President's Column: Criminal Defense Lawyers Fulfill a Vital Role

Criminal Defense Lawyers Fulfill a Vital Role Carmen D. Hernandez

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

I am honored to follow in the footsteps of all our great past presidents and to have been sworn in by Judge Ricardo H. Hinojosa, with whom I often disagree but whose integrity, intellect and sense of fair play I respect. My involvement with NACDL began after I went to the mountain — the Criminal Defense College in Macon, Ga. There I was taught by NACDL members, who as a group were the best, brightest and most committed lawyers I had ever met; I left a changed person and a much better lawyer. In the years to follow, Congress and the executive branch conducted an assault on the rights of defendants that have threatened the promise of justice: the AEDPA, which decimated the Great Writ of habeas corpus; the PROTECT Act; the PATRIOT Act; the indeterminate detention of American citizens without being charged or being allowed to speak with an attorney; the sanctioning of torture and the adoption of rendition policies that offend our core principles; and all the other federal and state initiatives that have resulted in a “race to incarcerate.” I am enormously proud to be NACDL’s president at this most important time as the organization continues to take the lead in the battle to preserve our constitutional rights.

At NACDL, I have found not just fiercely talented lawyers but also friends and mentors. I have become NACDL’s president because of the doors that were opened for me by these wonderful people, who encouraged me and taught me the lessons they had themselves been taught by others. And, best of all, we all share a goal that is at once an exhortation and a guiding principle. We do stand together as Liberty’s Last Champion.

As we look forward to celebrating our 50th anniversary, we face great opportunities to champion liberty. As grim as things at times appear, recent events confirm that where there are courageous lawyers and judges willing to stand up for the Constitution, justice can prevail.

The case against the Duke University lacrosse players by an out-of-control prosecutor exposed the enormous latitude enjoyed by prosecutors and their potentially tyrannical power, when they wield unfettered discretion irresponsibly. Of course, we are familiar with such excesses, but for the public at large it was an eye-opener. A number of the criminal defense lawyers who pushed hard in the representation of their falsely accused clients are NACDL members and we salute them all for their steadfast defense of their clients. The case has reminded us of the importance of instituting grand jury reform. We must reinvigorate the grand jury’s function as a protector of the rights of individuals and a check against arbitrary and oppressive prosecutions.

The grand jury guarantee the framers inserted into the Bill of Rights was not merely an investigative tool for the government. The most notable example of its broader role was the grand jury that in 1734 refused to indict newspaper publisher John Peter Zenger for libel despite evidence that his criticism of the colonial New York governor had violated the libel laws then in effect. Other grand juries of the day protected colonists in Boston who led riotous protests against the Stamp Act.

Building upon work done by the ABA and in partnership with the Cato Institute, NACDL convened a blue ribbon panel in 2000 that came up with a workable reform proposal. It includes: (1) the right to counsel for grand jury witnesses; (2) an obligation to present evidence which may exonerate the target or subject of the offense; and (3) the right for targets or subjects to testify. Each of these reforms is in use in some of the states. Details of our grand jury reform efforts are at Today, more than ever, we need to invigorate that populist view of the grand jury.

In recent weeks, we also witnessed the righting of another wrong when the Honorable Nancy Gertner awarded millions of dollars to four men who were wrongfully convicted of a gangland murder and served more than 30 years in prison. Their convictions were overturned by a state court judge six years ago. It was revealed that an FBI informant was responsible for the slaying and that FBI agents, in an effort to protect their informant, withheld critical evidence from state prosecutors and vouched for a key witness — a notorious hitman — even though they knew he was lying. The lead FBI handler was also convicted for his role in the cover-up. Two of those wrongfully convicted men died in prison and the other two were released to become reunited with their families and reacquainted with their children and grandchildren, who grew up believing that they were murderers. As Judge Gertner noted: “This case is about intentional misconduct, suborning of perjury [and] the framing of innocent men.”

