The Burden of Defense

Surviving a rookie year in the Alameda County criminal courts.

In Stephanie Hartung’s job, idealism can become a burden. She’s an assistant deputy public defender for Alameda County. She is 32 years old, and she resolutely believes that hers is a noble calling — defending the poor, the unfortunate, and the innocent. That’s why when Alvictor Bradford demanded a trial to prove his innocence from charges of credit card fraud that he faced, she listened.

Not that Hartung is naive. She knows that fully half of her clients who claim innocence have something in common: They’re guilty, and they (wrongly) figure that denial offers better odds than confession when they’re trying to avoid prison. This was not Bradford’s first arrest, and circumstances pointed to his guilt. Still, the case wasn’t clear-cut; it raised just enough questions that innocence seemed possible. The problem was that, even if Bradford were innocent, he would be in trouble in a trial. Hartung had almost nothing around which to construct a defense. She would point out holes in the prosecution’s evidence and try to raise reasonable doubt, but she told Bradford the case looked bad. Bradford again insisted he was innocent.

Suddenly, there was an unexpected break. The district attorney was none too sure of his own case and was willing to offer a plea bargain. He was having proof problems, so a trial seemed risky for him, too. The DA offered a plea bargain. He would reduce Bradford’s charge to a misdemeanor, plus restitution, in exchange for a guilty plea. This was a godsend: no San Quentin for Bradford if he said “sorry” and paid the money back. Hartung explained the offer to her client. If he insisted on a trial and was found guilty, he could go to prison for five years. Paying back $19,000 was bad, but surely prison was worse. Bradford again insisted he was innocent; he wanted a trial. The district attorney kept asking, “Is this going to go away? Is this going to go away?” Hartung couldn’t make it go away. So Hartung was going to trial.

In the Alameda County Public Defender’s Office, a charge carrying a maximum five-year prison sentence qualifies as a “low exposure” case. That contrasts with “high exposure” cases, where the defendant might face one hundred years, or life, both sentences that the state of California imposes with increasing frequency these days. “We get kind of jaded about what’s low exposure,” Hartung said. “I mean for God’s sake, five years. In prison. That’s a long time. Think about that.”

Hartung believed she had a chance at a hung jury in the Bradford case. The jury saw matters differently. Bradford was found guilty. She held out hope he wouldn’t serve time. Bradford read a statement, handwritten in pencil: “The DA offer me an offer, but I am innocent, so I didn’t feel it would be right to accept it for something I didn’t have anything to do with.” Then the judge sentenced Bradford to four years, only one year short of the maximum. And that’s when Hartung couldn’t stand any more. She stood in front of the court and accused the judge of punishing her client for having the temerity to turn down a generous plea bargain and demand his day in court.

“I was pissed. Once in a while, I will bust out the righteous indignation,” she said. “I felt like I wanted to lay it out there and say, this is what’s going on, everyone knows it; it’s clear, and it’s disgusting.” Hartung’s hormones may have given her righteous indignation a push. She’s five months pregnant. She waited for the judge to explode, but the judge just sat there, and the sheriff’s deputies took Bradford away.

Twelve days later, Bradford appeared before the judge for one last sentencing formality. He had another statement to read. He confessed to the charge and said he was sorry for taking up the court’s time. “I didn’t really mean to do it, and I’d like to apologize to the jury if they was here, to the clerk and to the bailiffs, and to the district attorney and public defender.”

And so the case became just another part of Hartung’s education in her first high-profile year on the felony trial staff of the Alameda County Public Defender’s office. In a perfect world, Hartung could have reflected on the perversity of modern justice. But with her next client facing life, and another client on death row, she pressed forward. In the era of three strikes and tough sentences, there’s only so much good that even a good public defender can do.IThe Alameda County Public Defender has one of its offices across the street from the municipal courthouse in downtown Oakland. The office’s reception area resembles a high school principal’s office, except here the secretary sits behind a bulletproof window. The waiting room’s tile floor is dirty, people work at small desks designed in a style that could be described as Shaker Detention Hall, and read copies of news magazines are all at least a year old. Despite its appearance, this is arguably the best public defender’s office in California; its the place where young defenders like Stephanie Hartung start their careers.

