And Justice for All?

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Bill Moyers examines the crisis within the American court system. In many parts of the country, funding for already burdened and backlogged courts is being reduced. And public defenders and legal aid attorneys are in short supply, leaving the poor without adequate or timely representation. In this program, a panel of judges discuss a variety of potential remedies for this national crisis.


JUDGE CALVIN JOHNSON: What’s the defendant’s plea?

RICK TESSIER: Not guilty, Your Honor.

BILL MOYERS: When the courts are overcrowded and overburdened…

JUDGE CALVIN JOHNSON: It is akin, I think, sometimes, from a layman’s perspective, to a cattle call. We round them up, bring them in front of me and I’m going almost at a mile a minute.

[to defendant] Do you have money today that you can use towards hiring an attorney?

HARRY CONNICK, District Attorney, New Orleans: And incidentally, they’re not the public defenders. Prosecutors are the public defenders.

BILL MOYERS: … when public defenders and legal aid attorneys are in short supply…

JACQUELINE BOWMAN: If we don’t have a mechanism for people to have access to justice, then we will have chaos.

BILL MOYERS: …who gets justice?

INMATE: The only thing you’re going to say is, ”What do he know about my case?” Then you call your people. “Mama, get me a lawyer.”

JUDGE CALVIN JOHNSON: We have to create the perception that this is a system that works for everyone.

BILL MOYERS: Tonight on Listening to America, “And Justice for All.”

Good evening and welcome to Listening to America. From just about every quarter come accounts of courts in crisis. The American Bar Association has warned that the justice system in many parts of our country is on the verge of collapse due to inadequate funding and political neglect. ”Backlogged” describes practically every criminal court in the country. Let’s look at some facts.

The number of people behind bars in America doubled in the last 10 years to one million and arrest rates continue to soar. Record arrests mean record numbers of people coming into court. Between 1984 and 1990, caseloads in state criminal courts grew by 33 percent from 9.8 million to 13 million.

Meanwhile, a bad economy is driving more Americans than ever into the already crowded civil courts with problems like bankruptcy, eviction, and divorce. Nationwide, civil court cases were up 33 percent, from 14 million in 1984 to over 18 million in 1990. Yet last year 23 states cut budgets for criminal and civil courts and more cuts are expected next year.

During this election year, politicians responding to public pressure have vowed to spend more tax dollars fighting crime and drugs by sending more people to prison, but politicians have not promised to help the courts keep up and there’s no pressure, or little pressure, from the public for them to do so.

Judges see all of this from their unique position on the bench. We’ll hear from some of them in the course of this hour: Sol Wachtler, chief judge of New York state, became so desperate when his budget was cut by the legislature that he sued the governor; Leon Higginbotham, retired federal judge emeritus from Philadelphia, a leading student of the injustice of justice; federal district judge Melinda Harmon of Houston, Texas, who was appointed by President Bush three years ago; superior court judge Suzanne Del Vecchio from Boston, who has a unique vision for reform; and joining us from Los Angeles, where he’s on a visit, the government’s top advocate, solicitor general Kenneth Starr, himself a former justice.

Judge Wachtler, you sued the governor. You went to court, literally, to sue the governor. What led to that drastic…

Hon. SOL WACHTLER, Chief Judge, New York State: Well, first of all, it was a very unfortunate confrontation and one which I wouldn’t recommend for anyone else. We had a situation where, as you pointed out, the enormous caseloads have been becoming even more enormous on all sides. Since the crack epidemic began in 1985, we’ve had over a 75 percent increase in criminal cases. We’ve had a 500 percent increase in abuse and neglect cases in our family court. And then of course, as you also pointed out, the civil courts became very crowded. In the face of this, we now come into our budget year and they say that we are a third, co-equal branch of government, but I’ve found that when it comes time to negotiate budgets, some branches are more equal than others. We are excluded from that process and then we’re like a poker player sitting around a table with no chips. They took my budget, they cut it some 20 percent and they said, ”You’re going to have to live with this.” And I had a choice. I could not close down the criminal courts because we have speedy trial mandates. I could not close down the family courts because one day in the life of an abused and neglected child is like 10 years in your life or mine. So the only place we could take it from was the civil parts, the civil courts, and we closed down some one third of our civil courts. And then the question was whether I should sit back as the head of this court system and simply become an honorary pall-bearer or whether I do that which any other citizen aggrieved would do, and that is bring a lawsuit, which is what we decided to do.

BILL MOYERS: And that’s been resolved now.

JUDGE SOL WACHTLER: That’s been settled and…

BILL MOYERS: You got some of your money back.

JUDGE SOL WACHTLER: I got all the money we needed back to rehire the people we had to fire and to refill the vacancies so that the courts can once again function.

BILL MOYERS: Is there no constituency for courts? I mean, if the politicians whack your budget, as you say, does anybody out there speak up and say “That’s wrong?”

JUDGE SOL WACHTLER: No. The fact is that when people run for public office, they talk in terms of more police and more arrests and they talk in terms of more prisons. They don’t talk in terms of building up the middle of that continuum, which is the court system, and a vital part of this society’s function. So that we’ve invariably had to suffer.

Hon. SUZANNE Del VECCHIO, U.S. Superior Court, Massachusetts: But, you know, it’s our own fault, to some extent. Why are we waiting for the governor to carry our water for us? Why aren’t we going out to the people and telling the people what we do, what it’s all about? Why aren’t…

JUDGE SOL WACHTLER: Because the people listen to the governor before they listen to you.

JUDGE SUZANNE Del VECCHIO: I know, but why don’t we put our…

JUDGE SOL WACHTLER: Especially when you have a very articulate governor.

JUDGE SUZANNE Del VECCHIO: I under … well, and you do. There’s no question about it. You certainly do.

BILL MOYERS: But he sued the governor.

