Defenders: The Anti-Government

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I would be remiss in not responding to Nick Welsh’s column [Dog Got Your Tongue?] concerning the court’s ruling on the subpoena for Paul Wellman’s photographs of the aftermath of the stabbing death of Angel Linares last year.

I certainly would not argue with his concerns about the “assault on the media” by the Bush administration. However, the inclusion of Deputy Public Defender Karen Atkins’ subpoena for the photographs as part of this “assault” is way off the mark.

Contrary to Mr. Welsh’s view that this is “a controversy that’s crying out for legal clarification” the law is actually quite settled. As Judge Hill noted in his initial ruling the legal proceedings are a search for justice and truth. There are occasions when some tension arises between the media’s First Amendment rights and an accused’s Sixth Amendment rights to a fair trial. Although I do not believe this subpoena implicates a First Amendment right, assuming it does, the courts have fashioned a reasonable balancing process to resolve this tension. In performing this balancing review, Judge Hill found that an adequate showing was made under the unique facts of this case to conclude they favored the individual’s rights. The fact that the Court of Appeal and the California Supreme Court agreed with Judge Hill’s ruling clearly demonstrates that the ruling was correct.

This is not a situation – which Mr. Welsh concedes – where a privileged or confidential source is somehow compromised or left unprotected. And while it is valid to wonder whether any of the photographs will shed any new light on the case, I would note that several of the photographs turned over by The Daily Sound were in fact used during the first preliminary hearing last year. Nor is this a “fishing expedition.” As we all know, different angles and different perspectives can reveal important information. I am certainly willing to take him up on his “bet” of donuts.

It is also important to keep in mind that Ms. Atkins has a legal duty and ethical responsibility to do everything within the bounds of the law to represent her client. The prosecution’s decision to try her 14 year-old client as an adult means that his “life is on the line.” The gathering of all evidence – especially in light of the evidence at the preliminary hearing last year that suggests another person was responsible for the fatal stab wound – is a paramount obligation on defense counsel. Hardly a week goes by without a news story of yet another exoneration of an innocent person who had been wrongfully convicted of a crime he had not committed. No dedicated defense attorney, such as Ms. Atkins, wants such a miscarriage of justice to occur in one of their cases.

Mr. Welsh also mischaracterizes the Public Defender’s Office as part of the “government.” While we are state funded, our purpose and mission is essentially anti-government. We protect individuals from the government – from improper prosecutions to unlawful searches to constitutional violations. To illustrate the point, if Ms. Atkins’ client was represented by privately retained counsel, it is unlikely you would seek to create the false inference that such counsel is part of the “government.”

I would hope that Mr. Welsh would step back from his admitted bias to reflect on the importance of the role Ms. Atkins plays in our criminal justice system and the search for justice. The tragedy of the events of last March should not be compounded by the tragedy of an unjust outcome in this case. It is in everyone’s best interest that the search for truth and justice not only appear, but actually be, fair.

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