Working with the Defense Bar

“You did a good job consulting with us before you started,” said Aaron Mysliwiec, an attorney at Bronx Defenders, one of two agencies (along with the Legal Aid Society of New York) responsible for representing indigent defendants in the Bronx.

I spoke with Aaron last Friday about how projects like Bronx Community Solutions can learn to work more effectively with the defense bar.

Their support is important, not only because defense attorneys can advise their clients to turn down a plea agreement that includes Bronx Community Solutions, but because they can become important allies in identifying issues, such as a client's long-term drug addiction, that might not otherwise come up in a court setting.

Aaron's basic message: talk to representatives of the defense bar before a project gets off the ground. “We have to be a part of the conversation,” he said.

I first met with Aaron, and his boss, Robin Steinberg, in late 2004 during the planning phase of the project. During our conversation, they told us they weren’t comfortable with Bronx Community Solutions seeking to add questions about drug use and mental illness to the standard pre-court assessment given to every defendant, because of concerns about how the information would be used.

In response, we dropped the idea. “That helped us trust you,” Aaron said. (Instead, we conduct social service assesments in the intake office, where participants report post-sentencing. In certain circumstances, we'll interview defendants before their court appearance, but only with the expressed consent of a defense attorney.)

Problem-solving courts and public defender organizations aren’t always going to see eye to eye. For example, our emphasis on offender accountability will at times set us apart from the defense bar, whose goal is to win for their client the least restrictive court outcome possible. Many public defenders also feel that problem-solving projects are excessively coercive and pressure defendants to plead guilty in exchange for obtaining social services.

My view is that these tensions are healthy and inevitable, and that it's important for projects like ours to meet with the defense bar regularly to discuss these issues. For example, in addition to speaking with Robin and Aaron, we've made annual presentations at Bronx Defenders and Legal Aid that give us a chance to share positive results, answer questions and get ongoing feedback. We've learned, for example, that defense attorneys are concerned about making community service more humane and productive, an important perspective that's informed our thinking on the topic.

Also, unlike other problem-solving courts like drug courts, which emphasize a “team” approach in the courtroom, we haven’t sought to change the adversarial process. With hundreds of defense attorneys in the building, we probably couldn’t change it if we tried. It’s hard to argue, then, that defendants are being offered any less legal protection now that Bronx Community Solutions exists – an important consideration when we’re working with over 10,000 defendants a year.

While we want the defense bar to continue to be zealous advocates for their clients, there are some signs that the traditional model of defense may be changing at places like Bronx Defenders.

I’m impressed by the organization's unique philosophy, as well as the passion, energy and enthusiasm that every member of the staff brings to their work. In addition to the roughly 30 attorneys responsible for providing representation on 12,500 criminal cases annually, Bronx Defenders employs civil attorneys and social workers who help clients with issues beyond the criminal matter, such as fighting an eviction notice or getting into drug treatment. “We approach our clients as people, not just criminal defendants,” said Aaron.

As Aaron said, describing his office's approach, "I can’t guarantee an outcome, but I can guarantee that my client has a lawyer who will listen". The idea of providing immediate help for problems beyond the criminal matter, and treating clients with respect and dignity, sounds very similar to what we're trying to accomplish.


Anonymous said…
There will always be some resistance by the defense bar to any intervening program like BCS looking for outcomes other than a straight conditional discharge. However, the good defense attorneys do see their clients as people and not just defendants, and should welcome any program looking to help their clients. The key for a program like BCS is reliability. As long as the various court players feel that BCS is a reliable program, they will continue to see the pros rather than the cons of what we have to offer. That is, we may prevent their client from walking right out the courtroom, but hopefully we are a stepping stone in keeping their client from walking back in.

Secondly, BCS and similar programs serve as a second option for the defense bar to use in their attempt to keep their client out of jail. Of course, their first priority may be to have their client released without any conditions, but often this is not an option for the judge. For example, a judge may have no intention of letting a defendant go and without the presence of a BCS, the defendant is going to jail. In this instance, alternative programs actually help the defense bar keep their clients out of jail.
Anonymous said…
I encourage public defenders to give "critical support" to problem-solving courts. Support, because we have seen the failure of the retributive approach at all levels: failure to provide the client anything but a locked warehouse to stay in; failure to build community in places that already suffer problems in employment, education, health care; and failure even to protect the public, when people go to prison and come back with less than nothing. "Re-entry" programs aren't as good as trying to solve the problem on the front end.

But I suggest CRITICAL support because of what happened in the juvenile court in bettween 1900 and In re Gault. Those were courts founded on great hopes of helping people, too; but throwing due process out the window was a huge error.

In my state, Minnesota, we have a huge problem of racial profiling. It is not satisfactory to tell clients of color who should not have been arrested in the first place, "don't worry--you're going to a 'problem-solving court.'"

I say, we in the defense bar need to get into these efforts on the ground floor, and help them develop--but keep our eyes open!