JUDGE SUZANNE Del VECCHIO: I know he sued the governor.

JUDGE SOL WACHTLER: Because I had to get his attention.

JUDGE SUZANNE Del VECCHIO: Well, you did it! That’s what you did and you put the issue before the people, OK? That’s what you did. Maybe you don’t exactly have to sue a governor. Maybe what you do is, you come on these television programs and you tell people what we’re all about. Maybe you say, ”We are in favor of higher sentencing for violent crimes, but where you have people who are first or second time in the system for non-violent crimes, why do we treat them as if they were violent criminals? Why do we pay $30,000 a year to keep that person in the same jail that the violent criminal is in?”

BILL MOYERS: Let’s take a look at another state that’s facing some serious problems. As most of you know, 30 years ago the Supreme Court ruled in that famous Gideon versus Wainwright case that criminal defendants who cannot afford a lawyer are entitled to have a lawyer appointed and paid for by the state. And today 70 to 90 percent of the people who are arrested in this country cannot afford to hire a private counsel. In New Orleans that problem has reached crisis proportions.

JUDGE CALVIN JOHNSON: Mr. Simmons is charged with first degree murder. We’ve gone this route before with a 15-year-old.

BILL MOYERS: This is criminal district court, New Orleans, Louisiana.

JUDGE CALVIN JOHNSON: … first degree case or the state cannot seek the death penalty in this case.

BILL MOYERS: Judge Calvin Johnson presides.

RICK TESSIER: He was released, not notified to be to court.

JUDGE CALVIN JOHNSON: But he couldn’t have been 61 days in jail, Mr. Tessier.

RICK TESSIER: That’s what he’s…[to client] Didn’t you tell me that?

JUDGE CALVIN JOHNSON: He was arrested April 1st.

RICK TESSIER: [to other client] Oh, that’s you? I’m getting them mixed up. I’m sorry. Judge, may I approach?

BILL MOYERS: Rick Tessier is one of 15 lawyers in this courthouse who defends the poor. He handles an average of 700 cases a year, 300 times the number of cases a private lawyer generally takes.

JUDGE CALVIN JOHNSON: It is akin, I think, sometimes, from a layman’s perspective, to a cattle call.

BILL MOYERS: Judge Johnson hears most of Tessier’s cases.

JUDGE CALVIN JOHNSON: We round them up. We … I bring them in front of me and I’m going almost at a mile a minute. “Mr. John Blow, this is your case. This is what you’re charged with. Do you have enough money to hire a lawyer? Do you have anyone else who can hire a lawyer? If not, I’m going to appoint a public defender.”

[to defendant] Do you have money today that you can use towards hiring an attorney?

DEFENDANT: I have no money.

JUDGE CALVIN JOHNSON: Mr. Tessier, I’m going to appoint you this morn-ing for arraignment only. What’s the defendant’s plea?

RICK TESSIER: Not guilty, Your Honor.

JUDGE CALVIN JOHNSON: The individual caught up in this system, they again walk away with the perspective that “I have no lawyer.”

RICK TESSIER: I think his position is this, Your Honor, is the fact is that he’s released, nobody tells him anything about the charges one way or another and then…

DEFENDANT: [unintelligible}

RICK TESSIER: … and he’s under the … just let me talk. He’s under the impression that the charges have been dropped.

JUDGE CALVIN JOHNSON: “Judge, you are telling me that this man called a ‘public defender’ represents me. When did he investigate my case, Judge? When did he ask me about my witnesses?”

RICK TESSIER: I’m going to talk to you.

BILL MOYERS: One day last March Judge Johnson ordered Rick Tessier to bring a rape case to trial. Tessier, who felt unprepared to try the case, refused.

RICK TESSIER: I found that, under the circumstances of the number of cases I had and the amount of investigators I had, the amount of secretarial staff that I had, I simply couldn’t do the case.

JUDGE CALVIN JOHNSON: I like Mr. Tessier, but to refuse to go to trial once ordered to is contemptible and I held him in contempt.

SAM DALTON: Well, Rick…

BILL MOYERS: Sam Dalton is a long-time public defender.

SAM DALTON: … decided to test the system on this particular case because it got so ridiculous. The court ordered the city of New Orleans to provide him with a DNA … money to hire a DNA expert and money for resources and the city wouldn’t come up. And the state was trying to get the case to trial. And everybody admitted that in order to provide competent representation, Rick needed this resource.

JUDGE CALVIN JOHNSON: Mr. Tessier then filed his now famous, somewhat, motion to have the court determine whether or not he was rendering the effective assistance of counsel, based on the lack of resources. That motion was heard by me over a period of months.

SAM DALTON: In a lot of indigent offices, Rick would have been fired. He would have been fired. The judge would have picked up the phone, “Hey, get rid of this guy.”

BILL MOYERS: Instead, Judge Johnson surprised everyone by ruling in favor of Tessier. He said that the laws surrounding the funding of the public defender’s office were unconstitutional.

JUDGE CALVIN JOHNSON: The Louisiana Supreme Court now is going to decide whether or not I was correct in doing what I did and what they will do, I have no idea what they’re going to do. I think I did what was right.

RICK TESSIER: This is the public defender’s office and this is the place where most of the people in Orleans Parish are defended in criminal cases. We handle close to 7,000 cases a year and in this office we have about 15 attorneys.

BILL MOYERS: Numa Bertel runs the public defender’s office.

NUMA BERTEL: You have to worry about your personnel, and I’m talking about your lawyers, getting burned out emotionally, day after day, fighting this battle. And I’m giving them no relief except a pat on the back and a smile and say, “Keep up the good work.” Our starting salary is $18,000 a year in this building. I could drive a cab and drive one not very well and make more money than that.

