By Patricia Lynden
A radical defense lawyer describes her deep commitment to justice and why she went to prison to prove it.
Last year, New York defense lawyer, Linda Backiel, was sent to jail for refusing to testify against a client who had jumped bail. The client, Elizabeth Duke, a self-described revolutionary, had fled five years before in October 1985, while awaiting trial on charges of storing explosives and illegal firearms in Doylestown, Pennsylvania. Prosecutors believe that Duke left behind a note telling of her intent to disappear, and that Backiel, who acknowledged that she had spoken to Duke just before she fled, was the last person to have it.
Backiel was subpoenaed by the grand jury to testify about the note. She refused on grounds that to do so would violate the Constitutionally-protected attorney-client privilege and undermine her ability to gain the trust of her clients. Backiel was sent to Bucks County Prison where she spent the first half of 1991. Here she describes the experience to On the Issues Senior Editor Patricia Lynden and explains why the government waited so long to turn its attention to Duke’s bail jump half a decade before.
PL: Why were you jailed five years after you refused to testify against your client, Elizabeth Duke?
LB: My jailing had absolutely nothing to do with Duke and everything to do with another case I was working on four years before in Puerto Rico. That was the most publicized political trial there in decades. It ended in the acquital of my client, Filiberto Ojeda Rios, an independence movement leader who was charged with assaulting eight FBI agents in 1985. So my jailing was not at all delayed; it was very timely. It was just the wrong case.
I was subpoenaed two weeks to the day of Rios’ release from jail. He had been jailed for five years for resisting arrest; he was never charged, or convicted, just held on preventive detention. I managed after three years of this to get him released on bail. The Department of Justice was terrified that he would go back to Puerto Rico and start organizing again. So, in May of 1988, they arrested him once more for resisting arrest in 1985. This new period of preventive detention for an old event was legal. The Preventive Detention Act allows the government to incarcerate people without charging them with a crime. We challenged it all the way to the Supreme Court and lost. Rios finally got a trial in Puerto Rico that lasted for a month. The jury went out and over dinner found him not guilty of eight counts of assaulting the FBI and resisting arrest. He was released in Puerto Rico. It was the Department of Justice’s nightmare come true. Two weeks to the day after his release, the case agents came to my door with a subpoena.
PL: I take it you’re not the only lawyer who has been subpoenaed for refusing to testify against your client.
LB: I’m not the only one who’s been subpoenaed by a long shot. But I know of only one other lawyer in the past five years who has been jailed for refusing to testify. Barry Wilson is his name and he’s also a National Lawyers Guild lawyer who was jailed in New England.
PL: Is there a trend here?
LB: It’s a trend. Its parameters are unknown because often what the Department of Justice does is issue a subpoena or threaten to issue one to a defense attorney. The defense attorney decides she doesn’t want the hassle. She cooperates so there’s no formal proceeding.
PL: Do defense attorneys regularly give up their clients if the Justice Department pressures them to?
LB: I won’t say regularly. But it was unthinkable 15 years ago. Since then, the Department of Justice has started being very aggressive about using defense attorneys as a source of information and/or looking for ways to divide defense attorneys from their clients. Usually this is not information that they can’t get any other way. It is part of what I see as an attack on the adversary system of justice. The Department of Justice doesn’t like it that we have that system. They don’t like it that in the last 10 to 15 years there really has developed a different kind of criminal defense bar: A criminal defense bar that represents people charged in Puerto Rico indictments, politically motivated cases and white collar cases. This is a group of professional criminal defense attorneys who are used to dealing with very complex cases involving a lot of paper work. We do these kinds of cases over and over again and have developed a certain expertise that the run-of-the-mill criminal defense attorney who almost never does a federal case doesn’t have.
PL: What kinds of cases does the average defense lawyer take?
LB: Drugs, white collar crime and political crime, but they are almost always state cases.
PL: :You say this is a recent trend. But in the ’50s and ’60s there was a tremendous attack on defense lawyers who represented leftists.