Hartung decided she wanted to be a public defender during her first year in law school at Boston College. Meeting Arnold Rosenfeld had something to do with it. Rosenfeld was known as Arnie, and his central casting Boston accent smashed the Rs into Aws. Rosenfeld was the head of the Massachusetts public defender system, and it would be tough to find an attorney who was more gregarious or more principled. He took Hartung out to lunch, and told her about being a public defender.

That was in 1989, and Rosenfeld was involved in one of Boston’s most notorious murder cases. A young white couple was reportedly carjacked while driving home from childbirthing classes. The pregnant mother and her child died. The husband claimed a young black man was the assailant. While outraged Bostonians couldn’t wait for police to catch the killer, Rosenfeld worried about the mad rush to catch and convict. He appointed a public defender to the case before anyone was arrested, and his hunch proved correct. A young black man was arrested but not convicted after evidence eventually implicated the husband. As Rosenfeld told the Christian Science Monitor, “Everyone in the system is after your client. You are his only defender.”

Hartung always had her “social justice leanings.” Before law school, she had worked for MALDEF, the Mexican American Legal Defense and Education Fund. As she listened to Rosenfeld’s description of public defenders, she realized that she’d found a mentor and a career. “I just knew from the way [Rosenfeld] described it that that’s what I wanted to do,” Hartung said. “It was something that I had known before that, but I had never put a name on it.”

After her second year of law school, Hartung came to Oakland to work for the Alameda County Public Defender. When research didn’t keep her in a cramped office, she went to the courthouse. “I spent a lot of time that summer just sitting in court, watching trials and getting inspired by various performances,” she says.

For an attorney motivated by Rosenfeld’s ideals, the Oakland courthouse was the place to be. Alameda has the second-oldest public defender’s office in the nation. Seventy-five years ago, the district attorney proposed that the county hire an attorney to help people who couldn’t afford a lawyer. The district attorney was named Earl Warren, who would later become the conscience of an entire country in matters of criminal jurisprudence. As chief justice of the Supreme Court of the United States, Warren and his fellow justices established some of the foundations of modern criminal justice, most famously, the Miranda warning, which requires police to advise suspects they have the right to remain silent. In Escobedo v. Illinois (1964), the Warren court limited the use of confessions obtained without a defense attorney present, and in 1963, Gideon v. Wainright guaranteed the right to counsel in criminal trials (until then states were not required to appoint an attorney for defendants who could not afford one).

By the time of the Gideon ruling, Alameda County’s public defender system had existed for more than thirty years. The county’s first public defender was Willard Shea, who despite never attending law school, won “not guilty” verdicts in five of his first sixteen trials. Shea served for more than two decades, and his and Warren’s legacy still resonates in day-to-day business in Alameda County’s justice system.

Last year, Diane Bellas became the first woman hired to be Alameda County Public Defender. She took over an office that employs 120 attorneys. The Warren legacy still lures plenty of aspiring public defenders. In a good year, Taylor says, the office can choose from more than one hundred applicants to fill five or fewer jobs. Starting salary for a public defender fresh out of law school is more than $50,000, and the pay scale reaches into six figures, which makes Hartung and her peers some of the best-paid public defenders in the country. Hartung had to wait almost three years before being hired as an attorney here. She spent a year clerking for a judge in Alaska until the county lifted a hiring freeze, then spent almost two years working jobs in the office just to get her foot in the door.

