We Accept Assembly-Line Justice for the Poor. But We Shouldn’t.

This piece originally appeared at The Washington Post's "In Theory." 

In “Making a Murderer,” Steven Avery says, “Poor people lose all the time.” Compared with many poor people in New York state’s criminal justice system, Avery had it easy.

The money that he received from a previous settlement allowed him to hire top-flight attorneys to pursue his quest for freedom. However, most poor people must rely on the government to provide a public defender — and if their state fails to provide competent lawyers, they don’t stand a chance in court, innocent or not.

The majority of people locked up in local city and county jails are presumed innocent but nonetheless punished with months and even years of incarceration while awaiting trial.

The U.S. Supreme Court acknowledged 50 years ago in the landmark Gideon v. Wainwright decision what it called an “obvious truth” — that most people don’t know enough about the law to adequately defend themselves. A lawyer is a necessity in criminal court. And for those without the means to hire one, defense services must be provided by the state.

In New York state, where I have worked to advocate for constitutional rights, a poor person is often just another one of hundreds of cases on the docket of an overworked and underpaid public defense attorney.

Donald Telfair, one of our clients, didn’t even meet his public defense attorney until he was standing in front of the prosecutor and judge in a Suffolk County courtroom. He had been violently attacked by a group of men, but instead of taking his report, the police charged him with robbery. His attorney didn’t have time to learn his side of the story and why he wasn’t a flight risk prior to court. Still in his hospital gown, with one eye swollen and his jaw wired shut, Donald’s bail hearing was a one-sided affair. Bail was set beyond his means, and he was kept in jail until his case was resolved.

But sometimes the accused lose their lives. In 2010, Kalief Browder maintained that he was innocent of stealing a backpack when, at the age of 16, he was sent to New York’s notorious Rikers Island to await trial. His mother could not afford the $3,000 bail, and his case was delayed over and over. By the time the district attorney admitted that the government had no case, Browder had been locked up for 1,000 days, nearly 800 in solitary confinement. Scarred and traumatized, he hanged himself last summer after his release.

As many as 450,000 people locked up in the United States have not been convicted of anything. They are incarcerated because they are awaiting trial and are not eligible for or cannot afford bail.

How’s that for presumption of innocence?

For a good defense attorney, setting a reasonable bail is just one step of the process. In an era when criminal cases rely on complex DNA and other forensic evidence, an adequate defense may require the use of investigators and experts. Without these resources, which were critical in building his defense against the murder charge, Avery might never have been exonerated the first time he was sent to prison.

In our 2014 report examining the state of criminal justice in five New York counties, we found that in one county, public defense attorneys consulted expert witnesses in only 22 of 14,000 cases and used investigators in only 50 cases. To make matters worse, that same county spent 35 times as much money on investigators for the district attorney than it did on investigators for public defense.

America’s fascination with “Making a Murderer” shows how much we care about justice. It’s also a reminder that when a person stands accused of a crime without a competent lawyer, there can be no justice.

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Anonymous

Many are deprived of the presumption of innocence. More are deprived of adequate counsel. But I think it's neither constructive not accurate to make a comparison in which Avery "has it easy." He's had nothing easy. Just like thousands and thousands of others.

It's not a contest.

Jerry C

How about "had it comparatively easy". That would be a fair statement.

And in a way, it is a contest. The entire point of the article is that the experience should be as equal as possible under the law. Not to say it should be easy or hard for anybody, just that it should be the SAME for everybody. Right now, it's not. Money = Power. And that's a problem.

Waiting_Eagerly

I wish we had an initiative like this in Arkansas. Most people awaiting trial end up being railroaded because their public defender is so overloaded with cases that they cannot spend enough time preparing for cases.

