Making a Pro-Prosecutor Supreme Court

“Potential Supreme Court Candidate Defended Pipe Bomber, Child Murderer,” screamed a March 14th headline from the Washington Free Beacon. The article’s subject was Judge Jane Kelly of the U.S. Court of Appeals for the 8th Circuit, then rumored to be on President Obama’s shortlist of potential replacements for Justice Antonin Scalia on the United States Supreme Court. As mentioned here last month in discussing Kelly as among the candidates likely to be chosen by Obama, her legal career includes a lengthy stint as a federal public defender prior to joining the regional appeals court covering Arkansas, Missouri, Minnesota, and her home state of Iowa. The Free Beacon detailed, hysterically and without context, that as part of her work as a federal defender, Judge Kelly represented defendants accused of domestic terrorism and child pornography, the latter of whom subsequently sexually assaulted and murdered a child. In doing so, the article tracked reporting originating from former Supreme Court clerk Carrie Severino. In a post on the National Review’s website, Severino wrote about Obama’s apparent interest in the Iowan for the High Court:

As the White House’s vetting process unfolds, they will probably find other facts that are significantly less convenient. For example, when Kelly worked as a public defender she helped secure a plea deal for one Casey Frederiksen, a convicted child predator.

Insinuated but left unsaid in this account (by a lawyer who should know better) is that there is something unusual or untoward about Kelly’s work. Indeed, the undertone of this press coverage suggests equivalence between defending a criminal and abetting a criminal, when the difference could not be starker. Indeed, the reaction to news that Kelly represented clients accused of heinous crimes by anyone with a small amount of knowledge about the role of a public defender in our criminal justice system would likely be: Well of course she did. And the reaction of a trial lawyer with a slightly greater understanding might very well be: Wow, that must have been terrific trial experience. Severino’s distortion, however, is more than a simple misunderstanding. It is part of a longstanding imbalance in the scales of justice exacerbated by the intrusion of rank politics into judicial selection. The rise and fall of Judge Kelly’s prospects are a blow to the rights of anyone accused of a crime in this country, and part of a disturbing trend in the politicization of judicial nominations.

Make no mistake, the organized campaign against Judge Kelly was both unique among President Obama’s serious Supreme Court candidates and clearly fatal to her chances of selection. In the week leading up to Obama’s nomination of Judge Merrick Garland to fill the vacant Supreme Court seat, the Judicial Crisis Network began running advertisements against Kelly for daring to do her job as a federal defender. The advertisement stated:

This is Jane Kelly. President Obama may appoint her to the Supreme Court. As a lawyer she argued that her client, an admitted child molester, wasn’t a threat to society. That client was found with more than 1,000 files of child pornography and later convicted for murdering and molesting a 5-year-old girl from Iowa. Not a threat to society? Tell your senator, Jane Kelly doesn’t belong on the Supreme Court.

Articles and posts such as Severino’s appeared with increasing frequency. The efforts to discredit Kelly and/or dissuade Obama from taking the political risk of choosing her rose to such a level that Senator Harry Reid called them a “smear” campaign. Then, as was inevitable, the New York Times reported the same day as the Free Beacon article appeared that Kelly was “said to have fallen lower on the president’s list in recent days because of concerns that her roster of criminal defense clients could yield lines of attack for Republican critics.” Once part of the shortlist of six, Kelly soon was widely reported to have failed to make the final three, believed to be comprised of centrist judges Paul Watford, Sri Srinivasan, and Garland. On Wednesday, Obama introduced Judge Garland in the Rose Garden, touting his experience as a federal prosecutor.

It turns out that this misleading depiction of a public defender’s duties also mischaracterized Kelly’s actual statements on behalf of her clients. But regardless, these accusations are deeply unfair. As many others have noted, the United States Constitution guarantees criminal defendants the right to counsel. Court-appointed attorneys do not get to pick and choose between the clients they represent. That Kelly represented defendants who committed terrible crimes is thus a difficult, but unremarkable part of the job. And this indictment of the very role of a public defender is utterly antithetical to the Constitution and the democratic ideals of due process and the presumption of innocence that it stands for.

Public defenders at both the state and federal levels provide a critical and noble public service. They represent individuals charged with serious crimes, who are too poor to retain a lawyer for themselves. Without their services, thousands of people each day would be forced to confront a frightening and confusing system already weighted against them. At stake is nothing less than their liberty and other basic freedoms. The costs of conviction are enormous. Beyond the obvious specter of significant jail time, criminal defendants charged with even lesser felonies can often face the loss of parental rights, lasting and onerous parole restrictions, and the inability to find meaningful work upon release. Meanwhile, the challenges of collecting evidence, responding to accusations, and making strategic decisions and legal argument in a labyrinthine series of hearings and obscure procedures are substantial. Forcing the indigent to conquer this process or else face these serious consequences might be tolerable if, as the anti-Kelly campaign assumes without explanation, every defendant is as evil as they are guilty. Perhaps it would be justified if the government was both benevolent and infallible. But this is simply not the case.

