February 5, 2013

I wrote the following article in 1994 at a time of dissolutionment.  I did continue in the fight for another ten years but did not see much improvement in the system.  I wonder now if anything has change.  This was orginally published in Concepts.

A voice in the wilderness:  CONFESSIONS OF A PUBLIC DEFENDER

by K. Leslie Delk


  Today, I sit here writing, not knowing who may ever read this, but somehow feeling I have to write it down.  You see my heart is breaking–my soul has a huge gaping wound in it and it seems all to be connected to this travesty we call”criminal justice.”  For more than 10 years, I’ve tried to represent criminal defendants in their cases.  For the last seven years, I have represented only those who were charged with capital murder and sentenced to death.  I had this foolish, naive notion that I was defending the U.S. Constitution as well as these individuals.

     During my early years as a public defender, I often wondered where the line was–that line between defending someone and actually helping “grease the skids.”  I always tried to be mindful of that because it was clear to me from the beginning that it was comforting and easy for us to say, “Well, he was represented by counsel, so everything must have been fair.”

     It wasn’t, of course.  Often as a public defender, I had much too big of a case load. Who could investigate every angle of a case, especially if your client wanted to plead out to get it over with quickly?  Why would anyone do that unless he was guilty? Well, sometimes county jails are like living in hell.  For those with heart problems, epilepsy and other illnesses, medication may be limited.  Food may be worse in jail than in prison (although it is often the reverse).  I’ve seen guys plead in order to protect wives and sweethearts (either of whom usually dumps him as soon as he gets sent to prison).

      For the public defender who has a case load so overwhelming that he barely can take time to sign his name on an entry of appearance, let alone become acquainted with each client and each case thoroughly, having a client who wants to plead is a gift from God.  You can talk to your client for 20 minutes, run upstairs to the prosecutor’s office, work a deal and plead him out by afternoon. Case closed.  Another number on the chart.  The boss is happy, the prosecutor’s happy and the judge is happy.  Mr. Public Defender moves on to the next case.

     Even the public defender who is a dedicated advocate, one who really tries to know each case and each client, is defeated by the very system that is supposed to provide “effective representation” to those who cannot afford to hire F. Lee Bailey or Leslie Abramson.  Lack of funding for investigations, for forensic experts and for the kind of motion practice needed to be done in criminal cases, keeps most public derenders from doing what they know needs to be done.  That’s what I mean by “greasing the skids.”

      In our attempt to provide representation for indigent people (something that we pride ourselves on in this “land of the free” of ours), we actually help the system destroy them.  Nowhere is that more clear than in capital work.  By the time a case becomes a capital case, the stakes are so high that prosecutors may not want to deal.  It could cost them a vote you  know.  A conviction is paramount.

     Did you ever think that the “justice system” was supposed to be seeking the truth” Yeah, right! Capital cases are about as far from “truth seeking” as anything can possibly get.  The further along in the system the case goes, the less truth the courts want.  Even the United States Supreme Court has said there is a point where innocence–yes Innocence, is unimportant.  And we can execute innocent people.  Yep.  That’s what we do all right.  We do a lot of that in this country.

      But, gee, what about those public defenders?  The state has the resources of the state police, the city police, the county police, the Federal Bureau of Investigation, the State Bureau of Investigation, the state and federal forensic labs, the state and federal computer systems that track crime, etc.  The list goes on ad nauseum.  And the resources available to an indigent defendant?  Well, if the public defender agency has an investigator, he, too, is probably so overworked he can’t possibly follow up on all the leads.  He almost certainly will work the case alone–as opposed to the 12 to 15 and even more state law enforcement officials who have worked the case for the state.  The public defender usually doesn’t have ready access to crime labs, technicians and forensic experts either.  Each time he needs that kind of help, he has to get special funding approved–funding that is being requested by an already overburdened, under-funded staff.  Some things just get left out.  Can’t do it all, you know.  Well, those “can’t do it alls” are often the difference between life and death in a capital case.

      Need an example of what I”m talking about?  Look at Lyle and Erik Menendez.  That is the case where the two guys admitted to murdering their parents.  The defense had more than a half million dollars to get experts and put on a defense that was successful.  The Menendez brothers had enough money that even though there was no question of who committed the crime, they got hung juries and will go back to trial.  Now the state will pay Leslie Abramson $120,000 to retry the case or, since the judge has requested it, to work out a deal.

