DC NLG’s J20 Defendant FAQ #2

Table of Contents:

1. Introduction

2. The court process

a. Pretrial steps

b. Plea bargains

c. Social media subpoenas

d. What if I’m having trouble with my lawyer?

3. Security

4. The New Jim Crow

a. Privilege, or lack thereof, is guiding your experience and expectations

b. Jim Crow today

c. Jim Crow in DC

5. What is legal solidarity?

6. What has DC NLG been doing?

7. How can I help?

  1. Introduction

This is the second FAQ we have published involving the arrests that took place on January 20, 2017 in Washington, DC. To see the first FAQ we published, please click here. DC NLG is committed to lending support to defendants arrested on January 20. As these cases progress, we will continue to serve as a resource. If you have any questions you would like to see addressed in our next FAQ, please email them to dcmassdefense@gmail.com.

Before we go any further, we must point out the following information is not legal advice. Defendants must address any and all questions to their lawyers. Under the DC criminal justice system, every person is assigned counsel, and everyone is represented. However, if you are not represented, feel free to email that to us.

We have received several questions about the court process and what defendants can expect in the future. What follows is our attempt to answer some of these questions. Defendants can feel free to share this FAQ with their defense counsel if they think it may be helpful. Please note DC NLG is not representing anyone arrested on J20 and cannot offer defendants any legal advice.

From time to time, we may publish additional FAQs or other documents, so please check back with us in the future! And if you have specific questions you’d like us to answer, feel free to pass those along!

2. Court process

a. Pretrial steps

The court initially scheduled preliminary hearings for everyone who was subjected to the mass arrest on January 20, 2017. The government is required to prove that there is probable cause to believe each defendant committed the crime with which she is charged, either at a grand jury or a preliminary hearing. After initially charging all of the defendants by complaint, the government subsequently convened a grand jury and has been securing grand jury indictments prior to the preliminary hearings. Therefore, the preliminary hearings have been vacated and arraignment hearings have been occurring instead.

After a defendant is arraigned, the defense attorney speaks with the defendant about the case, asks the government to disclose any discoverable materials, conducts an investigation of the allegations in the indictment, and files any pretrial motions to advance the defense’s case. While this is taking place, the court may schedule one or more status hearings to get an update from the parties about progress made towards finding a way to dispose of the case. The court may also schedule hearings to hear legal arguments in favor of or in opposition to any pretrial motions.

Once the defense and the government complete their exchange of discovery materials and their investigations, a status hearing is held where the defendant informs the court whether they want to plead guilty to the charge or take their case to trial.

If you decide to take your case to trial, the date of your trial will depend on the court’s calendar, the availability of potential jurors, and the amount of time requested by the attorneys to prepare for the trial. Your attorney will work with you to gather evidence and witnesses, and to prepare a legal defense.

b. Plea bargains

The government often offers the defendant a “plea bargain.” A plea bargain is an agreement where the defendant agrees to plead guilty to the offense in the plea bargain and the government agrees to only ask for the penalty that is listed in the plea bargain. The judge is not required to accept the plea bargain, but in most cases the judge will respect the agreement. Your defense attorney is required to communicate all plea bargains that are made to you and discuss the benefits and consequences of accepting the plea bargain. The final decision about whether to accept a plea bargain is made by the defendant.

c. Social media subpoenas

As part of their pretrial investigation, the government and the defense may issue subpoenas to secure witnesses or documents they need to prepare for trial. Some defendants have had information from their Facebook and Apple accounts subpoenaed by the government through grand jury subpoenas. This may happen to you, and your lawyer can advise you on what to do should it occur. You lawyer may be able to file a motion with the court to try and prevent the execution of the subpoena.

d. What if I am having problems with my lawyer?

The judge has the ultimate authority to decide whether the defendant can have a new attorney, especially when a defendant has a court-appointed lawyer. It is not uncommon for defendants to have problems working with their attorney, such as not being able to contact their lawyer or having a strategic disagreement. NLG cannot offer you advice on this point. But as a general matter, we hope defendants will work diligently to foster a strong working relationship with their lawyers.

However, if the disagreement cannot be resolved, the defendant may request the court appoint a new attorney or hire their own lawyer. Please note that defendants with the means to do so are free to hire their own attorney. If the defendant requests a new court-appointed lawyer, she should be prepared to give the judge specific reasons for requesting a new attorney.

