More Lawyers, Same Injustice

A case in Georgia has become notorious for its profanity. But it also says something about our public defender system…

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Last month, in a Georgia courtroom, defendant Denver Fenton Allen appeared in front of Judge Bryant Durham, Jr. for a pretrial hearing. Allen was charged with murder, and his trial was scheduled for the next week. As the transcript shows, the hearing quickly became… unusual. By the end of it, the defendant has told the judge dozens of times to “suck my dick,” and the enraged judge has replied that the defendant “looks like a queer.” The hearing was such a comically vulgar calamity that it has gone viral, and an animated performance of the transcript has been viewed several million times.

It began straightforwardly enough. Allen came before the judge because he wanted to fire his public defender and get a different one. Judge Durham informed Allen that while he was entitled to a lawyer, he was not entitled to have a particular lawyer, and was stuck with the one he had. Allen then explained his reasons for wanting to fire the lawyer. First, he said, the lawyer had made sexual advances on him. Second, the lawyer had sent him against his will to the hospital to have a diagnosis made, presumably of Allen’s mental condition. Finally, Allen said, the lawyer had not given Allen access to any discovery documents, including police reports, the autopsy, and the coroner’s report.

In response to this, Judge Durham asks Allen’s public defender whether he has shared all of his documents with Allen. The lawyer replies that he has. But Allen is insistent. He tells the judge that the only document he has seen is the four-page indictment, explaining the charges against him. The judge tells Allen that perhaps his lawyer doesn’t have any other documents.

At this, Allen is becoming angry. “This is a murder case,” he says, “and you’re telling me the only thing on discovery is a four-page indictment.” Allen declares that he refuses to go to trial with the attorney he has been given, to which Judge Durham replies that Allen’s only other option is to try the case himself. Durham says that choosing to act as his own attorney would be “the biggest mistake of [Allen’s] life.” Allen is incredulous: “So you’re telling me you’re going to find me guilty if I go to trial to try to defend myself?” to which the judge responds “You’re probably right. That would be my guess…”

Allen repeats that he will not be tried with the lawyer he has, and says that he will get himself held in contempt if necessary in order to stall the proceedings. At this point in the transcript, the real fireworks begin. Having resolved to be found in contempt of court, Allen intentionally becomes as vulgar as possible:

ALLEN: I’ll just hold myself in contempt.

THE COURT: Listen to me–

ALLEN: Fuck you.

THE COURT: Listen to me.

ALLEN: Fuck you.

THE COURT: Listen to me.

ALLEN: Go fuck yourself. […]

THE COURT: I am–I am finding you in contempt. And I sentence you to twenty days for that. And if you say anything else, I’m going to give you twenty days for everything you say.

ALLEN: Fuck you.

THE COURT: Forty days.

ALLEN: Fuck you again.

THE COURT: Sixty days.

ALLEN: Go fuck yourself.

THE COURT: A year.

ALLEN: Your mama.

THE COURT: Ten years.

Things only get worse from there. Allen repeatedly says he is in a “kangaroo court,” and begins graphically describing the sex acts he intends to perform on the judge. Durham loses his temper and begins screaming. Allen says he will chop the judge’s family into pieces and calls the judge a “horse-ass cracker.” The judge says he “bets everyone enjoys sucking your cock.” After this continues for many minutes, the judge tries to find his resolve:

THE COURT: We are going to have the trial Monday week.

ALLEN: The fuck we are. I ain’t going to trial with this lawyer present.

The obscenities then resume, and the defendant and judge shout at each other for many more minutes before the judge finally declares the hearing over and has Allen escorted from the courtroom.

The hearing lies at the extreme end on the spectrum of judicial dysfunction. America’s justice system is often called “broken,” but even in a highly defective system, it’s rare to find judges and defendants literally screaming and bickering like children in a schoolyard. (Judges frequently behave like children, but they are sure to cloak their pettiness beneath a veneer of professional decorum.)

But the transcript of the Georgia hearing is not just interesting as an absurd clash between an ‘out-of-control defendant’ and a lunatic judge. A careful examination reveals important questions that get lost amid the various dick-based taunts.

Why, for example, did the public defender not have an autopsy report when the trial was to be held in a week? The defense of a murder trial requires intensive preparation. Allen’s attorney insisted that he had given Allen all of the available discovery documents. Yet in that case, with only days left before the trial, the attorney had failed to get ahold of some of the most crucial documents in the case.

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In fact, looking past the headline-grabbing insult-fest, we can see that the real story here is not about the world’s filthiest defendant or the world’s pettiest judge. In fact, it is about the world’s most incompetent public defender. Leave aside Allen’s accusation that his lawyer had tried to proposition him sexually, a charge that the judge refused to take seriously. The public defender appears to admit that he has no discovery documents in the case other than a 4-page indictment, and yet somehow intends to try the case within a week. Allen found himself with only one weapon left to delay his trial: getting held in contempt. (It wasn’t actually a bad strategy, if Allen’s goal was to stall the process for a while.)

The public defender neglects his duty in another way: by standing silently by during the entire exchange, even as his client gets charged with new offenses for threatening the judge. At the time of the hearing, the public defender was still representing Allen, and thus still had an ethical obligation to safeguard Allen’s interests. A responsible defense attorney, seeing their client jeopardizing their case, would have made an attempt to intervene, encouraging leniency from the judge, or caution from his client. Of course, given Allen’s mood, it’s unclear how likely he would have been to heed such advice. But the defense attorney should have done everything possible to interrupt and prevent further damage from being done.