     Would you like to know how many of my clients, how many of anyone’s indigent clients ever get the money for that kind of high powered defense?  Most of my clients have never committed a crime as devastating as that of the Menendez brothers.  Many of my clients on death row have never committed any murder.  Yet because of a system that didn’t give each one of them Leslie Abramson and the high powered shrinks and forensic experts, they sit on death row, or they have been executed in some perverse salutation to “justice.”

      Now, of course, we have patted ourselves on the back again because in the interest of “justice” we have established federal resource centers for the purpose of “assisting the courts in capital cases.”  The assisting the courts part really is to make the case nice and clean so the court doesn’t have to sift through petitions written by poor, often mentally ill or mentally retarded inmates.  “Assisting the courts” means we provide attorneys and resoruces to help these clients who cannot afford Leslie Abramason and F. Lee Bailey to represent them.  But the resource centers can’t do all the representation.  They don’t get enough monety to do all the investigation, provide the necessary experts, conduct all the studies, lab tests, interviews, etc., that are necessary to represent people effectively.

      What we have is public defender agencies and resource centers that make it appear that these indigent clients are represented.  That way we feel better  when we kill them in the name of the state.  So what are we doing?  Are we helping by being public defenders?  Or are we greasing the skids?

    I guess what has broken my heart, and left my soul tattered and in pieces is that I honestly do not believe the majority of people in this country care.  We have become a nation of people who no longer think for ourselves.  We let our fingers do the walking through the yellow pages, and we allow our opinions to be formed through television.  The majority of people have been so frightened out of their wits by the media hype about crime, that few have taken the time to realize that is isn’t crime that is going up–it is simply the reporting of crime that is going up.  This sells papers and it sells TV news broadcasts.  We allow ourselves to believe the media and then we take the next step down this road of falsehoods and allow ourselves to be convinced that if we kill or put away forever these criminals, then we’ll be safe.

     I’m still trying to figure out who the “criminals” are.  Why do I get the feeling that all this is some great hoax by the politicians so that we will be so focused on the “criminal” that we won’t be looking at what is going on in Washington.

     It seems we always need someone–some group to hate.  Since it is no longer “politically correct” to hate people because of race and since we can’t hate the Russians and the communist threat anymore, we have decided that we will hate the criminals!  Society does not consider the fact that most of them are poor people, many are mentally ill.  Remember when Reagan cut back on the mental health programs?  Those are the people on the streets who are filling up prisons now.  Cute, huh?  We are still committing genocide in this country.  Maybe that is not the right word because it isn’t a racial group we are murdering–it is our poor and the mentally ill of all races.  Do we need another war to send these guys off so we can kill them in that way?  I mean, what is going on here?  Really.  What is going on?

     My heart is sick because I have decided that the law is so unjust in this county, so unlawful that probably I will remove myself from it.  I wish I were really somebody right now, you know somebody famous.  I could make this kind of statement and people would be so shocked that they would ask, “on no, can society really  be in such a bad state of affairs?”  Instead, of course, no one will notice the passing of some obscure criminal defense lawyer who finally has been hit in the head so many times with two by  fours and cement bricks that she, instead of rising up and fighting back, is ready to say “Uncle.”  “I quit.”  “I can’t make it right.”

      My  heart is sick because many people, even colleagues, will say, “Oh, it’s burn out, you know.”  And I wish it were just that .  But the burn out is created by this system that is so filled with corruption that the courts actually have to violate the constitution in order to uphold the decisions they do.  Justice Blackmun finally came to realize that fact. After 20 years of killing people and trying to do it constitutionally,  Justice Blackmun said, “It can’t be done.”  You know what is really tragic?  Justice Blackmun, you know, United States Supreme Court Justice Blackmun, has said this and it still hasn’t made a difference.  Politicians are still playing the game and will keep killing people because voters don’t want to know the truth.  The statistics are there, but no one wants to know the facts.

       So my heart is sick and my soul is torn, and I find myself crying a lot these days.  I used to get angry and prepare to fight the battle at every new injustice, but too often now there are only tears.  I hope I can find the energy again to fight, but unless all of us–every one of us who believe this is wrong–until we stand together and make ourselves heard, it will go on.  The public defenders and resource centers will be greasing the skids and the public will think it is all in the name of justice.  The politicians will play everybody for the fools that we seem to have become.  However it all plays out, the media wins of course, because whatever the story is, they can play it up and sell more cars, more soap, more and more while we sit passively on our fat couches and watch it happen.  Is this how it happened in Germany in the 1930’s?  Hmm?