  1. The courthouse is not secure!

We are pleased that many concerned people have been attending the hearings at the DC Superior Court. However, we want to make sure everyone is aware that the courthouse is not a secure place. To begin with, there are police officers, U.S. Marshals, police investigators, and prosecutors throughout building. Beyond that, there have also been reports of plainclothes police officers attending the court hearings and recording the conversations of people in the gallery. There may also be informants in the courthouse. Please remember that when you are in the courthouse you should be very careful about what you say.

  1. Q: What in the world is going on here? A: Welcome to the new Jim Crow

a. Privilege, or lack thereof, is guiding your experience and expectations

Many defendants arrested on J20 were shocked by what they confronted following their arrests – a system overcrowded with defendants and facing a shortage of lawyers. Many have had challenges contacting their lawyers and figuring out how the system works. Welcome to the New Jim Crow. For many white defendants in particular, this is their first contact with the criminal justice system. To our white comrades, the DC criminal court system was not designed for you; it was designed for people of color in DC where this system is a routine part of their communities.

People of color in DC have limited resources and opportunities, which is also true nationally. The median household income for black families in the US is $35,000 a year. In other words, half the black families in this country earn less than that, and half earn more. It’s more accurate than average, because a few high earning people at the top can pull the numbers up and paint an unrealistic picture. Also, the median net worth for black families is $11,000 a year. The median net worth for white families is $120,000 a year.

So, in looking at your position facing the criminal justice system, think back to your family experience. The numbers may approach those cited above, and show relative privilege when compared to the family of the typical person of color who faces the system in Washington DC.

This is not to say that your justice problems are not real–they are of course serious, actual, and ongoing. This is to show why the system is the way it is, and to encourage you to think about ways to change it now that you’ve been shoved into it.

b. Jim Crow today

Activists created the phrase New Jim Crow to connect the racism of the modern criminal justice system with that of the old South after slavery. The Constitution’s 13th Amendment (now also the name of a good new documentary) banned slavery except as punishment for a crime. Its passage was a wink and nod to southern racists who then created laws, applied only to blacks, with indeterminate sentences. This let police arrest and convict them, and then rent them out to work the same plantations they had just been “freed” from.

Note this system continues today, as we saw highlighted by the largest prison strike in US history, which began in September 2016. The National Lawyers Guild has been involved in lending support to those behind bars, including jailhouse lawyers.

Our understanding of the New Jim Crow comes from years of research, and is led by the work of two women of color—Michelle Alexander, who exposes the racism of the so-called “drug war,” and Angela Davis, who calls out the racism of the prison industrial complex and says prison abolition is the only solution.

The New Jim Crow’s purpose is to pull taxpayer money from social programs and pour it into the prison industrial complex — the “triangular trade” of taking campaign contributions in return for tough laws, increasing police forces and weaponry, and funding massive expansion of prisons, prison staff, and supply contracts.

The new Jim Crow also has a psychological purpose: focusing attention on black street crime and away from corporate and white collar, or executive, crime. All the focus on people-of-color street crime in the ’70s and ’80s, drug crime in the ’90s and ’00s, and gang violence in the ’10s, pulled criminal justice and media attention away from the corresponding crime waves in defense contracting, savings-and-loan banks, and mortgage investment fraud. Although all three cost society far more than street crime, they all went mostly unpublished and unpunished.

The result? Black people are 13% of the US population but 40% of those incarcerated. Studies have confirmed racial profiling across the country–that blacks are more likely to stopped, searched, handcuffed, roughed up, beaten, or shot by police even though they are found to have drugs and weapons less often than whites. Six percent of black males in their thirties are in prison compared to one percent of whites males. Blacks have a one in three chance of spending some time in prison or jail – for whites it is one in 17.

c. Jim Crow in DC

In DC, the population is 48% black, but 80% of people arrested in DC are black. Even where marijuana possession is legal under DC law, 90% of people arrested for simple drug possession are black. The equivalent of 30% of the DC’s black adult male population was arrested in 2010, compared with 2% of whites. More blacks are being arrested for drug crimes even in majority white communities. Seven in ten people charged with drug trafficking crimes are also black.

However, 17% of drug cases and 23% of the traffic cases are dismissed. Thus people of color in DC regularly suffer serious criminal justice and economic consequences stemming from weak charges that are eventually dropped. This wastes money needed for jobs, education, and health in communities of color. It puts pressure on the defense lawyers, the courts, and on the case calendars.

J20 defendants have now been pulled into the system in a way that gives them a taste of the daily reality of DC’s people of color.

As Stokely Carmichael, the ’60s activist who led student boycotts against segregation and then called for Black Power, once said, “The time is past for description–the time is now for prescription.”