RICK TESSIER: The library has an interesting story behind it. It’s a library that was created through a stroke of luck. What happened, unfortunately, was that a judge died and the judges all have complete series of law books. And when that judge died, what we did was, we kind of … took is a good way of putting it, maybe possibly say “stole” … the books from the office before another judge could get them. Before they knew what happened, the judges asked for the library back. At that point in time, we said pretty much “Possession is nine tenths of the law.”

NUMA BERTEL: Money is short in state legislatures throughout the country . You must understand that politicians are going to be reluctant to spend the tax dollar for lawyers to defend people they perceive as guilty criminals, although the law says they’re not until proven guilty, rather than spend it on something more appealing and, in their view, maybe something more necessary.

RICK TESSIER: This is the building that houses the district attorney’s office. It’s four stories high and I believe there’s over 80 or 90 people who work inside. And it’s … pictures tell it better than words. Their budget is about four times our budget.

BILL MOYERS: Harry Connick is the district attorney of New Orleans. His office represented the city in opposing Tessier’s motion.

HARRY CONNICK: I know that everyone accused of a crime has a right to be adequately represented and we cannot ignore the responsibility to fund attorneys for individuals who have no money to hire them. But this whining about that we … “They have more money than we have” is foolish.

NUMA BERTEL: I have a lawyer in every court. He has two or three. I have three investigators. I lost count he has so many.

HARRY CONNICK: All of the elements of the criminal justice system are underfunded presently.

NUMA BERTEL: But the playing field should be a little more level. We should not be forced to trip when the district attorney’s office can run smooth.

RICK TESSIER: This is called the Emergency Detention Center and the people who are in jail call it Tent City. This is where some inmates are kept because there’s not enough room.

BILL MOYERS: The arrest rate in New Orleans Parish is so high and the courts so backlogged that many times people accused of crimes can wait in prison for two months before even being arraigned. If the accused is poor, that usually means he’s had no access to a lawyer during his stay.

NUMA BERTEL: That period of time, from the point of initial arrest till this point of charging by the D.A.’s office and arraignment, is critical because the matter becomes stale. With passage of time, it becomes stale.

RICK TESSIER: Usually I try to visit one or two people a day, just so they know that I’m still breathing and that I’m interested in their case. And when you go over there, you try to explain to them why their case is taking so long, to explain to them whether or not there’s some kind of update on what’s going on.

INMATE: The state-appointed lawyer, how can you properly represent me if I’ve got to go to trial, if I’m facing 20 to life, when you have 200 clients? The first thing you’re going to say is, ”What do he know about my case?” Then you call your people. “Mama, get me a lawyer.”

HARRY CONNICK: The fact is that most of the people who are brought to court, to the criminal courts, are going to plead guilty. They do it voluntarily. They do it freely. And there’s not a lot of work involved in that.

INMATE: We are in the position where we cannot go to trial, we’re forced to cop out because we’re scared.

RICK TESSIER: So a lot of people just plead because they feel that’s

INMATE: The safest.

RICK TESSIER: … the safest way.

INMATE: The safest way. If you’re facing 20 to life, nine out of ten a person going to cop out because he can’t go to trial. He won’t go to trial. That don’t say he committed the crime.

HARRY CONNICK: And incidentally, they’re not the public defenders. Prosecutors are the public defenders. Legal aid attorneys are the people who represent people accused of crimes. That’s what they do. They represent individuals who have been arrested for violating a citizen’s rights.

JUDGE CALVIN JOHNSON: The district attorney is the public defender? That’s an interesting way of putting the matter. But when our country was created, the individuals who were instrumental in setting up our framework thought that the worst thing that could possibly happen to a citizen was the government to accuse that citizen of a crime and therefore that citizen should be protected from the government, from the D.A., in essence. And in doing so, then that citizen ought to have the right to due process of law. At no point in our Constitution does it say that the government/D.A. should have these rights.

RICK TESSIER: Andre Brooks is an example of somebody who I decided to focus my time on. He was a person who had never been in trouble before for anything before this incident took place.

ANDRE BROOKS: So cooking is a thing that I like to do. Right now I’m working at a hospital, a local hospital, and I work in dietary, but I’m over the grill. It’s not as much as, like, what I went to school for, but I like doing it.

RICK TESSIER: When I met Andre, which was probably after he had been in jail 80 days, I had a brief conversation with him and I still believe to this day that he was innocent.

ANDRE BROOKS: I was raised in the area that was considered kind of rough, but I just didn’t involve myself with a lot of things that was going on. But everybody make their mistakes, you know? What happened was, I saw this abandoned vehicle and I got into it. I had seen this car for a couple of days and I took a chance and got inside the car. I was in the car no more than maybe 15 minutes when I got pulled over. So the police officer, he ran a check on the car and found that it was stolen and that it was stolen in an armed robbery.

RICK TESSIER: He was somebody who was charged with a … with a charge that carried a sentence of 5 to 99 years and then another charge that carried 5 to 40 years in jail. And those cases bother a public defender more than any other kind of case because you know if you make a mistake and you don’t spend enough time on the case, he may be found guilty and it’s ultimately your fault.

ANDRE BROOKS: So I could have easily, because of what they were saying, felt like, “Well, they got me” and do like a lot of other guys I know right now are still in there today, take the little bit of time. I could have took the five years. Being a first offender, I would get good time, as they explained it to me, and do two and a half years for the five. But I say, “Well, I didn’t do it.”

RICK TESSIER: I think the jury was out about 30 minutes and he was found not guilty. Twelve jurors said that he was not guilty of both charges. And at that point in time, Andre Brooks had spent close to 11 and a half months in jail.

HARRY CONNICK: But I know of very few innocent people getting convicted and a lot of guilty people going free. And you have to look at that side of the coin.

RICK TESSIER: We’re not trying to release guilty people on the street. What we’re trying to do is make sure that each person gets a fair crack in court. If he’s guilty and the jury believes that he’s guilty, so be it.

