Reviewing the Charges Against the Bronx Defenders

Professor Jonathan Oberman from the Cardozo School of Law has a great opinion piece in the New York Law Journal about the two lawyers who were forced to resign as a result of the Bronx Defenders’ “Hands Up” kerfuffle.

These lawyers are smart, committed and hardworking, and have earned their clients’, their community’s, and this city’s trust as a consequence of their dedication and the quality of their work. The two lawyers who appear in the unspeaking cameos may have made an ill-considered decision to involve their office in a video that, in the current environment, placed its good works at risk. But they are decent, caring, thoughtful people—hardworking lawyers motivated by concerns for social and racial justice and committed to achieving a world where access to due process does not depend on the color of one’s skin or the color of one’s uniform.

Like me, Oberman points out that the lyrics are about people in the black community being angry enough to talk about killing cops, but they don’t actually advocate killing cops. “Hands Up” is literally (at least in part) about putting your hands up.

In a less charged moment, with a mayor unconcerned about regaining the trust of the city’s police rank and file, I suspect much less would have been made about the lawyers’ decision to appear in the video.

When I first heard about the controversy, one of the things that struck me hardest was the incredible overreaction — demands for the city to stop funding the Bronx Defenders — over a monumentally trivial matter. (And Scott Greenfield has some interesting points about the level of scapegoating involved.)

As near as I can tell, all reported accusations against the Bronx Defenders trace back to the New York City Department of Investigation’s press release and findings. It appears to be the result of reviewing public information about the Bronx Defenders, reviewing emails sent within the organization and between the organization and members of the city government, and interviews with key staff members including Kumar Rao and Ryan Napoli, the two lawyers in the video, and Executive Director Robin Steinberg.

The two lawyers who participated in the video admitted to being aware of the lyrics to “Hands Up” before participating in the video. They told the DOI that they believed they would be given the opportunity to edit anything offensive from the video before it was released, but they didn’t have any legal agreement to enforce that requirement, and there’s apparently no evidence of them wanting to remove the cop-killing lyrics.

Here is a brief description of what was known about the lyrics and video, according to the DOI report*:

Rao and Napoli stated that on the date the video was filmed at The Bronx Defenders office, they were shown the portions of the video filmed at the office that day. Rao said that they were also shown some other snippets of previously recorded scenes, including one where individuals portraying NYPD police officers were taking someone into custody. Rao stated that they were not shown images of the singers pointing guns at the head of a police officer, which ultimately appeared in the video released to the public.

[…]

Steinberg stated that it was her understanding that no one at The Bronx Defenders saw the complete video before its release, including the images of guns pointed at the head of an individual portraying a police officer. Rao and Napoli said that they did not see the entire video until after its release.

The Bronx Defenders are certainly doing a job where things can go wrong in a big way. They take on some very heavy responsibilities for indigent defendants, and bad things happen if they screw up. Mistakes could result in clients losing their families or spending undeserved decades in prison. Poor leadership could allow a culture of sloppiness to establish itself, and their criminal defense practice could decay into a meet-and-plea mill. The organization’s officers could mismanage funds, dole out favors to friends, or outright steal money.

Those things would all be serious problems demanding a prompt and decisive response. But a couple of lawyers opening the office on Sunday so they can be in a gangster rap video for a local artist…not so much.

One thing everybody agrees on, supported by all available evidence, is that Robin Steinberg had not seen the lyrics. It doesn’t seem unreasonable to me that the director of a 250-member organization might delegate a side project like this this to her subordinates. The DOI findings, however, fault Steinberg for a lack of due diligence.

The DOI findings also fault Steinberg for failing to take disciplinary action against the lawyers involved. I think this is overreaching by the investigators. The Bronx Defenders are a private organization, and unless internal disciplinary procedures are in the scope of the contract with the city, it’s none of the city’s business how Steinberg disciplines her people. That’s between her and the board of directors. Unlike the bureaucratic hacks who run the city government, not every leader regards assigning blame and meting out punishment as the most productive way to address failures. Accountability is important when it comes to deliberate wrongdoing, but mistakes are often better handled through techniques such as cause analysis, process modification, and training.

Several commentators unsympathetic to the Bronx Defenders have drawn attention to the DOI’s finding that Director Steinberg made misleading statements to city officials during the investigation. To my mind this is the most damning accusation: Everything else can fairly be described as a mistake, but there’s no justification for lying.

The thing is, when you actually read the DOI findings, there’s not much to it. All of Steinberg’s supposedly misleading statements were made after the video came out, when Steinberg was responding to questions from several officials. Here are excerpts of what the DOI findings have to say about them:

On December 5, 2014, The Bronx Defenders released a public statement regarding its participation in the video, which did not address the song’s lyrics. […] However, the statement did not address the song’s lyrics, which, as discussed above, were known to Rao and Napoli when they agreed on behalf of the organization to participate in the video.”

