If Only I Had Known: The Challenges of Representation

Abstract

I began my career as a public defender in the fall of 1998. I was twenty seven years old and one year out of law school. I had spent the intervening year as a law clerk to a federal district court judge in my home state of Texas. To become a public defender, I did not stay home, however. I moved to what I perceived at the time to be the center of public defense work-Washington, D.C.-to become an E. Barrett Prettyman Fellow at Georgetown University Law Center.1 In Washington, D.C., far from my rural home in the Rio Grande Valley of Texas, I brought my ideals of criminal systems. As I began my career, I imagined that my commitment and the commitment of those like me to adversarial representation could render these systems just. Instead, in the courtrooms of the Superior Court of the District of Columbia and later in King County, Washington, I bore witness to the complexities of representative systems.

Even before going to law school, I believed that whatever failings criminal systems might suffer, they could be corrected, or at least ameliorated, if two capable advocates represented those on either side of the "v"-the prosecutor for the state and the defense attorney for the accused. I believed this, knowing firsthand the disproportionate rates at which such systems policed, criminalized, and incarcerated marginalized people-the Black, Brown, poor, and LGBTQIA+ folks in my community. I believed this while aware of what appeared to be, even to my pre-law school self, an intentional disregard of the lived realities of complaining witnesses, defendants, and affected communities. I believed in the possibility of change, even as I knew the uncles who never came home and were instead visited on "family day" at Ellis, Hilltop, or Huntsville correctional facilities; 3 the aunties who chose between making rent or keeping a loved one close and reporting crime; the children who lost parents or grandparents as often to shootings as to sentences. I believed this as I experienced the great void left when the "dangerous" or the "criminal" were taken away by sheriffs or police officers. I believed it even as I knew, long before I ever set foot in a law school classroom, much less a courtroom, that criminal systems were broken. I believed this even as I saw the results of these broken systems each day.

Despite all I had known, I still believed that these systems that produced such skewed and awful results could be righted by zealous advocates. I believed that my voice, or my skill as an advocate, would allow the stories of the lives I had known-lives affected by criminal systems and stories I carried with me in my pockets from law school to clerkship, to fellowship to public defenders' office like so much South Texas grit-to pour out onto the pages of briefs or into the ears of equally eager prosecutors, judges, and jurors. I believed that by hearing these stories, these strangers-who might carry their own stories-would be transformed, and systems could be made right by the power of my words. I did not know then what I know now-the cost and loss of representation.