What will we do?

  1. What is Legal Solidarity?

Legal Solidarity is a decades-old strategy whereby arrested peoples unite together in order to lessen the impact of the court system on the group as a whole. Typically, people collaborate with each other by making decisions as a group–when people unite together they are far more powerful than they are as individuals, and this principle can also be true in court.

The goal of Legal Solidarity is to make people safer. For example, during incarceration, police often target specific groups, such as transgender and gender-nonconforming people. Legal Solidarity may help to combat or deflect such selective policing practices. A similar practice occurs in court with the prosecutor targeting certain individuals such as known organizers, people of color, and immigrants for harsher treatment.

Defendants may be interested in engaging in Legal Solidarity in their defense against the charges they are facing. We urge you to discuss any such desires with your lawyer.

The Midnight Special Law Collective Legal Solidarity Manual is an excellent guide for more information and a way to find additional resources.

  1. What has DC NLG been doing?

In anticipation of anti-inauguration protests, we trained hundreds of Legal Observers and established a legal support hotline that we staffed 24 hours a day. We partnered with allied legal organizations in area, most notably Law For Black Lives DC, and worked together to provide jail support. We are currently sending Legal Observers and other volunteers to the courthouse to observe proceedings and offer our support.

Many NLG chapters are able to provide pro bono criminal representation for those subjected to arrests during demonstrations. Because of the unique circumstances of DC’s criminal justice system and of these cases, we are unable to do the same here.

Everyone in DC charged with a misdemeanor or a felony, and who cannot afford to pay for their defense, has the right to appointed counsel. The attorneys who are appointed to those cases are attorneys at the Public Defenders Service (which is one of the best such agencies in the country) and the approximately 200 private lawyers who are referred to as “CJA attorneys.”

CJA attorneys are private counsel who have been approved by the court to receive appointments under the Criminal Justice Act (CJA)–which generally occurs in cases the Public Defender Service does not handle. In recent years, DC has reduced the number of attorneys authorized for CJA appointment, mainly because the need for criminal defense attorneys has lessened in the wake of DC gentrification–based on the information provided in section 4, it makes sense that as whites and more affluent communities displace communities of color in DC, the need for CJA attorneys also lessens. Because of this, the list of CJA attorneys has been repeatedly shortened by the DC courts.  Thus at this time, DC has a disproportionately small pool of private attorneys with experience representing people in felony criminal trials.

Because ethics rules prevent us from communicating with defendants directly, we are instead working to help organize the lawyers. We have resources about the principles of jail and defendant solidarity and experience addressing the political nature of these arrests. We are also providing research and other resources and are tracking the cases of everyone arrested on J20.

  1. What can I do? How can I help?

It is great that you want to help! One thing you and your friends and family can do is donate to the J20 legal defense fund that has been set up to provide financial assistance to defendants. We understand that much of these funds will go towards providing non-DC based defendants transportation for court appearances. At this point, the court has refused to waive personal appearances in court for scheduled hearings.

If you are a lawyer, law student, or legal worker who can help our effort by offering representation, visiting the courthouse, performing legal research, or filling other related needs, we want to hear from you! Please email dcmassdefense@gmail.com.

We will continue to issue additional FAQs as cases progress, and we are eager to hear specific questions you may have that we can answer.

We hope defendants can rely on their support networks in this difficult time. Building community with each other is a strong strategy to lessen the impact powerful regimes have on us all.

In Solidarity,

DC NLG Demonstration Support Committee

Obligatory disclaimer:

We are not lawyers. We do not provide legal advice. If you require legal advice, please seek it out, from a qualified attorney, in a private and/or privileged setting.

We are community members, with differing degrees of legal work experience, from in and around the DMV. We come out of different activist traditions and bring diverse political ideologies and/or philosophies with us to the group. We came together with a shared commitment to mutual aid under the banner of the DCLP in order to mobilize a rapid emergency response to the grossly malicious over charging, by the U.S. Attorney’s Office, of counter-inaugural protesters, who now face felony charges.

It is our intention to provide any and all manner of personal and/or practical support to these charged persons, through final disposition of their cases. It is vital to clarify that, despite the case-related nature of some of the support that DCLP provides, none of us, individually, institutionally and/or organizationally is an agent of and/or an actor on behalf of anyone, named defendant or otherwise. Therefore, nothing is intended to be construed as an attributable admission by anyone of anything, beyond specifically and intentionally identified persons, acting in their own personal and/or political capacity, where applicable.

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