Leveling the Legal Playing Field: Why Everyone Deserves Their Day in Court

I am drawn to people in trouble. Maybe this is because I had a little sister who was often in trouble. My sister had “problems” as a young child. Once, in kindergarten, she was finger painting. When it was time to clean up and move to the next activity, the teacher said, “Okay, class. Time to put everything away.” My sister ignored her. The teacher approached my sister and, calling her by name, directed her to put the paints away. My sister kept painting. When the teacher repeated her request, my sister picked up her paint-covered hands and wiped them on the teacher’s dress.

I grew up intervening on my sister’s behalf, fighting her battles—at home, school, and in the neighborhood. Sometimes I literally fought for her. There was a red-haired boy named Alan who, in second grade, called my sister a name. I gave him a bloody lip, which got me sent to the principal’s office. This was my first and only visit to the principal. It was worth it.

I don’t think I’ve punched anyone since. I tend to fight my battles in court. From that point on, it wasn’t a great leap to others in trouble. I mean “trouble” broadly, not just the kind my sister got in, or the kind that lands people in the criminal justice system. I feel a natural sympathy for people in difficulty or distress. It doesn’t matter who they are. The fact that they are in trouble is what makes me want to defend them.

This is ironic since patience is generally not my strong suit—I can be brusque and dismissive. I am not known for my attention span—I tend to lose interest quickly (except when it’s me who’s talking; then I’m riveted). I have many more flaws: I can be a smart aleck, sarcasm is second nature, I don’t suffer fools gladly. If I am any guide, you don’t need to be the nicest person on Earth to want to help people in trouble.

I am probably nicer to people in trouble than I am to ordinary people—even more so if I don’t know them. No one should take from this kindness to strangers any great meaning, biblical or otherwise. I might be nicer to strangers only in comparison to people I know. I laugh when a friend or family member takes a pratfall. I can barely stop laughing long enough to help them up.

I seem to broadcast a certain receptiveness to trouble. I am regularly accosted and confided in by people with problems: on the street, in the subway, and at the grocery store. This is multiplied many times in the courthouse. It never fails: the anxious person with a summons, subpoena, or son in jail manages to find me. I don’t know why this is.

Ordinarily, I am not terribly interested in “needy” people. I don’t have the stamina to weed through layers of need. But with people in criminal trouble there is a built-in narrative that draws me in—something happened and something else will happen to resolve it one way or another. It doesn’t need to be a serious or high profile crime for there to be a good story: a gripping tale of comedy, tragedy, theater.

A student and I recently represented a man I’ll call Lester Johnson, who was accused of shoplifting a pair of electric clippers from a CVS pharmacy. Even though the crime was captured on videotape, Mr. Johnson refused a plea for probation and insisted on going to trial. He was forty-nine years old. He had been in trouble in his youth, but not for years. He did a stupid, impetuous thing, but thought the store should have let him go when they recovered the clippers. He understood the system well enough to know that sometimes even clear-cut cases fall apart: witnesses don’t show up, evidence is lost. He wanted a trial or a dismissal.

It turned out the trial date fell on Mr. Johnson’s birthday.

When the government declared it was ready to go to trial— the store security guard was present, videotape in hand—Mr. Johnson said he was ready, too. It was unclear to me whether this was a matter of principle—the government should have to prove its case—or Mr. Johnson had backed himself into a corner by maintaining he wanted a trial.

I talked with him to try to understand exactly what his objectives were. We didn’t have much time. We also didn’t have much privacy—as often happens we talked in the hall just outside the courtroom. The judge had given the case a brief recess and would soon call us back.

Although the plea deal was off the table, Mr. Johnson still had the option of pleading guilty rather than going to trial. The judge who would hear the trial or plea was someone I’d appeared before many times. He was fair-minded. If Mr. Johnson pled guilty and expressed genuine regret at sentencing, I believed he would be sentenced to no more than a year of probation. But pointless, time-consuming litigation would surely test the judge’s goodwill. I explained this to Mr. Johnson. I made clear that we were prepared to go to trial if that’s what he wanted, but he should fully understand that a trial here would be more like a “slow guilty plea.” If Mr. Johnson’s objective was to avoid jail, he should plead guilty. If his objective was to have his “day in court,” no matter the consequences, he should go to trial. I acknowledged that he might still receive probation if convicted at trial. He remained adamant. We went back and forth, but, in the end, I told him it was his decision and we would go to trial.

I went to check on a case in another courtroom. By the time I returned, things had changed drastically. A busload of middle-school children had suddenly descended upon the courtroom where the shoplifting trial would occur. There must have been forty kids on some sort of field trip.

I grabbed Mr. Johnson and threw all that client-centered counseling to the wind. “Forget trial,” I said. “There’s no way the judge won’t make an example of you in front of all those children. He’ll use you to teach them not to shoplift. He’ll talk about how we all suffer when people steal: shops have to hire security, consumers have to pay higher prices, we are all under constant surveillance. But if you plead guilty—if you ‘man up’ and throw yourself on the mercy of the court—the judge will be magnanimous. He will show those kids that judges have a heart when an accused takes responsibility for his actions and is contrite.”

