Courts

Can You Zealously Defend Someone You Virulently Hate? This Massachusetts Court Has To Provide An Answer

It's like Gideon v. Wainwright, but if appointed council hated people who remarried. And wrote 20 Facebook statuses about it. During the trial.

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lawyer shrugging shrug whatever i dont know confused.jpgProgress is an odd concept. I imagine that if some Kirkland partner decided to use their pocket change and plop an ancient Roman or Greek in the streets of New York, they’d catch up to speed after the initial shock. Sure the lights and technology of Times Square would throw them for a whirl, but that’s technological progress. The social relationships, notions of power, authority and the like? I’d give them two weeks. Is there really that large of a gap between “Should the members of the Supreme Court follow an enforceable code of ethics?” and “Quis custodiet ipsos custodes?” And another, isn’t their Catullus 16 our, “Can racist lawyers even-handedly represent people they hate during their 9 to 5s?”

Can a neo-Nazi fairly represent a Jewish client? Can a Blue Lives Matter believer zealously serve a Black client? Those were some of the hypotheticals Massachusetts’ top court justices lobbed out in a fervent debate over whether a Black, Muslim defendant deserves a new trial because of his lawyer’s racist, Islamophobic Facebook posts.

It’s a first-of-its-kind case that could influence other states as they mull the rights of indigent criminal defendants when they’re represented by people who harbor bias against their identities.

Now before the “Cancel Culture Has Gone Too Far” people show up, this issue wasn’t raised because of tweets made back when Obama was in office — we’re talking about hateful content being posted mid-representation. You know how the Monday after the Superbowl everyone in the office chatted about Rihanna’s performance? Its like that, but instead you’re finding out that the guy who is supposed to be keeping you out of jail spent the weekend telling his Facebook friends how good you’d look in prison orange.

The issue under debate is whether a public defender’s bigotry, evidenced by 20 racist social media posts that he made while representing his client, constitutes a conflict of interest. That would grant the defendant an automatic new trial, without having to pinpoint specific ways in which his attorney’s representation impacted his case.

For counsel to go off on the subset of people that he was representing while representing his client is a bold move. People usually do a better job of deflecting when the racial aspects of their psyche jump out — but you can’t wave away Facebook posts the way you can wave away “drug side effects.” The way the court decides to resolve this issue could have wide reaching effects on how low income folks facing criminal charges are represented.

“Fundamentally, if you hate the person that you represent, that’s a conflict,” Justice Dalila Argaez Wendlandt said during oral argument Wednesday.

If the Massachusetts Supreme Judicial Court sides with the defendant, it would have to decide whether to write a narrow decision concerning specific circumstances of his case, a broader opinion involving the entire portion of the attorney’s clients who are Black and Muslim, or a ruling that encompasses any defendant who can prove their attorney hated them.

The public defender represented more than 6,000 indigent defendants in his career that spanned two decades. The state worries an opinion in the defendant’s favor would entitle all of those clients to new trials.

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These are wide reaching and interesting options. I feel that the first is too narrow — surely the number of Facebook posts made is arbitrary. Should there be some heightened scrutiny because the posts, whatever the number, happened during the trial? And to go further, will the court make a ruling that rules out attorneys who hate a set of which their client is part? Consider a scenario where appointed counsel admits that they generally abhor Jews, but that won’t be a problem for this client because he likes the cut of his jib or something. I think that it is really hard to buy that argument — I also think that if you buy this token exemption, all the other scenarios become non-issues as well. I wouldn’t recommend that route if the court wants to maintain what dwindling amount of legitimacy it has.

But a ruling against the defendant could damage public trust in the judiciary, advocates say.

“How do we ensure that people have confidence in our criminal legal system” if the court rules this kind of racism isn’t a conflict of interest, Chief Justice Kimberly S. Budd asked the attorney representing the state of Massachusetts.

The court is confronted with a very good question. What happens if an indigent Black defendant accused of stealing a car is assigned Michelle Odinet and, as she recommends that he take the plea bargain, all he can hear is her voice calling someone that looks like him a N***** and a roach? If judges can oppose the hiring of a clerk over events that happened thirty years ago for fear that it would damage the appearance of impartiality, what rights to defendants have if they find out that their attorney dropped every slur possible against their ethnic group 2 years before representing them?

If you’d like to know how this case develops, you should keep  Commonwealth v. Dew, Mass., No. SJC-13356 in mind. We’ll see what the court decides in a few months.

Lawyer’s Racism Sparks Court Debate Over Fair Representation (1) [Bloomberg Law]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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