's Promise lawyers are some of the best criminal defense lawyers I've ever seen. My police work at Southern Center, in that same way, seeks to address the things that public offices may not be able to address on their own, because of the limitations of crushing caseloads, bureaucracy, and other things.

 

I hope that this generation of public defenders understands that there is no role for a public defender devoid of political context. But that does not mean that political organizing must be a part of everything that any public defender does. But I do believe public defenders must be anti racist. I do believe that public defenders have to respect their client's culture and the place that they come from, if they really want to work within a system that is not perpetuating harm against people who have already been harmed so severely, through our country's history.

 

Matthew Cavedon:  I want to ask each of you a follow-up question, concerning Ms. Maron's distinction from the opening comments about work versus politics. Ms. Maron kind of drew a line that what happens, in terms of courtroom administration, is different, and is, I would assume, separable from what happens in the broader community. Ms. Maron first.

 

Ms. Roberts has raised the real concern here that what happens out there in the world continues to affect clients, and, indeed, bleeds over into the courtroom, that attitudes within the community, and perpetuation of problems associated with poverty and other issues come into the courtroom. How should public defenders respond to that? And what are, in your mind, the appropriate limits between the two spheres that you marked out in your opening? And then, Ms. Roberts, I'll have a follow-up for you, as well.

 

Maud Maron:  Well, I would say -- if I'm understanding the question correctly, I would just say that, from my personal experience of working in a courtroom, there were lawyers who had vastly different points of view about politics in general, not just how it impacts our clients or criminal defense, but just politics across the board. And the quality of a public defender's work, whether you judge it by their ability to relate to their client or their ability to get the result that the client wants, didn't necessarily correlate to politics. There were some — as you all know — very left-leaning, super-progressive public defenders. I'd say that's, in some cases, the majority of some of the offices I worked in, who were fantastically good lawyers.

 

      There were also some conservative, not-lefty lawyers who did an amazing job representing their clients and who were beloved by many of their clients, because of the good work that they did. So, I would tend to disagree with Tiffany that all public defenders have to share a certain political point of view in order to be good at their job, and in order to be good for their clients.

 

Matthew Cavedon:  And, Ms. Roberts, my question to you — in addition to responding to what Ms. Maron just said — would be, you mentioned, a couple of times, recognizing the limits of criminal litigation. And, indeed, you ended up leaving public defense work to go and focus more on other issues. But public defenders also have a real-world encounter with the issues that you work on day in and day out. There could be institutional advantages to having them involved.

 

But then, there's the risk of mission creep and getting public defenders involved in too much. How would you draw the line between what is appropriate for a public defender within their 9 to 5, versus when it's time to go ahead and either take your evenings and weekends and do that, or to leave the office and go do something else?

 

Tiffany Williams Roberts:  So, first, I'll say that I believe that the role of the public defender cannot be assessed merely by evaluating case outcomes and trial skill effectiveness. I think that our experiences representing people who qualify for our services really require another layer of humanity. I would encourage people who routinely encounter indigent folks to really think about what it feels like to be someone who is processed in various government systems on a consistent basis, whether it be for temporary assistance for needy families, whether it be for childcare services, whether it be for healthcare services. 

 

Those experiences, when considered in the public defense paradigm where we also are providing services free of charge, impact the way that the client experiences us as professionals. And it is often lost on attorneys because they are so focused on how well the cross is going to go, how well the prelim is going to go. And those things are important. But I have seen, especially Gideon's Promise lawyers, do all of those things really well.

 

      I believe that a racist attorney can provide decent trial advocacy. But I do not believe that a racist attorney can treat a client in the public defender system with the same care that they can with a client who identifies with a race against which they do not have a bias. And the only people who can really tell you those stories are the clients. So, attorneys can leave court, and they high-five each other.  They go have a beer with the DA, and they go to CLEs, and they share their war stories. That is not the measure of effective representation when we are servicing people who society routinely abuses.

