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| Donna Mulvihill Fehrmann |
Today, I have a front row seat to how our justice system is failing so many people, disproportionately people of color who don't have the money and the connections to protect themselves against a system so vulnerable to abuse.
I now realize that I came out of law school believing that the prosecutors wore the white hats. They were the proverbial good guys, maintaining law and order. I was not educated on how broken our justice system is, and how it results in the systemic overincarceration of Black people in the U.S.
My desire to work with the good guys completely clouded my judgment. Looking back, I wish law school had taught me about the significant flaws in the system and its disparate impact on communities of color in this country. I wish law school had armed me to take on the broken system.
Conservative estimates by the Innocence Project suggest that at least 1% of the people in U.S. prisons are wrongfully convicted. That is 20,000 people.
Six times more Black men than white men are incarcerated in this country.[1]
ABC News reported last year that in 2018, in 800 jurisdictions in this country, "Black people were arrested at a rate five times higher than white people." And, "[i]n 250 jurisdictions, Black people were 10 times more likely to be arrested than their white counterparts" in that same year.[2]
A recent study found that 54% of wrongful convictions that later led to exonerations involved official misconduct — the police, prosecutors or both breaking the rules to get a conviction.[3] This same study found that police and prosecutors are rarely disciplined for this misconduct.
Thousands of innocent people sitting in jail for collectively hundreds of thousands of years, and rarely is anyone held accountable — this is not justice.
Black men are also overrepresented on death row. While Black men make up only 13% of the U.S. population, they account for 42% of the death row population.[4]
The Death Penalty Information Center points to a study finding that jurors in Washington state were "three times more likely to recommend a death sentence for a Black defendant than for a white defendant in a similar case."[5]
The National Association for the Advancement of Colored People reports that Black defendants are "22% more likely to have convictions involving police misconduct that eventually result in exoneration."
The inherent and systemic problems in our legal system are destroying Black communities, and that should concern the entire legal institution.
Law schools must force reform and educate all lawyers about these troubling statistics. Law schools must prepare lawyers to tackle this abuse. While the national debate about critical race theory and likely causes of the overincarceration epidemic continues, law schools are missing a crucial opportunity to publicly acknowledge its existence and initiate change.
Law schools must recognize the massive injustice built into our current system and modify the legal curriculum to ensure that new lawyers are educated in both the existence of the injustice and in the basic principles of criminal defense.
Law schools should include a criminal justice reform class in the mandatory first-year curriculum. This required class should include the basics of criminal defense law to ensure that law school graduates can offer adequate legal defense to clients who may rely on them.
This required class should include:
- Statistics on wrongful convictions and the racial profile of those defendants;
- The power of the prosecutor, and how prosecutorial misconduct can and does send innocent people to prison;
- The vulnerabilities in forensic evidence and eyewitness identification, and how these heavily relied upon types of evidence can be abused and misused;
- The problems with the cash bail system; and
- Criminal defense 101.
While not an exhaustive list, such a required class for first-year law students would be the critical education our future lawyers need. It would be a warning about blind faith in the justice system, and a crash course in defendant rights, what questions to ask, how justice can be derailed and, perhaps most importantly, ensuring the future of the legal profession appreciates the need for criminal justice reform.
While most law schools today offer upper-level wrongful conviction seminars, all future lawyers must study the realities of the broken system, not just the few who seek out the topic.
Recently, I was talking to my niece about her decision to take the Law School Admission Test and her concern about going to law school. She expressed hesitancy about going into a field that was so tarnished — lawyers represent a justice system that is so fundamentally flawed and unfair — could they really escape complicity?
I hadn't thought of it that way before, but the more I reflected on it, the more it made sense. As lawyers, we are the champions and apostles of the system. If the system is broken — or even worse, at times corrupt — shouldn't we mobilize to fix it? Or at least call it out and demand change?
If we don't, how are we any different than church officials turning a blind eye to abuse, or banks and hedge funds knowing the mortgaged-backed securities they are peddling are destined to fail but doing nothing to stop the collapse?
Law schools must adopt a required curriculum that addresses the widespread problems in the justice system. Like the Catholic Church mandating training for all those who interact with children in the wake of the sexual abuse scandal, law schools should require training to both educate new lawyers and publicly acknowledge the widespread problems in the system.
First-year law students should be required to study the shocking statistics of wrongful convictions — how often it happens, how often it happens to Black men — and how many people the experts believe are currently incarcerated for crimes they didn't commit.
As part of this required course on criminal justice reform, first-year law students should be taught the minimum skills to defend a client against criminal charges. Today, required curriculum in law school includes contracts, civil procedure and constitutional law.
Criminal law is also required, but it focuses almost exclusively on the theories and elements of criminal liability. Given the epidemic of wrongful convictions in this country, can it really be argued that contracts is more critical to the legal profession than criminal defense?
First-year law students should explore how often defendants' constitutional rights are trampled — the real impact of warrantless searches; biased juries; prosecutorial withholding of material exculpatory evidence, or Brady violations; lack of due process and improper jury instructions. Law students should be required to study these legal rights and subsequent violations from a defense perspective.
