There is an opportunity cost that goes with rejecting being a progressive prosecutor. Aren’t critical thinkers and compassionate people who understand our history and who struggle with the weight of taking others’ freedom exactly the ones we need to make those decisions? Isn’t power that knows when to stay its hand the kind of power we want? Don’t we want reflective people blessed with self-doubt?
There is also great value in defending people who are charged with crimes, especially as a public defender. We need both prosecutors and defenders who are attached to working hard for their clients within the law, to truth, to accuracy, and to fairness. Justice requires the symbiotic excellence of defense attorneys and progressive prosecutors, whose adversarial work is also profoundly complementary in achieving justice so long as it never becomes adversarial to the truth. But prosecutors have more power.
These were the thoughts I revisited, explained, and reconsidered as the campaign wore on. At one point, I even reconsidered my choice to run for district attorney. I quickly landed here: No matter how uncomfortable and how murky the view, isn’t it important and helpful to the marginalized people you propose to serve—the survivors, victims, witnesses, defendants, and all the people who are less directly involved in a criminal case—to be the one in the fog, looking for answers and solutions you actually hold the power to achieve in that murk?
CHAPTER 12
Difference = Power
The Campaign
You are now about to witness the strength of street knowledge.
— N.W.A, “Straight Outta Compton”
I have been talking about my people and my nascent campaign as being made up of outsiders. People who are “different” from some notion of normal. But what does being different really mean in politics? Most of us have been told that being an outsider, being different, is a problem, a deviance. But what if it turns out that the majority of us are different, at least according to the people in power, just in a million, splintered ways? And what if all of these different people actually align in lots of ways, especially against whoever and whatever decided to tell us what normal means and that we were different? What if our difference is not really from one another, but from the people who gave us that label?
The question of whether we different people—we outsiders—make up the majority and can come together is essential, because majorities win elections. Which means that those of us who are called different—again, we outsiders—have the power to win every election if we are together. I spent my campaign inadvertently finding people who are different and realizing that, when difference is aligned, it equals power.
Right after my announcement, a Philly journalist wrote about the bad bet that was my campaign. He called me a “liberal unicorn.” The head of the Fraternal Order of Police told the press that my candidacy was “hilarious.” He didn’t enlighten the press about our two decades of combative history, and his bottomless support for officers acting under a cloud of suspicion, including while I sued them. But he wasn’t wrong, either. Their point was the same: My candidacy, as we had succeeded in defining it with our platform, deviated far enough from their status quo expectations in politics to make it a joke.
At their worst, traditional prosecutors supported a fascist fantasy: Merciless leaders stamp out crime by sweeping away the individual rights they swore to uphold. The Philly prosecutors elected in my lifetime weren’t that bad, but nearly all of them had beaten the drum of punishment and retribution until it broke. And that familiar thumping sound won elections and reelections, over and over. But as the ninety-eight-day campaign started, it quickly became clear that this time around the voters wanted to hear something else. A lot had changed, and quickly—I’d sensed the change growing over my time in the legal trenches. It had been thirty years since I began my career and about twenty-eight since my first jury trial, in 1989. Things were different.
In 1989, MC Hammer and his Aladdin pants were dancing up the charts. I was twenty-eight years old and two years into my legal career. Lisa and I had just gotten married on a budget. Pennsylvania’s Quaker traditions allow marriage by any four witnesses, clergy or not. Given we were a union of Catholic, Protestant, and Jewish parents, we had enlisted our parents to marry us in a lovely, low-dollar ceremony that summer. Siblings cooked and catered the meal. A public defender clerk DJ’ed. And then, after a driving honeymoon in Canada, we went back to work as struggling, baby public interest lawyers.
Not long after, on the day of my first jury trial, I walked into a dreaded calendar room in old City Hall carrying my public defender’s office file for my case under the arm of my suit jacket. Calendar rooms are courtrooms where a judge assigns cases that are ready for immediate trial to other judges. The process magnifies everything good and bad about judicial power. Too often, calendar judges divvy up cases in ways that will expedite their conclusion but have nothing to do with evenhandedness, equity, justice, or restraint. Guilty pleas go to kinder judges; jury trials on serious cases go to hammers. Don’t try your case and lose.
When I walked in, the giant courtroom was jammed. Defendants who were out of custody and their families filled the gallery seats of the courtroom. My client was locked up. Lawyers socialized and talked business standing around the periphery. Inside the bar of court—the wooden rail that separates lawyers and judges from observers—there was a room made of oak and frosted glass windows. It looked like the DA’s trial chief, the judge, and the court officer who would call the list of cases were all together in the back. When they came out, I didn’t see any defense attorneys come out with them. Maybe there were some inside, but I wasn’t one; I was outside. The law and rules of ethics require that when one side meets with a judge on a matter of substance about a case, the other side must be present as well. The group who came out assumed their posts on the lawyers’ side of the bar. The judge took the bench and was reviewing files before his court officer called the room to order. An unfiltered Philadelphia assistant district attorney (ADA) I knew was spoofing defendants seated in the courtroom. He was complimenting their decoratively inscribed haircuts, mostly depicting lightning bolts or their initials. My client was in a cellblock a few floors away.