Hartung has an honest face, with just enough of a knowing twinkle in her brown eyes to suggest that she knows more than she says, so she shouldn’t be underestimated in the courtroom. Her mouth habitually settles into a small, easy smile. Her hair is cut conservatively short with a few fashionable tussles, brown beneath blond highlights. She favors sleek suits in the corporate palette. On weekends, she surfs and snowboards. She’s also a runner, although her pregnancy has curtailed that.

She steers clear of her generation’s habit of cynicism. “In the whole world, you have these few people who see the nobility in what we do. And they are ourselves.” She approaches cases carefully and methodically. She doesn’t like to be spontaneous in her opening statements. She prefers to rehearse her openings aloud in some secluded space in her office. She might not feel comfortable until she has rehearsed aloud a dozen times. When she started out, she practiced in the file room, sometimes startling the municipal court clerks who came in and found her waving her arms and talking to herself. The night before a closing argument, she walks to the McDonald’s down the street, buys a Quarter-Pounder for dinner, and works at the office until she’s done. She inevitably finds herself famished at the end of a case. That’s been true since her first trial, where the charge was misdemeanor battery, a truck driver accused of punching another truck driver in the nose. Hartung remembers sitting in the courtroom and thinking, “I can’t believe I’m the lawyer. I can’t believe I’m the one.” “I’m sure I was terrible, I didn’t know what I was doing,” she said. “I didn’t know how to cross-examine the guy.” Still, the jury acquitted her client in a matter of minutes.

The trial lasted three or four days, and Hartung was a wreck. “I’m pretty sure I did not sleep during that time,” she said. “Or eat. I mean that, I’m not exaggerating.” Hartung says she was more nauseous during that first trial than she was during the first trimester of her pregnancy. Most of the time, her courthouse demeanor conceals her emotions. Her courtroom voice packs less emotional wallop than that of a public radio pledge drive announcer. When she questions a witness, she stands near the podium, checking off points in her notes as she asks questions. She’s not the theatrical type. She wants to be the one in the courtroom whom the jurors can trust.IAs their careers mature, Alameda County public attorneys work their way through a progression of jobs: misdemeanor trials, juvenile court, preliminary and pretrial hearings. Each position sharpens different skills, from cross-examination to the basics of preparing a defense. Along with in-house training, these jobs are designed to prepare public defenders for larger, more important cases. They also introduce young attorneys to the way the system really works.

The Alameda County Public Defender’s office receives about two hundred new cases a day, a figure comparable to other California counties of similar size. To handle the caseload, the office uses what is called horizontal representation. From arraignment to preliminary hearing to trial, a new attorney represents a client at each stage of the legal process. Critics of horizontal representation view it as assembly-line defense work, and they have a point. Attorneys handling arraignments might represent thirty clients a day. After arraignment, cases are passed to attorneys who preside over preliminary hearings. Hartung sometimes worked ten of these cases per day, which didn’t leave much time for small talk or building attorney-client trust.

“Obviously, there’s a problem developing rapport when the first thing out of your mouth is, ‘They want you to go to prison for four years,'” she said. Instead of spending precious time explaining the options, Hartung sometimes needed to explain other basic information: She didn’t want to send the client to prison; she was not the district attorney; she wanted to keep her clients out of prison; she meant this. In some cases, she says she feels more like a therapist than an attorney, spending her time listening to people who are scared, angry, or confused. After clarification and therapy, there still is the matter of deciding whether to take the deal. This must happen quickly; this client is only one stop on the assembly line. Most cases end at this point, with a plea bargain. Nationwide, trials resolve fewer than six percent of all felony cases.

The Alameda County Public Defender’s office may be an assembly line, but it’s a very good one. “It is one of the outstanding public defender offices in the state, and I feel relatively strongly about that,” says Spencer Strellis. When Strellis became a member of the bar in the late 1950s, there were only six attorneys in the public defender’s office. Today, when cash-strapped defendants want Strellis to take their cases, he tells them to talk to their public defender before they make a decision. “They might find that, all of their fears not notwithstanding, he’s pretty good.”

