Gideon’s Heroes

Honoring Those Who Do Justice To Gideon’s Promise

"My life’s ambition since high school was to make sure that poor people had a chance at having lawyers who were dedicated to their case and who would work hard to ensure a just result. " – Penny Marshall, Federal Public Defender for the District of Delaware

THE PROBLEM: An African American woman is driving home from her mother’s birthday party in Delaware in her new SUV. Suddenly, bedlam. Sirens, three police cars, state troopers pointing a shotgun and two handguns at her, yelling, forcing her from the car, face down on the ground. They demand to search the car. She refuses. They rough her up. They take her to the police station, handcuff her to a chair, and charge her with various traffic offenses, plus resisting arrest.

Turns out they had an anonymous tip with a license plate number, and four of the six digits matched her plate. But other things didn’t. They were looking for a man. Waving a gun, 20 miles away. A white man.

She tells them she’s a lawyer, a federal public defender. They see her federal ID badge. But the troopers are undeterred. Perhaps afraid to admit the blatant error and open themselves up to a lawsuit, the local prosecutor presses ahead with the criminal case. “Top Public Defender Charged,” screams the newspaper headline.

THE SOLUTION: Penny Marshall was scared, but determined. She asked an old friend with whom she had worked in the Washington DC Public Defender Service, Henderson Hill, to represent her. He threw himself into the case. A judge threw the charges out. But the prosecutor appealed, and an appellate court reinstated the case and ordered a further hearing. Again, the trial judge threw the charges out. Again the prosecutor appealed.

In the middle of all this, the state Senate convened hearings on discriminatory practices by the State Police, and Marshall was asked to testify about racial profiling. She and Hill filed a civil suit demanding money damages from the police. The state police superintendent was forced to retire amid complaints about discrimination. A task force was convened to write procedures to stop future racial profiling.

The press grew concerned. “It is beginning to look like a vendetta against a black lawyer who dared to question State Police tactics,” wrote the Wilmington News Journal. “It is time to drop this case.”

After a two-and-a-half year ordeal, the criminal charges were finally thrown out, the state agreed to pay Marshall money damages for violating her civil rights and sent her a letter of regret.

In October 2002, Marshall received an unprecedented promotion. She was selected by the judges of the United States Court of Appeals for the Third Circuit to become chief federal public defender for Delaware – the first African American woman in the nation’s history to hold such a position.

“What ever happened to justice?” wrote a prominent University of Delaware professor and the chairman of the Wilmington Urban League in a newspaper op-ed. “A black, Harvard-educated public defender can endure a case of this magnitude and obtain the assistance of competent counsel. But there have been many people of color involved in similar episodes who were not as well-educated and lacked the resources to fight this kind of injustice.”

As a result of Marshall’s case, the police have now accepted new procedures to reduce racial profiling, including new police training programs, efforts to hire more minorities, and comprehensive data collection to expose discriminatory patterns of traffic stops and arrests.

THE HERO: Penny Marshall’s father was in the Air Force and her mother was a homemaker. She always got good grades, and when she saw other kids head off to good colleges, she decided to aim high too. From her Harvard Law School Professor, Charles Ogletree, a former deputy chief of the Public Defender Service for the District of Columbia, she heard stories of how badly poor people can be treated by the criminal justice system. She remembers marveling at how Attorney General Edwin Meese, when he was charged with various offenses, assembled the finest defense team – at extravagant cost to the taxpayers.

In her spare time, Marshall is a movie buff and plays tennis, and tries to cultivate new generations of passionate public defenders by teaching trial advocacy at Widener Law School in Delaware, and at Harvard and Cardozo law schools.

Beyond confirming the evils of racial profiling, her own experience as a criminal defendant conveyed in very personal terms “that our justice system moves excruciatingly slowly,” and the value of “good counsel and adequate resources in averting injustice.”

Says her friend of 20 years, Henderson Hill: “Penny has always thought of herself as no better than any of her clients.”

Adds Professor Ogletree: “She is a symbol of what we mean when we say justice.”

THE OFFICE: The office Marshall runs is the newest federal public defender office, previously having been a branch of the New Jersey Federal Defender Office. When Marshall first came to the Wilmington office, it was housed in a rebuilt church, and the lawyers would quip that they were doing God’s work. Now relocated a block away, the office has three other attorneys and support staff. The volume of prosecutions has been high, requiring Marshall – unlike most chief federal public defenders – to manage a full caseload in addition to her administrative duties and responsibilities for supporting the private attorneys who are appointed to take cases that her office cannot handle.

THE QUOTE “Not in a million years, if they’re looking for a black man, would they have done to a white woman what they did to me.”

CHALLENGES REMAIN... Quality indigent defense remains the best safeguard against wrongful convictions. “There are many ways that innocent people may be drawn into the criminal justice system, including police or prosecutorial misconduct, … or racial or other invidious assumptions, practices and prejudice which may infect every stage of the system,” declared a U.S. Department of Justice report issued in 2001. “But there is one overarching way that innocent indigent people can be extricated from the system: by furnishing competent legal representation.”

The problem of racial profiling remains at “epidemic proportions” nationally, according to a study called “Driving While Black,” by University of Toledo Law Professor David A. Harris for the ACLU. And indigent defense in the United States today,” found a 2000 Justice Department report, “is in a chronic state of crisis.”

GIDEON'S PROMISE: Still unfulfilled.

Read about the January Gideon's Hero, Natasha Lapiner-Giresi.
Read about the February Gideon's Hero Rodney Ellis.
Read about the March Gideon's Hero The Georgia Chief Justice's Commission on Indigent Defense
Read about the April Gideon's Hero Roger Nell