As the judge called the noisy courtroom to order, the ADA’s next antic was to call out just low enough to be heard in the din of the room: “Put ’er in there, Your Honor!” The judge’s eyes snapped back and forth, looking in vain for the source of the humor before moving on.
In my mind, this was more like a circus than a ball game, and I was the guy in the circus with the shovel who cleaned up behind the elephants. Judges and prosecutors were in the back, possibly in violation of ethical rules, and probably discussing which cases would go where. My ADA friend was blowing up solemnity and civility with pranks. And my hands were on the shovel because I wouldn’t follow the unwritten rules that would have given me an advantage in that room in the late 1980s. They were:
1) Be a private attorney, not a public defender.
2) Be connected. Being an ex-prosecutor who could backslap the ADAs helped; being connected enough to be politically useful to the judge helped; and being related to either of the above helped in a nepotistic system.
3) Bribe the court officer in cash, and at least annually, in order to enjoy his assistance in manipulating you and your clients’ cases to favorable judges. The court officer in the calendar room got one card after another during the holidays, always in sealed envelopes from what I saw.
4) Plead your clients guilty almost all the time in a system that required lots of guilty pleas, so your occasional trial request would be grudgingly tolerated.
5) Be old. Young defense lawyers who asked for jury trials were like dogs soiling the carpet, deserving of immediate consequences they would remember.
6) Validate that the defendants are all guilty, and subhuman. No matter how severe your case, cheerfully exchange niceties about weather and sports
and pretend everyone is acting appropriately even when things get wild and weird. Remember this is commerce and you are a mercenary or should act like one, even as a public defender. Convey that your clients are little more than business to handle before an afternoon of golf.
I was breaking all the rules. I was a young public defender, connected to and politically useful to no one, who knew what was up and was repulsed by it, and who was too self-righteous to hide my disgust. I demanded a jury trial more times than they wanted to hear, so I got consequences. That day and over a period of months that followed, five separate times when I came into the calendar room and asked for a jury trial, I was sent to the same punishing jerk of a judge, despite there being many other quality judges whose courtrooms were available. Each time, when I was told to go to Volo’s courtroom, there would be an amused gasp from the other defense attorneys in the room, relieved that their cases were safe from the infamous judge.
Deusdedit Volo (or Dee Volo) was close to seventy, but his age-defying jet-black hair formed a pile on his head like soft-serve ice cream left over from the 1950s. He was a World War II veteran, an “American hero” according to the regularly assigned young prosecutor in that room who strangely emulated Volo’s style and mannerisms. Volo wasn’t my hero. In a saga of five jury trials, he loudly dressed me down in front of the jury and held me in “contempt” in the presence of the jury in every single case. The “contempt” charge was a fake—no real hearing, no sanctions, no permanent record, no due process, and no real consequence to my freedom or career. Volo just did it for its theatrical effect, to bash my credibility with the jury, to bully and distract me, in order to undermine my client’s defense. To Judge Volo, actual guilt or innocence was not the point; the point was to stop people from exercising their sacred constitutional rights to try their cases—because trying cases takes a lot more time than pleading people guilty—and to furiously punish their lawyers. To Volo, the jury trial was worse than the crime. And the system had picked him and his courtroom to teach people like me that lesson.
I remember standing before him, a senior judge, cloaked in his black robe, sitting two and a half feet above me, and feeling his anger rain down on me. When Volo wasn’t calling me out for “contempt,” he would call me up mid-trial to the side of the bench farthest from the jury and berate me while lightly punching his fist into the judge’s bench close to my face. The jury could not see what he was doing, and the trial transcript would never record it unless I was crazy enough to inflame him more by putting it on the record. I wasn’t. I would glare through his tirade and mostly keep my mouth shut. But the flailing he delivered daily had its effect. I was exhausted by the end of each day, my suit soaked in sweat, looking at another night of light sleep before the abuse started up again the next morning.
During my second trial before Volo, I was in the hallway outside his courtroom, standing with my back to the courtroom wall. Thurgood Matthews, a tall man ten years into his distinguished career as a Philadelphia public defender, walked up in an open, long wool winter coat with a case file under his arm and fedora worthy of another Thurgood. Thurgood Matthews was unquestionably named for Thurgood Marshall, an earlier graduate of the same great law school Matthews attended, Howard University’s School of Law. Marshall was arguably the most important lawyer of the twentieth century before he became the first Black justice on the U.S. Supreme Court. He was still serving on America’s highest court the day I met his namesake in the hallway.
Thurgood Matthews cracked open the sash of the giant City Hall window across from me and began smoking a cigarette. I was shy in the face of the local public defender legend and gave him space.
He looked out the window and asked, “Is he in there?”
“Yes.”
“What do you have? How long’s it going?”
“Oh, a drug case that probably finishes today. Another jury trial. They keep sending me here.”