In preparation for finally joining the felony trial staff, Hartung received other assignments, including six months of juvenile court. The trial experience proved valuable, “but for me, on an emotional level, it took a little bit too much of a toll. I found myself going home crying more often than I would like to in this job. It was good experience, but not my favorite assignment in this office.”

Alameda County usually gives its attorneys two or three years’ experience before they reach felony trial staff. After two and a half years, Hartung got her chance.IForty years ago, the only time a poor person facing felony charges in state court could be sure of having an attorney was in a death penalty case. That changed in 1963 with the Warren court’s decision in Gideon v. Wainright. Charged with breaking and entering, Clarence Earl Gideon could not afford an attorney. When the state of Florida said it would not appoint one, Gideon acted as his own attorney. After he was sentenced to five years in prison, he appealed to the Supreme Court, which appointed professional counsel for Gideon, and ruled that the Constitution guaranteed the right to counsel in all criminal trials. The court voted unanimously that the Sixth Amendment’s guarantee of counsel extended beyond federal cases and capital cases. Justice Hugo Black wrote, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” The right to counsel was quickly extended to the plea bargaining process, which has become the primary means to settle cases.

When Hartung started work on felony trial staff, she moved to a desk next to Andrew Steckler, a Harvard Law graduate who has quit private practice two separate times to be a public defender. Steckler explained plea bargains this way: “Your goal is to get [clients] to have second chances, or third chances, or tenth or twentieth chances,” he said. “In the era of three strikes, it’s helping them realize out-of-custody time when they’re young enough to enjoy it or appreciate it. Or while they’re still alive, ’cause a lot of the sentences now are going up to 100 to life, 200 to life.”

Steckler says that for public defenders these negotiations become exercises in plea bargain math. He offers a story problem as an example: A defendant, age 30, faces 200 years to life. What are the advantages of taking a plea for 22 years? That could mean possible parole in 17 years, at which time the defendant would be 47. Most relatives would still be alive. Children would be grown. Seventeen years is a long time, but at 47 a man could still have a lot of life left.

Of course, reality seldom is as simple as the story problem. When Hartung suggests that defendants consider plea bargains, many are suspicious. One of the public defenders keeps a toy dump truck in the office. It’s an inside joke: “Dump truck” is jailhouse slang for a public defender who doesn’t care about his or her clients. A defendant who gets “dump trucked” has a public defender dump his case in the quickest way possible, which is a plea bargain. The dump truck is yet another reminder that the entire system distrusts people like Hartung. Juries, judges, and prosecutors all tend to view defense attorneys as morally suspect, Hartung says. Public defenders tend to be viewed as morally suspect and incompetent. We’re sort of social pariahs,” Hartung said.

Also in the office is a reminder of how public defenders view the criminal justice system. Hartung calls it “the eagle.” It’s a framed piece of garage-sale art depicting a big eagle swooping down upon a little mouse while the mouse gives the finger to the eagle. Around the frame of the picture are photos of attorneys who won acquittals in felonies. To get a picture on the eagle is the highest honor in the office. The oldest photo is four years old. Acquittals are rare, only about three per 1,000 cases statewide, and the odds aren’t measurably better in Alameda County.

The public defender’s office here will take any case to trial. It has the budget and the give-the-system-the-finger attitude that are necessary. And this is what makes the office good, says Strellis, the veteran Oakland defense attorney. “Frankly, the bottom line is the willingness of the people to try cases,” he said. “Because if you’re not willing to try a case, if you’re not willing to take a stand on some of these things, you’re not going to be an effective defense attorney.” In securing a fair plea bargain, the public defender’s best weapon is the threat of a trial. If the district attorney doesn’t offer a good enough bargain, the prosecutor will have to be forced to prove its case before a jury; the pictures around the eagle prove that the district attorney doesn’t always win.

