About a quarter century ago, when I was a newly minted, untenured assistant law professor in Oregon, the state’s new governor nominated me to join the newly created Criminal Justice Commission. I had worked for the governor’s campaign, drafting position papers that enabled him, a Democrat in a very tough year, to win unexpected endorsements from police groups and rural sheriffs. This panel was tasked to examine state and local criminal justice issues. My appointment was not exactly a reward. It promised a lot of hard work and paid exactly nothing, but I felt proud to have a chance to serve my new home state.
But it was not to be. The new Republican majority in the state senate rejected my nomination out of hand. After my second year of law school, I had spent the summer as a clerk at the Federal Public Defender office in New Mexico. I know the FPD stint was the sole reason for my rejection because no one in the Senate Republican Caucus actually knew who I was. I use my middle name, Garrett, for all professional practice and writing. The Republican senators had boldly announced that they opposed “George Epps.” (In fact, at first, I thought they were opposing my sainted Uncle George, many years in his grave after a fabled career dealing cards at the Richmond, Virginia, Elks Club.)
Whoever the nominee really was, “George Epps” was rejected in a floor vote, and my brief political career ended.
Judge Ketanji Brown Jackson is also a veteran of the federal defender service. Republicans on the U.S. Senate Judiciary Committee have cited remarkably specious reasons to oppose her nomination to the Supreme Court. One of the minor ones is her two years of service at the office of the Federal Public Defender for the District of Columbia. If (as seems likely) she is confirmed, she will be the Court’s only member with significant experience as a defense lawyer. Two of the Court’s members—Justices Samuel Alito and Sonia Sotomayor—were prosecutors. The last justice to have represented a significant number of criminal defendants was Thurgood Marshall, who left the bench in 1991.
Of course, that is not the most historic thing about Jackson’s nomination. Nor is the Republican senators’ misrepresentations of the role of public defenders their greatest offense against decency. But in the great historic moment that is her confirmation, another small bit of history will be made: Jackson will be the first justice to have passed through the federal defender service, which was created by Congress half a century ago, with a statutory mission of providing competent defense to federal defendants who cannot afford to hire their own lawyers.
I, too, had a farcical confirmation hearing, at which I was asked this exact question (and others equally cogent): “Have you ever known anyone who was executed to commit another crime after that?” The Republican senators asked whether I had spent my eight weeks as a public defender using “technicalities” to free guilty felons from prison. The idea that everyone is entitled to a competent defense or that not all of the accused might be guilty cut as little ice in Salem, Oregon, in 1995 as it seems to have cut in the Senate Judiciary Committee in 2022.
My encounter with the Oregon State Senate gives me only the very tiniest taste of what it must feel like to be Jackson—to have ham-fisted, racially entitled louts proclaim loudly that some legal work renders a nominee a moral blot, a disease, and a danger to the Republic.
In fact, the lawyers in the FPD service are among the sharpest and most ethical attorneys I have ever met. FPD jobs are prized. The pay is not princely but adequate. The work is interesting, and the caseloads are manageable. The FPD lawyers I worked with were determined and persistent—the kind of attorneys any of us would be grateful to have represent us if we were ever in trouble.
During that New Mexico summer, I learned that no one, innocent or guilty, should have to rely on the goodwill of those who enforce the law and those who prosecute accused offenders. Both have blind spots and ethical lapses like other mortals. I also learned that criminal defendants sometimes lie, and their lawyers must do what they can to prevent them from committing perjury. Law enforcement personnel sometimes lie, too, and defense lawyers must know the facts thoroughly and make sure they are on the record even when prosecutors and judges are hostile if they are to prevent those lies from skewing a trial and ruining a life. I learned that whether innocent or guilty, the accused are usually terrified. As well they might be: Poised against them is the overwhelming power of their state government—or, for our clients, of the U.S. government, with its thousands of agents of the FBI, Secret Service, Customs and Border Protection, Immigration and Customs Enforcement, Drug Enforcement Administration, Fish and Wildlife Service, Forest Service, National Park Service, and Marshals Service—to name only a few.
None of the cases taught me as much as a drug prosecution that the feds trumpeted, but that was revealed to be a nightmare of government corruption. In June 1990, FBI and Customs Service agents arrested three men in a New Mexico motel. The U.S. Attorney charged them with being in the U.S. to distribute 1,646 pounds of cocaine that landed that day in a private plane at the Albuquerque airport. Our public defender office was appointed to represent one of these supposed cartel supervillains.
