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Making the right to counsel vanish

ROBYN E. BLUMNER
Published January 18, 2004

Miami police Chief John "make my day" Timoney put on quite a show during the Free Trade Area of the Americas meeting in November. He coordinated more than three dozen police agencies, putting 2,500 officers in riot gear on the ground in downtown Miami. Armed with truncheons, tear gas, stun guns and rifles loaded with rubber bullets, the officers then descended on 8,000 to 10,000 predominantly peaceful protesters.

The result was a horrifying scene where police indiscriminately assaulted defenseless union members, retirees, activists and students, most of whom engaged in no violence and complied with police orders. Eyewitnesses called Miami on Nov. 21 a "police state."

Richard Margolius, a 60-year old circuit judge who witnessed the police response, said in open court that it was "a disgrace for the community." "(I saw) no less than 20 felonies committed by police officers," said Margolius. "I probably would have been arrested myself if it had not been for a police officer who recognized me."

During the FTAA summit, law enforcement officers in Miami acted as if they were released from constitutional constraints. Now we'll see if they will get away with it.

No surprise, but don't look for any review from our sniveling political leaders. From Gov. Jeb Bush on down, they rushed to Timoney's side, tossing verbal laurels at him for a job well done. Bush, through a spokesperson, called law enforcement's efforts "a phenomenal job," and Miami Mayor Manny Diaz characterized the storm trooper assault as "a model for homeland defense."

Timoney is ostensibly reviewing the FTAA operation himself, and there is a chance that local police oversight boards may investigate. But clearly, the best hope for the protesters to get some semblance of justice is through the civil rights lawsuits being put together by the Florida affiliate of the American Civil Liberties Union and the National Lawyers Guild, among other groups.

But even as those efforts are under way, the Miami-Dade County state attorney's office is moving to undermine them. It is doing so by trying to block those protesters who were arrested from having access to public defenders. Protesters who plead guilty because they don't have a lawyer's assistance to fight the charges would later be barred from challenging the legality of their arrest.

Two hundred and twenty five people were arrested during the FTAA summit, most of whom were charged with only misdemeanors. Since then, dozens have had their charges dropped, such as Miami New Times reporter Celeste Fraser Delgado, who documents her abusive arrest in a piece titled "Jailhouse Crock" available at www.miaminewtimes.com.) Others have pleaded guilty - at least in some cases, to get the ordeal behind them. As it stands, about 100 cases remain. Primarily, these represent protesters who are fighting their charges, claiming that their arrests were baseless.

Many people would be surprised to know that there is an asterisk over our constitutional right to counsel. While it is true that counsel must be provided to anyone who cannot otherwise afford it, the courts have (inexplicably and unfortunately) ruled that this only applies if a defendant is facing a potential deprivation of liberty. In cases that are so minor that there is no possibility of jail, no lawyer has to be made available. According to Miami-Dade County Public Defender Bennett Brummer, this loophole in our justice system is being exploited through a "deliberate policy" by the state attorney's office.

Prosecutors are promising judges that protesters will not face jail time and then asking judges to remove the FTAA protesters' public defenders. It is a tactic designed to leave these defendants, many of whom are out-of-state students with few means, without representation. Once stripped of counsel, they would be far more likely to take a plea and not fight the charges.

Ed Griffith, spokesman for Miami-Dade County State Attorney Katherine Fernandez Rundle, defended the decertification requests. He said that providing public defenders to the protesters gives them a special status, since other similarly situated defendants wouldn't receive such services. "If all people should be treated equally then why should some people be treated more equally?" Griffith asked.

Yeah. Whatever. The real point is, of course, to squeeze guilty pleas out of as many FTAA protesters as possible, enabling the city to claim that a bulk of the arrests were lawful. The state attorney's office isn't willing to win these convictions by proving the protesters guilty as charged; it wants to win by stacking the deck. The lawyered-up state vs. college students.

So far, only about half of the eight local trial judges handling protester cases are going along with the decertification requests; and volunteer criminal defense lawyers are being lined up for those who find themselves without counsel. So this tactic may not work as intended. But it is another example of how public officials are trying to whitewash the illegalities that occurred. Florida's leaders have no interest in pursuing some reckoning for Timoney. They are too busy licking his boots.

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