By Kaitlin Ugolik Phillips
On a Saturday afternoon in August, a young black man with close-cropped hair stood in front of a judge in a small courtroom at the Kings County Criminal Court in downtown Brooklyn. He told the judge that he would like to plead guilty rather than face a trial for his alleged crimes. It’s a conversation that plays out hundreds of times a day in courtrooms all around the country—about 94 percent of felony convictions at the state level and 97 percent at the federal level are the result of plea bargains, with very few cases going to trial. In jurisdictions around the country, public defenders must navigate dozens of similar scenarios every day. The job is complex and can be wearing—criminalization of nonviolent crimes such as turnstile-jumping and possession of small amounts of marijuana contributes to the high number of low-income people who end up charged with criminal offenses, and a shortage of public defenders and resources to fund their work in some areas of the country helps to fuel the already high incarceration rate. Brooklyn Law School has a long history of producing graduates who are attracted to public defense because of a desire to make a difference and, despite the hurdles, have long and successful careers.
“A person involved in the criminal justice system is at one of their most broken moments in their lives, and that’s when a person needs someone fighting for them the most,” said Kristie Ranchurejee ’17, who now works for the Legal Aid Society in New York. This sentiment is representative of many Brooklyn Law School graduates who choose to enter this field. For some, like Tina Luongo ’02, that means advocating policy; she is attorney in charge of the criminal practice at the Legal Aid Society, where she oversees more than 1,000 attorneys. For others, like Robert Riether ’08, a senior staff attorney at Brooklyn Defenders, it means standing by clients in court and making sure they have the resources to avoid being caught back up in the system once their cases are adjourned.
As public defenders at the state, federal, trial, and appellate levels, as well as leaders of criminal defense organizations, Brooklyn Law School graduates—including seven members of the Class of 2017—handle thousands of cases and push dozens of measures that they hope, bit by bit, will help make the criminal justice system more equitable.
Riether began his career on Wall Street, but came to the Law School as a night student with the goal of beginning a more fulfilling career. Now, at Brooklyn Defenders, he handles mostly felonies, including many domestic violence cases. He is in the Kings County Criminal Court two or three times per month, picking up 10 to 20 new cases each time. Riether acknowledged that there is often tension between the prosecution and the defense, but he lives by the credo that “so long as the D.A.s act professionally and play by the rules, you catch more flies with honey.” He happens to be married to a prosecutor: Natalie Riether ’02, a senior ADA at the Kings County D.A.’s Trial Bureau Blue Zone covering the neighborhoods of Brooklyn Heights, Red Hook, East Flatbush, and Bay Ridge.
The criminal court at 120 Schermerhorn Street is open 365 days a year, and Riether usually juggles 70 to 80 cases at a time. “I’ll have this case for at least a year,” Riether explained of the rape case he’d been handed that day. It may sound like a lot, but it’s nothing compared to the 180-plus cases that many public defenders in other parts of the country carry.
“We have it good in Brooklyn, especially compared to other jurisdictions around the country,” Riether said, noting the resources dedicated to representing indigent clients. Brooklyn Defenders, for example, is one of the top public defense organizations in the country, and the city itself has many more resources than others. There are a lot of alternatives to incarceration, especially for youth, and Brooklyn Defenders prioritizes “self-care” to ensure good attorneys aren’t lost to burnout.
What amazes and inspires me is the number of people coming out of law school wanting to do this work. - Tina Luongo '02
“The toughest part is that you have 100 balls in the air at a time, and you have to manage it by triaging,” he said. “The work is rewarding and challenging, and you see results every day; you see changes in clients’ lives. But it also takes a certain kind of person to do this—you’re dealing with things that most members of polite society are not dealing with. If you tend to wear your heart on your sleeve, there are cases that will break it.”
As Riether sat on the bench in the courtroom waiting for the judge to call his case, a large man in a Jets Jersey, arms behind his back, hands in cuffs, walked slowly into the courtroom from a holding cell. He quietly took a seat in the corner as Riether took notes. He had just met the man about 30 minutes before and learned of the charges against him—rape in the first and second degree. He knew his client was being prosecuted for the alleged 2010 rape of a young girl, who later went on to give birth to his child. Riether was there to ask the judge to release his client on his own recognizance until more evidence could be gathered, known as “ROR.”
There was a lot in the balance: the life of this man, but also of the mother of his child, and of the child. With bail set at $100,000, he would likely head straight from the courtroom to Rikers Island, where he would remain for some time before seeing a judge again. Riether noted that his client previously had custody of the child and was by all accounts an involved father. He also had no prior arrests, worked full time, and was not considered a flight risk.
