Why Ferguson Teaches Public Defenders That They Too Need to Start Listening

Lawyers, particularly public defenders, must listen and orient to the communities they are obligated to serve

On November 24, 2014, I and two other attorneys from The Bronx Defenders traveled to Ferguson, MO to assist local and national civil and human rights organizations with legal observing and support in advance of the highly anticipated grand jury decision regarding the killing of unarmed teen Mike Brown. By around 9:00pm, we made it to a small parking lot in the middle of West Florissant Avenue, Ferguson’s main thruway, as District Attorney Robert McCulloch began his long-winded grand jury announcement. The tension was palpable, heavy in the air. And it remained during the entire time we were in Missouri that week.

We had several reasons for traveling to Ferguson in that moment. We sought to lend our professional skills as attorneys and public defenders in whatever way we could to a marginalized community that sought to make its voice and anger heard in the face of intense state suppression. We hoped to strategize with local organizers and attorneys to assist them develop long term capacity-building to effect organic and sustainable change. And as progressive lawyers of color, we wanted to bear witness to a critical and historic moment of social dissent that exemplified the need for the work we do and the movement we had committed ourselves to be a part of.

During the time we were in Ferguson, we met with many civil rights and human rights attorneys from Missouri, New York and Florida that had been working tirelessly for months coordinating legal support for protestors. This group included domestic and international human rights lawyers, law students and trained volunteers, as well as a handful of dedicated local criminal defense attorneys, including those from the Arch City Defenders and St. Louis University Law School. What was strangely missing altogether were institutional public defenders who would have assuredly brought a certain knowledge, experience and capacity to deal with the situation unfolding in the streets, in the jails and ultimately in the courts.

As community-oriented holistic defenders ourselves, their absence seemed to us glaring and pointedly unfortunate. The need for public defenders to be prepared to respond to the events in Ferguson was easily predictable. Even those of us following from afar knew that scores would be arrested following the announcement, either through the planned civil disobedience actions or through the expected crackdown by law enforcement on organizers and Ferguson residents. Police had been heavy-handed and brutal in August and the community’s anger was expectedly growing over the fall. There was nothing to suggest that the need for robust advocacy and zealous defense of Ferguson residents would be any different. In fact, things seemed likely to be worse this time around.

The connections between poverty, race, policing and the criminal justice system are omnipresent nationally, including of course in the Bronx where I work. But this toxic nexus lends itself to a unique manifestation in greater St. Louis, including in Ferguson. What we saw over the several days we were in Ferguson was a community angered, frustrated and ultimately entrapped by a decades-long government experiment in systemic marginalization. We saw a legal system that actually is not broken, but willfully designed to subjugate and oppress.

From racially homogenous and aggressive local, county and state police forces, overlapping law enforcement jurisdictions, dozens of municipal court systems, and a politico-legal system that taxes by civil and criminal citation, the behemoth labyrinth of bureaucracy that is Ferguson and broader St. Louis is one that suffocates its residents. What we saw as we watched protestors dodge tear gas on Florissant Avenue, and in the days of protests and arrests following, was a direct thread from a community’s anger to a repressive legal system. And it is exactly the kind of domineering legal system that public defenders have legal and moral obligations to challenge on behalf of its clients and communities.

When we visited the Clayton Justice Center the day after the grand jury announcement (after waiting for hours in the cold as the county initially denied us access), we heard from arrestees who all told us similar experiences of being falsely accused, over charged, or being simply left unaware of their legal situation – their charges, their bail or their next court date. We heard from lifelong Ferguson residents who had been hauled into jail on serious felony charges merely for walking or driving on the streets of their own town. We heard from men and women who had been physically assaulted, verbally abused with racial slurs and taunted with mockery or even death threats. Their stories were profound and infuriating as many stories of our clients are. But more importantly, their stories were reflective of an ongoing government and legal scheme that has both literally and proverbially locked up large swaths of disenfranchised Black people.

Let’s be clear: a community-oriented and holistic defender in Ferguson would not be able to solve decades-long community grievances or historical injustice overnight, or perhaps ever.

It could, however, at least be part of the solution, and not part of the problem. A community and holistic defender could have been and can still be an effective outlet to challenge some of the micro and macro systems that have subjugated this community: draconian policing, due process issues around bail and custody, police brutality, the over- and mis- use of warrants, the collateral consequences of low level pleas, and the triage of mass arrests across the city. It could play an important role in participating in the broader justice movement in St. Louis, and serve as an ally and counsel to the representatives of the community it is obligated to serve. A community oriented holistic defender office could actively seek out a diverse legal and non-legal staff that connects to and better represents the community it represents. With the police, prosecutors office, and local and state government leaders turning their backs, and even their guns, on its people, public defenders may truly be the only hope in this justice system.

Just yesterday, a week after the Ferguson protests, President Obama and Attorney General Holder announced plans and significant funding to push police forces around the country, including in Ferguson, to embrace community policing models. This is an important and vital step towards healing the community, preventing such police killings and avoiding these moments from happening in St. Louis and around the country. But public defenders shouldn’t have to wait for the President and the Department of Justice to tell them to be more community-oriented. Public defenders already have distinct perspectives, frontline experiences, and therefore important roles to play when it comes to challenging defects and injustices in legal systems. Just as we do in court for our clients, we should be standing alongside communities in their struggle for racial and economic equality. It’s what history, and assuredly the future, demands of us. It’s time for defenders to stand up in Ferguson and across the country.

Over the course of the last several months, organizers and activists sought to remind the country that “Black Lives Matter.” This simple message is a sharp and devastating acknowledgement that there is much work to do in our nation. It is an acknowledgement that people of color, particularly Black Americans, continue to face existential threats from state power, social apathy and legal structures. And yes, it is a reminder to all of us, including us frontline constitutional defenders that we can and must do better. We can start by connecting to the communities we serve. We must listen.

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