NUMA BERTEL: The Bill of Rights is the only thing that common people have. That’s the only thing that separates us from power and it’s the only thing that tells government it’s got to behave, OK? And every time we don’t exercise those rights or we don’t protect them, we shorten the length of time that those rights are going to survive.

JUDGE CALVIN JOHNSON: We have to create in the minds of individuals the perception that this is a system that works for everyone, no matter color, no matter class, but it works for everyone. That is absolutely necessary if again we are going to have a peaceful society. And at my age, I want a peaceful society.

RICK TESSIER: We’re dealing with people’s lives here and when you deal with people’s lives and liberty, I think that’s one of the most important things that a person has.

BILL MOYERS: [on camera] Two weeks ago, the Louisiana legislature passed a pay raise for district attorneys, but legislation to increase funding for the public defender’s office was tabled. Leon Higginbotham, chief judge emeritus for the Third Circuit Court in Philadelphia, has devoted much of his career to studying inequities in the justice system. You’re on the horns of a dilemma, are you not?

Hon. A. LEON HIGGINBOTHAM, Jr., U.S. Court of Appeals, Pennsylvania: Sure. We have to do as good a job as we can with the limited resources and we have to lobby for the better resources. But we mislead the public if you submit that we can spend a trillion dollars to save the savings and loans, which were operated by purportedly high class executives, most of whom were white, and yet you aren’t willing to spend the type of money to deal with the breeding grounds which cause crime. We’re just going to get more and more efficient on getting people to jail faster, but we’re not dealing with the fundamental causes and I think that the society must look at that, as well.

BILL MOYERS: Can we get a more level playing field, the kind that Judge Johnson was asking for, or are you discouraged about the prospect?

JUDGE LEON HIGGINBOTHAM: One, we can and the nation deserves a more level playing field. It was Shakespeare who once said “If you tickle me, will I not laugh? If you prick me, will I not bleed? If you poison me, will I not die? And if you wrong me, shall I not revenge?” And when you create a society where day in and day out millions of people recognize that there is no fairness in the fundamentals in the operation of the system, we are headed for incredible catastrophe. All you have to do is to look at the poverty statistics involving children. Now you find that more than 30 percent … more than 30 percent … of blacks in this country live below the federal government’s poverty level. If you look at the data broadly, black and white, you have more than 30 million people in this country who live below the poverty level and every study establishes that poverty is the most significant accelerant for crime.

BILL MOYERS: Solicitor General Starr out there in California, what’s your response to that?

KENNETH STARR, U.S. Solicitor General: I think it is a mistake, with all due respect to my esteemed former colleague, Judge Higginbotham, to lay the problem of crime at social conditions. I cannot agree that “poverty causes crime” and I think most studies, in fact, indicate to the contrary, that, for example, during the Great Depression, crime rates went down. Some of our poorest states in the union have the lowest crime rates. Rather what there has been, of course, is a break-up of very important social structures, the family structure and the like. But coming back to the point about what can the courts do, it does seem to me very important for, once individuals enter the system, for us not to have the kind of situation that we saw depicted of individuals languishing in jail without having an opportunity to have their cases heard.

JUDGE LEON HIGGINBOTHAM: I want to just respond to Solicitor General Starr, who obviously is one of the great advocates of this generation. He suggests that maybe studies in the Depression point out that poverty is not the cause of crime and that you had lots of poverty and not a high crime rate, and he’s absolutely correct on those. But then everyone was in the same boat. Now what you find is that the unemployment rate, in terms of young people in our inner cities, is sometimes 60, 70 and 80 percent. You never had that equivalent, even in the Depression. I know that some people say, “Judges should just have tunnel vision.” You look about the process from the time someone is arrested to the time someone is sentence or acquitted, and that’s all there is to it. I don’t think judges are being honest, in terms of their insights, if we don’t make it clear to the public that we’re going to do as good a job as possible, but that there are profound causes which are contributing to the pathology which we have.

Hon. MELINDA HARMON, U.S. Southern District Court, Texas: I grieve with Judge Higginbotham over the social problems of our country and I do think, to some extent, that poverty causes crime. I agree with Judge Starr that you can’t lay poverty as the reason for all crime, but certainly there’s some element to it. But what I have to do as a judge is simply look at each case individually, each defendant individually, and it’s not my job, as I see it, to solve those social problems. What I have to do is treat each case as it comes along and hope that other people whose job it is to try to solve the social problems can do that and hope that what I’m doing is not in some way working against that.

BILL MOYERS: The political pressures in my home state of Texas, your home state, are driving more and more people into the judicial system and on their way to jail and prison. Is the politics of justice creating problems for you?

JUDGE MELINDA HARMON: The crimes that I see are primarily drug crimes because we’re in the southern district of Texas, in a very unique position. We lead the nation in drug crimes in the federal courts. Now, if one wants to say the so-called “war on drugs” is a political problem, then I guess, yes, you would have to say that I’m impacted by the politics. If, on the other hand, you say the politics are simply responding to what the people of this country want … that is, some kind of dent in the drug problem in the country … And it is seen as something that must be handled through the criminal justice system, then I don’t think one can say it’s politics.

BILL MOYERS: Judge Wachtler?

JUDGE SOL WACHTLER: I was just thinking there … it’s an interesting concept, but we have to remember that the courts are at the wrong end of the criminal cycle. We don’t bring crime. We don’t stop crime. And if people are looking to the courts, which they do in political arenas, to stop crime, they’re looking in the wrong place. I mean, I’ve heard dozens of times people running for public office saying, “If those soft-hearted and soft-headed judges would put more people in jail, we could stop crime.” The fact is, as your statistics show, we now have one million people behind bars, more than any other civilized country or uncivilized country in the world. And none of them went there voluntarily. They were all put there by judges. That doesn’t stop crime. Or they’ll say, “It’s time we thought more about the victim and less about the criminal.” Now, everyone would agree with that, but it somehow suggests that judges somehow empathize with the criminal and don’t have any sympathy for the victim of a crime.