I didn’t give him much of a choice; he went with the plea. Mr. Johnson was so good during the plea and sentencing—he was honest and forthcoming, made no excuses, said he was ashamed of himself, and swore this would never happen again—the judge gave him only six months nonreporting probation. When it was over, he threw his arms around me. He was delighted with the outcome. He said he couldn’t thank me enough for saving his fiftieth birthday.

Most of those accused and convicted of crime are poor. Disproportionate numbers are nonwhite. There are now more black people currently under the control of the criminal justice system than were enslaved in 1850. I suppose this is why “nobody really cares” about the quality of criminal justice in the United States, or the fact that we currently lock up more people than any other nation on Earth in the “history of the free world.” Who gives a damn about a bunch of poor, black people in prison?

I do. And so does every public defender in America—or at least they should. I often tell students I became a criminal lawyer because I read the book To Kill a Mockingbird (and saw the movie version) too many times as an impressionable child. For me, there is no more compelling figure than Atticus Finch, the archetypal criminal lawyer defending a wrongly accused poor black man. That Gregory Peck played Finch in the movie only contributes to his iconic stature.

Criminal defenders are, by and large, poverty lawyers. You can’t spend any amount of time in criminal court and not see that it is a poor people’s court. You can’t step foot in a jail or prison and not notice they are full of poor people.

We are not very good at talking about poverty in this country. We don’t seem to want to acknowledge its existence. But we must talk about poverty and advocate for those who bear the brunt of it. In his final column for The New York Times, Bob Herbert decried the lack of concern about poverty and called the growing divide between rich and poor “scandalous.” This is not hyperbole: in 2009, the richest 5 percent of Americans claimed nearly 64 percent of the nation’s wealth, while the bottom 80 percent held less than 13 percent.

I have never known poverty in any immediate sense. My own life could not be more different from that of most of my clients. I grew up with all kinds of advantages: no opportunities were beyond my reach. I am drawn to the poor because no one should be destitute and hungry, lacking decent housing, neighborhoods, schools, and medical care in the wealthiest nation on earth. I feel implicated by the inequality and unfairness of this.

The Reverend Martin Luther King Jr. could have been my kind of defender: “I choose to identify with the underprivileged. I choose to identify with the poor. I choose to give my life for the hungry. I choose to give my life for those who have been left out…”

Eugene Debs could have been my kind of defender too:

[Y]ears ago, I recognized my kinship with all living things, and I made up my mind that I was not one bit better than the meanest on earth…[W]hile there is a lower class, I am in it, while there is a criminal element I am of it, and while there is a soul in prison, I am not free.

But I confess that I am also drawn to any underdog—the little guy, not the big one; David, not Goliath; the Cubs, not the Yankees. I often tell students that growing up a Chicago Cubs fan probably helped pave my life path.

The underdog is not necessarily poor or black. [For example, two of my clients] are white and were some version of middle-class before their incarceration. But if they are ever released, neither will have an easy time of it. Neither came from money, is college educated, or a skilled worker. [One of my clients, named] Delores, worked as a nurse’s aide before her arrest and conviction. As a convicted murderer, it’s doubtful she’d find employment as any sort of caretaker. [Another client named] Ronnie was a struggling high school student. He has never held a job outside the prison walls.

Moreover, some criminal justice underdogs were once top dogs. That’s the terrifying thing about a criminal prosecution: the once mighty can suddenly be brought low. Although I have represented very few non-indigent clients, the fear, anxiety, and vulnerability that accompany a criminal accusation transcend class.

There’s also something fun about fighting for the underdog in criminal court: the stakes are high, the battle hard-fought, the outcome uncertain. The lines are also refreshingly clear. Defenders fight for underdogs against the enormous power of the State. It’s the Good Fight.

What’s more, we have to be that much better—tougher, smarter, more creative, more resourceful—in order to level the playing field. As one writer puts it: “It’s always a stacked deck for the state and often the defense attorney’s very best work is simply not good enough to overcome the power and the might.” This can be frightening, but it is also exciting. Sometimes you can literally beat the government. There’s nothing more thrilling than this, nothing more intoxicating. The wins help keep you going.

But the thing about siding with the underdog is you don’t always win—in fact, mostly you don’t—and it can be devastating when the government puts a human being under your care in a steel cage or kills them. Each defender has to figure out a reason to continue the fight.

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This essay, “Defending Those People” by Abbe Smith, is excerpted from Dismantling Mass Incarceration: A Handbook for Change, edited by Premal Dharia, James Forman Jr., and Maria Hawilo, and published by FSG Originals, July 2024. It originally appeared in the Ohio State Journal of Criminal Law. Copyright © 2012 by Abbe Smith. All rights reserved.