 

And so, I don't think it has much to do with political party. But I do believe it has a lot to do with the politic, because your politic will inform the measure of humanity that you give to your clients. The other part of that is racist criminal defense attorneys do real damage to the criminal defense bar. They cause actual harm to their black, brown, and otherwise, other colleagues that really make it difficult to have any sort of camaraderie or working relationships across our profession. And it is most pronounced when we look at cases, like hate crimes prosecutions, and then the fallout from those, when the lawyers who are representing people who maybe went in and shot up a church or went to a school and killed all the brown babies.

 

The way that those lawyers communicate about that representation directly impacts their colleagues, and it impacts future clients. So, at Southern Center, we exist because criminal defense lawyers were showing up to court and calling their clients the N-word, playing into racial tropes. And then, when the client got the death penalty, not really caring. And so, there are long-term consequences to any ideology that concedes that any level of racial bias or other kinds of -isms is appropriate in our profession.

 

And then, the second question, my answer to that is, defenders must draw the line about what is appropriate, not only politically, but what, under the rules of professional conduct, can they do with the time that they have. So, an example of that is, here in Atlanta, we work with public defenders to ensure that their clients have access to certain programs. But we understand that without the defenders and their social workers, we can't assess which clients are most appropriate for which programs.

 

So, we open our doors, and say, "Hey, can you come and have a meal with us? What do you think about these systems?  What do you think about these programs? What do your clients most need?"  But I think it is up to the public defenders and the leadership within their offices to decide what is appropriate for them to do in their official capacities. But I think it's the role of grassroots and grasstops organizations to remain available and to have our doors open for input and to stay out of the way, so that we don't complicate their ability to effectively represent their clients.

 

Matthew Cavedon:  Ms. Maron, attorneys often are people who live fairly privileged lives, make money, live in neighborhoods different than their indigent clients do, oftentimes grew up in families that were different. How do you develop a sense of strong empathy? And would you distinguish your approach from that taken by Ms. Roberts, which is that you need that additional layer of humanity, informed by politics?

 

Maud Maron:  I'm not sure that that's exactly what I heard Ms. Roberts say. But I would say that I don't think there's -- there's no barrier, that I'm aware of, to being empathetic to your clients. And I don't think your politics has to inform that empathy. I have been deeply sympathetic to clients that I'd be happy to have at my dinner table. And I'm deeply empathetic to clients that are such troubled people that many, many people who, when they hear the details of the case that you're representing, people say to public defenders, "How can you represent that person?" And one of the things that I think always united public defenders was the ability to feel deep empathy and represent people from case facts that are deeply sympathetic, to case facts that would horrify most people.

 

So, I think empathy is something that you can have across the board for your clients. And I've seen it again and again, over the years. I just didn't work with any racists in my office. I started practicing in 1998, and I left the office in 2019. There were just no racists in the office that I worked with. The people that I worked with, across a pretty wide array of political leanings, cared enormously about their clients, and worked really hard for them, even though they had different politics outside the office. 

 

      One of the things I thought we would discuss, to some extent, is the offices. And there's individual lawyer's politics, but then there's also the office politics. And what we've seen in New York City, for instance, is legal aid, as a whole, as an institution, has been very, very heavily involved in shaping the laws in New York that have changed the profile of the way criminal defense is being practiced in New York. And what I mentioned before is I think there's a real pendulum swing that's going to happen. And I think it will be disadvantageous to our clients. I say, "our clients." I no longer work at the public defender's office.

 

But let me give you one example. ADA Bragg, the public defender — he's not the public defender, but sometimes he acts like it — the prosecutor in New York City, has recently come out saying that we need to change the discovery laws in New York. The discovery laws were part and parcel of the criminal justice reform packages that went through in New York State a few years ago. That's terribly disadvantageous to our clients. The discovery laws in New York were so outdated and so bad for indigent clients. And the discovery laws were some of the best changes that happened. But because it is the bail reform laws that people see and understand -- they see a horrible crime and they learn through the papers that that person would have been incarcerated previously and is not now. 

 

And instead of changing those laws, the laws that are going to change in New York are the discovery laws, because that's the only thing that the ADA has spoken out against. The discovery laws really, truly needed to bring New York into -- to make it more fair for the accused people in New York because the discovery laws were -- I could go on to specifics, but you're just going to have to trust me on this. The discovery laws in New York were really, really quite bad for criminal defendants. And I think those are things that are worth fighting for and would be very appropriate for political advocacy from a public defender organization.