KENNETH STARR: If I may say so, I think it’s a mistake to focus on numbers of person incarcerated and then to say, “That’s more than another country and therefore something must be wrong with our system.” To the contrary, it seems to me we focus on the incidence, the levels of crime and what is our society doing to respond to that. It’s really a matter of common sense. It’s a basic part of the social contract that we should, in fact, be free from crimes and certainly crimes of violence. And if there are violent offenders who are making lives miserable and dangerous and taking lives, then those persons should, in fact, consistent with due process, be brought to justice.

JUDGE SOL WACHTLER: Oh, absolutely, and I don’t suggest otherwise. What I’m saying is that when the public expectation is that simply putting people in jail will stop crime, it’s a false expectation. Similarly, if they think that we can stop all plea-bargaining, which we hear constantly, a criticism leveled by people who are seeking office … “They should stop all plea-bargaining. A person arrested for a crime should be tried for that crime and punished for that crime.” I agree with that. We can’t do it, though. In New York City now, we have 1,000 cases a day coming into the criminal court. We have 72 judges. They can spend about four and a half minutes per case. How can we stop all plea-bargaining? In other words, what I’m saying is that I think responsible political rhetoric would put the courts back in focus with respect to what the court is to do. As Judge Harmon said, the courts have to handle each case that comes before it. As Judge Higginbotham said, we are very concerned about other social factors, but we are in the courts and we can’t address those directly.

BILL MOYERS: Kenneth Starr, from where you sit, is the judicial system breaking down?

KENNETH STARR: Well, certainly in certain states and I think we’ve heard a fairly powerful description of one very important state that is very much in distress. I think that is certainly true. Overall, when we look at our system of justice, especially focusing from my vantage point on the federal system, that while there are problems in the system and there have been very thoughtful studies, nonetheless I think over the last decade and over the last 15 years, there has been more of a concerted effort in the federal government to examine the criminal justice system and the civil justice system as an entire system. There has not been a starvation of the system. Now, in contrast, in the states, there are a number of states such as New York that really are suffering and I think, as a general matter, that not enough resources have been devoted to the civil justice and criminal justice system on the part of the states.

JUDGE LEON HIGGINBOTHAM: This whole conversation as to whether the federal system is better than the state, I submit to you is somewhat skewed. I think the federal system is better, but it has many, many flaws under any objective analysis.

BILL MOYERS: Do you think our system is crumbling?

JUDGE LEON HIGGINBOTHAM: Our system is crumbling. I think we’re fortunate it can be saved now. I mean, we aren’t at the brink, toppling over. But if we don’t change profoundly the way we deal with a whole host of issues … health, education, unemployment, particularly among the young … we’re going to be in serious trouble.

BILL MOYERS: Judge Suzanne Del Vecchio is a Superior Court judge in Bos-ton. She was co-chair of this excellent report, Reinventing Justice, which is an effort to plan an ideal justice system 30 years from now in Massachusetts. We can’t wait 30 years.

JUDGE SUZANNE Del VECCHIO: Well, we have to start now, but if we want to be in a place 30 years from now that’s very different from today, we had better start planning today because we are not any place today where we should be in this system.

We found out that there is a crisis going on in the courts, but we came up after two years with 150 recommendations, the focus of which is to turn the system on its ear, to instead of running the system for the convenience of the judges, the court officers, the people in the system, that we should run it for the people … “By the people, for the people.”

BILL MOYERS: Sounds good, but what do you mean?

JUDGE SUZANNE Del VECCHIO: We will have a comprehensive justice center rather than a courthouse in the future and there will be judges sitting in that center, and clerks and court officers, but there will also be people from the Department of Mental Health. There will be people from our Department of Social Services. There will be people from … who are now on salaries elsewhere in the state. We’re going to put us in one place.

BILL MOYERS: Do you think people will pay for that sort of reform?

JUDGE LEON HIGGINBOTHAM: I don’t know whether they will, but if they don’t the whole question of the long-term survivability of our nation is at stake. About 26 civilizations have been destroyed from within, not from external assault. And what you find when you look at it in a broad view is that you get to the point where, in a civilization, the vast majority of the people have no confidence in its manageability, then the system starts to crumble.


KENNETH STARR: Well, yes, I’d like to say one thing about violent crime. We’re talking about crime generally, but I think that the crime that is of such great moment and urgency to the American people is the problem of violent crime. And what studies do show is that a very small number of persons cause a disproportionately high number or percentage of violent crimes. But those are the kinds of things that we should be targeting, the real serious problems, and then obviously not ignore the kinds of social problems that the judge is very eloquently speaking to. Those are very vital and very important, but in terms of the criminal justice system and the incidence of crime, why don’t we target the most violent among us?

BILL MOYERS: What’s the answer to that?

JUDGE LEON HIGGINBOTHAM: I’m completely in favor of focusing on the most violent. These are not new insights. The Wolfgang study in the 1950s clearly established that in the juvenile courts a small percentage of the individuals who were … who later committed homicides were identifiable when they were in their early teens. We just have failed to focus on violence.

BILL MOYERS: But if you’re going to concentrate on violent crime, aren’t you going to have to have political leaders who will try to convince the people that while fear is justified, you can’t clog the courts with a lot of cases that are not violent in nature?

JUDGE LEON HIGGINBOTHAM: Well, this whole crack problem is at the core, at least for my view, the drug problem is at the core of a lot of the violence. When you have a situation where so many people are selling drugs that that market which we’ve created is directly related to later violence and in the whole distribution system. So that you have to look at dealing with the whole drug problem. And why do people sell drugs? Many of them sell drugs, I submit to you, not because they want to be violent, but because that’s the only job available in town.