An unsatisfactory plea bargain offer led to Hartung’s first felony court case. Her client faced a charge of possession of marijuana with intent to sell. “Marijuana cases are fun for us,” Hartung said with a sly smile. “It’s hard to even find a jury that even thinks marijuana should be illegal. We have the advantage on those cases.” Hartung and her client believed the prosecution could prove possession, but not intent to sell. Simple possession is a misdemeanor, not a felony, but the district attorney wouldn’t offer a misdemeanor. The prosecutor did offer probation without jail time for a felony plea; a guilty verdict could earn Hartung’s client four years in prison.

Hartung, the prosecutor, and the judge were near the end of pretrial motions when she asked a question on the record, asking when the jury would arrive. “The judge looked at me, and he didn’t mean anything by it, but he said — this is all in the courtroom with the court reporter — he said, ‘Oh, that’s right, you’ve never done this before.'”

That wasn’t what Hartung or her client wanted to hear. As they walked out of the courthouse, he seemed a little nervous, she recalled. “He said, ‘So, how many of these have you done before?’ And now he’s thinking he’s got this hack for an attorney who doesn’t know what she’s doing.” Hartung’s answer was, “I’ve done a lot of trials, just not in this courthouse,” which was technically true, although it omitted the fact that this was her first felony trial. The next day, the defendant told Hartung he’d want to plead guilty to the felony and take probation with no time served. Hartung was disappointed, but the decision belonged to the client. Stephanie Hartung’s time on felony trial staff began last spring, but summer arrived before she tried her first case, representing a client who faced 26 years in prison for armed robbery. The district attorney offered a plea bargain of 14 years, and Hartung’s client refused, saying he was wrongly accused. Alameda County discourages its public defender from entering guilty pleas for clients who claim innocence and in this case, Hartung believed that her client was innocent, but she worried that the jury wouldn’t believe him.

The victim was a dental hygienist who lived in a tough section of East Oakland. The woman came home late and had just parked when a man opened her car door, placed a gun barrel against her temple, and took her money. An hour later, the police arrested a man whom the victim identified as the robber. To Hartung, the case didn’t add up. The defendant carried no weapon, was not wearing the clothes the victim had described, and didn’t have stolen cash in his pockets. Though he had five prior convictions for drug and property crimes, there were no violent offenses. He had the reputation of being one of the neighborhood crackheads, though. After she was assigned the case, Hartung remembered Actual Innocence, a book by Barry Scheck (part of O.J. Simpson’s “Dream Team”) and Peter Neufeld. “I read that just before this trial,” she said, “and it really kind of rocked my world.” One chapter argued that witnesses frequently misidentify suspects, sometimes because of a psychological phenomenon called “source confusion.” Hartung made “source confusion” her defense, even hiring an expert from Los Angeles to testify. The prosecution put the dental hygienist on the stand, and through her tears she identified Hartung’s client as the robber.

As the testimony ended, Hartung still saw a chance for at least a hung jury. She was at the office when she heard that the verdict was in. “I thought I might pass out. I thought I might cry. I didn’t know what I would do.” It was her first felony verdict, and she believed her client truly was innocent, but she couldn’t be confident the jury would agree. The verdict was read: Not guilty. Her client just sat there and nodded like he knew it all along.

By the time she returned to the office, a celebration had begun. Cliff Taylor, her boss, rang a cowbell. Diane Bellas, the head public defender, gave her a hug. And Hartung had her photograph taken to be placed on “the eagle.”

In the months that followed, Hartung’s client went to prison anyway. He was on parole, the arrest amounted to a parole violation, and his acquittal didn’t matter. Criminal courts find guilt unless there’s reasonable doubt; parole hearings only require a preponderance of evidence. Because of the different burdens of proof, he didn’t have to be guilty to violate parole: He just had to be probably guilty. At the parole hearing, Hartung testified that her client was actually innocent. The parole agent called her a slick lawyer. Hartung blamed a jaded parole system that viewed acquittals as mistakes to be corrected “That,” she said, “was a travesty.”

