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Shades of Justice

"Evil is not all on one side."

March-April 2014


Growing up in Washington, D.C., Avis E. Buchanan, J.D. ’81, read an article about two black women who claimed they were fired from jobs at the post office because of discrimination. Her father, who had also worked there, was sympathetic. “He was what people used to refer to as a ‘race man,’ ” she says. “He could turn any conversation into one about racial politics: at home, that was our dessert, and appetizer—and entrée.” So Buchanan wrote a letter to the postmaster protesting the termination. “I got a note back, which surprised me,” she recalls. “But, of course, he was justifying his actions.”

That inherited “indignation, a pushing back against authority,” she acknowledges, is now a core job requirement. The former trial attorney and civil-rights litigator leads the District of Columbia’s Public Defender Service (PDS), which represents adults and juveniles in the most serious, complex felony cases.

The organization is widely considered by legal advocates to be among the best of its kind in the country. With a current $40.6-million annual budget, PDS’s 214-member staff includes a roster of pugnacious, disciplined Ivy League lawyers and an appellate team that averages better than a 25 percent reversal rate. “They are not shy, they have a lot of ego and are used to being the best,” Buchanan asserts, “and it takes a certain personality to go across the street and fight back against judges and prosecutors and police officers every day.”

The award-winning PDS has seven legal units and, uncommonly, pulls from those to create practice groups that focus, for example, on forensics and mental health, two chief aspects of defense and sentence-mitigation work. Specialists not only assist in individual cases but push for reforms of federal and state policies and legislation nationwide; they also run training programs for lawyers, social workers, investigators,and others working on the front lines of American justice. The pioneering forensic unit has helped expose deficiencies in techniques and procedures routinely relied on to obtain convictions. Notably, new DNA testing of hair and other biological evidence conducted by PDS has led to three exonerations, with a fourth case pending in which the government in January conceded flaws in its case that were revealed by DNA testing, and agreed to dismiss charges. In an effort to ensure more neutral analysis, PDS was also instrumental in establishing the District’s Department of Forensic Sciences in 2011, which took over the “functions, authority, personnel, and funds” related to evidence from the Metropolitan Police Department.

Such rare clout is due, in part, to PDS’s structure as a federally funded, independent organization governed by a board of trustees. It was created by an act of Congress in 1960 as an inspirational model for top-quality, “conscientious legal assistance”—even before the landmark 1963 case Gideon vs. Wainwright guaranteed poor people the right to counsel when facing criminal charges.

For Buchanan, PDS feels like home. “People here are offended by the government’s overuse or arbitrary use of power,” she says. “Just because you say I should go to jail, just because you say I did something wrong and have the capacity to deprive me of my freedom,” she adds, “doesn’t mean you’re right.” Her views are also influenced by her sense of fairness and faith as a Seventh-Day Adventist. “We are often a client’s last friend, the only one standing in his or her corner. This work is important because we help address the imbalance of resources for poor people versus rich people.”

Despite Gideon, indigent-defense systems are inconsistent across the nation, with many in a state of crisis. According to Nancy Bennett, deputy chief counsel for the private counsel division of Massachusetts’s Committee for Public Counsel Services, “Most states provide so little funding that even those that are well-organized have attorneys with more than 500 to 600 cases a year.” In a 2012 speech at the American Bar Association’s National Summit on Indigent Defense, U.S. Attorney General Eric H. Holder Jr. noted, “Millions of Americans still struggle to access the legal services they need and deserve—and to which they are constitutionally entitled. And far too many public-defender systems lack the basic tools they need to function properly.” In New Orleans, the public-defender office at one point had more than 2,000 cases per lawyer per year, reports Bennett, who works with Buchanan on national policy and advocacy. “If you do the calculations, that means lawyers could not even allocate one hour to a case,” she adds. “Never mind investigations into facts, researching the law, litigating pre-trial motions, or anything like that. All they could do is meet them and plead them.”

Unlike many peer organizations, PDS has strict internal controls. “The court doesn’t dictate our caseload, we do,” Buchanan says. Targets vary by practice level, work load, and experience, she adds, but even “25 to 30 pre-trial cases on a general felony attorney at PDS, for example, is on the high side.” Whatever court-appointed cases the office cannot absorb are assigned to private defense attorneys or law students, who work pro bono, or are paid through the district’s Criminal Justice Act.