After contemplating for a moment, the judge issued an order of protection and released the man on his own recognizance until his next court date. If the complainant didn’t cooperate by that time, the case would be put up for dismissal.
When Riether moved back toward the audience benches along with his client, he looked relieved his client had been released without bail. He flashed a quick grin. “$100,000 bail,” he said, seeming to marvel a bit at what had just happened. “That’s a lot of money.” Then it was on to the next arraignment.
“Everybody Is in an Emergency State”
In 1961, Clarence Earl Gideon was arrested for stealing a soda in Fort Lauderdale, FL. Unable to afford representation, he was sent to prison. His case reached the Supreme Court, which ruled in 1963 in the landmark decision Gideon v. Wainwright that every American has a constitutional right to an attorney.
has improved the plight of defendants unable to afford attorneys in the decades since the ruling, today many areas of the country are struggling to adequately and efficiently represent indigent clients. In under-resourced areas, public defenders routinely handle dozens of cases in a day, often juggling nearly 200 open cases at once, including a mix of misdemeanors and felonies.
“Everybody is in an emergency state,” attorney Travis Williams said in “Gideon’s Army,” the award-winning 2013 documentary chronicling the lives of several overworked public defenders in the Deep South.
In a stark example of how dire the situation has become in some parts of the country, the American Bar Association and the Baton Rouge–based consulting firm Postlethwaite & Netterville released a study in early 2017 showing that the state of Louisiana had only one-fifth of the public defenders needed to handle the nearly 150,000 cases per year that involve an indigent defendant. In Missouri, where the system is 100 percent state-funded, Michael Barrett, the director of the public defender system, last year sent a letter to Gov. Jay Nixon that went viral. Barrett planned to call on any private attorney in the state—including Nixon—to take on indigent defense cases that overloaded public defenders could not handle.
In New York, where funding for public defense is split about 60–40 between counties and the state and operates on a county-based delivery system, the picture is more hopeful. Public defenders have a limit of 150 felony and 400 misdemeanor cases at a time as dictated by law. Other more recent reforms, such as a law shifting funding back to the state, have improved the outlook for public defenders and their clients. And Brooklyn Law School graduates continue to push for more effective representation of indigent clients.
You're dealing with things that most members of polite society are not dealing with. If you tend to wear your heart on your sleeve, there are cases that will break it. - Robert Riether '08
Karen Smolar ’92, who was an Edward V. Sparer Public Interest Law Fellow, is now trial chief at Bronx Defenders. She works constantly to train attorneys to triage cases as professionally and effectively as possible. She created and directs the Defenders’ Academy, which teaches trial skills to public and private attorneys around the country. The program includes instruction from artists, actors, voice coaches, and storytellers, as well as legal experts, and is aimed at improving attorneys’ courtroom skills no matter how many cases they are carrying.
“The ability for public defenders to actually get that kind of training is pretty limited—the budget for training is often one of the first things cut,” said Smolar. “The effect is that you have lawyers who are being saddled with very significant caseloads and really complicated cases, and some are not able to adequately defend their clients.”
Bronx Defenders takes what it calls a “holistic” approach to lawyering, in which defendants have a whole team of attorneys behind them in every aspect of their case, plus any collateral consequences that stem from the case such as housing or employment issues. But it is the beginning of the process—the arraignment—that can often be the most important, according to Smolar, and it is often the most fraught because of an ongoing controversy involving which defendants must be locked up before facing trial.
“What happens to a person at arraignment changes every single thing about what happens afterward,” she said. “It's very easy to say let’s just take nonviolent offenders and let them out of jail,” but that’s not actually solving the problem either. Our jails and prisons are filled with people who are charged with serious violent offenses, but there aren’t a lot of people assessing whether keeping them in is actually a thoughtful, useful, productive thing for either that person or society.”
New York City is home to some of the biggest and most innovative public defense organizations in the country, but even here, said Luongo of the Legal Aid Society, it can feel like the “deck is stacked.”
“As public defenders, it’s our job to be on the front line of reform efforts that talk honestly about the issues, the past, racism, and oppression, and try to be proactively involved in holistic approaches that make things better,” she said.
Legal Aid works to set standards for speedy arrests and practice vertical representation of clients, staying with them for their entire case. Many other public defense organizations around the country do the same. In hopes of cutting down on the number of clients in need of public defense, Legal Aid is currently working on many reform efforts, such as New York’s gravity knife law, which jails people who carry knives that can be flipped open, and the organization is responding to a recent uptick in activity by Immigration and Customs Enforcement (ICE) in New York City courtrooms. In 2015, the organization created a “cop accountability” database to give public defenders easier access to police misconduct records.
