A Loss For Poor Defendants

Nancy S. Forster Fought Hard For Accused Indigents. Why Was She Pushed Out?

August 26, 2009|By Doug Colbert

When discussing the firing of Maryland Public Defender Nancy S. Forster, let's be clear about a few things. This is not one of those "personnel matters" that is off limits to inquiry. Indeed, when a dedicated public servant charged with protecting poor people's liberty is summarily dismissed, we must demand that our elected officials and community scrutinize carefully what happened.

Nor is this a story, as has been portrayed, solely about the action taken by the two governor-appointed trustees, Wray McCurdy and Margaret Mead (the third appointee, Theresa Moore, dissented). Yes, Mr. McCurdy and Ms. Mead cast the decisive votes against Ms. Forster. And they may truly believe that poor people are well served without defenders maintaining specialized capital or juvenile defense units or community offices in Park Heights and Montgomery County.

But does that provide sufficient reason for two designees to oust a statewide official? I don't think Ms. Forster loses her job without the current governor's approval and involvement. If Gov. Martin O'Malley was pleased with Nancy Forster's commitment to indigents' defense, she would still have her job.

Former Gov. Robert L. Ehrlich Jr. knew what he was getting when he appointed Ms. Forster after a national search. She had built an excellent reputation as one of our state's exceptional appellate defenders. No doubt she brought that zeal to her new position. Surely, legislators in Annapolis felt her passion when she requested funding for more lawyers and additional staff to reduce high caseloads. This past year, Ms. Forster fought hard to avoid having the governor lay off staff.

I was a New York City defender for more than a decade, so no one has to explain to me how big a role politics plays. In the 1990s, we watched then-Mayor Rudy Giuliani fire the head of the city's legal aid office for being too aggressive in seeking funding to defend people he considered guilty and deserving of punishment. Mr. Giuliani, a former federal prosecutor, thought defenders should handle more cases, take more pleas and be less zealous in asserting clients' due process rights when using government resources.

Maryland has its own history of elected officials wanting the chief defender to be less vocal about the office's pressing need for additional resources.

A state's chief defender's job is tough. Poor people have few allies. Most politicians regard defendants as criminals, not as the accused. The best defenders make easy targets: If they argue too vigorously, they are said to condone crime. If not ready for trial, they delay justice.

The trustees took a radical position. Dismantle the specialized units, they told Ms. Forster, to keep your job. Ms. Forster knows these lawyers are the cream of her office: They defend people facing death sentences and the young. Send defenders to the front lines, the trustees barked. Any "good" lawyer can do a capital or juvenile case. No need for community presence. In the old days, lawyers proved their worth on the assembly line by meeting clients for the first time at trial.

Ms. Forster would not agree to undo what it took others so long to accomplish. She refused to disband programs that provide meaningful representation for clients.

Nancy Forster and I don't always agree about critical justice issues. I have advocated for defenders' representation of poor people when they first appear at commissioner hearings. In many counties, detainees wait 30 days in jail before obtaining their defenders' in-court representation. The PD's office defends this practice.

I remember my initiation into the real world when I became a Legal Aid lawyer. That's when New York Mayor John Lindsay announced "his" judges would deny bail to women charged with prostitution. I naively thought judges were there to check executive abuse of power - not do the mayor's bidding to protect the tourist industry. I was wrong. The mayor's jail policy went unchallenged.

That is, until we left court and marched to City Hall. We were young then. So when our boss ordered us to return or lose our jobs, we stayed. By midafternoon, judges were acting independently again and releasing women. We lost three days' pay.

I am not sure why Ms. Forster was fired, but I sense a noxious odor when government officials run for cover and say the public is not entitled to know. Politics surely played a big role here, but we may never get the full story until a courageous politician steps up or we demand public hearings. That won't be easy.

We are speaking about defending people's freedom. It is time lawyers took direct action.

Doug Colbert teaches at the University of Maryland School of Law. His e-mail is dcolbert@law.umaryland.edu.

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