The Customs Service and the FBI held a press conference, scheduled even before the arrests, at which Michael Lappe, a Customs agent, proclaimed, “These drugs were a direct result of the Cali Cartel of Colombia.” That the shipment went to Albuquerque—not considered a major entry point for the drug trade—“is showing the cartels are resorting to extraordinary means to smuggle drugs,” he added.
In fact, by summer’s end, it was clear that those drugs (street value, the valiant federal agents told the press, of $74 million) were in the U.S. as part of a “sting” operation financed and carried out by the federal government itself; that our government was using “extraordinary means” to smuggle drugs; and that the supposed drug lords might very well have stayed in Colombia if the government had not made sophisticated and well-funded efforts to convince them to smuggle drugs so bureaucrats could preen before the public.
A federal court later found that taxpayer funds were used to buy the cocaine in Colombia; a U.S. government-owned ship, captained by a federal employee, then sailed the drugs near Puerto Rico, where government agents transferred the cocaine to a seaplane piloted by a Customs Service informant, who then flew them (stopping once to refuel) to Albuquerque. Those arrested at the motel, including two brothers of Colombian origin, had been recruited by a paid informant to receive the drugs. As a House of Representatives committee report later summarized the operation, “Customs led the media to believe that the delivery of cocaine into the state of New Mexico was planned and executed by the drug traffickers, when, in fact, Customs ha[d] supplied a pilot, an aircraft, a vessel, and took delivery from the Colombians.”
This bizarre scheme (apparently aimed solely at boosting government drug seizure figures) was just plain evil. To me, the worst of that evil is that, when our client and the other dupes appealed their convictions, the Tenth Circuit Court of Appeals briskly dismissed their claim, saying that “although the government was heavily involved in the cocaine smuggling plan, its involvement did not rise to the level of outrageous conduct.” I still wonder how bad government misconduct would have to be to disturb the slumber of those judges’ comfortable consciences.
This is the lesson of time spent in a public defender’s office: The government can do almost anything it wants, and the courts, our supposed watchdogs of liberty, will usually go along after the fact. Government can and will spend handsomely to make itself appear powerful, and if that incidentally ruins the lives of the powerless, no one with power will particularly care. Without someone smart, determined, and independent to speak for them, those targeted by the government stand little chance of escaping the net, whether they are innocent or guilty.
I learned that however it is phrased, the motto of every good defense lawyer might be: “I speak for this person, whatever their sins. By the oath I swore when I entered the bar, I will make sure that the government is held to its own laws. While I am able to speak, the government will treat my client as a human being and not a thing.” Without a zealous defense, criminal “justice” is merely brute force wielded against the powerless, accompanied by the insufferable self-praise of empowered brutes.
Ketanji Brown Jackson, in her two years with the FPD, represented, among others, accused terrorists held at Guantánamo, Cuba. These men are human, and our own Supreme Court has said that they have rights under the Constitution, and those rights mean nothing without legal protection. I would have been proud to sign my name to briefs testing their confinement, not because I liked them but because the government and the courts must follow the law.
My first assignment at the Albuquerque FPD was to write a petition for review to the U.S. Supreme Court, arguing that the jury that had convicted our client (who was serving time in federal prison) had been improperly polled, rendering his conviction unconstitutional. The justices denied our petition without comment.
At summer’s end, however, I got a letter with a Bureau of Prisons inmate number in its return address. The client whose petition the Court had rejected wanted me to know how much he appreciated what I had written for him. All the guys in his cell block, he said, agreed that it was the best certiorari petition they had ever read.
I never served on that Criminal Justice Commission. I will never be a judge or argue before the Supreme Court. But at my career’s end, as a professor and an author, I will remember having spoken for a man who otherwise might have had no one to speak for him. I will have the memory of the graciousness of that man whom I never met but who reached out to thank me for doing my job.
Jackson’s senatorial tormenters have spent their lives serving the powerful and devising new ways to torment the powerless. In their past deeds and their present demeanor, I see no signs of human feeling for anyone but themselves and those who can help them ascend society’s greasy pole.
In the midst of many joys at this historic moment, I rejoice that the Supreme Court’s next justice has, at times, spoken for those who would otherwise have no voice.