Anonymous

IT IS ALSO A TRAVESTY TO SEE BRENDAN DASSEY BE CONVICTED OF A CRIME THAT HE WAS COERCED INTO GIVING A CONFESSION OF THE CRIME. IT IS CLEAR FROM THE FOOTAGE OF THE INTERROGATION FROM THE DETECTIVES THAT BRENDAN DASSEY WAS MENTALLY CHALLENGED. HIS IQ WAS A MERE 69 WITH A VERBAL SCORE OF 63.....THESE POINT TO A PERSON THAT IS BASICALLY IN THE MENTALLY RETARDED RANGE OF INTELLIGENCE. I BELIEVE THAT IN THE MAJORITY OF STATES A PERSON OF SUCH INTELLIGENCE IS TERMED DISABLED. WITH THAT SAID, WHERE IS THE PROTECTION THAT DASSEY DESERVED? THE PROTECTION FROM BEING INTERROGATED BY SUCH MONSTROUS DETECTIVES? WHERE IS THE AMERICAN DISABILITY ACT SUPPORTERS? WHERE IS THE ACLU? ARE WE A SOCIETY THAT IS GOING TO SIT AROUND AND DO NOTHING WHILE A MENTALLY CHALLENGED/MENTALLY DISABLED PERSON WHO DID NOT RECEIVE A FAIR TRIAL... A MENTALLY DISABLED PERSON WHO SHOULD HAVE BEEN INTERROGATED WITHOUT A LAWYER, WITHOUT SOME TYPE OF LEGAL PROTECTING PERSON BEING IN THE INTERVIEW?
AND HOW ABOUT THE SPECIAL INVESTIGATOR WHO BASICALLY TOLD DASSEY WHAT TO DRAW.....ULTIMATELY BECAUSE THE INVESTIGATOR NEEDED A CONFESSION SO AS TO MOVE FORWARD WITH A PLEA DEAL. DOESN'T ANY PERSON OUT THERE GET THE INJUSTICE OF THE DASSEY CASE? THE INVESTIGATORS, PROSECUTER, AND JUDGES SHOULD ALL BE ASHAMED OF THEMSELVES. AFTER WATCHING FOOTAGE OF SUCH INTERROGATION AND KNOWING THE OUTCOME OF SUCH, I CAN NO LONGER SLEEP WELL AT NIGHT KNOWING THAT OUR JUSTICE SYSTEM LACKS THE ETHICS AND DESIRE TO SEEK THE TRUTH THAT OUR FOUNDING FATHERS' DESIRED.
I CHALLENGE ANY LAW FIRM TO TAKE ARMS AND TAKE THE DASSEY CASE PRO BONO....DO JUSTICE A FAVOR AND DO SOMETHING FOR THAT KID. HE DESERVES A LIFE OUTSIDE PRISON, WE ALL KNOW THAT, BUT NOT EVERYONE HAS A LEGAL BACKGROUND TO BE ABLE TO HELP DASSEY. I WOULD CHALLENGE THE ACLU OR ANY GROUP WHO SUPPORTS PERSONS WITH DISABILITIES TO TAKE ON THE CHALLENGE OF SETTING MR. BRENDAN DASSEY FREE!!!!!

Anonymous

This kind of thing happens all the time- it is not an aberration (it is the norm). Sadly, America today would rather have a conviction than a trial. Due Process has been traded, in 90-95% of all cases, for Plea Deals (that is NO "deal"). Plea Deals are timely and cost effective- but often times unjust. Then the accused, often with nothing more than compelling coincidences, are told that their chances in a jury trial will be minimal- at best. So, frightened by a worst case scenario- they take a Plea. Probably because the arresting officer didn't do a thing for the accused (evidence for the accused). It's NOT in their 'best interest' to justify the behavior of the accused- if their is justification or evidence to support them. The minute the police are called, the accused become a liability for the state. And they 'gotta do something'! Right?!

Rkossik

Invoking the Avery case distracts from the message.

Jacqueline oliver

prisoner inacounty facilty lhad no communication with appointed counsel except at a pre,triäl on march 18,2016.prisoner wears hearing aid he has called counsel to ask for copy of transcript to read because of his hearing. prisoner has filed motion to get new counsel 3 months ago who can this prisoner get help from this is his life he is fighting for he is facing 14 years to life on a cold case and Jailed since July 2014

Silvanna Finnerty

So "Assembly Line"?. An excellent word! Do not eavesdrop or copy in North Idaho!!! Greetings from "Indigent ACLU North"

Anonymous

BUT even if they have "adequate" defense, the Prosecutors have the upper hand; as the state is the 1st. on scene and aligned w/ the victim's assertion. They also have their credibility at stake. The minute someone is accused of a crime, unless a conviction- of some kind- is reached, they become a liability to that state. Even if the case is dismissed or accused found innocent, the public's ignorance becomes the consensus. The prevailing attitude becomes- "if he/she didn't do anything wrong, how did they end up charged in the 1st. place?" People, on average, are stupid.

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