Criminally Yours: Waving The Freedom Flag

It’s getting tougher to find jurors who understand and embrace the very rights the Constitution put in place to protect us all when it comes to criminal defendants.

I was assigned to represent a man accused of terrorism in federal court a few years back. The trial opened the week of July 4th, and while there was a decent defense (he really did nothing to promote terrorism), I knew any defense would be a tough sell to a panel of jurors living in the metaphorical shadow of the World Trade Center.

After picking from a venire of 600 jurors, it was time for openings and the inevitable defense attorney dilemma — how to say something to defend your client, but not promise anything. Because this was one of my first federal trials (more on this in another column), I consulted a more experienced federal attorney and asked for his opinion.

The case involved an alleged plot to blow up gas tanks at JFK airport — a threat that could not have been realized, and was largely instigated and promoted by a government cooperator who needed to unearth some kind of terrorist scheme in order to save himself from 25 years in jail.

My colleague suggested that because it was on the heels of the 4th of July, “Wave the American flag. You’re out there protecting not just his freedom, but all of ours.”

That’s a big burden. But to a great extent, he was right.

Criminal law is different from any other practice. Apart from constitutional and civil-rights practices, most lawyers don’t deal with “the big” issues — freedom versus jail, privacy in your home, cruel and unusual punishment, competency, sanity and, at times, life and death itself.

I was speaking to a former prosecutor this week who’d left the district attorney’s office to open his own firm doing insurance defense. In his words, the work just wasn’t as much “fun.” While he made more money, he found it mostly rote, not as challenging intellectually, and to a large extent, soulless.

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Criminal law is anything but. But it’s getting tougher to find jurors who understand and embrace the very rights the Constitution put in place to protect us all when it comes to criminal defendants. Precepts like: innocent until proven guilty; the right to remain silent during an interrogation or even a trial; or the notion that someone could be arrested and accused wrongfully.

With the near-complete gentrification of New York City, most jurors have never even known anyone who has been arrested, no less wrongfully accused. They often side with the police. For many of them, if you’ve been arrested, you’ve done something wrong. Period. In the abstract, of course, they know people could be wrongfully arrested and accused, but that’s just not their reality. It is, unfortunately the reality for many others.

People of a certain demographic (i.e., white and wealthy) are not stopped and frisked outside their buildings for the heck of it; they’re not approached leaving methadone clinics by undercovers who beg, feigning illness, to buy one of their bottles of methadone, then bust them for the favor. They’re not generally targeted by the government for “quality of life” crimes, or as part of broken window stratagems.

For many who don’t suffer the abridgement of their freedom as such, it’s difficult to recognize why we all need to stay vigilant about protecting that freedom.

Everyday things like routine surveillance of our social media posts and internet searches, the tracking of our cars through GPS, the ability to turn our cells phones into monitors to pick up conversations, even when the phones are off, make up the insidious invasion of all our privacy.

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When immigrants are arrested and not provided with simultaneous interpreting of the proceedings against them in immigration court, this is a violation of all our rights to a fair hearing.

When people are jailed before trial because they can’t make bail, this is the chipping away of all our rights to be presumed innocent until proven guilty.

The freedoms that protect the least of us, impact the all of us.

The founding fathers, having lived it firsthand, understood what it meant to be persecuted for having views contrary to their government, to need protection from tyrannical rule, and to be unjustly accused of crimes.

Our country, today divided by race and economic disparity, doesn’t feel the chipping away of these rights equally. But that’s not to say some day they won’t.

Our criminal justice system is still the best in the world from what I’ve seen, but there’s always room to improve, and reasons to be vigilant.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.