Tag Archives: Criminal Defense

Irony and the Death of Jeff Adachi

Jeff Adachi, the elected public defender of San Francisco, advocated ending the war on drugs. Now he’s dead from a drug overdose.

Adachi should be lauded for his career in public service. His death also raises important questions about drug crime. Adachi was in possession of cocaine and under its influence on the day of his death. Someone sold or furnished the drug to him. These are all against the law.  Unfortunately, people have decided that drug laws are not worth enforcing in the same way that they used to.  Police used to spend a lot of time and effort trying to detect and prevent these types of crimes. Adachi describes this time as “the bad old days.”

Things are different now. Drugs crimes have been reduced to misdemeanors, or in some cases infractions. As a result, police no longer prioritize these crimes, and allocate their resources elsewhere. Adachi himself points out:

[San Francisco]’s felony drug arrests are plummeting at unprecedented speed — 92 percent since the peak in 1988-89, and despite our population growing by 150,000. 

Jeff Adachi was in favor of these changes. He said, “The war on drugs ruined countless lives.” He described it as biased, devastating and misery-inducing. He continued, “We applaud anything resembling a ceasefire in this calamitous war.”

The irony is that Adachi helped to end the exact kind of police work that could have saved his life. He described police work aimed at drug users as “the war on crumbs.” He said that in February, when he was probably a drug user himself. If law enforcement had managed to stop that cocaine from entering the United States, or California, or even just San Francisco, then Adachi would be alive today. Once the cocaine got into the city, if a policeman had managed to find it, Adachi would be alive today. To be even more specific, if a policemen had stopped Adachi, frisked him, and discovered his drugs on the night of his death, he would be alive today. It’s an uncomfortable reminder to opponents of stop and frisk that drug enforcement can save lives.

You might say that law enforcement failed to do its job. Law enforcement should have stopped the transportation of the cocaine, should have been out there stopping and frisking people, should have assigned officers to drug interdiction. But Adachi himself worked to prevent that. He described efforts that could have saved his life in the most derogatory way possible. And he went to court, and the court of public opinion, again and again to obstruct drug enforcement. In retrospect, he should not have done that.

His death, then, is a reminder of the consequences of drug crime. In Adachi’s case, the consequences were fatal. He died on a gurney in a corner of a hospital ER. And although he was only one man, his death is dramatic evidence that his ideas on drugs were wrong. His death was a private tragedy for his family. But he was a public figure. And the public can learn an important lesson from Jeff Adachi’s ironic (and unnecessary) death.

Miscellany

Local news outlet Mission Local blames Adachi’s death on failure to treat his heart problems. Incredibly, they call this “the painful lesson” to be learned from his death.

Adachi wanted his misdemeanor attorneys to conduct 10 trials a year.

Information about Adachi’s death came to light when a reporter obtained the police report. Many were angered and embarrassed by this. The publication of the details of Adachi’s death has become a saga of its own.

Safety is the First Human Right

On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.  Article 3 of this Declaration states, “Everyone has the right to life, liberty and security of person.”  The right to security of person, therefore, was elevated to the most fundamental of all rights protected by the UN.  In the UN charter, it is as important as life and liberty themselves.

This prominence echoes the teachings of psychologist Abraham Maslow.  He listed safety as the second most basic human need, after physiological needs like air, water, and food.  Once a person’s physical needs are satisfied, their need for safety takes precedence.  This may mean safety from war, natural disaster, or crime.  Maslow believed that the need for safety had to be met before progression to the next stage to occur.  In other words, a person must be safe before they can have love, belonging, acceptance, or self-actualization.

A lot of good work is being done out there to protect our right to a clean environment.  A lot of good people work hard to ensure that everyone has the right to marry.  During election season, we agonize over the right to privacy, the right to bear arms, the right to protest, the right to choose, the right to affordable housing, and the right to equality.  But without safety, we cannot enjoy any of these rights.  Safety is the foundation of these rights.

In the criminal justice system, defense attorneys talk the most about rights.  The right to a speedy trial, the right to a lawyer, the right to present a defense, the right to cross-examine, the right against self-incrimination.  Courts have gone to great lengths in order to protect a defendant’s rights.  They will throw out evidence that conclusively establishes guilt if that evidence was collected in violation of a defendant’s rights.  Rights violations can lead to ethical sanctions, retrials, and even outright dismissal of criminal prosecutions.  In the day-to-day work of a courtroom, it can sometimes feel like complaining about her client’s rights is a required part of the job of a criminal defense lawyer.  Judges are often far more receptive to these arguments than they are to arguments about the rights of the community.  The community, after all, is rarely in court watching.

