real justice
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Emergency Room Triage - A Review of Real Justice by Ronald S. Sullivan Jr. and Jeffrey Berman

Ronald S. Sullivan Jr. is General Counsel to the Public Defender Service for the District of Columbia (i.e., chief lawyer in the agency). He graduated (magna cum laude, Phi Beta Kappa) Morehouse College (1989), Harvard Law School (1994) and is a visiting faculty member at Harvard Law School's Trial Advocacy Workshop.

Jeffrey Berman is a Staff Attorney at the Public Defender Service for the District of Columbia, specializing in representation of juveniles charged in adult criminal court with major violent felonies. He graduated (summa cum laude, Phi Beta Kappa) Connecticut College (1993), Yale Law School (1996) and has been an adjunct professor at Georgetown University Law Center since 1999.

In stark contrast to "The Practice" and "Ally McBeal," both of which portray lawyering in Boston as sex with judges, high profile cases, and remote-controlled toilets, "Real Justice" shows criminal courts in Fenway Park's shadow for what they really are: emergency room triage. Defenders, prosecutors, and judges alike work merely to process defendants through the system and make it to the end of the day.

Part I presents a harrowing and accurate portrait of the rough edges of America's urban courts. It brings to light aspects of the criminal justice system that normally operate in the shadows: underpaid and overworked prosecutors and court-appointed defenders making quick plea bargains in the hallways, prosecutors trying cases on a half-hour's notice, and defenders preparing their witnesses just minutes before they testify. Part II, on the other hand, provides a more panoramic view of three relatively more serious cases that worked their way through the system. While Part II provides a less intimate look at the relationships among prosecutors, defenders, and the accused, it explores certain philosophical issues routinely negotiated in the criminal justice system.

Part I is remarkable for its quality, accuracy and, significantly, its access. The players seem unaffected by the cameras, and the viewers are treated to an accurate glimpse into a typical day in an urban court system. Every prosecutor can relate to the moment when Viktor Theiss, after being harangued by the shoddily-dressed and ill-prepared defense attorney, loses his temper and snaps at him to "just tell it to the Judge." Or when a supervisor assigns a case at 10:30 that is scheduled for an 11:00 trial. Every public defender can relate to the moment when Lisa Medeiros' client tells the judge that she hasn't explained to him that his plea would result in giving up certain rights - when the unblinking eye of the camera captured Medeiros counseling her client on the loss of those rights just moments earlier. Or when a client balks at an agreement that would avoid the risk of conviction in exchange for community service. Medeiros' frustration is palpable when young Michael O'Neill - with righteous indignation, but no claim of innocence - says: "I'll never do 40 hours of community service."

Part I also well captures the frenetic, shoot-from-the-hip pace and style of the lawyering for the indigent that is endemic to most urban court settings. In one scene Medeiros meets, for the first time, one of her clients as he is being arraigned. In another scene, defense attorney John Taylor prepares his client to testify not by reviewing his story and preparing him for cross-examination, but by saying merely, "Tell the jury what happened." In the Tasha Davis case, Medeiros must have been shocked when her client, charged with assault and battery, admitted to attempt assault and battery on direct examination by stating that she tried to spit on the complaining witness.

Popular focus on current problems in the criminal justice system has been on actual innocence in DNA cases and defendants being sentenced to death after their lawyers slept through significant portions of trial. What Part I portrays, is the far more frequent cost of lawyering-on-the-fly that the parties in low-profile, relatively minor criminal cases are required to do. One can hardly imagine Johnny Cochran and Barry Scheck walking into Judge Ito's courtroom after a quick review of police reports and a last-minute first effort to get a deal for O.J. Simpson. The idea that David Kendall prepared President Clinton for his grand jury testimony with a hand on the shoulder, a look in the eyes, and a quick, "Tell them your story," is absurd. Part I shows more of the picture that Americans of a certain class rarely see.

Part I also introduces the viewer to the frustrating uncertainties inherent to the criminal justice system. The producers do a fine job of showing that truth (with a capital "T") is difficult, if not impossible, to know. Instead, the two sides routinely present alternative truths. In one case, a black man is on trial for alleged civil rights violations against a gay white couple. When he is acquitted, the viewer wonders whether the verdict is a result of homophobic indifference to the travails of a gay Bostonian. Or, does the verdict reflect the jury's conclusion that the alleged victim boorishly knocked the defendant's son to the ground and that the defendant's response was justified? Or does the jury simply follow the judge's instructions and find that the prosecutor failed to meet government's burden of proof beyond a reasonable doubt? The documentary presents these questions without directly asking them, deftly leading the viewer to the right issues without using a cattle prod to get there.

The strength of Part II lies in more fully exploring the complexities inherent in the criminal justice system by taking a more expansive look at three cases.