JUDGE SOL WACHTLER: I think I’m going to disagree with you. I don’t think that people sell drugs and that’s the big problem. I think it’s the problem is the people who buy the drugs. It’s the user. I don’t think that we’re going to be able to ever stop drugs from coming into this country. If we build a 15-foot wall around the United States of America, the cartels will build a 16-foot ladder. They’ll always get it in. I think we have to stop the demand for drugs.

BILL MOYERS: Everyone at this table is nodding ”Yes.”

JUDGE MELINDA HARMON: It’s the only solution. There’s no … the reason they come over is because people use them. There’s a tremendous demand in this country for drugs and until we stop that demand for drugs, it’s simply … you know, it’s not a losing battle. I think we’re probably winning, to a certain extent, but we’re not going to be completely victorious until the demand for drugs stops.

KENNETH STARR: We do have to get through the crack cocaine epidemic, but some of the studies, in fact, are quite encouraging in this respect, that the drug usage is beginning to decline. The educational process, I think, has been ongoing at all levels of government and particularly through the educational system and I think more and more young people in particular, who tend, of course, to be the targets of drug traffickers, are, in fact, saying “No, that is not the lifestyle I want to lead.”

BILL MOYERS: We did a broadcast a few weeks ago on Listening to America dealing with crime and what we did find is that the casual use is declining, but that the hard-core users, the ones most likely to be subject … most likely to commit crimes, are not diminishing and that creates more problems for all of you, right?

JUDGE SOL WACHTLER: That’s what we’re showing in our statistics, by the way, the crimes attributable to drugs, and that’s some 70 percent of the crime … either people are on drugs when they commit the crime, they’re committing the crime to get money to buy drugs, or they’re dealing directly in drugs … 70 percent of our crime is attributable to that and the crime rate is not diminishing.

JUDGE SUZANNE Del VECCHIO: Could I just make a point here about what we found was happening because of this problem? We are have … something terrible is happening in this country, in the sense that we have a private justice system arising for rich people. We have it in Massachusetts. We have it all over the United States, alternate dispute resolution, which we do not offer in the courts, is now being used by major corporations to settle cases outside of the court system. We take too long. We don’t deliver justice efficiently and we’re not doing the job. What does this mean for our future? That only poor people will be in our court system. We will not have that body of law which constitutes the common law that comes through the case-by-case process. The stare decises that we need to judge each case as it comes in is going to be missing.

BILL MOYERS: You’re talking about civil as well as criminal.

JUDGE SUZANNE Del VECCHIO: I’m talking about what happens to the civil side of the court when the criminal side gets so overwhelmed by these cases. We can just … it’s going out the window.

BILL MOYERS: Let’s look at a report we did from your home town of Boston because it shows that it’s not just criminal courts that are facing chaos because Legal Services attorneys are in civil courts every day, advocating for that growing population of Americans in danger of losing their homes, who can’t get their unemployment benefits or their medical benefits, people who’ve found that they’re just one paycheck or one divorce away from poverty. Here’s a brief report, then we’ll come back and talk about some solutions.

BRENDA FRANK: I grew up in a middle class background. I was educated. I intended to get more education. I wanted to stay home with my children while they were very young.

BILL MOYERS: Brenda Frank’s middle class life shattered 10 years ago when her husband walked out on her and refused to pay child support.

BRENDA FRANK: I was pregnant with my second daughter, Emily. I had a 15-month-old toddler. I had no medical insurance. And the welfare system, Medicaid, would not pay for her birth because I didn’t have a Social Security number for her, which I couldn’t get because the doctor hadn’t signed the record of her birth. So as far as the Commonwealth of Massachusetts was concerned, she didn’t exist. Even though the social worker had seen me carrying her for nine months and had seen her in my arms, I didn’t technically have another baby.

BILL MOYERS: Brenda needed legal help to get the state to pay her benefits and to get a divorce and child support from her husband. The problem: She couldn’t afford a lawyer. Brenda sought help from Legal Services. Jacqueline Bowman was one of the three attorneys who guided Brenda through the civil courts of Boston, a journey that took four years.

JACQUELINE BOWMAN: One of the things that happens when people are poor is that they are told repeatedly “You don’t matter. You don’t vote. You don’t count.” If people are told that repeatedly, they will begin to act as if they don’t matter, they don’t care, they don’t count. And I think that if we don’t have a mechanism for people to realize what their rights are, to exercise those rights and have access to justice, then we will have chaos.

BILL MOYERS: This is where the legal fight began for Brenda. Greater Boston Legal Services and other similar programs around the country provide legal assistance for people who can’t afford their own attorneys.

LYNN GIRTON: I started this work a long time ago because I believe that by doing this work, I could make a difference. And after 12 years, I still believe that.

BILL MOYERS: Lynn Girton heads the income maintenance unit, where legal experts helped Brenda get medical benefits. They also provide advice and litigation for clients who need other basic benefits like unemployment and disability.

LYNN GIRTON: The demand is simply overwhelming and I have to say, from this program’s point of view, that’s gotten worse in the past year, considerably worse.

BILL MOYERS: Last year Legal Services helped over 23,000 people in the Boston area alone, but that’s only a drop in the bucket. According to the American Bar association, only 20 percent of the legal needs of the poor are being met.

BRENDA FRANK: A lot of my friends, who have always been considered to be middle class, who have owned their own homes, have always worked, never asked the system for help, never were on welfare, now they’re finding themselves part of a new group of people who’s going to need help from Legal Services. These are people who haven’t surfaced yet. They don’t know how to ask for help. They’ve never asked before.

LYNN GIRTON: I’m often reminded of a community activist in Boston who provides services to homeless women and she says that when you keep pulling bodies out of the stream, at some point you have to worry about what’s going on upstream. And I think we’re at the stage where we have to worry why the demand is so high.

