Subtle Messages of the Courthouse

Subtle Messages of the Courthouse

via Simple Justice by SHG on 7/21/10

A few days ago, the notion was raised that courthouses, the place where citizen jurors come to decide the fates citizen defendants, create an atmosphere that places officers in charge and on a pedestal.  We pass through magnetometers operated by marshals or court officers.  We watch as police officers roam freely, shown deference by everyone in the house because they are, after all, the embodiment of the government. 

Eric Johnson at PrawfsBlawg takes it further.

In many places around the country, the United States Attorney's office is in the same building as the federal courts. I've never liked this arrangement. Sure, it's convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about "avoiding even the appearance of impropriety," it is unseemly, I think, to have the government's advocates down the hall from the judges.

That we don't give this much, if any, thought demonstrates how ingrained our acceptance of the status quo, that they are the government and we are not, is.  We talk about the courthouse as a palace of justice.  The judges are the Kings, and the others are courtesans.  The defense is the perpetual outsider, seeking the largesse of the noblesse.

Why aren't courthouses built with some available office space for criminal defense lawyers?  How do we expect jurors to be herded through the doors and around the courthouses by court officers, who appear (if not in fact are) the first cousins of the police officers we tell them are liars? 

And as the lawyers who are in the employ of the government get to assume the name of The People, a group that includes The Jurors, does the fact that they share an elevator with the judge have any impact on their credibility and purpose?

Upon reflection the entirety of the construct suggests that to people that there is an inside and an outside within the judicial system, and we, the defense, are clearly on the outside.  Notably, we are the only group not in the direct employ of the government, though we are increasingly in its indirect employ, yet still don't get the benefit of an inside office.

A few years back, a decision was made that New York City criminal defense lawyers, who were as unworthy of trust as their clients, would be required to pass through the magnetometers like everyone else.  Everyone except cops, prosecutors and judges, that is.  It was for safety reasons.  They could be trusted.  We could not.

The president of the NYSACDL at the time, Dick Barbuto, was furious that we would be overtly signaled out as the only regular participants in the legal system who would be treated in this manner, and shot off a letter demanding the criminal defense lawyers be treated no differently than prosecutors.  The letter was not only brilliant in its incisive analysis of the situation, but incredibly forceful in its demand of the court administration that criminal defense lawyers not be treated like second (or third) class citizens.  within a few days, the administration relented, the policy ended and criminal defense lawyers were allowed to enter with their secure pass, as before.

While I've long used the word "prosecution" to refer to my adversary, rather than "People" or "Government", to avoid the taint that comes from the inherent sense that they represent the good while I represent the person accused of doing terrible harm, there are so many aspects of the courthouse construct that serve to reinforce the message that they are the trusted insiders and we, well, are not.

While there are, as Eric Johnson suggests, some sound economic and safety reasons for the status quo, there are also some subtle, and not so subtle, messages that are sent along with it.  These might be considered unintended consequences of the natural development of the criminal justice system, but it's not entirely clear that they are unintended.  It's also not quite clear that once recognized and challenged, anyone in power will lose any sleep over it.

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