Trump And Criminal Justice – Above the Law

handcuffs justice gavelAs everyone weighs in on the potential effects a Trump presidency might have in various spheres (civil rights, free speech, the environment, international trade, etc.), I thought I’d comment on what it could mean in the world of criminal law.

First, the return of Rudolph Giuliani to the national stage in any major role (such as Attorney General or Chief of Homeland Security) strikes fear in the hearts of defense attorneys.

When he was mayor of New York, he quickly tallied an enemies list and chief among them was the Legal Aid Society — defense attorneys who, in the mid 90s, decided to go on strike. In spite of the challenges of their jobs (carrying huge case loads and working long hours with difficult clients and high-stakes cases), they were making less money than their prosecutor counterparts, and earning much less than attorneys with similar trial experience in the private sector.

When they called a strike (they were members of the UAW), Giuliani’s response was swift and unforgiving. Everyone was fired. Talk about surprise. Idealistic young attorneys were sent into a tailspin and union leaders went crawling back to Giuliani to ask for their jobs back. Giuliani gave them back (the city needed them), but he called for the establishment of new competing organizations that would unseat Legal Aid as the major provider of defender services in New York City.  As these organizations proliferated, Legal Aid’s ability to lobby for changes in the criminal justice system (including contesting controversial DNA testing techniques used by the prosecutors and insisting on compliance with the mandate that arrestees are arraigned within 24 hours of their arrest) was diluted.

Then there was the burgeoning use of “stop and frisk” by police.  Thousands of black and Hispanic men were stopped outside their homes, in playgrounds and parks, on their way to work or days off, just because of their color. Yes, the practice netted a few people carrying guns (although most had nothing), but in the long run it created such distrust between the black communities and police that for years I could not get black men to sit on my juries because they’d say they could not be fair to police. They didn’t trust them.

During his term, Giuliani was also proud about placing undercover officers and civilians working off other crimes in mosques to spy on Muslims.  He has also openly expressed dislike for the Black Lives Matter movement and affirmatively aligned himself with Blue Lives Matter.  (Both matter, but which side you emphasize sets the tone for policing.)

It’s true that the president has no control over city policing and whether urban areas, controlled by state and local leaders and police officials, will revive the stop and frisk practice (in NYC it’s been outlawed by a federal judge).  But the tone set at the top of the government seeps down to all levels. Furthermore, the issue could get to the Supreme Court where, a Trump-appointed nominee might sway the court to find the stop-and-frisk of minorities a perfectly acceptable way to meet the so-called ends of law and order.

His choices for the Supreme Court will impact the interpretation of criminal law for decades to come. Fourth Amendment privacy protections are already being whittled down — eavesdropping warrants are signed routinely with minimal probable cause and cops can go into a home “by mistake” as long as there was good cause for the “mistake.” According to The Atlantic, there’s a 50 percent likelihood that your photo is in at least one database used in police facial-recognition systems. These trends toward enhancing police power are likely to grow when a conservative judge (or more than one) is appointed to the Supreme Court.

My solace is that certain fundamental rights of defendants, like the right to cross-examine witnesses against you, were upheld by the conservative Judge Antonin Scalia in the groundbreaking decision of Crawford v. Washington, 541 U.S. 36 (2004), while it was Judge Sotomayor who penned Michigan v. Bryant, 562 U.S. 344 (2011), limiting those rights several years later. It’s difficult to predict what “strict construction” of the Constitution will bring to criminal rights.

Another thing in play is whether the strides President Obama has made in encouraging a more humanistic approach to drug crimes and punishment, as well as the pardoning of inmates serving life-term sentences for such crimes, will continue or be halted.

Yet, interestingly enough, many of my clients — poor black and Hispanic people charged with crimes — voted for Trump.  “He tells it like it is,” said Ivy, my client accused of assaulting a fellow public-housing resident.  “He says what’s on his mind.”

The other major Trump supporters in my professional sphere were court officers and federal marshals.  Going into court these past weeks has been chilly.  An invisible divide existed –judges, prosecutors, and defense attorneys on one side, court officers on the other.

The officers I spoke with saw themselves as having gotten the shaft from liberal Democrats. They watched what they believed to be power and dignity shifted from them and toward other “interest” groups (i.e., minorities.)

As demonstrations continued the week after elections by people unhappy about the Trump election, one officer told me, “The Democrats should stop being such cry babies. They’ve got to learn to lose, too,” implying he’d been losing for a long time, and now it was somebody else’s turn.

He blamed the Democrats for creating a nation gone haywire with political correctness, one that handed out rewards for mere participation instead of winning. “I threw away every trophy my kid got for just participating. We’ve become spineless,” he said.

I hope President-elect Trump manages to steer a middle course, helping both my clients and the court officers who both feel disenfranchised and beaten down.  My guess is, though, my clients better watch out.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

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