Pres. RONALD REAGAN: [February 4, 1983] I believe that we have preserved the safety net, as we’ve always said we would.

BILL MOYERS: Ronald Reagan, first as governor of California, then as president, wanted to abolish Legal Services. Many fought to save the agency, among them Lonnie Powers, executive director of Massachusetts Legal Assistance Corporation.

LONNIE POWERS: Over the last 10 or 12 years, we’ve had a lot of problems with federal funding, which started when Ronald Reagan was elected president because he tried to get rid of Legal Services. He was unsuccessful in having Congress defund it, eliminate it, but Congress did reduce the funding in 1982 by 25 percent.

BILL MOYERS: President Bush continues to show little support for Legal Services and his appointees have been slow to address the future of the program.

REPORTER: [December 11, 1989] Can you give us some assurances that the kinder, gentler administration will have adequate funding for human services?

Pres. GEORGE BUSH: I think you’ll … I think you’ll be pleasantly surprised when you take the overall budget and its concerns for city affairs or human affairs, whatever … human … well, I can’t … I don’t know the exact levels on Legal Services.

LONNIE POWERS: We know that poverty levels have increased in this country by 10 to 15 percent and at that same time, we’ve lost about 4,000 lawyers who work for Legal Services programs.

BRENDA FRANK: Without Legal Services, I would not have that … I would be homeless. I don’t know what would have happened to me in the process of trying to get a divorce. I would never have been able to get the kind of child support I got that allowed me to get off welfare finally. Now I’m in college and I’m interested in pursuing a career in law so that I can give very much needed legal advocacy to others like myself who need it.

BILL MOYERS: Let’s think of the need for justice as a universal texture … criminal and civil, state and federal. We’re dealing here with the universal issue of justice. And I’d like, beginning with you, Ken Starr, just to hear you, as colleagues, the five of you as colleagues, talk about some specific things you think might do to restore faith in this system, which Leon Higginbotham and others have said is crumbling. Mr. Starr?

KENNETH STARR: I think the key word, Bill, is “access,” that the access to the justice system must be freely and fully available to all. Why is it that when someone comes into court, that they cannot have available to them mediation and early neutral evaluation, other kinds of alternative methods of resolving disputes that will cut down on the cost and that will cut down on the delay? Secondly, I think we do have to provide the judges with the tools that they need. States are going to simply have to commit more resources.

BILL MOYERS: But Mr. Starr, right where you are today, the state of California this month has begun issuing I.O.U.’s to pay for its state employees because there isn’t enough money in the state coffers. What do we do about that?

KENNETH STARR: Well, what I think we have to do is to set priorities and California is undergoing very difficult budget times. There’s no question about that. But when you look overall at what the priorities are, a budget should reflect the priorities of the people and justice should be a very high priority of the people.

BILL MOYERS: Is it a priority?

KENNETH STARR: I don’t think so in most states.

JUDGE SUZANNE Del VECCHIO: It isn’t a priority in most states. It certainly … we have had our budget cut in Massachusetts. We recommended something which is rather unusual, that is, that every lawyer who practices law in Massachusetts, who is licensed to practice, must give a week a year of legal services to people who can’t afford legal services, either on the criminal or civil side. It’s just as important when you’re being evicted from your house to have somebody represent you as when you may, in fact, spend six or eight months in jail. So we have a recommendation that every lawyer must give of his or her time.

BILL MOYERS: Will that help you here in New York, Judge Wachtler?

JUDGE SOL WACHTLER: Well, yes, and of course we encourage it. In fact, we are very close to thinking about a mandatory pro bono component for our bar.

BILL MOYERS: But isn’t that a tax on lawyers …

JUDGE SOL WACHTLER: Of course it is.

BILL MOYERS: …that the rest of us don’t have to pay?

JUDGE SOL WACHTLER: Of course it is. Of course it is. You see … but here’s the problem. Legal Services is really the answer because you can have all the entitlement programs you want and all these so…called “access” programs you want…unless there’s someone to lead the person into the program and see that the program fulfills its mission, then it does no good and that’s the role of …

BILL MOYERS: Can we do that, then?

JUDGE SOL WACHTLER: That’s the role of the lawyer. It should be done through Legal Services. I think most people believe that. But since Legal Services has been cut back so badly, then we have to look to the bar.

BILL MOYERS: But that’s political. I mean, Legal Services have been cut

back because of politics.

JUDGE SOL WACHTLER: I understand that. And you’re asking for my resolution of a very complex problem and I’m telling you that unless you have a way for people to reach out and take advantage of these programs, then the programs are meaningless.

JUDGE MELINDA HARMON: Well, I … you know, I … when I’m listening to this conversation, I’m thinking the people I know who are in the position of needing legal services who cannot afford to pay for them are people who do not know what is available. They have no idea. That’s the first problem is education. People don’t know about the system. They don’t know anything about the system.

BILL MOYERS: How do we tell them? Who should educate them?

JUDGE MELINDA HARMON: Well, I … well, I mean, I would say high school perhaps should … maybe we should have some mandatory … you know, that should be required. You should learn about the system. How does the system work? Where do you go? Then we have, of course … you know, you have a dichotomy. Either the … either the government’s going to prioritize it and fund it … that is, free lawyers for people who can’t afford lawyers … or the bar is going to have to come forward. And that’s a dilemma. You have to make a … somehow you have to get the bar involved because being a lawyer is a business. They make … the reason why a Legal Aid lawyer makes $18,000 a year is because he is … he is … he is motivated to do a good job. Most lawyers are motivated by money. I mean, that … most of us … most of all of us are motivated by money. It’s not … it’s not an aspersion on lawyers. It’s simply that’s what motivates people.