I have been doing criminal defense and wrongful conviction work for three years, but what I have seen in that time has been an incredible education. The misapplication of the law and prosecutorial misconduct is pervasive. If I have stumbled upon it so easily in my limited experience, it is likely much more widespread.
When I took on my first wrongful conviction case, I was outraged after reading the six days of trial transcripts. In the transcripts, I had notes reflecting errors clear on their face — even to me, a litigator with no criminal defense experience.
I tracked down my defendant's court-appointed appellate counsel. I had no doubt she would be a critical ally. She, after all, had chosen to be a court-appointed appellate lawyer — she would obviously share my outrage.
When I finally got her on the phone, I was met with a very different reality. She had not read the case file, but she told me about the so-called bad-guy rule: how a guy who did bad things before is quite likely going to do bad things again.
Without reading her client's file, she couldn't know he had a minimal criminal history, but that hadn't stopped her from concluding her client was guilty.
Law schools must seize the opportunity to challenge these flawed assumptions. Law schools must ensure that new lawyers are taught to identify and combat the injustice built into our legal system.
Had this lawyer been educated on the harrowing truths about how many young Black men like her client are railroaded by the system, would she so casually pontificate on the bad-guy rule? I can't know for sure, but I believe with such education, she might have at least considered the possibility that her client was innocent.
Lawyers are human. Veterans of criminal law cannot ignore their experiences. To a hammer, everything is a nail.
But law schools can and must challenge the historical narrative of injustice in this country that has led to a shocking overincarceration of Black people.
When I had the opportunity to discuss this same client's conviction with his public defender at trial, I was shocked by what I learned from this so-called advocate — the person that stood between my client and up to 25 years in prison for check fraud. I wondered if he would have benefited from a mandatory criminal defense class in law school.
This junior attorney prepared for only two weeks to defend his client against 13 felony counts carrying a sentence of up to 25 years. He did not call a single witness in defense of his client.
When the jury returned a verdict that his client never possessed any of the forged checks in question, but then found his client guilty of grand larceny for stealing those same checks he never possessed, this defense counsel did not object to the nonsensical verdict.
If this lawyer had been required to take a criminal defense class in law school, would he have missed the improper jury charge? Would he have questioned the absence of a co-defendant, or thought to call at least one witness in his client's defense? Would he have pursued the prosecutor's Brady violation entitling his client to a new trial?
I was talking to a longtime criminal defense lawyer in New York a couple of years ago. I expressed surprise at how much went wrong at my client's trial. How could defense counsel miss so many critical details and do so little to advocate for his client?
This criminal defense veteran wasn't surprised. These young Black defendants are treated like merely practice clients. The young lawyers make mistakes, but they eventually learn how to be trial attorneys.
This is truly tragic. Lawyers can't learn from their mistakes at the expense of their vulnerable clients. When a defendant's freedom hangs in the balance, lawyers shouldn't have the luxury to figure out the basics during the trial.
Law school graduates need to be trained in criminal defense and appreciate the flaws in the system that make it so dangerous for Black defendants.
For too many defendants who are not able to afford their own counsel, they have no choice but to be practice clients. Mistakes are made. Defendants are railroaded. Freedom is lost. And the lawyers continue their training on new victims.
Is this really our justice system? Is this a model the legal profession can tolerate?
I am, of course, using my personal experiences to highlight the flaws in our justice system. Not all prosecutors abuse their power. Not all public defenders are young and ill-prepared.
Many public defenders are overwhelmed by their case load and struggle to give their clients the time and attention their cases demand. If law schools included a criminal justice reform class as part of the required curriculum, these overwhelmed public defenders would likely have more young lawyers joining their ranks — and these new lawyers would be better armed to take on the fight.
The legal profession is suffering from an abuse scandal. Law schools must stand up and address the problem. Young Black men are being disproportionately victimized at the hands of a broken system, and the legal institution should care.
Law schools must challenge the widespread problems and try to protect future victims by mandating that all law school graduates are educated on the problems in the system and prepared to defend against them.
Are we really afraid we might knock the entire house of cards to the ground if we are honest about the problems and the need to implement fixes?
Like every profession, there are people who lie, cut corners and mislead to get the results they want — the results that will get them promotions and win them reelections. When this conduct robs thousands of innocent people of their freedom, the system needs to change. Law schools must teach lawyers to identify and stop future abuse.
By challenging the broken system and educating lawyers to combat the abuse, the legal profession can regain trust. We can save future victims of the system. If the legal industry doesn't commit, as a profession, to tackling this abuse and being part of the solution, can we really consider ourselves anything other than part of the problem?
Donna Mulvihill Fehrmann is a criminal defense attorney in Washington, D.C. She is a former assistant general counsel at Capital One Financial Corp.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See"Racial disparities in prison incarceration" at prisonpolicy.org.
[2] See June 11, 2020 ABC News Report at abcnews.com (analysis of arrest data reported to the FBI and analyzed by ABC).
[3] September 1, 2020 study by the National Registry of Exonerations.
[4] See "Visualizing the racial disparities in mass incarceration", by Wendy Sawyer, July 27, 2020, published at prisonpolicy.org.
[5] Study by Prof. K. Beckett, University of Washington, 2014. https://deathpenaltyinfo.org/news/studies-jurors-in-washington-state-more-likely-to-impose-death-on-black-defendants.