Fault Lines
11 December 2017

The Brownsville 5: When Defense Attorneys Speak To The Press

Mar. 7, 2016 (Mimesis Law) — Last week, New York City Councilmember Laurie Cumbo received attention for her op-ed slamming the Brooklyn DA’s decision to dismiss rape charges against five Brooklyn teens. While the rare instance when a prosecutor decides to let go of a bad case should be applauded, the Brownsville Five case warrants no such celebration.  Although the criminal charges were dismissed, the fact that, at best, five young men saw two strangers having sex on a public playground bench and decided to join in, has left a sad mark on our community.

Cumbo’s takeaway was certainly misguided. But she is a City Councilor, not a criminal attorney, so she might be forgiven for missing the point (though not for calling to reform the law to change the definition of consent).  However, two of the defense attorneys who represented the formerly-charged teens have also spoken out.  They provided quite different examples of what to do, and what not to do, when speaking to the press. There was the good. There was the ugly.

My former colleague, and current Brooklyn public defender who should never be trifled with, Deborah Silberman, wrote her own op-ed for the New York Times. Silberman was good.

The incident should prompt a serious public discussion about the need for both sealing laws to help protect the identities of the accused and reform New York’s archaic discovery laws, which deprive defense attorneys of the evidence gathered by the police and the prosecutor.

Although those young men have been cleared of rape, they will never be able to escape this case. Although they each made the decision to cross a moral line that hopefully few ever would, Silberman is correct that we must look at the fact that our justice system claims that it presumes people innocent while the law enforcement arm of that system regularly fails to recall that principle when announcing their latest and greatest arrest.

But while there is no clear fix to being convicted in the court of public opinion, soiled reputations are nothing compared to the fact that New York’s discovery laws allow prosecutors to pour sugar into the gas tank of the criminal justice system day in and day out. Silberman wrote about her limited ability to be involved in her client’s defense.

In my client’s case, the district attorney’s office and other law enforcement agencies had gathered videos from the boys who were arrested and statements from the woman and her father, who was also in the park just before the incident, and witnesses in the neighborhood, all of which cast serious doubt as to the veracity of the allegations. But New York law does not require the prosecutor to provide any police reports or other evidence to a person who has been arrested or that person’s attorney until trial actually starts – often a year or more after the arrest.

In this case, between arraignment and dismissal, I received nothing but a scant formal felony complaint listing little more than the allegations.

This is as critical as it is common. Sure, in this case, the government can stand back and point to the fact that it made the right decision. But that is this case, and while no defense attorney will argue with a dismissal in a case like this, perhaps the real question should be whether charges should have even been filed in the first place.

But again, that is this case.  What about those cases where the prosecution does not dismiss.  Then, New York is an insane patchwork of different rules where even in the best counties, defense counsel must wait months before receiving the discovery required to even assess their client’s case.  In the worst jurisdictions, guilty pleas are constantly taken prior to ever finding out if the government has any evidence at all.  If there is a defense of such a system beyond, “well, that’s that law,” we are all ears.

That a public defender, with the laundry list of obstacles that impede her ability to properly represent a revolving door of powerless clientele, has chosen to use this opportunity to point out the fact that our system has been legally rigged by one-sided discovery rules, Silberman shows the good in criminal defense.

But then there is the ugly. It is never easy to call out a fellow criminal defense attorney.  As much as we cry foul at the “blue wall of silence” we run up against with cops, protecting one’s own is not an exclusive trait of the police.  But when one of our own puts himself out there in a very ugly way, it must be addressed.

Spencer Leeds, like Silberman, has a unique perspective on the Brownsville Five case that could only come from representing one of the exonerated teens. But where his sister counselor has gone the route of education, Leeds is out for blood.

When interviewed by the New York Daily News about his thoughts on the dismissal, Leeds sounded less like a seasoned criminal defense attorney and more like an unhinged prosecutor.

The lawyer for one of the five teens falsely accused of raping an 18-year-old woman inside a Brooklyn park blasted prosecutors on Thursday for not identifying the accuser’s father.

Leeds charged that [the Brownsville Five] were “school boys leading anonymous lives” before the accusations were made public.

“Now they have to get their lives together, meanwhile the father gets to remain anonymous. That’s what’s troubling,” said Leeds.

Many would agree that releasing the names of teenage defendants, especially in a case with such serious allegations, was improper. For a criminal defense attorney to decry the damage to the teens and then pivot to demanding that the name of the girl’s father be released smacks of hypocrisy.  The alleged conduct of the father is disgusting, but he remains as presumptively innocent as any of the boys whose names will forever be attached to these incredibly public allegations of rape.  Defending the presumption of innocence is what makes a defense attorney, and that should not cease outside of your own circle of clients.

But where things got really ugly was when Leeds turned his attention to the 18-year-old girl. Mind you, this teenage girl has spent her life bouncing around the New York City foster care system.  She is so damaged that it seems she willingly had sex with her biological father and then multiple random strangers.  In public.  This girl is a victim in every sense of the word.  But Leeds sees it differently.

“What’s troubling is they’re electing not to prosecute the father for the heinous act of incest or the complaining witness for falsely reporting the incident.” [emphasis added]

Our criminal justice system needs to ensnare far fewer people than it currently does. No one should understand this more than a defense attorney.  Based upon what is known about this teenage girl, to publicly advocate dragging her back into a system that has so clearly failed her is a giant step too far.  Calling for her arrest and prosecution neither advances the interests of his client nor the interest of justice.

When given the opportunity to speak about what we do, we are not required to say anything. But if we do decide to climb atop that soapbox, we would do well to remember that we are the forgiving side.  Because when we forget that, it comes across as very ugly.

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