The many flaws in the criminal justice system were made abundantly clear in a Netflix documentary miniseries sensation that recently attracted significant press attention. Although far from perfect, Making a Murderer demonstrated the tremendous peril any person faces when charged with a crime, especially without adequate education or resources to combat it. While the ultimate guilt or innocence of the show’s central character is still unsettled, there is no doubt that Steven Avery’s murder conviction and resulting life sentence were a travesty of justice. To briefly summarize, Avery was convicted of a 1985 rape and served more than a decade in prison before his exoneration through DNA testing. It turned out that the local police department illegally withheld exculpatory evidence from Avery’s defense team at the time and ignored a credible alternative suspect, doing so likely because of the police’s unrelated animus towards Avery. Then, in a remarkable turn of events, years later the same police department arrested and charged him with murdering a young woman, despite significant weaknesses in their timeline of events and the reliability of their physical evidence and witness testimony. At trial, Avery’s defense team uncovered glaring police and prosecutor misconduct and presented a compelling case of police framing. The filmmakers also ably demonstrated how the prosecution team grotesquely coerced a confession from a mentally disabled teenager to aiding Avery in committing the crime, and then poisoned the jury pool with that confession through aggressive, improper dissemination through the press. This tactic was particularly prejudicial, as the confession was ultimately held inadmissible at trial.

Admittedly, this is an extreme (true) story. Most cases do not approach such levels of salacious detail or brazen conduct. But the temptations acted upon by local law enforcement there are present everywhere, and as we’ve seen in every other walk of life, given sufficient incentive, human beings will often resort to immoral acts. Although always necessary and frequently heroic, law enforcement is no different. Not only are the innocent sometimes convicted, but the guilty are often overcharged, over-sentenced, and inhumanely treated. The right to free, appointed counsel, then, is not only an abstract formality but a practical necessity. Public defenders are vital to liberal norms and democratic ideals.

Even beyond this basic truth, however, Making a Murderer demonstrated the importance of a good defense attorney. Perhaps the documentary’s most moving and impressive examination of the case was its focus on Avery’s two lawyers—Dean Strang and Jerry Buting. The filmmakers carefully depict their exhaustive effort, investigative innovations, painstaking preparation, and tremendous sensitivity and thoughtfulness to their client and his family. Indeed, perhaps the film’s greatest thematic and artistic contribution was its inside look at Strang and Buting’s internal deliberations and external advocacy on behalf of Avery, romanticizing lawyering’s embrace of the outcast in the tradition of Inherit the Wind and To Kill a Mockingbird. Mentioned only briefly in the series, however, was that Strang and Buting were not court-appointed lawyers but in fact counsel retained by Avery. Although the product of a poor, rural community, Avery was uniquely able to afford excellent private counsel by settling his civil suit against the county and the police department arising out of his previous, wrongful conviction (a suit that was settled for far less than fair value out of the necessity to pay his criminal defense attorneys and which perhaps served as the impetus for the police’s aggressive handling of the murder investigation). In contrast, the show delves into the disgraceful representation of the teenaged alleged co-conspirator by his appointed counsel (although this lawyer, too, was in private practice and not part of a public defenders’ office). This juxtaposition exemplified the difference between a poor attorney and a dedicated public servant committed to one’s defense.

If denigration of the very existence of public defenders led to Kelly’s rejection, then this growing disparity between court-appointed and privately retained counsel will likely continue. The incentives are already stacked against intelligent, capable lawyers becoming public defenders, although many still admirably do. Salaries are low, especially in comparison to those available at private law firms or even as federal prosecutors. Caseloads are taxing, as the federal and state governments slash budgets and freeze hiring. And clients are difficult, as even the innocent are often evasive and abrasive to their own attorneys. These conditions are unlikely to change soon. Therefore, it is imperative that society does not close alternative avenues benefitting those who choose to engage in this needed form of public service. Jane Kelly attended Duke and Harvard Law School and clerked for two federal judges. Her qualifications as an advocate were thus exceptional for any client, let alone an indigent one receiving her services for free. Lawyers like Jane Kelly are rare, period. But public defenders with credentials even modestly approaching hers are increasingly rare, too. Students from the top law schools simply respond to the job market and incentives presented to them, and unfortunately fewer of them (understandably) are willing to make the substantial sacrifices required. If we also close off opportunities for career advancement ostensibly available to them, then we will have further imperiled an already overburdened and increasingly imbalanced criminal justice system.

An early examination of Judge Garland’s record reveals him to be a brilliant mind, cautious jurist, and dedicated public servant with a generous personality and an ideological record closely resembling what one would expect of an Obama appointee. As has been reported in a number of places, however, Garland’s record on criminal justice issues is decidedly more conservative than other potential nominees. Yet this attribute is considered a feature not a detriment. As he did when nominating Justice Sonia Sotomayor, President Obama lauded Garland’s alliance with law enforcement and prosecutorial record. In a vacuum, there is nothing wrong with these sentiments. But when held next to the rejection of an early favorite for the job due to political concerns over her public defender past, it amounts to a thumb on the scales of justice in government’s favor. These influences over time no doubt cause glaring shifts in the federal judiciary. The pressures at the state level are likely even greater, considering that the vast majority of states remain committed to judicial elections rife with the type of advertisements used this month against Kelly. As advocacy for criminal justice reforms has grown over the past eighteen months, the value and plight of the public defender must be central to that movement. Advertisements like the ones run these past few weeks must not go unanswered.


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