(The judge, too, committed some serious and revealing ethical breaches. Not only was he childish, but he told the defendant he would “probably” find him guilty if he chose to represent himself, even though Allen is supposed to be under a presumption of innocence until the evidence is heard.)

Allen’s allegations about his public defender should have been taken much more seriously by the judge. Allen had specifically detailed the various ways in which his lawyer was failing to provide him with a minimal level of constitutional representation. Instead of inquiring into these problems in order to make a determination about their truth or falsity, Judge Durham simply told Allen that his only other option was to be found guilty by representing himself. Allen knew, and stated clearly, that this was no choice at all. But instead of doing what most defendants do, and simply accepting the fact that he was doomed, Allen stood up for his constitutional right to competent counsel.

In the firmness of that refusal, Allen resembles another Southern defendant, one from fifty years earlier. Clarence Earl Gideon was an affable drifter who ended up before a Florida judge on a burglary charge in 1961. Gideon, who was accused of stealing $5 and some beer from a Panama City pool hall, asked the court if he could be represented by counsel. As the transcript shows, when the court told him he was not entitled to an attorney, Gideon stood firm:

THE COURT: Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.

GIDEON: The United States Supreme Court says I am entitled to be represented by counsel.

Most lawyers at the time would have said Gideon was wrong. At that point in time, the Supreme Court hadn’t decreed that poor defendants had the right to free representation. But he was also prophetic. After being found guilty at trial, Gideon made it to the Supreme Court, which then did establish a right to counsel. Thanks to Gideon’s refusal to compromise on what he believed were his constitutional rights, the modern public defender system was born.

Denver Fenton Allen is probably not the next Clarence Earl Gideon. Gideon, after all, did not threaten to cannibalize the judge’s family. But Allen’s case is nevertheless instructive, because it reveals what happens in U.S. courtrooms when defendants try to stick up for their constitutional entitlements.

Allen, like so many other defendants, was brushed aside when he tried to complain about a lack of adequate representation. Even though he was facing a murder charge, the court was uninterested in figuring out whether his lawyer was giving Allen a basic adequate level of defense.

That’s not especially surprising. While the Supreme Court has guaranteed the right to a lawyer, the Court has an expansive definition of what constitutes “competent” lawyering. Drunk lawyers and sleeping lawyers have been deemed to have adequately represented their clients’ interests (even in death penalty cases). The country’s public defender system is in a very sorry state indeed.

This brings us to an important truth about criminal justice: having a lawyer, in and of itself, does very little to ensure that a person will receive a fair trial. In fact, there are circumstances in which having a lawyer may make a person worse off; some people could have represented themselves better than their inattentive public defender did. We know that many public defender systems are overworked and under-resourced, to the point where they openly admit that they cannot provide a level of representation that meets a minimal constitutional standard.

It’s striking, in fact, that the rise of the public defender system has coincided with the rise of mass incarceration. When the Supreme Court decided Gideon v. Wainwright in 1963, the combined federal and state prison population was 217,283. By 2014, it had risen to 1,561,500. That number doesn’t include those in local city and county jails, or those under other types of state supervision, including probation, parole, GPS ankle monitoring, community service and alternative court programs. While more people are now represented, far more go to jail.

More lawyers hasn’t meant more justice. The introduction of guaranteed representation didn’t cause the explosion in America’s prison population, but it also didn’t prevent it. It’s impossible to tell, of course, how much worse the numbers would have been if the Gideon case had never been decided. Presumably, the public defender system has helped a large number of people get better outcomes. But the mere presence of defense lawyers guarantees little, especially if the standards of competence are low.

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This is where a “procedural” view of justice falls down. By its nature it overlooks ultimate outcomes. The U.S. Constitution is heavy on procedural rights; you get due process of law and the right to counsel before you’re flung in the penitentiary. But people can be given due process on paper without being afforded any actual measure of justice. The Gideon decision looks like a triumph for poor people’s rights in U.S. courts, and indeed it was. But in many parts of the country, especially across the South, the public defender system might as well not exist. Where an attorney’s job (whether through overwork or ineptitude) is to “meet ‘em and plead ‘em,” defendants often feel as if they’d be better off on their own. Yes, the statistics of indigent clients who now have representation have improved, but to what end. Thinking full representation is synonymous with full justice is like thinking full health care coverage means better health. Quality matters.

In fact, improving procedures can even sanctify perverse outcomes as legitimate. So long as the forms are all filled out correctly, a terrible injustice is deemed acceptable. So long as a death penalty defendant gets the proper number of appeals, they’ve been given justice. So long as a landlord’s eviction papers are properly served upon the tenant, the tenant has no right to complain that their children are being tossed into homelessness.

It’s something to bear in mind in discussions over so-called “civil Gideon.” Currently, the right to free representation only extends to criminal defendants. But as many have pointed out, certain civil proceedings (such as eviction, employment discrimination, wage theft, and child custody) have stakes nearly as high. Some therefore recommend that the entitlement to a lawyer be expanded to cover a far wider set of cases.

But we should be careful about introducing more procedure, without correspondingly assuring that it leads to more actual justice. Despite having had a vast public defense apparatus for half-a-century, mass incarceration persists. Changing procedures is important to the extent that it affects substance.

As far as Judge Durham was concerned, Denver Fenton Allen had gotten his due. And under the law, he quite probably had. He’d been given a public defender, who had given him access to all of the available documents (i.e. none). The judge saw no problem that could keep the case from going to trial, and Allen appeared to simply be unruly and obstinate. When the case descended into shouts, curses, and threats, the judge probably felt his view of Allen was confirmed. Allen’s case is just another trenchant example of what happens when a public defender fails his client. And it should make us skeptical of the usefulness of merely providing lawyers, without ensuring justice.