Qualitatively, PDS is also the envied exception. The office has historically fostered a “culture of excellence” that emphasizes collaboration, according to former staff attorney Julia Leighton, who is now PDS’s general counsel. “We have high standards and are most critical of ourselves,” she adds. “But if you are smart, creative, listen to your colleagues, and are willing not to take no for an answer—and if you work 12 hours a day, six days a week (or seven 14-hour days, when in trial), then you can, with case-load controls and resources, provide top-notch representation.”

PDS engages in near-constant battles with the powers that be: distrust and emotions run high both ways. The system is stacked against them, Leighton says of the staff, “and you’re often dumped on by everyone because of the side you’re on.” This winter, for example, PDS represented Albrecht Muth, the “German eccentric” charged with strangling his wife, socialite and journalist Viola Drath, who, at 91, was more than 40 years his senior. The sensational case took two and a half years to go to trial because of competency issues and hunger strikes that left Muth medically unable to attend his own trial. In court, even though the defense emphasized the absence of DNA evidence, eyewitnesses, and a motive linking Muth to the killing, a jury convicted him after only three hours of deliberation.

Buchanan won’t discuss that case, or any others, because of attorney-client privilege. Some of its themes, she does allow, are typical for PDS—“high profile, complex, mental-health issues.” But middle-aged, white, German-born criminal defendants are not. Racial disparity in the courts is an acknowledged fact at PDS. “On any given day, more than 90 percent of the people who come through the system are black. And close to that percentage are male and many are young,” according to Buchanan. “Whether there is an influx of immigrants, whether there is gentrification, you will still see the same population in the cell block in the courthouse. That has not changed since the 1980s when I was practicing.”

 

Buchanan has always been fascinated by criminal justice, which she studied, along with Spanish, at Michigan State University. During school vacations, she sat in on D.C. trials, and in 1979, after her first year at Harvard, she spent the summer as a PDS investigative intern, having been recruited by Climenko professor of law Charles J. Ogletree Jr. He was then a PDS trial attorney—and has been Buchanan’s mentor since.

After graduation, she clerked for Theodore J. McMillian, the first black judge on the U.S. Court of Appeals for the Eighth Circuit (in St. Louis), but returned to PDS as a staff trial attorney in 1982. (Except for her schooling and clerkship, Buchanan has always lived within a three-mile radius of her current home, and been affiliated with Dupont Park Seventh-Day Adventist Church in southeast D.C., where she was baptized in high school.)

Buchanan represented children, then adults, until 1989, during the escalating crack epidemic. “We went from having one murder going through the court system a day to three or four a day,” she says of those early years. “It felt oppressive, not just professionally, but personally. You just felt this was our city, our community, our people. Watching the results of that carnage was frustrating, sad, discouraging.”

She left the office in the midst of that chaos to work for the next 13 years at what is now the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, first as a staff attorney, later as director of its equal employment opportunity project, and then of litigation. There, she won awards, and even found herself on the team that represented a class in a lawsuit that alleged discriminatory promotion practices at the Library of Congress (ultimately settled), in which her mother, Anna Mae Buchanan, was a class member. She also learned that her father, Herbert C. Buchanan Sr., who passed away in 1998, had been party to a separate case represented by the office.

 

Buchanan’s conceptions of evil and wickedness stem from her parents’ values—essentially, “The world does not just consist of you; don’t forget about the people less fortunate”—and from her Adventist faith. “Evil is not all on one side, in the sense that if you are charged you must be guilty,” she asserts. “Evilness can be someone who hates our client so much, they are willing to lie and go to all kinds of lengths to harm our client wrongfully or disproportionately to what he or she has done. It’s evil to put someone in jail, at least for reasons that are wrong.” Has she witnessed evil in action? “Yes. I’ve seen the evil of people doing decades in jail for crimes they were not guilty of.”