 

Matthew Cavedon:  Let me ask Ms. Roberts a question about office politics. I know that you said that there's different roles for public defender organizations versus those grassroots and grasstops groups. And then I want to come back to this question of individual lawyering, as well. But first, as far as offices taking stances go, with the Black Lives Matter protests after George Floyd's murder, you saw organizations of public defenders' offices going out and marching, sometimes with banners, in places like Los Angeles, saying "public defenders believe that black lives matter." 

 

      You talked about how individual lawyers, when they talk about representing defendants who are charged with racists acts, the way that they communicate about that can have an impact, more broadly. How should public defender organizations and offices think through balancing politics, getting involved in ways that are helpful, and that improve that administration of justice, without overcommitting and getting involved in issues that are beyond their scope, or risking loss of political allies who might be there, under different circumstances?

 

Tiffany Williams Roberts:  Sure. So, here in Atlanta, we had a Public Defenders for Black Lives rally. It was held at Ebenezer Baptist Church and the King Historic Site. And the public defender officers were not able to formally sign onto that direct action. So, what happened was Gideon's Promise was willing to be a main sponsor of that action. And public defenders from across the city were able to join, were able to speak, were able to support their clients, because what they were feeling was a really intense desire from their clients to show that they were in support of them. Because what we always say is the people who survive often become public defender clients.

 

We represented the people who had been beaten by police and didn't die and were charged with felony obstruction. We represented the people who stole a car, crashed it, ran, and got caught and got roughed up, but survived. And so, especially on the part of public defenders who come from backgrounds similar to their clients, they wanted to express in that moment that they stood in solidarity with their clients, because they understood the context of their representation of those folks.

 

      And then, the offices did not stop the attorneys from attending, but, in some instances, were not comfortable signing on because of the political climate here in Georgia, where financial support for public defender offices — when it's the subject of budget hearings during the legislative session — can be really tricky. And you do need political allies. And you do have to remain focused on things like your public defenders having bills that they have to pay. And it benefits your office to have the resources that you need, so it also is helpful for you to consider where the tension could arise, should you engage in political conduct that isn't advantageous to your office.

 

But, again, I think it's really for the offices to decide for themselves, and for them to remain plugged into the community. So, the holistic defender models that we see across the country -- we don't have holistic offices in Georgia, so we don't have a neighborhood defender. We don't have a Bronx defender. We have some public defenders' offices with a good number of social workers and investigators. But the office culture is really what dictates the measure of care that is given beyond whatever folks' job descriptions are.

 

Now, I want to be really clear. What I said earlier was I do not believe political party dictates whether people can empathize. I do not believe that race dictates whether people can be impacted toward their clients. But I believe that an anti-racist politic is what builds an effective public defender in this country. So, I see the questions in the chat asking if I said that conservatives are racist. I never said that. I said, in fact, political party doesn't matter. But I don't believe that we can effectively represent anyone from any political party if we believe that they are inherently less human.

 

And I also just want to raise up again, it is the clients who can best tell us if they believe that they were treated with the same level of dignity as someone who maybe doesn't look like them, or someone who has more money than them. Being in private criminal defense, attorneys who get paid a lot of money do a lot of bending over backwards to accommodate, and understand, and effectively message to their clients. And I believe, with the proper support, public defenders can get really close to that. But it requires a different kind of consciousness around what is bringing people into their offices.

 

Matthew Cavedon:  Let me ask one more question to Ms. Roberts. And then, Ms. Maron, I'll turn back to you. Ms. Roberts, you've talked about how effective representation extends beyond the corporate. Do you believe that public defenders' offices should monitor public defenders for how they're interacting with politics outside the office?

 

For example, if you have a public defender who's very vocal about a case with a racist defendant, or, perhaps, a public defender who's in favor of the death penalty, or against demolishing cash bail, they wouldn't bring it into the courtroom. They'll work with whatever rules are in the court. Let's assume that they are zealously advocating within the four walls of the courtroom, but that they're out there making statements like that. Is that something that should have an impact on somebody's role within the public defender's office, or within the criminal defense bar, more generally?

