A pair of San Francisco court cases scheduled to be resolved this fall illustrate opposite ends of a phenomenon I'll call privilege drift, in which groups of people who know the system, have the money to game the system, and possess the political power to manipulate how the system works are accommodated by our government in extraordinary ways. Those without insider knowledge, money, or clout, meanwhile, can encounter laws and policies seemingly contrived to make them more powerless still.
In one case, a San Francisco Superior Court judge is evaluating a state prisons policy that denies young parolees the right to an attorney at parole revocation hearings, except in rare cases where they're diagnosed as mentally retarded, or when state prison bureaucrats deem their case extraordinarily complex.
"They hand down the charges on a Friday, and they expect him to represent himself at a hearing on a Tuesday, where he could face 10 months in custody," said San Francisco Public Defender Jeff Adachi, who wishes to represent pro bono Will Roy, a 24-year-old who was accused of toking up while still on parole from juvenile hall.
Last month, thanks to Adachi's advocacy, a judge ordered the California Attorney General to prove that this policy doesn't violate Roy's constitutional right to due process. A hearing to review the policy is scheduled for the end of this month at San Francisco Superior Court.
In a case two miles across town at the State Bar offices on Howard Street -- and at the other end of the world of privilege -- 67-year-old defense attorney Frank Prantil is facing a task he's already performed numerous times -- defending himself against accusations that he's acted unethically as an attorney. In 1979, Prantil was suspended from practicing law after he was accused of improperly representing a client. While on probation, Prantil was alleged to have participated in a check-fraud scheme. He was convicted of forgery and disbarred, according to the California Supreme Court opinion confirming Prantil's disbarment.
Prantil later took advantage of California rules that allow disbarred attorneys to ask for reinstatement after five years. Prantil successfully argued that he had rehabilitated himself, and resumed practice in 1994.
Prantil is now facing State Bar disciplinary charges, which could potentially get him disbarred again, alleging that he failed to competently defend a client, then improperly charged the client for his services.
Prantil's case, along with three cases decided earlier this year in which California attorneys were disbarred for a second time, has added steam to a nine-year-old bureaucratic proposal to give judges the option of disbarring the worst attorneys for life.
In California, there now exists no legal concept of permanent disbarment. A State Bar committee on Nov. 15 will consider the possibility of changing that, if only slightly. Rather than making all disbarments permanent, it would extend from five to seven years the amount of time disbarred attorneys would have to wait before requesting to be reinstated, and would give judges the option of forever banishing the worst of California's worst attorneys.
The fact that it's taken nine years for such a mild proposal to reach this preliminary step hints at a lack of seriousness the California legal establishment lobby applies to abuses by its own members.
When viewed beside the case of Will Roy, however, the slow-moving disbarment proposal illustrates how the guards and apparatchiks who run our state prison system, and the lawyers and apparatchiks who run our legal system, have pushed California criminal justice far from the democratic ideal, in which everyone has comparable access to fair treatment under law. In a system where an apparently ethically challenged lawyer benefits from an extraordinary string of second chances, while an unsophisticated young toker is railroaded sans counsel into jail, equal access to legal protection has clearly broken down.
In the case of Will Roy I think it's fair to say the state failed in its role as custodian of a wayward youth. Now that the prison system wants to jail him again for supposedly violating parole, the state has become his adversary -- meaning that, by any reasonable estimation of fairness, Roy should have the right to an attorney.
"What happened was, I got out of the California Youth Authority in April 2003, and I was on parole for two and a half years, doing good," said Roy.
While recovering from knee surgery, he suffered migraine headaches, which were eased by marijuana, Roy said, so he went to a prescription mill doctor in Oakland, got a state pot card, lit up, and thus failed a parole-mandated urinalysis. Neither Roy nor Adachi would discuss with me the charges that first led to his being jailed. But an AP story covering a protest against the California Youth Authority last year profiled Roy, who, the story said, was admitted at age 16 for robbery, then drew an extra year for fighting, and another year for smoking smuggled marijuana, for a total of six years.
Before surrendering himself, Roy sought the advice of San Francisco Public Defender Jeff Adachi, whom he'd met at several criminal justice conferences. The resulting delay, combined with a scuffle Roy got into with a friend on a juvenile hall basketball court while awaiting a hearing, form the basis of charges that could earn Roy nearly a year more in jail, in a case first described in The Recorder, a legal newspaper.
Adachi sent a letter to the prisons department arguing that Roy was in compliance with state law allowing medicinal use of marijuana. Department of Corrections and Rehabilitation attorneys are now struggling to draft an official policy accommodating California's medical marijuana law.