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Affirmative Reaction
Oleh Kenneth J Arenson
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Mulai Membaca- Penerbit:
- Austin Macauley Publishers
- Dirilis:
- Nov 30, 2020
- ISBN:
- 9781528972420
- Format:
- Buku
Deskripsi
After receiving high accolades from the Dean, including a renewal of his contract and an assignment to teach some of the toughest and most prestigious courses the following year, Arenson learns from two professors that he is being held back for racial reasons; specifically, that the Chairperson of the Promotion and Tenure Committee decided that allowing anyone white to be placed on tenure track might upset the racial balance on the law faculty which, at the time, had blacks outnumbering whites by a slight majority.
What followed was a protracted civil rights action in federal court consisting of two jury trials, two appeals to the United States Court of Appeal for the Fifth Circuit, and an unsuccessful petition for certiorari to the United States Supreme Court by the defendants. These events occurred against the backdrop of the sleaze and corruption for which Louisiana is not only known but unabashedly displays as a badge of honor. In the current era of political correctness in which we find ourselves, this saga serves as a vivid and much-needed reminder that no particular gender or ethnic group can claim a monopoly on victimization. The book also provides readers with a unique insider’s view of the corruption that, regrettably, is endemic within the American system of justice as well as its tertiary academic institutions.
Tindakan Buku
Mulai MembacaInformasi Buku
Affirmative Reaction
Oleh Kenneth J Arenson
Deskripsi
After receiving high accolades from the Dean, including a renewal of his contract and an assignment to teach some of the toughest and most prestigious courses the following year, Arenson learns from two professors that he is being held back for racial reasons; specifically, that the Chairperson of the Promotion and Tenure Committee decided that allowing anyone white to be placed on tenure track might upset the racial balance on the law faculty which, at the time, had blacks outnumbering whites by a slight majority.
What followed was a protracted civil rights action in federal court consisting of two jury trials, two appeals to the United States Court of Appeal for the Fifth Circuit, and an unsuccessful petition for certiorari to the United States Supreme Court by the defendants. These events occurred against the backdrop of the sleaze and corruption for which Louisiana is not only known but unabashedly displays as a badge of honor. In the current era of political correctness in which we find ourselves, this saga serves as a vivid and much-needed reminder that no particular gender or ethnic group can claim a monopoly on victimization. The book also provides readers with a unique insider’s view of the corruption that, regrettably, is endemic within the American system of justice as well as its tertiary academic institutions.
- Penerbit:
- Austin Macauley Publishers
- Dirilis:
- Nov 30, 2020
- ISBN:
- 9781528972420
- Format:
- Buku
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Affirmative Reaction - Kenneth J Arenson
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Chapter 1
The Life of a Public Defender
Typical of many naive law school graduates, I romanticized at the prospect of zealously representing clients in court, particularly indigent defendants in criminal prosecutions. I envisioned myself passionately cross-examining prosecution witnesses and fulfilling what I saw as the glamorous role of forcing the state, with all of its might and resources, to scrupulously abide by all legal protections afforded to persons accused of criminal offences. These protections include not only statutory rights, but rights bestowed by relevant state constitutions as well as the United States Constitution. In the case of the latter, these protections include, among others: the right against unreasonable searches and seizures; the assistance of counsel for one’s defense; the protection against being placed in jeopardy twice for the same offence; the rights of trial by jury, speedy trial, public trial, confrontation of adverse witnesses, compulsory process for favorable witnesses and against self-incrimination.
Contrary to popular belief, defense counsel has no ethical obligation to procure an acquittal by any necessary means; rather, it is his or her duty to force the prosecution to abide by all of the aforesaid constitutional strictures as well as all relevant procedural and evidentiary rules in its quest to convict the accused of the offence or offences charged. So while it is unethical, illegal and even grounds for disbarment for defense counsel to suborn perjury, he or she does have an ethical obligation to zealously represent his or her client’s interest by utilizing all lawful means to force the prosecution to satisfy the fact-finder, whether it be a judge or jury, that its case has been proved by the requisite standard of proof. Moreover, this is true even if defense counsel suspects, believes or knows that the accused is guilty of the crime or crimes alleged.