 

Tiffany Williams Roberts:  I don't believe that we should regulate people's exercise of their First Amendment rights outside of the workplace, unless any expression directly contradicts the rules imposed upon us by our various states' rules of professional conduct. So, it is possible to make a statement that suggests that you would not provide zealous representation to someone who was charged with a particular offense. There are ways to express that you do not, in fact, swear and affirm that you will uphold the Constitution of the United States.

 

But I think that that is so uncommon — from lawyers, generally — that the rule of thumb should be that a public defender's performance, as it relates to leadership evaluation, should really be limited to the services that they are providing to their client. I think it's helpful, offices that send supervisors to courtrooms with the line public defenders, for those supervisors to pay close attention to the attorney-client relationship. If you have defenders who seem to constantly be at odds with their clients, that is an opportunity to intervene. That is a professionalism opportunity, if not an opportunity for an ethical intervention.

 

I think that there are a lot of checkpoints that we can provide, with good management of public defender offices, to ensure that the activity of defenders or investigators or social workers -- because it's not just limited to the public defenders, you sometimes have an investigator that just, for example, does not care about effectively investigating a homicide, let's say, because of how they feel about the case. 

 

I think that we have to consider the responsibility of leadership, and not chastising or punishing defender conduct, but, instead, as constantly seeking ways to provide the appropriate level of support to lawyers, so that their professional development is always growing, that they are always growing as professionals, both as a colleague to other members of the bar, and as representation for indigent clients.

 

Matthew Cavedon:  Ms. Maron, I want to leave about 18 minutes for some of the questions that we've received so far. But if you want to take three or four minutes — I know I just gave Ms. Roberts two questions in a row — for whatever kind of response, whether you have some common ground here, or whether you have some disagreements you would like to air.

 

Maud Maron:  No, I'd be happy to go to questions, I think. We do have some common ground and we do have some disagreements. Maybe we'll let the questions bring that out.

 

Matthew Cavedon:  Okay. Let me start with one for both of you, that I think might illustrate some of those differences, or maybe flesh out some more common ground. Jeffrey Wood wants to know, "Would it be appropriate for a prosecutor's office to march in support of a police officer accused of misconduct, if they were prosecuting the accuser for an underlying related crime? And how might that analogically relate to everything we've already discussed so far?

 

Tiffany Williams Roberts:  I'll answer the question. Prosecutors march for cops every day. Prosecutors have press conferences and press releases. And prosecutors visit the legislature to advocate for laws that benefit law enforcement. Prosecutors are, in fact, law enforcement officers. And so, that, in my mind, is not analogous to marches suggesting that the systemic oppression, as it relates to police violence in our communities, does not impact the clients that we represent on a daily basis.

 

When 90 percent of the people prosecuted in certain jurisdictions are black people, whether they feel supported by public defenders who believe that they should have a right to a fair trial, and that a police officer should not also be an executioner, that seems to align tremendously with the responsibilities of a public defender. To me, it doesn't make sense to ask whether prosecutors marching for cops would be analogous to public defenders supporting Black Lives Matter. Those two things are not at all similar. And we see the former far more than we see the latter.

 

Matthew Cavedon:  Ms. Maron, your thoughts.

 

Maud Maron:  I think there's a little more similarity than Ms. Roberts. But I take her point that the prosecutor's office works closely with law enforcement to prosecute their cases. That's their job. To build a case, to prosecute a case, you need to work with the law enforcement that conducts the arrest. And then, those are your witnesses, in many cases, in several cases. I do think, though, that, more generally, to Ms. Roberts' points, there has certainly been a change in culture in public defender's offices. In an earlier answer, Ms. Robert referenced second-hand trauma. Public defenders talking about the trauma that they experienced being public defenders was not part of any training that I went to in the '90s or part of the culture of our office. 

 

The culture of the office was much more about being a great lawyer, delivering the best possible legal services to your client. And I'll say, for instance, the public defender culture that I practiced in -- Ms. Roberts said something about the fact that private attorneys can relate enormously to their clients, or to provide some very high-level service, and that public defenders should strive to do that. But the public defender culture that I came out of was one in which we sometimes turned our noses up at the private defense bar, because they would come in and not know nearly as much as we did, because we had so many more cases and worked so much more closely with our clients and with our clients' families.