If the Kafkaesque case of armed robbery proved tough to swallow, at least she had won. All Alvictor Bradford’s credit card fraud case offered were lessons to try to learn from. “It was awful,” she said. “I didn’t expect the impact to be so — you know — as devastating as it was. For him and for me.” She said the most frustrating part was knowing that someone depended upon her, and she couldn’t help him. Before Bradford’s trial in October, Hartung had explained the possibility that he could go to prison. But until the moment after the verdict, when the sheriff’s deputies told Bradford to empty his pockets and took him to jail, she hadn’t felt the terrible finality that occurred when a man lost his freedom.

Coworkers tried to console Hartung. She had done her job: Bradford asked for a trial, and he got one. “I think next time I’m in that position, and I’ve got someone who wants to go to trial who probably shouldn’t go to trial, I’ll make more of an effort to convince them not to,” she said.

At these times during her year on felony trial staff, Hartung found herself grappling with the essential paradox of her job: She had knowledge, skills, and a willingness to fight for the underdog, but the clients controlled the cases. The clients decided whether to accept the pleas. The clients decided whether to go to trial. Her colleague Andrew Steckler explained it another way. “I recognize, as I must, as any defense attorney must, that your clients aren’t puppets. You don’t hold the strings. You try to minimize their time in jail or prison, and they have to do the rest.” This is tough when the clients’ sole motivations seem to be anger and self-destruction. Hartung knows some clients would rather risk everything and spend life in prison than consider a plea.IWinter brought Hartung what appeared to be a completely ordinary case, excluding the fact that the defendant faced life in prison. It could be argued that life in prison has become a routine consequence of California’s tough-on-crime legacy, which has saddled the state with three strikes, mandatory minimum sentences, tougher penalties for drug offenders, and requirements to try juveniles as adults. These get-tough measures have a name: enhancements. The most famous enhancement is the three-strikes law, enacted in 1994, which means that a third felony conviction earns a mandatory life sentence. Three-strikes cases constitute only about three percent of all felony cases, according to 1996 state judicial council research. However, California penal code is laden with enhancements. A two-strikes enhancement doubles the maximum sentence for a second felony conviction, and is far more common than a three-strikes case. The state penal code lists roughly 130 possible sentence enhancements covering everything from chronic drug offenses to assaulting police dogs.

Enhancements don’t just require people to spend more time in prison. They tilt the balance of power in favor of the district attorney. Traditionally, the public defender’s bargaining chip to secure a fair plea bargain has been the threat of a trial. But how many defendants will risk a trial if a guilty sentence could mean 100 years or more in prison? In the 1987-88 fiscal year, seven percent of felony cases in California ended with trials. By 1996-97, that rate was down to 4.9 percent.

“The shift of power to prosecutors simply means more ammunition in the quiver to prosecutors for plea-bargaining,” said Franklin Zimring, a professor of law at UC Berkeley, criminologist, and director of the university’s Earl Warren Legal Institute. “The unique thing about American criminal justice systems is that prosecutors were enormously powerful a generation ago, and almost everything we’ve done since them has made them more powerful.”

Steckler explained the situation from a public defender’s perspective. “[In] cases that go to trial, either you have a truly innocent client, which actually does happen, or you have a crazy client, who does not think rationally and does not take an offer that should be taken under the circumstances.” Some clients are certifiably crazy; others are just crazy to think they can beat the odds in a trial.

More than eighty percent of defendants nationwide rely upon public defenders. The Constitution guarantees due process and a fair trial. But what kind of defense is a poor defendant entitled to? A good defense? An adequate one? Counsel who stays awake? Gideon v. Wainright refers to the Fourteenth Amendment, but it never mentions one of the Fourteenth Amendment’s most famous ideas: equal protection under the law. The only standard that Gideon establishes for protection in court is that every defendant should have a lawyer. It sidesteps the question of quality, or equality in defense. What Gideon requires is that a trial be lost properly. Police and district attorneys shall not cheat; that is why we have public defenders. Just as Miranda warnings make sure that people are arrested the right way, public defenders make sure people are convicted the right way.