That vintage miscarriage of justice is a reminder that in two-thirds of cases where people have been absolved of capital crimes, the wrongful conviction results not from honest errors but from errors perpetrated on the system by prosecutors, law enforcement personnel and lab technicians who knowingly falsify information, suppress favorable evidence or pressure witnesses to give false testimony that results in the conviction of innocent men and women. I am proud to lead an organization that works to ensure adequate funding of indigent defense, restore habeas corpus, bring balance into the grand jury room, reform criminal discovery and a host of other projects, that, if realized, can transform our system to eliminate such injustices.

Most of all, during my presidency I want to give voice to our clients who languish in prison due to sentences that are “excessively harsh.” In 2003, in the very city where we just held our annual meeting, Justice Kennedy exhorted the ABA to take up the plight of those we imprison and “the inadequacies — and the injustices — in our prison and correctional systems.” He spoke about the startling numbers of men and women behind bars, contrasting our rate of incarceration with those of Western European democracies where the incarceration rate is 1 in 1,000 while ours is 1 in 143. He directed us to “confront another reality. . . . More than 40 percent of the prison population consists of African-American inmates. About 10 percent of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50 percent of young African-American men are under supervision of the criminal justice system.” He eloquently reminded us that this is our justice system and these are our prisoners and that we should take “special care to ensure that we are not incarcerating too many persons for too long.” While defending the federal sentencing guidelines, Justice Kennedy noted that the compromise that led to the guidelines also led to an increase in length of prison terms and that the guidelines should be revised downward. As to mandatory minimum sentences, he plainly stated he could accept neither their necessity nor their wisdom because in too many cases they are “unwise and unjust.” And while the ABA did create the Kennedy Commission, held hearings throughout the country and issued a report, the practice of imprisoning men and women for terms that are greater than necessary to impose just punishment or protect us continues.

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It is no answer to that problem, moreover, that we are now imprisoning white collar defendants, many of whom are Caucasian and more well-off, to prison terms that are equally draconian, excessive and unnecessary. Two wrongs have never made a right. It does not reduce the injury to the tens of thousands of non-violent African-American, Latino, and poor men and women in prison to say that they will now be joined by others with more privileged backgrounds, who are also non-violent and equally undeserving of unnecessarily long and inhumane prison terms. This year, I hope to be a passionate and reasoned voice against our government’s propensity to deal with each real and imagined problem faced by society with new crime legislation that sends people to prison for terms that are more severe than necessary to do justice and protect society.

I am proud to be a criminal defense lawyer in the best tradition of our profession. John Adams exemplified that tradition when, in 1790, he risked his political future to defend British soldiers accused of killing five American colonists protesting British rule. He understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice and even risk the safety of his family. But Adams had a profound belief that every person deserved a defense, and he took on the unpopular case and represented the men with zeal and eloquence. The jury acquitted six of the eight soldiers and returned guilty verdicts on lesser counts for two others. Although initially scorned for his actions, in the end he gained in stature. In his old age, John Adams would say about his defense of those soldiers that it was “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”

I am proud also to have started my legal career as a law clerk to a federal judge whose integrity I still admire. He taught me that the courtroom was not his domain but a place where a litigant, no matter how heinous his crime, deserves to be treated with dignity, is afforded full due process of law, and can attain justice. And I am proud to have served as an assistant federal defender, with men and women who are some of the finest, most dedicated and most unselfish lawyers in America. They, like our members in the private defense bar, exemplify the best ideals of our profession.

As criminal defense lawyers, we make no apologies for the role we fulfill. With the NACDL at our back, time and time again, we prove that we are unafraid to challenge abuses of power. As Bobby Lee Cook reminded us, we refuse to be bullied. When others keep quiet in the face of constitutional violations or seek to trample on the Bill of Rights or eviscerate the writ of habeas corpus, it is criminal defense lawyers who do the necessary work to preserve those rights. As criminal defense lawyers, we never seek to limit the reach of the Constitution or carve out exceptions to the Bill of Rights or value expediency more than justice. We seek to fulfill the promise of Gideon and Miranda and Crawford. As members of this great association, we are proud to fight for the rights of all people, however humble, to stand before the bar of justice with a capable defense lawyer at their side and due process as their shield. This year, I pledge to you that NACDL will continue to lead in that struggle to vindicate the Bill of Rights and obtain some measure of justice for each of the men, women and children we represent.

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