 

And so, the culture, to me, was different. And I've seen the change, over the course of the period that I represented clients. Because the idea was, we know what we're doing, because we represent so many clients and we are committed to the client base that we have. And a lot of the empathy comes from that, from understanding, and knowing so deeply. You see the same cases again and again. You see the same people — literally, the same people sometimes — being arrested, but sometimes the same kind of case coming again and again.

 

And you see injustices that are systemic. And bail was certainly one of them in the early  -- some of the bail reform. But there are systemic injustices that I think public defenders are uniquely situated to identify and to highlight for people. But that, to me, just doesn't translate into the idea that it takes a certain kind of sensibility, in order to be a good lawyer for your client. I don't agree with that.

 

Matthew Cavedon:  Ms. Roberts, looking at the same history, what would your analysis be of how we got to where we are now, culturally, versus how where things were a few years ago?

 

Tiffany Williams Roberts:  Well, I believe that there are a lot of things impacting what we see. One of those things is social media and the speed at which information flows. And what I mean by that is, when I started practicing, if I wanted to learn something, I had to find an in-person conference, or find a mentor on the topic. I had to have permission to register. Not only to register, I had to have money to travel. And then, I had to have the time from my docket. I think I had court the day before my wedding and the Monday after I got back from my honeymoon. You also have to have the time to attend trainings. We now have more diversity in training and more accessibility in trainings and information. And that's why, I think, we are seeing some of the social sciences and some brain science and other things coming into what it takes to perform, to do trauma-informed care.

 

So, at our office, for example, one of the public defender offices in Arizona sent some social workers to Southern Center to talk to us about what it means to provide trauma-informed care. And when I was in that training, I realized my mother, as a social worker, had been doing this my whole life. And it wasn't about censoring my feelings as a lawyer. It was mitigating the harm to my clients by processing what I was experiencing and ensuring that it wasn't negatively impacting my representation.

 

And so, I also believe, I always tell people, "Do not go hire a private attorney. Find out who the public defender is in the courtroom. Call me, and I'll call them." Because I'm pretty sure, especially if they're in Fulton, they're a good attorney. I don't believe that private attorneys provide better services. I think that they often endeavor to do what they have to do to get the money from the clients, which requires a certain level of humility from them, from time to time.

 

But I believe that my friends who are still at the public defenders' offices and bringing back consistent "not guiltys" are the kind of lawyers who Gideon's Promise, again, stands up as exemplar lawyers to teach you not just how to cross a witness, but also how to balance it all, while still being a productive member of the bar and a productive member of your community, whether it be in your off-time you go to community organization meetings, or you like to paint. The bottom line is everyone has to have something that projects their humanity or protects their humanity, so that they can be effective in representing clients, whether they be indigent clients or clients who are paying them.

 

But I don't believe that the quality of public defense is declining. But I do think that some of the nature, the way we talk about how to provide services, is expanding and growing. And, in many of those ways, I think it's helpful. Because burnout is a real thing for public defenders. Alcoholism, self-harm, suicide, are real things for lawyers, and, also, for public defenders. And I think it's really important for us to consider that, when we are building professionalism and continuing legal education curriculum.

 

Matthew Cavedon:  Let me shift gears with a question of my own. And then I'll come back to some of the ones that our listeners have asked. How should a public defender generate empathy and provide zealous representation for somebody who's accused of a crime that either reflects police violence or racism? So, for example, public defenders may have a police officer that they're representing who's been charged with a crime relating to the execution of their duties. Or, perhaps more likely, a former police officer. Because, oftentimes, the police unions will provide that defense.

 

 

Or, certainly, public defenders do get clients who have been accused of racist crimes, including in a number of the high-profile cases we've seen in the United States over the past few years. The defendant has received an indigent defense attorney. So, to both of you, how do you walk that tightrope of providing this person excellent representation, while dealing with the broader political context of what they're accused of?

 

Maud Maron:  Who would you like to go first, Matthew?

 

Matthew Cavedon:  I was hoping one of you might leap into the fray. I'll pick out Ms. Maron, because Ms. Roberts just provided the last answer for us.

