On the evening of September 10, 2001, I was a public defender at the Legal Aid Society working the night shift in arraignment court in Manhattan. My shift ended at 1:00 a.m. and I had to be back in court the next morning. While I was supposed to be at the office by 9:00, I had taken the files I needed for the next day home with me so that I could head directly to court where most judges didn't take the bench until 9:30.
On the evening of September 10, 2001, I was a public defender at the Legal Aid Society working the night shift in arraignment court in Manhattan. My shift ended at 1:00 a.m. and I had to be back in court the next morning. While I was supposed to be at the office by 9:00, I had taken the files I needed for the next day home with me so that I could head directly to court where most judges didn't take the bench until 9:30. I was living in Brooklyn and was on my way to the subway, the C line that ran directly under the Twin Towers, when the first tower was struck at 8:45 a.m. Many of my fellow public defenders were already at our office in lower Manhattan, only a few blocks away from the towers.
In the days following September 11, the part of the city where we worked became “ground zero”. We couldn't get to our office, the courthouse or the jail. We weren't sure when the courthouse would reopen and the Governor had issued an executive order suspending the right to a speedy trial. We worried about our clients on Riker's Island who were being held indefinitely.
After several weeks, the courthouse slowly reopened. We found out that cases had been “administratively adjourned” and that trials had been suspended. When prosecutors failed to meet filing deadlines they invoked the Governor's order suspending the right to a speedy trial. If a hearing or a trial required the testimony of a police officer, the prosecutors claimed that the officer was engaged in counter-terrorism operations and was therefore unavailable.
A month or so after September 11, I was assigned to a misdemeanor courtroom where there would normally be over 100 cases on the calendar. My job was to “catch” the part, meaning that if some of my colleagues couldn't appear because they were on trial, in a hearing, or just stuck in another courtroom, I would take their place. On this particular day, the usually busy courtroom was mostly empty. Clients who were not in custody and didn't appear had their cases adjourned. Some clients who were in custody were not brought to court by the Department of Corrections. Some clients who were in custody but their case was not on the calendar were brought to court. The decision making of the Department of Corrections was inscrutable.
Late in the afternoon, a court officer told me that the Department of Corrections had brought a Legal Aid client to court whose case was on the calendar a week ago. When he wasn't brought to court the week before, his case had been adjourned and he wasn't on the calendar today but since he was here, his case had been added to the calendar.
I can't remember the name of the man I represented that day, or the crime he was charged with. What I do remember is that he was charged with a misdemeanor and that the complaint filed against him relied on hearsay. In New York, that is a problem; a problem the prosecution should have fixed before his scheduled court date. Under normal circumstances, he would have been released.
I spoke to him briefly before his case was called and told him I would do what I could to get him released. When we went before the judge the prosecution made their standard argument: speedy trial rules don't apply and even if they did, there are exigent circumstances that made it impossible for the police to locate the witnesses that had first-hand knowledge of the defendant's conduct.
I don't remember how I started my argument but I do remember how I finished it: if this man stays in jail, if we tolerate the suspension of due process, if we renounce our principles out of fear, then the people who flew planes into the Twin Towers have won; they have revealed to the world that we are not who we say we are. The argument worked. The client was released.
I have no idea how his case ended, but every year on the anniversary of September 11, I can't help but think about those few minutes I spent on that case and the argument that I made.
I think about how I made that argument to an empty courtroom. I think of all the arguments we make as public defenders to empty courtrooms, or to courtrooms filled with people waiting for their cases to be called. I think about how our system of mass incarceration has transformed galleries meant for the public into waiting rooms for the accused.
I think about how we represent a client and the Constitution at the same time. I think about how we make sure the client is heard and the law is followed; how we must be both compassionate and aggressive. How our place in the courtroom was not given or earned but ordered by the Bill of Rights.
I think about all the clients we represent for only a few minutes, when we are covering for our colleagues. How we see clients as belonging to us but also see every person who is represented by a public defender as our client. How we represent a person but also city blocks, neighborhoods and zip codes. How we will zealously represent our clients and trust our colleagues to zealously represent us when we can't be there for our clients.
I think about how public defenders have chosen a path of honorable anonymity. We prize dismissals and acquittals. We want empty jails and prisons. When we win, we want the record of what we did erased. We serve our clients and country but want no memorials.