The Akeem Jackson case explores the complex relationship between crime and punishment. Neither side disputes that Jackson caused the death of his two-year-old neighbor. On the one hand, Jackson's youth (15-years-old at the time of the killing) should diminish somewhat his moral culpability. Debates rage as to whether a boy of his age can form the requisite intent sufficient to punish him as an adult. On the other hand, the brutality of the crime and the youth of the decedent, Raheem Dixon, merit a harsh penalty. Although the prosecutor consults with Dixon's parents before accepting the plea, it is arguable that the parents bear some responsibility. The parents, the argument runs, maintained a home that was filthy, bedecked in feces, and in no way suitable for a child. In addition, the parents chose to leave their two-year-old, for long periods of time, in the charge of a 15-year-old boy. In the parlance of civil law, they were potentially culpable of "contributory negligence" in bringing about the death of Raheem. Whether this relieves Jackson of some responsibility and supports him getting a better deal is a central question in determining how much jail time Jackson should serve.

The Downey brothers' case presents yet another tension common to the criminal justice system. One brother, Joe, was distinctively less culpable than the other brother, Dan; but the prosecutor offered a "wired" plea agreement, requiring both brothers to accept. Thus, because Dan declined an offer that would have led him to a sentence of roughly 20 years, Joe was not permitted to accept a plea agreement that would have capped his jail exposure at 7-10 years. In the end, both brothers are convicted, and the judge is required by statute to sentence both men to life in prison. The ethical dilemma here is whether it is fair to make the most important decision of a defendant's life contingent on what someone else does - a contingency totally outside of his control. Crudely put, because of Dan's decision, Joe's exposure to prison rocketed from a minimum of 7 years to a minimum of 35 years (when Joe will get his first chance to go before a parole board).

The third case shows Lisa Medeiros, a public defender in Part I, now a private attorney representing a mother in a child abuse case. The mother, Georgia Robinson, appears to be in substantial denial regarding her problems in caring for her children. She has lost custody of her children, and there appear to be credible accusations of abusive conduct. The prosecutor, Eileen Murphy, lusts to lock-up Ms. Robinson but has a real problem herself; the children do not want to go to court and testify against their mother. As a frustrated Murphy makes increasingly attractive plea offers, it becomes clear to Medeiros that the children are balking at testifying and that dismissal is likely. Murphy makes a final offer that involves putting the case on the back burner for two years. If Ms. Robinson completes counseling, the case will be dismissed. It's a deal that, despite the likelihood of dismissal, Medeiros strongly believes her client should accept as there is no real harm to the client and some potential benefit. When Ms. Robinson gives in to Medeiros' pressure to plead, one wonders what the client's real feelings are about how her lawyer is treating her.

While the camera is attentive to Ms. Robinson, and several of the other defendants portrayed, we never hear from her (or them) about their feelings regarding their lawyers. The viewer gets the clear picture that the lawyers care and that they are working hard, under the constraints of the system, to obtain good results for their clients. But we do not hear whether the defendants feel their lawyers are acting too much like part of the process and not enough like advocates battling forces intent on depriving them of their liberty. At times, the camera turns to witnesses, complainants, and jurors, giving them a chance to discuss their views on how the system is working. What "Real Justice" does not explore is how defendants feel about the criminal justice system -- and their lawyers -- after their cases are processed.

As impressive as Part I is for its access and Part II for its thought-provoking questions, one aspect of urban American criminal justice is conspicuously absent: the role of race. Race indisputably plays a dramatic role in the way criminal defendants are treated in this country. Yet "Real Justice" ignores the issue, save a brief mention by Damien Howell, the black defendant in the case involving a white gay couple. This omission is noteworthy given the troubling correlations between race and policing, race and prosecution, and race and judicial discretion. An oft-cited 1992 estimate by the United States Public Health Service, for example, reported that while 76% of illicit drug users in this country were white, 14% black, and 8% Latino, blacks account for 35% of all drug arrests, 55% of all drug convictions, and remarkably, 74% of all sentences for drug convictions. Similarly, according to the National Council on Crime and Delinquency and the Substance Abuse and Mental Health Administration, a black juvenile is forty-eight times more likely to be imprisoned for a drug offense than a similarly situated white youth. These statistical correlations, and like proofs, provide eloquent testimony that race-based disparate treatment is a significant problem in our criminal justice system. Given "Real Justice's" effort to be a snapshot more than an overview, the omission is understandable, but any portrait of contemporary American criminal justice is incomplete without attention to such an important detail.

Those quibbles aside, "Real Justice" offers a remarkable portrayal of what happens every day in urban criminal courts across this country. The conscious decision to forego commentary throughout the film -- to allow the players and pictures to speak for themselves -- provides a rare, valuable, and unvarnished view of a system that struggles under its own weight every day. The documentary is must-see-TV for anyone interested in what really counts for justice in the United States today.

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