But it is the prosecutor, not the defense attorney, who protects the community’s right to safety.  And by protecting this right, she protects all of their other rights.  She protects all other rights because these rights are based upon the right to safety, and are meaningless without safety.  Despite the disparity in noise, we should not fool ourselves about the roles of the parties.  Before there was an Equal Opportunity Commission, an Environmental Protection Agency, or an Office for Civil Rights, there were police and prosecutors.  We came first.  Once government provides the most basic protection from violence, it can do other things.  And groups that protect rights do wonderful work, as do the rest of civil society, but they are dependent upon, and cannot exist without, protection from violence and death.

With this in mind, prosecutors should not be seduced by the narrative of defense attorneys as champions of the rights of the individual.  The role of the defense attorney is clear: act in your client’s self-interest.  It does not include “protect the rights of the individual against the tyranny of government power.”  If “fighting tyranny” conflicted with a client’s self-interest, a defense attorney would be ethically obligated to do the latter.  The prosecutor is the champion of the rights of the individual.  Her work holds up all those other rights.  They are predicated on what the prosecutor must provide: freedom from violence.

Go Ahead And Threaten Me

Defense lawyers are often extremely interested in whether the prosecution has all their witnesses.  They will often base their legal strategy around whether they believe the witnesses will cooperate.  For example, in a domestic violence prosecution, the two sides may confer at the beginning of the hearing.  “What do you want to do?” the prosecutor will ask.  “Do you have your witnesses?” the defense counsel will respond.  If the witnesses are there, the defense may plea, but if they are not there, the defense has less of an incentive to come to a negotiated disposition.  In fact, the defense may be hoping and praying that the People’s witnesses are uncooperative, as it may represent their only realistic hope of a dismissal.

I have wondered how prosecutors should handle this situation.  The defense’s gamesmanship bothers me, and seems unjust.  If the defendant is guilty and looking to admit his guilt, he should accept the punishment he thinks is fair.  This fair punishment should not depend on the strength of the prosecution’s case.  Should prosecutors tell defense counsel what their witness status is?  Should they refuse to answer questions about their witnesses?  Is it ethical to bluff?

The answer to the last question, at least, seems clear.  The Business and Professions Code says that “[a]n attorney must employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth.  (Bus. & Prof. Code § 6068(d).  For example, an attorney cannot continue to represent someone who intends to commit perjury.  (See Nix v. Whiteside (1986) 475 U.S. 157.)  Although this section of the Code doesn’t seem to be intended to apply to plea bargaining, it does point to the larger issue: bluffing doesn’t seem to be “consistent with truth.”  Criminal prosecutions are not poker games, at least not for prosecutors.  The defense bar, on the other hand, seems to have no problem with acting like the courtroom is the wild west.  The unfairness of the double standard applied to each side is glaring, and manifests itself in all sorts of ways.

If a prosecutor does not read the Business and Professions Code the way I do, and does bluff about his witness status, what may happen?  Specifically, can a defense lawyer threaten to report her to the bar?  The California Rules of Professional Conduct address threats in civil disputes:

(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(B) As used in paragraph (A) of this rule, the term “administrative charges” means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(C) As used in paragraph (A) of this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.

(Cal. R. Prof. Conduct 5-100 [Threatening Criminal, Administrative, or Disciplinary Charges].)

This rule, on its face, seems to apply only to civil disputes and not to criminal prosecutions.  The phrase, “civil action” is specifically defined in the rule.  So it seems like a criminal defense lawyer can threaten to report the bluffing prosecutor to the state bar.  And it seems like prosecutors can threaten defense counsel with criminal, administrative, or disciplinary charges.

Why are threats allowed in criminal disputes but not in civil disputes?  I took a very cursory look at this issue and I can’t find an easy answer.  It would seem to me that the rule against threats in civil court is intended to keep both sides acting in a professional way.  Why don’t we want the same professionalism on the criminal side?  Threatening to have someone disbarred never helps the justice system arrive at the truth: it only leads to tension and acrimony.  I think Rule 5-100 should be expanded to include criminal actions.