After the Bradford case, Hartung resolved to push her clients harder in situations where she believed they should take a plea bargain offer. True to her vow, she pushed harder but got nowhere. Her next client, Demetrice Ford, was accused of attempted murder after a man was shot in the neck outside an Oakland nightclub. Ford was a 23-year-old African American with a prior conviction for discharging a firearm from a vehicle, better known as a drive-by shooting. The district attorney offered ten years in exchange for a guilty plea. The maximum sentence for attempted murder is nine years, but attempted murder with a gun triggers an enhanced sentence of life. Ford refused the plea bargain, against Hartung’s advice. “This case is frustrating on a lot of levels,” Hartung said after the trial. “It’s a very, very difficult case. … I don’t wish it on anyone. No one wants to see a person get life in prison on their dime, so to speak.”

When Hartung mentioned a plea, she guessed Ford was thinking something along the lines of dump truck. “He often would get upset with me and tell me forget it, nothing, he’s taking nothing,” she said. The police had an eyewitness, the testimony of the victim, and gunshot residue and DNA tests, but though the evidence for the prosecution looked strong, it did not seem ironclad. Hartung saw inconsistencies in the statements given by the prosecution’s chief witness. Ford’s cousin, who had been with Ford for much of the night, claimed police detained him for hours and coerced him into signing a statement implicating Ford. Some forensic evidence was inconclusive.IBefore the trial, Ford said he recognized he couldn’t earn an acquittal. “But he talked about how he thought we could get a hung jury,” Hartung said. After a hung jury, Ford figured, the district attorney would drop charges. No way, Hartung countered: The district attorney would retry Ford; attempted murder suspects don’t walk. Ford figured he could get a hung jury twice, then three times, and keep going until the district attorney gave up. “That seemed to be his plan,” she sighed. In her eyes, one hung jury equaled a remarkable success.

As pressure built, other parts of Hartung’s life increasingly vied for her attention: It was January, her maternity leave started in April; she and her husband were buying a house; the baby was due in May. End-of-the-day fatigue increased. During small activities, even animated conversations, she sometimes needed to pause to catch her breath. She began to worry about worrying too much, because of the effect of her stress on the baby.

The prosecution’s case, which involved testimony from about twenty police officers and experts, the victim, and DNA evidence, lasted six days. Hartung’s defense was scheduled to last one day, and it seemed unlikely that Ford would take the stand. The judge mumbled through the usual formalities as fast as he could; the gallery seldom contained more than three spectators. The room was so empty that an old woman trying to escape the January cold couldn’t loiter without distracting proceedings. Every time she turned the pages of the newspaper, the rattle echoed through the near-empty courtroom. Creaky old seats reported every fidget with a wooden groan. The microphone in the witness box kept cutting out. Witnesses half-yelled their testimony to the jury box. Courtrooms on television look and sound so much better.

Nearly every time a recess was called, Hartung repeated a small gesture. She talked briefly to Ford, and before the sheriff’s deputies led Ford away, Hartung quickly put her arm around his shoulder. Asked about it later, Hartung said she wasn’t even conscious of the gesture. “Sometimes, it’s only the small things that you can do,” she said. “Most of the time you come out of the trial with even a client that might have been hostile at the beginning feeling very thankful. Maybe they haven’t, since they’ve been in the system, they haven’t really been treated like a person. And that’s nice, that’s one of the great satisfactions of the job for me.”

The key to the prosecution’s case was the testimony of the nightclub’s head of security, who was the only person to say he saw the shooting. “He’s the most important witness in the entire case,” Hartung said the day before the head of security was scheduled to testify. His account of the shooting created an opportunity for Hartung because the security chief’s description of the suspect didn’t exactly match Ford. Also, the security chief was a former Oakland police officer who knew the officers who arrested Ford. If Hartung could portray the head of security as unreliable, a hung jury might be possible.