Ideals are deeply attractive to her. Even as a kindergartener at the all-black Dupont Park Adventist School, Buchanan (whose parents were not then Adventists or particularly religious), was impressed by the “sense of this thing greater than you are that calls you to be more than what you are,” and the “logic” of Adventist teachings that the Scriptures are the sole source of Protestant faith and practice. “The Bible says Christ rose on the first day of the week, Easter is on Sunday, so the seventh day is Saturday,” she says. “The Jews don’t have any confusion about that. So why would you get rid of the fourth commandment—remember the Sabbath Day and keep it holy—but follow the other nine—you still can’t kill, you can’t worship false idols, and cannot bear false witness?”

She sits on her church’s board of trustees, her former school’s board, and on the board that runs the local Adventist Health Care system. She says she has never smoked or drunk caffeine or alcohol, but later adds, for “full disclosure...technically I had a sip of beer once as a child, with my parents’ permission, to see what all the fuss was about.” But she is not a full vegetarian, as the church urges. “The irony,” she says, is that Adventists “like to run a truck through” their otherwise healthy diet restrictions. “You will see enormous plates of desserts, and I am not sure all the meat substitutes are all that healthy,” reports Buchanan, who loves to eat—especially “bad food: French fries. Pound cake. Ice cream. Cinnamon doughnuts.” On her office desk is a container of candy: Good & Plenty, Jolly Ranchers, and Pixy Stix. “I don’t eat that, but I like to look at it,” she says. “They’re colorful and they remind me of the fun of my childhood.” She does consume Nerds, those rocky nubs of sugar crystals often dressed in pink.

She also loves roller skating, reading, obsessively playing Scrabble on her iPad, and the adventurous treats she allows herself on birthdays: a white-water rafting trip, helicopter rides, lessons in skydiving and trapeze tricks. “I did a flip off the bar and a catch,” she says, “I like being in the air.”

She takes scary physical risks, but never emotional ones: “No way.” Even in the courtroom, with the pressure of a client’s fate “riding on me,” she says, she would get headaches from concentrating so hard, but never become emotional or agitated. “Avis emanates serenity,” says Nancy Bennett. “She is an amazing facilitator. She listens to everyone, and keeps people on track, redirecting them in a very polite but very effective way, and getting them to stop shouting at each other at meetings!” In short, as Julia Leighton admits: “Avis gets people like me to stop interrupting, shut up—and listen.”

Although one has to listen hard to hear Buchanan speak, many people who don’t know her well seem to find her ethereal, regal presence intimidating. “I just naturally stay calm,” she reports. “Maybe it’s part of my control-freak tendencies. I need to control myself as well as whatever I can in my environment.” Legal documents, for example, are scrutinized: “When people cut and paste things and the apostrophe is in a different font from the rest of the text, I feel like I can’t let it out of the office until I change it.” Many people who don’t know Buchanan well seem to find her ethereal, regal presence intimidating.

It’s almost as if, in operating in the nuanced, gray-zoned business of criminal law, Buchanan has found power in preserving her own innocence. She has spent most of her career grappling with the fickle, often enraging, and bureaucratic legal system, while working for alleged murderers, thieves, and drug addicts and dealers—those most of society loves to hate. Yet she seems to refuse to allow herself to become jaded.

Beyond the exhilaration of winning a trial, the best public defenders, those most innately dedicated to the ideal of equal justice, find intrinsic rewards. Leighton recalls a client who was sentenced to life in prison “in a case in which nobody was even physically hurt,” she says. “We had lost the trial, lost the motion for a new trial, and lost the appeal. The only possible claim that could be raised at that juncture was that PDS had failed at trial or on appeal to provide him with effective assistance of counsel,” she explains. “And he turned and looked at me and said, ‘I can’t do that, you all have worked too hard for me.’” In every case, Leighton says, is a moment that “sustains PDS lawyers, when we see all that is good in a client and the right moral compass that exists in everyone.”

Buchanan knows that intimate connection well. The work comes down to “finding something in common with a client, some insight into who they are as a person. Then they let their guard down and trust you and know you are really there to help,” she says quietly. “If you don’t have that, you’re just going through the assembly line—and you don’t really care. That’s when you know it’s time to leave.”

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