Exiled from the Gym

I used to love working out during my lunch hour.  I felt like a disciplined, focused, ass-kicking professional.  I would walk into the gym, in my court clothes, and everyone would recognize me.  After showering, I would put my tie on in the locker room, as proud of my neckwear as I was of my bench press.  And then back to work, feeling refreshed, feeling like I was “ahead” for the rest of the day.  The gym was right by the courthouse, smack dab in the middle of my jurisdiction.  Which is to say, it’s not in a nice area.  But lunchtime was the only time that I really felt like I was getting out there in the community.  The courthouse itself is a fortress (most are) and the interaction that you have in the courthouse is mostly with the defendants and their families.  They are never happy to see you.  Your win is their loss.  At the gym, I could just fool myself into thinking that I was seeing victims, and family members, people who wanted their streets to be a little cleaner, people who were happy when I did a good job.

I was not surprised when I found out that a notorious member of a local gang had been arrested in the gym parking lot.  He was selling crack.  When the officers approached, they recognized him, pulled him out of the car, and discovered marijuana inside.  They didn’t find crack, but when they put the defendant in their squad car, he tried to hide the crack in his own crack, if you catch my drift.

I had never done a felony drug case before.  I talked it over with my wife, and with others, and their reactions surprised me.  None of them seemed very upset about the crime.  Most of them predicted that the jury would think that this case was waste of their time.  I tried to settle the case on the basis of their doubts, but the defendant wanted his trial, and I gave it to him.

The defense lawyer continually played the race card during the trial.  The arresting officers were white and the defendant was black.  She accused them of framing him.  Why would they do it?  “Because they could,” she said.  Because who cares about someone like poor old defendant.  This seemed silly to me and I stuck to the facts.

I felt optimistic at the end, and when I heard the jury had a quick verdict, I was sure of success.  I even had another lawyer stand in for me to take the verdict.  The ritual in this situation was for him to text “Guilty!” and everyone to celebrate.  But no texts came, none at all, and I started to worry.  Finally, after about an hour, I was told that the jury had returned a verdict of not guilty.  I was shocked.  A coworker interviewed the jury afterwards.  The jury foreperson said, “I think the prosecutor underestimated us.”  They wanted DNA testing on the bag of drugs recovered from the defendant’s butt crack.  They wanted fingerprinting.  They wanted a crime lab working in shifts to analyze everything.

I can’t go back to my gym now.  The defendant had plenty of time in custody as a pre-trial detainee.  All he did was work out.  The defendant testified that he had been arrested after working out, and based on his appearance during the trial, he never stopped.  Maybe that’s all he did while he was away.  The thought of being in a locker room with him is not something I’m especially comfortable with, now that I know about some other things that his gang has done.  In fact, every time I have a case with someone from that gang I think of him, running into him at the gym.  I know that nothing would happen, the statistics don’t lie, but it gives me pause.  It’s a small dilemma for me (and I’m sure I’ll go back eventually) but it’s an interesting reminder of what it must be like to live in that community full-time.  Of what it must be like to see people like my gang defendant on a daily basis.  Maybe that’s the lesson I should take to the gym when I return.


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.