He took another drag and glanced over at me. “They’ll do that. I have a shooting trial right after yours. Follow me if you want. I’m going to put that motherfucker in the stroke zone.”
Surprised, I looked up from the tile floor. Thurgood inhaled once more, snuffed out the butt, adjusted his long coat, cupped the fedora in one hand around the back of its brim, and used his other hand to yank the courtroom door wide for effect. He went straight in. I quietly opened the door five seconds later, slipped into the courtroom, and stayed in the back.
Thurgood was down front—coat still on—standing and waving and pointing at full height, hollering while Volo stood behind the bench on his platform, shook his cane, and yelled back threats. My eyes were wide as I watched the good fight for another minute. Then Thurgood turned and calmly marched out while Volo ranted and fumed, his face red and his eyes popping. I didn’t know exactly what the fight was about—some pre-trial issue that ticked off Matthews. But Thurgood proved that Volo’s intimidation game was easy to provoke and nothing to be feared. Unwittingly, Thurgood had taught me to expose this judge’s raging unfairness and corrupt power in open court. From a distance, I could see that Volo unhinged wasn’t a pretty sight and would actually help me with some fair-minded jurors who perceived his malicious bias. His intimidating tactics didn’t seem so insurmountable; I was losing my fear.
It was even harder for jurors than for a young lawyer to be unafraid when they interacted with Volo for the first time. Judge Volo’s initial interaction with a jury was not at the trial, where a newly schooled lawyer like me might expose his claws by becoming its target. It was at jury selection, where Volo would crudely ridicule any potential juror who asserted a reason for not serving on the jury. As usual, truth and justice were not Volo’s issue. He bashed members of the jury pool as a deterrent to stop others from shirking or legitimately avoiding jury duty. He made potential jurors afraid to talk about work obligations, family illness, childcare issues, prepaid and planned vacations, and religious objections to serving as a juror. When he attacked one potential juror, many of the others laughed at the ridicule, either as kindred bullies or just to get along before he got to them. But many did not.
I still remember my face burning as Volo cross-examined and berated a middle-aged Asian woman who quietly said her religion did not allow her to sit in judgment. I noticed that some other potential jurors laughed. I immediately imagined my mother, who graduated from Bible college, attended seminary, and was a tent evangelist in the Midwest in the 1940s before she married a secular Jewish man. She would have been out of her seat, telling that judge what she really thought. Like my mom’s, the juror’s faith was real; she had the details to support it. After Volo humiliated her for minutes, he allowed the Asian woman to be excused from the jury, but smiled when he angrily ordered her to attend the trial and sit in the gallery anyway every day until it was over.
Volo had no right to make the woman, or anyone else, go to his courtroom and watch a trial after being disqualified from jury service. It was servitude; he did it anyway. My jaw muscles tightened, but I said nothing about this patently illegal treatment of a woman of faith, or what was clearly implied by the venom this World War II vet spat at a dignified and principled Asian woman. I reminded myself that she wasn’t my client. There would be other fights during this trial between Volo and me for my client’s benefit that the jury to be formed from this group of prospective jurors would witness. Fighting Volo now, and in front of them, would be a mistake. I quickly marked on my sheet which potential jurors looked upset or uncomfortable with the judge’s rotten conduct. Over the next couple of hours, I put as many of them on the jury as I could. Fairness seemed to be in their gut. I had a good case and needed fair people on this jury.
Eventually, after seeing what happened with Thurgood and the Asian American woman, and after being in Volo’s courtroom so much, I calmed down enough to figure it out. In any society there are some bullies and sadists, some people who claim power to wreck others. But they
are not most of us. Bullies offend most of us. Once I grasped that, I won more than I lost in Volo’s room. The key was to pick the most decent jury I could and expose its sensible members to Volo’s raging malice and his bias against defendants, defense lawyers, and anyone else who would not be a conductor on this infernal railroad. Those jurors’ own sense of fairness would rally to even the scales.
There was a case I tried before Volo about a dispute between two bar patrons over money. They knew each other. The dispute got spun as a robbery, supposedly between strangers. It seemed like a decent case for the defense. I picked two lawyers to serve on the jury, figuring the judge’s undue process would offend them. Picking lawyers for juries is uncommon, often unwise because they sometimes have too much sway over other jurors. I then printed out copies of case law that supported my position on legal issues I knew would arise in the trial. I anticipated the judge would cut off my cross-examination of witnesses or try to cut off my defense regardless of the law, as he usually did. When the trial came, Volo cut me off repeatedly, as expected. Each time he did, I held up copies of the case law and said, “But, Your Honor, I have case law—” He would cut me off again, refusing to read it as he erupted, and holding me in fake contempt again as I shot a look at the lawyers in the jury box.
The lawyers looked back, noting the judge’s refusal to review my case law, as any fair-minded judge surely would have done, and his baseless claim of contempt. The jury acquitted on all charges within a couple of hours of starting deliberations on a Friday afternoon. Judge Volo was not happy. The foreperson, who read the not-guilty verdicts, turned out to be one of the lawyers.
For the People Page 20