 

Maud Maron:  Sure. I think something Ms. Roberts said that is very true, certainly for me, is that social media has changed the landscape, and the way you practice, to some extent, all professions, not just lawyering, and not just public defenders. So, now, your question, Matthew, about what if you're defending someone who is accused of a hate crime that has racist implications and then your other clients may see that in a way that they would not have necessarily before. To me, the beauty about zealous representation is you have to do your absolute best to represent each client.

 

      It's a rare fact pattern where you would be going into court and saying about a hate crime that was explicitly racist and trying to argue that it wasn't really that racist. It's not in a way that might give questions and doubts to your other clients about the way that you're thinking about something. If you're arguing that a client's prior statement should be kept out, it's usually a legal argument. You're saying that this is more prejudicial than probative.  It doesn't belong in here. You're not justifying your client's bad conduct, in almost any situation.

 

I'll give you an example from something that I was just listening to: an author who had written a book about rap lyrics and how rap lyrics are routinely let into criminal cases in a way that other perceived inflammatory language are kept out. There's a clear racial bias there -- the arguments saying that a young person who has a bunch of rap lyrics that are violence-tinged and violence-infused, that that shouldn't be allowed into a courtroom. The strongest arguments are going to be your successful legal arguments for why the law should apply the same to a person who wrote a long Facebook post that's inflammatory, to a person who has a bunch of rap lyrics that are inflammatory. The argument is the same.

 

You're going to advance the same legal argument. But if you notice a pattern in practice that is systematically racist, like, oh, all these rap lyrics keep getting introduced against a criminal defendant to suggest that there was a plan for violence or a propensity of violence. But for non-black clients, Facebook posts or other things, or other media in other forms, are being kept out more. That's a legal argument that you should advance, and you should make. And it's an important one that you have to look at a broader societal pattern of racial prejudice to understand, to identify, and then, to advance as a legal argument.

 

Tiffany Williams Roberts:  I've had clients say, "I don't want a black lawyer." It's fine. I still have to represent the client. That's no different than when our community organization is in the park, and there are people with swastikas on their arms. They still get a cup of coffee and a sandwich, because we're there to serve people who are unsheltered. We're not there to demand that people really acknowledge our humanity in that same way. Whether or not that client believes that I'm an equal human doesn't dictate what my responsibilities are, under the bar rules. 

 

      I think where it gets tricky is when lawyers may unnecessarily lean into cultural tools that are not tools in the courtroom, to promote the case. And often these things also could violate trial publicity rules. So, there is that. But, I think, when lawyers get into trouble, it's when they begin to conflate their own personal identity with the identity of their client, rather than remaining conscientious of what the facts in the case are, what the legal arguments in the case are.

 

      Southern Center is routinely called upon to advocate for people who have done heinous things, who are facing the death penalty. We are asked sometimes, when a hate crime occurs, "Is there anything that you can do to work with us, to talk to this district attorney about not seeking the death penalty?" We don't say, "Don't talk to us." Because most of the clients that we represent are poor black people. We unequivocally oppose the death penalty. And so, we find what tools we have in our toolbox to be helpful, because there is a greater principle at play.

 

      We recently had a United Nations visit, here in Atlanta. We organized 50 witnesses to speak to the United Nations about their experiences with the criminal legal system here in Georgia. And afterwards, we took some guests to the King Center. And one thing that the park ranger shared is that after Martin Luther King's mother was killed, along with the organist in the church, and the young man was caught — and it was a young black man who killed them — the family actively advocated against capital punishment for the killers of Mrs. King and the organist.

 

      And this is the principle that we try to embody or to hold dear at Southern Center, is that individual personalities and individual actors should never overshadow what we believe our greater cause to be. And the call of the public defender is to provide zealous representation to people who do not have the resources to hire other counsel, whether it be the public defender who is appointed to the case of someone who went in and shot up a house of worship, or it be someone at the actual office who is representing that client.

 

I think the only thing that attorneys have to do is what you do in the rest of your everyday life, is to think before you speak, to check the things that you are doing against the rules governing your profession, to check the things that you are saying against your own moral conscience, and then to consider the harm of the things that you may decide to do. And it can be as simple as choice of words. Those things that we think are small, if we just take a moment and think about it, we can find alternatives that don't cause harm.