LB: That was different. They used to go after radical lawyers for income tax evasion and a million different contempt charges — that kind of thing.
But this is new and it’s dangerous in a different way. It sends a message to clients that you can’t trust your attorney or the criminal defense bar in general. It’s one thing if you’re politically controversial and accused of a crime and you come to me and I know that I may be audited, or prosecuted, or become the target of government wrath because I defend you. You know that, I know that. If I take your case, I’m obviously willing to put up with that.
But now if you come to me and say “Will you go to jail before you’ll testify against me?,” even if I say yes, you will have reservations.
This is a much more sinister kind of attack because it’s an attack on our adversarial system of justice. It undermines the notion that the accused has the right to a vigorous defense. That may be the only thing the accused has that is sacred. The prosecution has all these national and financial resources with which to prosecute. Our system has until recently held sacrosanct the right of the accused to an advocate whose primary obligation is to represent his interests. That’s what I understand the adversarial system of justice to mean.
The other model is an inquisitorial system of justice and it looks at trials not as an evenly-matched battle in which the truth will come out under cross examination, but rather a bureaucratic procedure in which everyone is doing his best to establish the facts because we’re not adversaries. It’s the diametrical opposite of the system that’s envisioned in our Constitution. It’s the only one we’ve worked with or have a body of precedence for regulating. And it is consistent with our system of government.
If we’re going to make a change, it should be deliberate.
PL: Has this attack on the adverserial system been challenged at the Supreme Court?
lB: Not precisely. There are enough cases of attorneys and others who hold confidential client records, challenging administrative subpeonasby the IRS. From those we’ve learned that we’re not going to get any help from the Supreme Court, especially today’s Supreme Court.
PL: Can you connect this up with other recent trends in our society?
LB: It raises a major concern about a lack of respect for the right to freedom of thought, speech and association. It’s a real assault on the First Amendment.
PL: That has been under assault for as long as we’ve been a nation. Isn’t this just a new way to be doing it?
LB: Yes, but there are sinister trends that did not exist before. Of course, the First Amendment is designed to protect what the Supreme Court has called everything but fighting words. It is a protection for controversy and nobody wants controversy and so the First Amendment is always under attack.
The Supreme Court inRust vs. Sullivan [in which counselors at Federally-funded women’s health clinics are not allowed to mention abortion as an option] has just made a distinction between funded and unfunded speech saying that only funded speech is worthy of protection, has any rights. The argument is if the government wants to fund something, well, fine, but it gets to pick what it funds and therefore it gets to control the content.
I say, wait a minute! We’re talking about buying the right to speak, associate, to think, believe, to worship. They are all in that same First Amendment.
This is a very, very cynical development and it is a new trend. I see it as more dangerous than the outright ideological assaults of 30 and 40 years ago. Then the government said: You’re not allowed to be a Communist. OK, let’s say I am a Communist or I won’t say if I’m a Communist. Then Congress says: You’re not allowed to be a Communist. So we have a fight about whether it’s legitimate to criminalize ideology.
What’s happening now is much more sophisticated. We’re not talking about criminalizing ideology. We’re talking about the government using funding to control free speech, association, behavior and choice — and basing that on its largesse.
PL: Speaking of funding, do you charge standard fees?
LB: No way. My philosophy is I do not do for money what I do for love. And I love what I do.
PL: :Do you make a living as a lawyer?
LB: I survive.
PL: :Are you married?
LB: Only to my work.
PL: :How did that happen?
LB: That’s how I was born.
PL: What circumstances were you born into?
LB: I grew up in the country in Delaware. Dairy farms were my universe. My father, who died when I was three, was a Catholic political refugee from northern Germany. It has often occurred to me that there might be some relationship between his being a political refugee in exile and my very strong sense of justice. Although my mother later remarried—I took my stepfather’s last name — I was brought up in a predominantly female world. My family was my mother, my sister and my grandmother. Their politics were profoundly conservative, but I got a lot of my values from my mother. She is a very smart, altruistic person. I’ve been able to take those values in a different direction because of the privileges I’ve had — namely, higher education. It has made me understand politics.