I don’t quite see how failing to address the lyrics is misleading. The lyrics were public knowledge, easily discoverable by anyone interested.

None of these email communications fully described the circumstances of The Bronx Defenders’ involvement in the video. They did not mention that Rao and Napoli were aware of the song’s lyrics — months before the release of the video — when they commenced initial discussion with the producer about the video.

I’m not sure what to make of the fact that the emails didn’t mention that Rao and Napoli were aware of the lyrics. It’s not a lie, but it doesn’t sound like the whole truth either. This seems more legit than the previous accusation.

Further, none of the emails mentioned that Steinberg approved the organization’s involvement in the video without reviewing the lyrics or inquiring further about the songwriters. Instead the emails provided a selective and misleading recitation of the circumstances surrounding The Bronx Defenders’ involvement in the video.

It would be one thing if Steinberg had lied about reviewing the lyrics, but faulting Steinberg for failing to list things she didn’t do seems like a bit of a stretch. And frankly, if she had come out and said she never saw the lyrics, that would seem like she was covering her ass and trying to blame subordinates.

For example, in her email to Ms. Glazer on December 10, 2014, though she was aware months before the release of the video that Rao was coordinating with the producer regarding The Bronx Defenders’ involvement in the video, Steinberg wrote, “Late last week, I became aware of a hip hop video that was making its way into the world called ‘Hands Up.'”

This seems like reasonably accurate language. The video had been in production for a while, but it didn’t start coming out — “making its way into the world” — until a couple of months ago. It’s just a turn of phrase, not an attempt to hide her earlier knowledge of the video. In fact, she clearly admits to earlier knowledge of the video in that very same email message, as described by the very next sentence in the DOI findings:

Later in the email, Steinberg wrote that “[t]he version of the video that is on the internet — and that two of our lawyers appear in — is not the version we saw when they agreed to appear in the video.”

So in this case it was the DOI findings that were misleading, accusing Steinberg of trying to hide something that she in fact admitted to.

In any case, the DOI has problems with her admission as well:

This statement suggests that The Bronx Defenders saw a version different from the one released to the public when, in fact, Steinberg acknowledged during her interview that they had only seen limited footage and did not see a full version of the video before its release.

So the essence of the DOI accusation is that she said she saw a version of the video, when in fact what she really saw was some fragments of the video. “Version” vs. “fragments.” I see the difference, but it’s not much of a difference. And either way, the salient point remains that the offending scenes from the final video were not present in the video material the Bronx Defenders reviewed.

Steinberg also did not mention that Rao and Napoli had her approval to participate in the video. Moreover, as with the public statement, Steinberg did not address the lyrics or the attorneys’ knowledge of the lyrics. As such, Steinberg’s statements, while perhaps not legally perjurious, were clearly misleading.”

This is just more of the same, and as far as I can tell.

I believe I have now quoted everything in the DOI report that describes Steinberg’s supposedly misleading statements. Perhaps Steinberg responded to the inquiries from city officials with the carefully correct-but-one-sided statements of a lawyer rather than with the full candor they deserved. But with the possible exception of the failure to mention that Rao and Napoli had her approval, the accusations of misleading statements are so thin as to be nonexistent.

I’ll wind this up with one more quote from Oberman’s piece:

But no matter what meaning one extracts from the video, it is difficult to see how one can leap to characterizing the Bronx Defenders lawyers as “bad apples” and demand a plan of action at the cost of an implicit threat to de-fund the office. Its 250 lawyers, social workers, advocates, investigators and other staff serve clients charged with crimes and assist community members with housing, family, child custody, immigration, school-related and re-entry issues. The office has trained scores of public defender offices around the country to adapt its creative, cost-efficient model. At a time when so many communities are struggling to give meaning to the 50-year-old promise of Gideon v. Wainright, Steinberg has built an office that delivers that promise on a daily basis.

Reasonable people should recognize overreaction when it stares them in the face. And no responsible party should have sought to score political points or regain political capital by threatening the health of Bronx’s underserved population or the dedicated Bronx Defenders staff and lawyers who serve them.

Calls for some ameliorative, managerial measures for the Bronx Defenders might have been proportionate to what in hindsight was an ill-advised decision to participate, no matter how tangentially, in the video. But too many were willing to threaten the Bronx Defenders’ ability to continue to serve a borough and its people who rarely get their fair share of New York City’s resources.

Arguably, as I’ve said before, the biggest screw up on the part of the Bronx Defenders was letting something like this jeopardize their mission. NYPD union president Pat Lynch may be an asshole, and Mayor Bill de Blasio may be an unprincipled politician, but neither of those things were a big secret. When you’ve taken on the task of defending 30,000 indigent people every year, you should try very hard not to make it easier for the assholes and the unprincipled to attack your funding. I suspect they’ve learned that lesson now.

*Note: The DOI press release is typeset in the PDF document, but findings themselves are an image of a typeset document. All quotations from the findings are thus hand-transcribed by me and likely include my mistakes.