“What amazes and inspires me is the number of people coming out of law school wanting to do this work,” said Luongo. “We win a hearing, win a suppression, win a trial—there are those wins. But we quickly learn, in our work, how to redefine a win. It must be about how we practice, not about legal wins.”
Professor Jocelyn Simonson, who spent five years as a public defender in the Bronx, said she had to make the same kind of mental adjustment. “I had more than 2,000 cases during that time. A lot of them were just five-minute arraignments; some were monthlong trials. I was a darn good attorney, but was it really possible for me to be a good attorney in less than five minutes?”
In addition to teaching at the Law School, Simonson is still trying to make a difference in the lives of indigent defendants. She is a prominent voice in the bail reform movement, writing often about the emerging practice of creating community bail funds and the movement to end cash bail, which keeps 450,000 criminal defendants in jails every day because they cannot afford to pay.
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Making Change Around the Country
Brooklyn Law School alumni in other parts of the country are also working hard to defend justice for indigent defendants. As an appellate public defender in Minnesota who represents clients in both state and federal court, Leslie Rosenberg ’83 has a caseload full of serious felonies, and the defendants are often juveniles. She handles post-conviction proceedings in district courts, as well as direct appeals to the Minnesota appellate courts, and occasionally she finds herself appealing to the nation’s highest court. She recently filed a petition for writ of certiorari with the U.S. Supreme Court for a client convicted of shooting a store clerk and two eyewitnesses. The juvenile defendant was given three consecutive life sentences for the crimes, with no possibility of parole. Rosenberg is challenging whether the sentence violates the 2012 Supreme Court decision in Miller v. Alabama, which held that the Eighth Amendment prohibits a juvenile from being sentenced to mandatory life without the possibility of release.
Rosenberg admits that it takes a certain kind of emotional strategy to do the job day in and day out, especially since at the appellate level she and her colleagues lose most of their cases because the standard of review is against them—their clients already have been convicted. But she believes the simple fact that they are there, doing this job, as evidence of the system working. “Even if we lose our cases, we are still maintaining that system of checks and balances. That is how the Constitution is sustained and protected—just by us being there to appeal.
“I try to remember that I’m just one person doing my best,” said Rosenberg. “I can’t blame myself for losing cases where the law is against me and the facts are against me. What’s hard about being a lawyer for many people is that you might be a bright, high-achieving person used to doing well at school, but as a lawyer you can’t control whether you win.”
Michael J. Novara ’87 is the first assistant federal public defender for the Western District of Pennsylvania, which includes Pittsburgh. He started his career with a federal judicial clerkship in Pittsburgh, which showed him the power of the federal government generally, and the Department of Justice in particular. He was drawn to the role played by assistant federal public defenders in keeping that power from overwhelming the rights of the individual. Novara joined the Federal Public Defender’s Office for the Western District of Pennsylvania in 1992, and has been second in command of the office of more than 40 attorneys since 2004.
Novara’s work includes pretrial hearings, research, investigations, and sentencing memoranda similar to those of other public defenders, and he also occasionally handles cases before the U.S. Court of Appeals for the Third Circuit.
“At the end of the day, I know in my heart that I am helping people at some of the most vulnerable moments in their lives—fighting to keep the government honest—and that feeling will hopefully keep me motivated and going for many years to come,” he said.
In San Francisco, former Edward V. Sparer Public Interest Law Fellow Anita Nabha ’09, deputy public defender in the Office of the San Francisco Public Defender, typically spends her days in various courtrooms handling arraignments, trials, and settlements, and in jails visiting clients in custody. “The cool thing about being a public defender is that you can get knee-deep into all kinds of issues you didn’t know anything about,” she said. She hadn’t had a fingerprint case until recently, and suddenly found herself doing research about the forensics of fingerprint evidence because of a residential burglary case in which the only evidence was a single print.
Many public defenders would love to spend time doing that kind of work, but the reality is that they often don’t have the time or resources to devote to this kind of deep investigation; even when they do, cases end in plea deals. The San Francisco Public Defender’s Office is an example of what many public defense offices aspire to, especially when it comes to training. Attorneys there must spend about two years in the misdemeanor unit and are allowed to go into the felony rotation only after they’ve done 20 misdemeanor jury trials.
Alumni of the Law School are among the thousands of public defenders working through a thicket of laws, policies, and institutional problems to provide fair and efficient representation to their clients. There are no easy answers. Whether they work in New York, California, or elsewhere in the country, many face the same difficulties, but all come to the work with a sense of mission that keeps them going.
“When I am faced with high-risk situations and very difficult decisions,” said Nabha, “I assure my clients that I am going to give them what we call ‘the best defense that money cannot buy.’”