Civil Rights

Ten years ago last month I suffered a very serious blood clot.  It got lodged in my heart as a pulmonary embolism and part of it broke off and ended up in my right shoulder.  It was the most painful experience of my life and it took nearly a week for the doctors to figure out what was wrong with a 30-year-old who was otherwise in good health.

The pain was such that they were providing me with morphine combined with Percocet to combat it.  As the pain lessened, I became increasingly aware of being doped up and eventually preferred a little pain to feeling “out of it.”

By Jeff Adachi

Note: The following remarks were given by San Francisco Public Defender Jeff Adachi on Aug. 1, 2013 at the Criminal Litigation Ethics Seminar at UC Hastings College of the Law.

Good afternoon. I want to thank UC Hastings and Professor Rory Little for inviting me to speak at this Ethics Symposium.

This year is very special for public defenders and the indigent defense community.  2013 marks the 50^th Anniversary of the Gideon v. Wainwright decision.  It’s hard to believe that just five decades ago, a person did not have a right to a public defender or court appointed- lawyer except in a death penalty case.  Were it not for Clarence Earl Gideon, a poor inmate in a Florida prison convicted of burglarizing a pool hall who wrote a handwritten petition to the US Supreme Court demanding a lawyer, we might not have this basic right that we now take for granted.  But even today, the right to counsel is far from fully realized.  Public defender offices, for the most part, are still treated as the stepchildren of the criminal justice system, under resourced and understaffed.

Even after being acquitted on the most serious charge, aiding the enemy, Bradley Manning still faces life in prison after being found guilty of numerous lesser charges, as the Obama administration works hard to make an example of him after he leaked classified reports that showed that the U.S. Government was lying to the American people as well as to its allies.

In reading the verdict, Col. Denise Lind ruled that the facts were insufficient to convict Mr. Manning of what would be the military equivalent of treason.  She found that, for instance, the video Collateral Murder did not qualify as “national defense” information.

In the movie Remember the Titans, the fictionalized account of a true story about the integration of a football team in early 1970s in Virginia, the football coach in an effort to forge unity brought his players to the site of Gettysburg to remind them that the struggles that they faced that day were not new, and had old and bloody antecedents.

Forty years later, we have made much progress in the battle for racial and social equality; however, we have recent reminders, that race remains as polarizing and salient an issue as it perhaps ever was, even if the form of that polarizing continues to evolve.

A year ago, Frontline did a report that found that the killings of black people by whites were more likely to be considered justified than the killings of white people by blacks.  The problem, however, remains: how does one measure racial bias?

As we see in the George Zimmerman trial, the question is not only difficult, but it is polarizing.

In yesterday’s commentary on the Trayvon Martin decision, I stated in strong terms that I have no doubt that the outcome of this trial would have been different with an African-American defendant.  This comment, more than any other in the 1400 word essay, drew reader attention and at times criticism.

People who believe this case had nothing to do with race need to wake up and smell the coffee – this case had EVERYTHING to do with race.  There are people – some with good intentions – who believe that somehow by ignoring the racial dynamic we can move on from a national history steeped in racism from its founding to its dealings with Native Americans, its slavery and post-slavery saga to the present day.

“The U.S. Supreme Court’s June 26 decision in Hollingsworth v. Perry did not rule on Proposition 8’s constitutionality, and the district court’s 2010 injunction does not apply statewide.”  That is the view of a group called Alliance Defending Freedom, which filed a petition on Friday to ask the California Supreme Court to order the state’s county clerks to enforce the state’s marriage amendment.

“Our current lawsuit asks the California State Supreme Court to affirm and enforce the rule of law – declaring that in light of the Supreme Court’s decision not to address the validity of Prop 8, that constitutional amendment remains the voter-approved law of the land,” the group said in a statement Friday.

This is the column that I really do not want to write, but sometimes in this business, you have to do things you don’t want to do.  You see, 11 years ago today, I made the best decision of my life – I married the love of my life, Cecilia.  Little did I realize what the bonds of marriage would bring in the next 11 years.