KENNETH STARR: Well, I think it is an aspersion on lawyers if lawyers are not following what are the great traditions of our profession. It is not a profession that was developed and maintained to make a lot of money.

BILL MOYERS: But isn’t law really about billable services?

KENNETH STARR: It has become that, Bill, and it should not and we should recapture the greatness of the profession. It is a great profession, but our traditions have, I think, in recent years…

JUDGE SOL WACHTLER: In all fairness, I think that we should point to the fact that lawyers have been doing an enormous amount of work. It’s not all only billable hours. There’s been a great realization on the part of the bar of responsibility. It could be greater. We could have more, but I think it’s a mistake to say that the lawyers have not been doing their job.

JUDGE LEON HIGGINBOTHAM: Lawyers are not going to be able to solve the problem when you have a juvenile court system where a single judge has to hear 50 cases in eight hours, where the social workers are not available in number to give them counseling, where there’s no correlation with the school system. Now, it is only a fantasy world which would suggest that these profound problems, which later lead on to the acceleration of crime and violence, can be dealt with on a pro bono basis. If we want fairness in this country, we have to be willing to do it. When we wanted a better highway system, starting with President Eisenhower, we got an interstate highway system which basically works pretty well. We spent the funds. We’ve got to do the same for the courts.

BILL MOYERS: What I hear you saying, what I hear each one of you saying, and Ken Starr saying, really comes down to “We need political leadership that will take the issue on and explain it,” the way Eisenhower did the interstate system, Kennedy the space system, Reagan and Bush the savings and loan system bail-out.” You’re talking about political leadership. Are you all, all five of you, going to have to leave the bench, leave the solicitor general’s office and run for office?

JUDGE SOL WACHTLER: No, no. I think that the message is out there and certainly it has to be … it has to be taught. But the people know and understand how very sacred, for example, the Bill of Rights is. We celebrated the 200th anniversary last year. They know that one of the fundamental precepts of the Bill of Rights is due process of law and so that every citizen is entitled to due process of law. That’s what separates us from a lot of other societies.

BILL MOYERS: Are you suggesting that our constitutional safeguards are at risk in this crisis?

JUDGE SOL WACHTLER: Oh, there’s no question about it. First of all …


JUDGE SOL WACHTLER: Well, on the criminal side … on the criminal side, if people start saying, “It’s time we thought about some of the protections we afford criminals, the right to remain silent and not be forced into confession, the right to counsel, the presumption of innocence, the right not to be put in jeopardy more than once” … these are all very fundamental safeguards which our founders gave to us 200 years ago because they knew … and two thirds of the Bill of Rights is really devoted to protecting the criminal in the dock, because they knew the quickest way to hound your enemy to earth is to deprive your enemy of due process and to prosecute him.

BILL MOYERS: True, but what I find as a reporter out there is fear driving ordinary citizens, fear of crime, fear of being unable to walk in the streets.

JUDGE SOL WACHTLER: That’s right. And political leaders have to not feed that fear, but political leaders have to say, “There is no need to be afraid if we bolster up the system which can protect the individual and the liberties of all of our citizens.” And there are ways of doing this, through providing access to justice, to providing services to poor people who can’t afford services, to being certain that there are no diminution of rights afforded people who are accused of crimes. All of these things are part of the process.

BILL MOYERS: Judge Higginbotham?

JUDGE LEON HIGGINBOTHAM: I think that the American public is concerned about violence and we have to make it clear the courts are concerned about the fears which citizens have. Not knowing any of you well, I presume I’m the only one who lives in an inner city and has lived in an inner city for many years. And I know what it is to have violence occur a few blocks away or in your neighborhood. So those are legitimate concerns, but we can’t simplify things. We used to say during the Second World War, “You must attack the enemy by air, by land and by sea” … and prayer. And I think…

BILL MOYERS: That’s outlawed now. That’s unconstitutional.

JUDGE LEON HIGGINBOTHAM: Well, I’ll pray for it, anyway.

BILL MOYERS: Off the bench.

JUDGE LEON HIGGINBOTHAM: What I think we have to do is to come up with multi…faceted matters. We’ve got to talk about access to the courts and we’ve got to focus on the conditions which breed crime and which cause them. And unless we approach this in a multi-faceted way, we’re going to be in acute catastrophes which will be far worse each succeedingyear.

BILL MOYERS: Is that why, Ken Starr … and this is the last word … is that why you intend to leave the job of Solicitor General and run for governor of California?

KENNETH STARR: Not at all. I’m very much enjoying being Solicitor General, but I do agree that it is important for us to be with the people, to educate the people. The people have to be mobilized and energized to say to the Congress, “We need multi-door courthouses,” to state legislatures and to governors, “We need adequate funding for our court system.”

BILL MOYERS: Well, thank you very much for being with us, Judge Higginbotham, Kenneth Starr, out from Los Angeles, Solicitor General, Judge Harmon from Houston, Judge Del Vecchio from Boston and Chief Judge Sol Wachtler from New York. And thanks to all of you for joining us Listening to America. I’m Bill Moyers. Good night.

1st MAN: It’s noisy. It’s smelly and people just don’t want to … don’t generally want to be next to this.

2nd MAN: That was the first residential development in the area and that’s what got all industry very, very concerned. With planning, though, we believe that, you know, the system can work. I mean, there can be residential and there can be commercial if there’s planning on the part of government and industry and community groups working together.

3rd MAN: We want to have an atmosphere in this city where people feel they can lead their lives to the fullest.

1st WOMAN: That’s one of the concepts behind the process of building a playground with a community, that the community does feel that it’s theirs.

2nd WOMAN: And we didn’t want another recreation program. We didn’t want another academic program. We wanted a program that could change lives and do it in a hurry.

BILL MOYERS: “Making Government Work,” next time on Listening to America.

This transcript was entered on April 7, 2015.

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