PL: :When did you decide to go into law?
LB: Actually, when I was 14.1 was talking to a friend about what we wanted to be when we grew up. I said I wanted to be a lawyer.
PL: :Do you feel that the Justice Department went after you because you are a woman?
LB: To be very frank, I think that I had a lot more leeway, sympathy and courtesy because I was a woman.
While I was in jail there were a lot of issues that were raised because I was a woman. But that’s separate. And they weren’t specific to me. They were issues of all women in prison. I was in Bucks County Prison, a county jail built only five years ago. It held 500 men and 50 women. The prison administration looked upon the presence of women as a clear and present danger, as well as a liability because women can get pregnant. And pregnant women in jail is evidence of bad supervision, misconduct and chaos. So they basically restricted women away from and out of all kinds of activities that were open to men. They created a whole series of absurd rules that kept women from speakingto their brothers, husbands or fathers who were also incarcerated there.
We were allowed once a month or once every two months, I don’t remember which, to order lipstick, face powder, blush and eyebrow pencil. That was it. And at one point they threatened to suspend that. Why? Because they said the women are abusing the makeup to entice the men. While I was there, a man and a woman were actually found in a bathroom in some state of disrepair and so this was cited as a reason. The real reason that the jail is paranoid about sexual misconduct is because a number of years ago a guard got a female inmate pregnant, and a number of years ago male guards were abusing their power to get all kinds of favors and do a few for female inmates.
PL: :What opportunities existed during your stay to abuse your privileges with men?
LB: None. The women were called to eat first. After we were all served, the first group of men was called. We were on one side and they shuffled in to the other. When the women were allowed to go to the library — which was a good one — men were not allowed. Men were allowed access to the law library basically five days a week, five or six hours a day. Women had access one hour a day twice a week.
PL: : Well now, there is an issue right there.
LB: Yes, well here’s another. The county suddenly started saying that it had run out of money to send women from jail to work release. I knew a man who had pled guilty to a couple of robberies who was sentenced to three to six years and went out on work release all while I was there, within six months. I knew women, who had come in for possession of drug paraphernalia, first arrest, had three children at home, and were never sent to work release and are still there. And the answer was the county ran out of money for work release for women. Since when does money for work release come with sex?
There were a million different layers and forms of discrimination. I had a friend who applied to work in the medical unit after the male prisoner who was working there was released. She got back a little official communication from the institution saying — “We’re sorry we don’t hire women for this.” I said, “Grieve it.” She grieved it and they said, “you’re right,” and they gave her the job for a while. Then they fired her because she ostensibly had access to a record that said when she was scheduled to go out for a pap smear. Prisoners aren’t allowed to know when they’re taking trips outside the institution.
People told me that a lot of things changed when I came in. I was the only lawyer there. They were worried about what would happen when I left because the jail administration knew that I was a 24-hour-a-day, seven-day-a-week human rights monitor right there on the inside, and that is the worst nightmare of an institution like this.
I did try very hard to resolve problems while I was there. A woman who came in two and a half months pregnant, said to me, “I want an abortion.” I said “It’s your absolute right. Just insist on it.” About a month later she came to me and said “My Parole Officer is not going to lift the detainer so that I can get out to get an abortion.” By then she was in her second trimester, and the prison said it was too late for an abortion.
I got the Women’s Law Project in Philadelphia to talk to the jail and read them the decision that makes it very clear that it really doesn’t matter which trimester she’s in. They’ve got to pay for the abortion. They were not happy about it, but they did it. The next woman who came in pregnant got her abortion the first trimester.
PL: :How were you able to function as a champion of rights in the prison?
LB: I didn’t set out to do it although I guess it was inevitable. I didn’t make a fanfare about who I was or why I was there, but word got around. Everybody who came in sooner or later was told, “This lady up in Cell 40, Miss Linda, she’s a lawyer and she’ll help you out.” Just about everybody came to me for one thing or another. It got so that guards were screening my calls.