 

And I believe that, as members of the legal profession, all of us understand what the responsibility of the criminal defense lawyer is, and shouldn't hold against any criminal defense lawyer the things that they do in service of their client. I think it gets tricky when you start doing things for yourself, claiming that they are in the service of your client.

 

Matthew Cavedon:  We have more excellent questions than we're going to have time to get through. What I would recommend, because we've got five minutes left, let me give each of you about a minute and a half to wrap up any thoughts that you have. And then, I will briefly close us out. So, Ms. Maron, let me have you go first. And then, Ms. Roberts, I'll have you get the last word in before me.

 

Maud Maron:  Wonderful. Well, thank you again for having me. And thank you to Ms. Roberts. It's really interesting to hear from folks who have different ideas and different perspectives than you do about, in this case, about our shared profession. I will say, as I mentioned in my last response, I do think that the world of public defense has changed somewhat. And I think Ms. Roberts illustrates, really well, some of those changes.

 

I'm not convinced it's for the best for clients. And the way I'll say it is this. If you went into the holding cells behind the arraignment part at 100 Center Street, where most of the criminal cases originate, and you said to someone who was facing a long felony sentence, and you said, "You can have this lawyer, different race than you, maybe registered to a different political party than you, very experienced attorney who wins most of his or her cases, but maybe not the friendliest person, kind of short, doesn't always answer calls, but is a really, really good attorney."

 

Or, you said to that same person who is facing decades in jail, "You can have this attorney who will relate to you, who comes from the same place as you, who is deeply empathic towards your world views, but is a junior attorney, or is an attorney that's been around for a long time and has a mediocre record, or someone who's just very inexperienced," every single client that I ever represented will be like, "Get me that star trial lawyer. Get me that person who has the best chance of winning my case or getting me out of jail."

 

And it's like if you're going shopping and you can put everything in your basket, of course you want an attorney that you can have an incredibly good relationship with, and who's going to win your case. But every criminal defendant I've ever come across is not looking to make a new friend on the day of their arraignment. They're looking to have the best lawyer they can to represent their legal interests. And I think that's something that the new wave of public defenders sometimes forgets.

 

Matthew Cavedon:  Ms. Roberts.

 

Tiffany Williams Roberts:  All right. So, I am a person who looks forward to what I believe we can achieve. And I believe we can achieve a profession that is dogged and diligent and effective in the courtroom, while honoring the dignity and humanity of their clients. I say to my daughter all the time, "Respect does not mean friendship. Dignity does not demand camaraderie." But there is a need to center the experiences of the people experiencing this harm.

 

So, at Southern Center, we work with people who were formerly incarcerated. Not just the people who are running the community organizations that we work with, but also working in our office, and hearing their experiences, and allowing us to distill what we can take from that to be a more responsible organization. I believe the most effective public defenders offices, the ones that provide wrap-around services, cannot do that in a vacuum that doesn't consider and analyze and honor their clients' experiences. Because the bottom line is, all of us take something home. And no one should be expected to take all of their clients' expectations and woes home with them.

 

But when we are in courtrooms with them, I used to win a lot of motions to suppress. And when I went private, my name was written on the walls of the Rice Street Jail. And I was a young lawyer. But I was effective. And I was able to be firm with my clients. And I was respected by my clients, so that when I went private, most of my clients came from people who didn't qualify for public defender services but saw my name on the wall by the phone in the jail. And so, we can do all of those things and we can aspire to work towards creating an environment in the profession where that seems attainable for most defenders. I don't believe defendants should have to choose.

 

Matthew Cavedon:  All right. Ms. Maron, Ms. Roberts, C. Blue in our comments put it best, "Thank you both for well-thought-out, clear positing of positions. I think we've covered a fair amount of ground today. Hopefully, for folks who are more familiar with criminal defense, and some who are not, this was an enlightening conversation. So, thank you both very much for your participation. And, Chayila, I'll hand it back over to you.

 

Chayila Kleist:  Absolutely. On behalf of both myself, and The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. We really appreciate you joining us. Thank you also to our audience for joining and participating. We welcome listener feedback at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.