The prosecution, on the other hand, is under a slightly different ethical obligation in representing the government. The prosecution is not only required to abide by applicable state and federal constitutional provisions as well as relevant procedural and evidentiary rules, but is ethically bound to refrain from prosecuting any person in the absence of a good faith belief in their guilt of the crime or crimes alleged. Unless both sides diligently discharge their respective ethical obligations, it becomes less likely that our adversarial system of criminal justice will serve its intended function of bringing offenders to justice and serving as a vanguard against wrongful convictions.
With that backdrop in mind, I was relieved and deliriously happy to learn on May 9, 1980 that I had passed the Pennsylvania Bar Exam. Although I was born and raised in Toledo, Ohio until the age of thirteen, I later returned to Toledo to attend law school after earning my Bachelor of Arts degree at the University of Kentucky. After graduating from law school with honors, I then opted to take the bar exam in Pennsylvania because I had an offer of employment from the Allegheny County Office of the Public Defender in Pittsburgh. While the job of a public defender did not evoke images of the high salaries or plush surroundings that are associated with even entry-level positions at prestigious law firms, it had its advantages.
As a person aspiring to reach my full potential as a litigator, I was advised by many former law professors and several practicing lawyers that the most effective and expeditious means of achieving that objective is to try as many cases as possible within a time frame of three or four years. I was further advised that public defenders and assistant district attorneys are in an ideal position to not only attain that type of experience, but also discover whether they have the requisite skill and temperament to be an effective litigator.
As it turned out, that advice proved to be very insightful. In sharp contrast to an entry-level position with a law firm where it might be several years before I would be entrusted to litigate criminal or civil trials, I found myself immersed in a hotly contested jury trial within a matter of months. Despite the fact that it was my first jury trial, I was nonetheless assigned to represent a man charged with armed robbery and aggravated assault, crimes for which he could have received a maximum cumulative sentence of not less than twenty years’ imprisonment had he been convicted on both counts. Despite my concern that the charges were too serious to be assigned to someone who had never handled a jury trial, the director of our office cavalierly admonished me to suck it up and go try the case.
Fortunately for me as well as my client, the trial ended in a complete acquittal.
When I returned to the public defenders’ cubicle within the courthouse to gloat, Nick Radoycis, one of our most experienced and best trial lawyers, presciently advised me to curtail my exuberance because, as he put it, The next one is always a loser.
So what did I learn about myself as well as our system of criminal justice during my years as a public defender? The answer is plenty, and most of it was quite unpleasant.
What I experienced on day one would serve as a precursor of things to come. I distinctly recall that even though I had passed its bar exam, the State of Pennsylvania would not allow me to practice unless and until I was actually residing there. On the morning after I arrived in Pennsylvania and assumed residency, I met with Lester Nauhaus, the Director of the Allegheny County Office of the Public Defender. He welcomed me aboard and after we engaged in the usual pleasantries, he offered some rather shocking and sobering advice. I was told in no uncertain terms that whenever possible, I should discourage my clients from exercising their constitutional right to a jury trial. Lester explained that because the judges in Allegheny County could be trusted to do the right thing, a tacit rule had evolved whereby defendants who insist upon having their fate determined by a jury rather than a judge might receive harsher sentences in the event of a conviction. I took this to mean that an unspecified number of judges consider it as a personal affront that an accused would be more inclined to trust his or her fate to a panel of jurors than a single judge, not to mention the added time and costs that a jury trial entails.
Finally, Lester directed me to immediately proceed to city court where I would meet several colleagues and commence my career as a public defender. As I would learn that morning, it was customary in our office for recently licensed attorneys to be restricted to representing clients at preliminary hearings for at least the first six to eight months of their employment. After that period, Lester was usually content to entrust them with representing clients at trial.
As I left his office that morning, I was aghast and astounded by the fact that my boss had all but ordered me to betray my ethical obligation to vigorously represent my clients through all lawful, ethical and necessary means. Simply put, even amongst law students there is a general consensus that most judges become cynical and highly prone to convict after they have served on the bench for any significant length of time. In fact, it was a standing joke amongst law students and practitioners that bench trials were really nothing more than slow guilty pleas. Thus, any accused seeking to seriously contest criminal charges has no realistic opportunity for an acquittal unless he or she is prepared to run the gauntlet of a jury trial.
