CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, September 26, 2011

Fabricant on Criminal Defense Clinics

Fabricant m chris M. Chris Fabricant (Pace University - School of Law) has posted Rethinking Criminal Defense Clinics on SSRN. Here is the abstract:

On a late November night in the vestibule of a South Bronx high-rise, Dwayne was confronted by three police officers. Police told Dwayne he fit the description of a shooting suspect who had fled into the building – a young African-American male with braids. Dwayne told the officers he had been upstairs in apartment 12C watching the Manny Pacquiao fight with some friends, but he was handcuffed and taken outside for an identification procedure. The identification procedure never happened. Instead, he was loaded into a police van, where he sat for the next four hours while police arrested several other young men of color as they exited buildings from nearby housing projects, filling the van before transporting all the young men to the 44th Precinct for booking. It was not until the next day when a student attorney sat across from Dwayne in a dank holding cell that he learned that he had been charged with criminal trespass.

Five months later, Dwayne sat at the defense table as his student attorney approached the lectern to begin her cross-examination of the arresting officer. On direct-examination, the officer claimed that he had arrested Dwayne for trespassing because he was unable to provide the names of the friends he had been visiting and did not know their apartment number. No, the officer admitted on cross-examination, police never conducted an identification procedure; as far as he knew, the shooting suspect was still at large. Yes, he was aware that Dwayne had lived his entire life across the street from the high-rise. Yes, he agreed, if he had been visiting a friend in that building he would not be guilty of trespassing. Confronted with his partner’s memo book, the officer conceded that it read, “perp claimed visiting ‘friend’.”

Dwayne’s acquittal marked the end of our direct representation, but it was the beginning of a collaboration between students from the Pace Criminal Justice Clinic and a citywide advocacy coalition the Clinic helped organize to end the pattern of wrongful trespass arrests. Dwayne was one of twenty clients students represented on criminal trespass charges. Fourteen of these cases were ultimately dismissed. Like Dwayne, many of our clients became engaged in collective action against the over-policing of their neighborhoods. Our handful of clients, however, represent only a tiny fraction of the thousands of poor people of color swept up on low-level misdemeanors every year in aggressive “broken windows” or “zero-tolerance” policing (ZTP) campaigns since the New York Police Department (NYPD) adopted the strategy in the mid-Nineties.

This article calls for criminal defense clinics practicing in high-volume urban courthouses to respond to systemic civil rights violations caused by aggressive prosecution of zero tolerance strategies. Our clinic’s experience with strategic representation of trespass clients is offered as one strategy for leveraging a misdemeanor docket for broader social justice goals. The ethical implications, pedagogical rewards, and challenges presented by this approach are examined here through the lens of our student attorneys’ litigation of individual cases and their collaborative lawyering with community and institutional partners.

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