Last night, I took my family to our favorite restaurant in Mendocino, Ravens’, out of cellular range.  When we got back into cellular range, I got a bevy of alerts on the acquittal of George Zimmerman.  I spent an hour or so reading my Facebook and Twitter feeds – anger and outrage.  Some people were resigned, some were ready to take up action.

“It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California’s voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal ‘standing’ to defend it in federal court, even when the State Governor and Attorney General failed to defend,” UC Davis law professor Vikram Amar writes in an article published in Verdict this week.

His article argues that the Supreme Court could have found a way to have “avoided unnecessary damage to the initiative device,” even as he believes it somewhat reasonable that the court find a “principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage.”  He simply felt that the court needed to explore alternatives ways to do so.

County Clerk Describes the Long and Yet Rapid Road from Protest to Legalized Marriage – It was February of 2007, more than 18 months before voters would pass Prop 8 banning same-sex marriage, when Yolo County Clerk Freddie Oakley said she was frustrated with the system and decided to do her own protest.

“I had already been county clerk for a number of years and I took it upon myself to be the person who addresses folks who came to demonstrate on Valentine’s Day,” Freddie Oakley recounted on Friday, noting that most county clerks would simply hide away in their offices rather than face the protesters.

In an interview with Yolo County Clerk Freddie Oakley that will be run on Monday, she told the Vanguard on Friday morning that she expected the stay to be lifted within 23 days.  Little did she realize that just a few hours later, the Ninth Circuit Court of Appeals would lift the stay on same-sex marriages just days after the court declined the appeal based on a lack of standing.

In a single line, “The stay in the above matter is dissolved effective immediately,” the court effectively removed the remaining barriers to legal, same-sex marriages in California.

There has been a lot of talk following the Supreme Court ruling on the Prop 8 case about the issue of standing.  Some have suggested that Governor Jerry Brown screwed up by refusing to defend Prop 8 (along with Kamala Harris, the Attorney General).  My take on this issue is that the Supreme Court used the issue of the lack of standing to cop out of ruling on the broader question – that of constitutionality of bans on gay marriage as a violation of equal protection laws.

Peter Scheer, whose work with the First Amendment Coalition I admire, writes, “While I take no pleasure in saying ‘I told you so,’ this outcome, resulting from a political miscalculation by Jerry Brown, was predictable and predicted.”

Court Sidesteps Broader Issue of Constitutionality in Prop 8: In the end, the court narrowly struck down DOMA 5-4 while it punted on the broader question of Prop 8’s constitutionality and simply argued that defenders lacked standing to back the 2008 Constitutional Amendment in California.

In striking down the Defense of Marriage Act, Justice Anthony Kennedy wrote the majority opinion joined by the four liberal justices.

In the 1990s, it appeared that a conservative tide was moving through on social issues.  In 1994, California overwhelmingly passed Prop 187, adding severe restrictions on benefits to illegal immigrants and their children.  In 1996, the state passed Prop 209, ending affirmative action in California.  And the state also passed a proposition banning gay marriage, which was followed by federal legislation like DOMA.

Even the much ballyhooed “Don’t Ask, Don’t Tell Policy” was, at best, a compromise on gays in the military.

This week, two seemingly unrelated stories have continued on a national level.  One is a controversial 5-4 decision by the US Supreme Court, and the other is the still-burgeoning “scandal” which shows the Executive Branch, the NSA (National Security Agency), the FBI, and other agencies broadly and vastly increasing their surveillance on private citizens.

As Nothern California ACLU Staff Attorney Michael Risher wrote this week, “The Supreme Court’s 5-4 decision upholding Maryland’s arrestee DNA testing law is a serious blow to genetic privacy. The ruling allows the police to seize the DNA of innocent Americans who have never been convicted of any sort of crime, without a search warrant.”

I have read a lot of deadpanning of the Affordable Care Act before the system has even been implemented.  Truth be told, it was not my favored approach.  I have no idea if it will work.  But I would like to see it fail before we scrap it.

I suspect that many of the people defending the current system, or at least lamenting the new system, have never been in a situation where they have had to deal with health care without medical insurance.