Court Hits Back Against Politically Motivated Firings of Public Defenders

    There has been a spate, in recent years, of public defenders speaking out against injustice, then getting in trouble for it, as Filter has reported. But this time there is a (sort of) good ending.

    Several years ago, Beattie Butler, a public defender in Charleston, South Carolina, caught wind of what he felt was serious misconduct by Charleston Solicitor Scarlett Wilson’s prosecutors, which often involved withholding exculpatory evidence from the defenseagainst the mandate in the 1963 Brady v. Maryland Supreme Court case.

    Brady violationsessentially ignoring the prosecution’s duty to disclose, pre-trial, any evidence that might undermine a criminal caseare generally considered a cardinal sin of the prosecutorial profession, although prosecutors usually get away with it. Butler, however, felt compelled by his profession’s enforceable ethics code to report it, and told other members of the local legal community of his concerns.

    Charleston Chief Public Defender D. Ashley Pennington then fired him in 2014, even as Butler was undergoing treatment for cancer.

    A local newspaper, the Post and Courier, found Pennington’s written rationale through a public records request. In the termination letter sent to Butler, Pennington scorched him for supposedly bringing politics into his work: “You have a right to your own political views, but you do not have a right to drag this office into conformity with your personal agenda.” Pennington also wrote that calling out Wilson’s potential misconduct “constitutes personal, public attacks on Solicitor Wilson.”

    Butler responded by filing a federal lawsuit, alleging wrongful termination on several grounds, including a First Amendment claim. Most of these claims were dismissed due to defenses of immunity in federal district court. However, on March 10, the US Court of Appeals for the Fourth Circuit ruled that the federal district court was correct when it decided that Butler “maintained a First Amendment right to report alleged prosecutorial misconduct” during his employment. As a result of this ruling, the case will be remanded to the district court, where the substance of the lawsuit will be addressed. Butler may or may not win the lawsuit, but he is a step closer.

    Fighting this case for years must have been draining for Butler. But his perseverance and now, some measure of vindication will surely have positive impacts on the legal field in the years to come.

    Reporting such misconduct is a First Amendment right.

    Now, defendants should know that if the prosecution is lying or cheating in their case by withholding evidence that stacks up in their favor, public defenders have a right and arguably a duty to hold the prosecutors accountable.

    That message is sorely needed in a state like South Carolina. Lawyers there have even more personal incentives to defend each other than averagethe consequence of the state’s historically isolationist stance on attorney licensure. Unlike most other states, there is no reciprocal admission to practice law. That means lawyers moving in from other states have to take the bar again, which has a deterrent effect. Additionally, applicants have onerous additional requirements for admission, such as watching cases of every type from start to finish on every level of court.

    The practical outcome of these requirements is that a huge percentage of lawyers in South Carolina attended the University of South Carolina, which had the only law school in the state until Charleston School of Law opened in 2003. The local legal profession has a perhaps-unparalleled level of in-group camaraderie.

    There is a more national-facing lesson to be learned as well. Lost in the growing narrative that public defenders are fighters for social justice is that countless people who cannot afford a private attorney are assigned defenders who are incompetent or uncommitted to protecting their rights. Nowhere is this worse of a problem than the South, where many major counties still lack a public defender office and rely on “court-appointed” indigent defense attorneys instead.

    In Florida, where public defenders are elected, investigative reporting has shown a vast discrepancy in the results of similar court cases in different districts. Poor defendants in Martin County, Florida, who are represented by elected Public Defender Diamond Litty, fare much worse on average than people in equivalent situations in neighboring Palm Beach County. Litty also happens to be “best friends” with the local top prosecutor, State Attorney Bruce Colton.

    In Jefferson County (Birmingham), Alabama, Kira Fonteneau was hired to be the first chief public defender, but was later fired after building a praised, elite defense service. Her immediate successor, longtime private defense attorney David Luker, resigned after being called out for his racism.

    One of the most prolific court-appointed attorneys in Mobile County, Alabama is Habib Yazdi, who has been deemed by a local judge a “C+ lawyer,” had his license suspended for pulling a gun out in a mediation conference, and once threw potential evidence of one client’s innocence in the garbage. Yazdi should not even be an attorney in Alabama at all, according to the state’s own licensure rules, because he graduated from University of West Los Angeles’ law school, which is not accredited by the American Bar Association. 

    In Maricopa County (Phoenix), Arizona, court-appointed defense attorney Nathaniel Carr once wrote that his own client, whose main defense against the death penalty was a low IQ, “looks like a killer, not a retard.”

    Sadly, the actions of Chief Public Defender Pennington of Charleston imply that he has things in common with some of the so-called defenders on this sordid list—namely, caring more about peacekeeping with legal peers than providing strong services to the accused.

    After his firing of Butler, can people charged with crimes, especially people of color, trust D. Ashley Pennington to vigorously defend their constitutional rights? This is a county, after all, where national investigators from Michigan had to come in to verify that Solicitor Wilson essentially bans Black people from serving on juries.

    When a defendant’s motion for summary judgment to toss a lawsuit fails, often the matter will be resolved in a confidential settlement, which bars the public from benefiting from precedent. Yet there is a clear possibility that Pennington fired an employee for reporting what he at least perceived to be prosecutorial misconduct. Reporting such misconduct is a First Amendment right.

    South Carolina Bar should now prove its worth as a licensing agency and investigate. Given that it threw out earlier complaints against Wilson and Pennington related to this saga, it almost certainly won’t.


    Photo by Nick Youngson via Blue Diamond Gallery/Creative Commons 3.0

    • Rory Fleming

      Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. He was also a communications specialist for the National Network for Safe Communications, a research center at City University of New York John Jay College of Criminal Justice. Rory is a licensed Minnesota attorney. He lives in Philadelphia.

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