There was one guard who, when I would come back from working in the library at 4:30, would say to me “Is the law office open tonight or are you taking calls?” At other times she would just discourage people and take it upon herself to say, “No, she’s just too tired.”
PL: How ironic that they became your protectors.
LB: They did. I had excellent relationships with the guards but they were formal. I felt that my role was to set an example for everyone and I really avoided fraternizing with guards. Some of them were lovely and could have easily been my friends. I let them know it in very quiet, reserved ways, but I did not pal around with the guards.
It was an issue of special privileges. The other issue was that prisons are antihuman, repressive institutions. The people who work as guards don’t have a lot of choices for employment which is why they’re there. They are part of this anti-human repressive system; that’s their job. I have a lot of sympathy for their plight because it’s an impossible task, an ugly task and many of them — women — do it with a great deal of humanity. I really appreciate that.
On the other hand, institutionally there’s a big difference between being a prisoner and a guard. It’s a difference in power and I felt that it was important to maintain those separate roles. I was one of the powerless and I was on the side of the powerless. I was not going to pull rank, or class privilege, or age, which was even more significant. I’m 46 and most of the inmates there are in their 20s.
PL: Did they get a lot of drugs in prison?
LB: The prison over-prescribes psychotropic drugs, yes. Everyone knew that if you went to the mental health services and said, “I’m having trouble sleeping, I’m really depressed,” they would give you increasingly stronger doses. Not a lot of people chose to do that.
PL: Did prison make you a better person or a worse person?
LB: Prison made me a better person but it doesn’t do that for most people. I want to be very clear about that. I chose prison because I thought that my going to jail for the reasons I went to jail, and whatl could learn by being there, what I could do for incarcerated women after coming out, would be very valuable. I also knew that it was going to be a real test of my inner strength, my ability to survive, my self control — all of those things. And although I wasn’t really up for all of those challenges I looked at them as challenges rather than threats.
PL: And did it become a test of your ability to survive?
LB: Oh, it did. I think it taught me a lot about discipline and strength. I was in a situation where I was constantly under observation. A little more than everyone else, I think. There was an issue of whether I was going to break down and testify and the judge’s theory was: We’ll send this nice little middle-class lady lawyer off to jail and we’ll see how she likes it there and within a couple of weeks she’ll come crawling back to us. My behavior in jail was definitely a factor in the judge’s assessment of whether I was going to change my mind or not.
I felt both for that reason, and for my own dignity, that it was important to be in control of the situation at all times. To not show any degree of being upset, concerned, worried, anxious, nervous or depressed.
So I kept busy. I did a lot of work, and I created and maintained a very firm line about my own personal code of conduct— what was right and wrong. Mainly it was about trust. The best illustration of that is the issue about locking doors. Most of the time, half of the people were double cell and half were not. During two brief periods I had a roommate, but mostly I had my own cell. The general rule is when you leave your room, you lock your door so that nobody can steal from you. There is this level of cynicism and mystery about human nature in jail. Maybe for obvious reasons. But I rejected it and refused to lock my door. Sometimes other inmates and guards would say to me, “You forgot to lock your door.” And I would say “I don’t lock my door. What I have I share.” Things got taken from other people’s cells. Everyone knew that I always had coffee which people in prison were desperate for. They would ask me and if I didn’t have it, or if I didn’t have enough to make it through the next week, I would say so. If I had it, I shared. That was my policy, and no one stole from me.
PL: Did anybody else follow your example?
LB: No. I think there was a realistic assessment that I was a very special person, in the unit. I was treated with the most incredible respect. It was embarassing. Everyone there called me “Miss Linda.”
PL: Are you fearless now?
LB: I’m pretty fearless. The one thing that prison does for everyone is take away the fear of prison and for me that was a good thing. It’s the only thing that society holds over the heads of a lot of people and once they’re there, it doesn’t have that effect any more.