The next day, Hartung questioned the security guard during the morning and into the afternoon, even ungluing herself from the podium at times to confront the witness. Hartung asked if the security chief received coaching from police when he gave his statement to police. She patiently asked factual question after factual question: Was the witness sure he saw what he said he saw? How did he explain the inaccuracies in his physical description of Ford? Hartung dispensed with subtlety. “You only told [police] what you knew, right?” she asked. Moments later she said, “Well, here’s my question: Did you make up the things you told [police]?”

“No, ma’am,” the witness replied. Hartung pressed, but the witness didn’t falter. His answers fell into a pattern: With each question, he insisted he saw the defendant commit the crime. As answers became redundant, Hartung sounded a little perturbed. “You made us aware of your opinion,” she said at one point. “Well, it’s not my opinion, ma’am,” the security guard said. “That’s the guy who did the shooting.”

Several days later when Hartung was scheduled to present her defense, an unexpected delay occurred. Two hours later, the judge declared a mistrial. Some of the jurors had been heard sharing their opinions about the case. After hearing DNA evidence implicating Ford, one jury member reportedly said, “That’s all I needed to hear.” One juror was heard saying Hartung would have to “blow smoke in the closing.” Another juror reportedly replied, “The defense will have to do something.” The trial was over. Hartung’s six weeks of worry and work had brought no result. A new trial date was scheduled for Ford. The case would be reassigned to a new public defender, because Hartung would be close to her due date by the time a new trial began.

Hartung was assigned to conduct interviews at the jail until she began maternity leave, and she wasn’t assigned any more trials. She received big news, though, when she learned she had been appointed to serve as co-counsel on a death penalty case, which would be waiting when maternity leave ended.IAfter the mistrial was declared, Hartung continued to visit Demetrice Ford at the county jail. Now that she no longer was his attorney, she could tell him exactly what she thought of his case. “Before the trial, I felt I was making so little headway that it was just not worth the strain on the relationship,” she said. “But after this [mistrial] I was in a good position because I knew I wasn’t going to be retrying it, so it was okay for him to get pissed off at me.” Weeks passed, and Hartung visited Ford once or twice a week. Nothing in Gideon v. Wainright, no policy of the public defender’s office, required her to do this. Hartung said she had an ethical obligation to a young guy to explain what’s at stake.

Four weeks after the mistrial, Hartung received the news. “The plea happened yesterday,” she said. “I didn’t think it was going to happen. No one was more surprised than I was.” Hartung allowed herself a small, brief smile. For an attorney whose last client had just received ten years and whose next client faced the death penalty, she looked pretty pleased.

When public defenders meet people away from work, the question they hear most often is, “How can you defend somebody you know is guilty?” Composing witty comebacks is an unofficial pastime at the Alameda County Public Defender’s Office, but Hartung resists giving a snide answer. Just before the Ford trial, she visited her cousins from Vermont, and they asked the question. Yes, many of her clients are guilty, she replied, but all of them deserve a fair outcome. Some people deserve parole, not prison. Some clients deserve a fair sentence instead of the maximum one.

There’s another part to her answer, a part which she didn’t explain to her cousins: She defends the guilty because the judicial system requires checks and balances. The system needs competent defenders to prevent sloppy police work or overzealous prosecution. These checks and balances that are Gideon‘s legacy only work if public defenders fight for the underdog.

But if public defenders force police and district attorneys to do their jobs well, no part of the system monitors public defenders. Appeals courts provide a limited exception, but plea-bargained sentences largely escape their scrutiny. The final check and balance comes from the consciences of attorneys like Stephanie Hartung. Things work if she cares. Idealism may be a burden for public defenders, but it may well be the reason that the poor, the unfortunate, the innocent, and even the guilty can hope for justice.

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