Was this merely Lester’s method of tempering any unrealistic expectation that prosecutors, defense attorneys, police officers and judges actually give a damn about whether the prosecution and defense are treated fairly and according to the letter of the law? Were things so dire that defendants would really incur harsher sentences if they dared to exercise their constitutional right to a jury trial? If so, what other nasty surprises awaited me in the months and years ahead? As I would learn over my four years as a public defender, there were many.
As I arrived at city court that morning and introduced myself to three colleagues, it was apparent that they were all working at a frenetic pace in handling one preliminary hearing after another. The relief they felt at having another hand on deck to lessen the workload was palpable. I was told to simply get in the queue and whenever it was my turn, grab the next case file and handle the corresponding preliminary hearing.
A preliminary hearing is a proceeding at which the prosecution must satisfy the presiding magistrate that there is sufficient evidence relating to each misdemeanor or felony charged to warrant holding the accused to stand trial in a higher court. This standard is met with regard to any alleged felony or misdemeanor if the prosecution can show that it is more likely than not that the alleged offence was committed and the accused is the person who committed it. Another important purpose of the preliminary hearing is to afford defense counsel with a fair opportunity to cross-examine all witnesses called by the prosecution. This gives the defendant an invaluable opportunity to obtain as much pre-trial discovery as possible concerning the strength of the prosecution’s case. Thus, for tactical reasons, the prosecution will only adduce what it believes is the minimum amount of evidence necessary to convince the magistrate that the accused should be required to stand trial on the alleged felonies and/or misdemeanors.
As this is an easy burden for the prosecution to meet in the overwhelming majority of cases, the preliminary hearing is typically viewed by the defense as little more than an important discovery tool. Moreover, because the presiding magistrate must rule on the assumption that the prosecution’s evidence is truthful, in all but the most exceptional cases the defense would derive no benefit by adducing contradictory and exculpatory evidence on its behalf. Thus, to adduce such evidence would only serve to allow the prosecution to obtain pre-trial discovery of the defense’s case. This rarely, if ever, inures to the benefit of the accused. In fact, it is usually detrimental to his or her chances of procuring an acquittal.
That explanation brings to mind another sobering incident that occurred at the conclusion of that first memorable day as a public defender. In the late afternoon, I was told that I was needed on the second floor of the courthouse where there were too few public defenders to handle the heavy caseload. Upon arriving, I can recall watching a private defense attorney handle a preliminary hearing on a misdemeanor charge of driving while under the influence of alcohol. I can also recall remarking to a private attorney in the queue that the drunk-driving charge would eventually be dismissed on the basis of a pre-trial motion. Specifically, the motion would have been predicated on the ground that the arresting officer had no legal grounds to even stop the accused and, therefore, all evidence concerning the results of the accused’s blood/alcohol and field sobriety tests would have to be suppressed. Although the attorney with whom I spoke agreed that the evidence should be suppressed, he lamented that such motions are rarely granted because many police officers are quite willing to manufacture whatever perjured testimony is required in order to transform an illegal search into a lawful one.
I cannot say that those words came as any great surprise to me after what Lester had told me earlier that day. It was bad enough that an experienced defense attorney had informed me that the police are often ready and even eager to commit perjury. Yet to learn that numerous judges, many of whom were former defense attorneys and prosecutors, would acquiesce in this sham by pretending to believe the lying police officers was a bit much for me to process. In a matter of only a few seconds, this attorney had effectively debunked everything I had been taught in law school regarding the enforcement of the Fourth Amendment’s prohibition against unreasonable searches and seizures. This constitutional amendment generally excludes evidence obtained in violation thereof from being introduced into evidence at trial. After just one day of practice, I had been irretrievably jaded and sickened by what I learned. Moreover, I would later discover that the private attorney with whom I spoke that afternoon was none other than Michael Levy, a first cousin of Lester Nauhaus. If Michael Levy knew that our system of criminal justice was hopelessly flawed, it was a pretty safe assumption that Lester did as well.
Lester would go on to become a Common Pleas Court judge which, in Pennsylvania, is a full-fledged trial judge. This might explain why he had gone to such great lengths to encourage me to avoid as many jury trials as possible. In other words, it is quite plausible that my ambitious boss was reluctant to rock the boat while serving as the Director of the Allegheny County Office of the Public Defender, a position that was widely viewed as a stepping-stone to becoming a Common Pleas Court judge. Had Lester advised me to demand jury trials in all but the most exceptional contested cases, he may well have antagonized the powers that be which included many Common Pleas Court judges who, God forbid, would have been forced to spend more time presiding over jury trials that could have been better spent on the golf course. There is little doubt that such advice would have militated against Lester’s prospects of realizing his ambition of becoming a Common Pleas Court judge or perhaps even an appellate court judge one day. That was my impression on day one and nothing I have learned since then has altered that perception.
Chapter 2
An Exponential Rise in Cynicism
After the initial period of handling only preliminary hearings, nearly all recently licensed public defenders were required to handle the actual trials of clients who had been bound over to stand trial on one or more charges at the conclusion of their preliminary hearings. Specifically, we were required to collect our assigned cases once every two weeks on Fridays. We were usually allocated anywhere from seven to twelve cases, depending on several factors, including the extent to which we were in Lester’s good graces. The better the relationship with Lester, the fewer files we generally received. We were also expected to review the files over the weekend and meet with each of our clients on the following Monday in the attorney/client conference room at the Allegheny County Jail or the Office of the Public Defender, depending on whether or not the clients were able to make bail. On Tuesdays we met with the assistant district attorney assigned to each case in order to determine whether or not a plea bargain could be reached or, if not, whether the ensuing trial would be via bench or jury trial. Finally, we met with the judge assigned to the case in order to determine whether he or she would accept any proposed plea bargain and, if not, or in instances where the client opted to plead not guilty and go to trial, to set a trial date.
(a) I can distinctly recall attending a pre-trial conference concerning a client who was charged with retail theft, meaning a theft of any tangible property from a retail establishment irrespective of the asking price. Under Pennsylvania law this offence was only a misdemeanor as opposed to a felony charge, provided the accused had not been previously convicted of this offence on two or more occasions. If an accused had two or more prior convictions for retail theft, any subsequent charges were upgraded to a felony of the third degree, a more serious offence than a misdemeanor that was punishable by a maximum term of three and a half to seven years’ imprisonment.
Retail theft charges were rarely contested because the accused was typically caught red-handed by a store detective who had no apparent motive to fabricate evidence. Thus, cases of this type cases were ordinarily disposed of through a negotiated plea (plea bargain) whereby the prosecution offers to recommend a non-custodial probationary sentence or some acceptable reduction to the maximum allowable prison time. This is given in exchange for the accused’s assent to giving up his or her right to a trial by entering a plea of guilty. On this particular occasion, and despite the fact that the prosecution was offering a fairly generous plea bargain, my client vehemently proclaimed his innocence and instructed me to request a trial by jury. This was against my advice, primarily because the case had been assigned to a judge who was notorious for handing out extremely harsh sentences. What was unusual about this case was not my client’s refusal to follow the advice of counsel; rather, it was the appalling cynicism displayed by the judge and the fact that he made no effort to disguise his utter contempt for any accused who opted to plead not guilty and have his or her fate determined by a jury of their peers.
I can recall walking into the judge’s chambers that afternoon and hearing the judge say, Good afternoon, gentlemen. So how are we going to proceed on this case?
When I informed him that my client was requesting a jury trial, his Honor said, He is requesting a what?
When I repeated that we were opting for a jury trial, his Honor replied, Tell your client that he better win.
Although the judge instructed his clerk to set a tentative trial date, he then added that, I’m sure he’ll change his plea to guilty before then.
This pre-trial conference, like so many others at which judges made similar outrageous statements that they would never utter in public or admit to having made, were fairly commonplace during my years as a criminal defense attorney. After we concluded that pre-trial conference and many others at which judges made no attempt to disguise or temper their bias against those who are theoretically ‘presumed innocent until proven guilty,’ I was again reminded of the reason why competent and conscientious defense attorneys insist on jury trials in all but the most exceptional contested cases. Given the predilection of many judges to flout the presumption of innocence as a sacrosanct tenet of our system of criminal justice, I felt a seething contempt for the numerous like-minded judges that criminal defense attorneys were forced to confront on a regular basis. How could it be that so many judges who were reputed to be honorable men and women were prepared to routinely impose harsher sentences on defendants who exercised their constitutional right to a trial by jury? Had I been inculcated with a myth that our system of criminal justice, though far from perfect, was still the best and fairest
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