Should Public Defenders Be Tweeting?

The first thing Scott Hechinger would do when meeting new clients at arraignments as a public defender was rap his knuckles on the metal mesh separating attorneys from those arrested and put in holding cells. “It’s hard to see through it,” he recalled. “I would say, ‘I hate this. We are on the same side of things. And my goal today is to get you out.”

At the time, Hechinger didn’t see attorneys talking openly about what they experienced as a public defender or the high volume of cases many tackled early in their careers. So in 2017, he began to tweet about the people caught up in the system, detailing what he saw in court.

“LIVE from BK criminal court this morning… one man’s story,” he posted, live-tweeting an arraignment that gained attention in September of that year. He introduced a defendant: “35 y/o. Latino. Homeless: lives in shelter. Disabled. Drug Addict. 10 convictions.” Then came the details of the arrest: “Feb. 2017. Undercover NYPD. Asks to buy weed in exchange for Popeyes. Gets gram of weed from room when van pulls up. Arrested.”

As Hechinger tweeted, he went from a dozen retweets to hundreds, from a few thousand followers to over 93,000 to date. Three years later, he landed a Teen Vogue profile. His threads became popular among people interested in social justice. But at the same time, some public defenders wondered how live-tweeting night court could be allowed, given issues around client confidentiality. “Social media activities are governed by the same ethics rules as … ‘real world’ conduct,” warned a 2013 MLRC MediaLawLetter on the trend. Other defenders publicly accused Hechinger of white saviordom.

While Hechinger typifies one faction of Public Defender Twitter (or PD Twitter, as it’s known), he’s just one of many who’ve gained followings by posting anecdotes from the gallery as Twitter threads. Public defenders had blogged about their work as long as a decade ago, and tweeting about arraignments wasn’t new, but Hechinger and others in New York’s PD scene are responsible for popularizing the trend. As it’s grown, however, criminal justice reform advocates and formerly incarcerated people have started to argue that these posts can put clients at risk of retaliation from judges and prosecutors, violate their privacy, and present ethical quandaries for public defenders talking so openly about their work on Twitter. The optics of white public defenders gaining likes or retweets on stories of Black and brown suffering has also been called into question. As advocacy efforts morph from live-tweets to slick video productions, and gain traction with a public increasingly likely to support justice reform, the question has become: who should be telling the story?

“In New York City, many folks think of themselves as doing social justice by being public defenders,” said Nicole Smith Futrell, associate professor and supervising attorney in the criminal defense clinic at the CUNY School of Law, and a former public defender. Assigned by the court to represent anyone without an attorney, public defenders must begin to build trust, and a case, from the moment they encounter their client in the courthouse after an arrest. Often they are the only thing standing between an individual and a punitive system built on racist policing and mass incarceration. 

They are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. “Their advocacy could cost them,” she said. 

Johnson was incarcerated for 10 years and said it’s important to be patient with people who might need more time before they’re ready to share their story; in her eyes, advocacy groups can provide a megaphone for impacted people without the risk of retaliation that the public advocacy of their direct legal counsel presents.

“When you’re going on social media, that creates a larger spectrum of risk and potential downside for the client,” said Smith Futrell . After becoming concerned about some public defenders’ lack of respect for client autonomy, experiences, and privacy, in December 2019, Smith Futrell  published a paper entitled “Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy.” “Clients have told me that they care a lot about their privacy, accuracy, being a part of the decision-making, and understanding the purpose of the social/traditional media communication,” she wrote in an email.

Attorneys are bound to protect their client’s confidentiality and must legally obtain “informed consent” before sharing details publicly. Smith Futrell didn’t believe this was happening with some of the tweets she saw. “You just met this person. They’re in the biggest moment of crisis, likely, in their lives, and it’s really hard for me to imagine that someone said [to their client], ‘This is so outrageous. I wanna put this on Twitter,’” she said over the phone.

“Those conversations weren’t happening in the hustle and bustle of arraignments,” admitted Hechinger, who said that at that time, he instead attempted to anonymize client details while tweeting. Amid criticisms that he had tweeted about cases that weren’t his own, and needed to, essentially, stay in his lane, he said his goal was to share what he saw in the gallery. That’s a role that court watchers have taken on in recent years—as independent observers who can report on the behavior of judges and prosecutors, and collect data on those who are being charged (arraignments are public, and anyone can attend). Some in the legal community believe that public defenders can’t represent their client and perform as a court watcher at the same time; and in the process, those who do assume a public watchdog role on Twitter are perceived to be de facto representatives of public defense as a whole, regardless of their expertise. “If you talk to people in the public defender community in Brooklyn, you would get very different views of those with massive Twitter followings,” said Amanda Jack, a public defender who formerly worked at Brooklyn Defender Services. It would boil down to “they’re not the person to talk to about this work.”

Smith Futrell and others have pointed out that supposedly anonymized accounts of arraignments are easily traced to public records of court dockets, and to the attorney’s name (if they are tweeting under their own handle), inviting the risk that district attorneys or judges could retaliate against the client or their attorney. 

The Legal Aid Society of New York City has had a policy against live-tweeting from the courtroom for a couple of years, while other defense organizations involve supervisors or policy teams in reviewing attorney tweets. Hechinger, who is no longer practicing and now trains public defenders on “creative advocacy” through Zealous, a media project at The Justice Collaborative, teaches organizations to be intentional about how they use the stories of those they represent. 

“Everybody is so worried about who knows who they are or do people see them, or how many likes they’re getting that we’re losing the fight due to people and ego.”

There have been complaints filed against defense attorneys over their use of social media in recent years, though those are not public, said Ellen C. Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University, who studies ethics in law. Prior to 2014, a Virginia attorney was disciplined for blogging about the cases he had won as a defense attorney, an act that constituted self-advertising, the state bar found, according to the 2013 law letter written by Nicole Hyland as part of an ethics committee. A Floridian public defender was fired from her job after posting client details in 2012 on Facebook, including a picture of her client’s leopard-skin underwear—evidence in a trial. Others have been disciplined for disparaging clients or judges. In March 2018, the American Bar Association issued a formal opinion limiting the ability of attorneys to blog or comment publicly about their cases. 

Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.” As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence? When does “storytelling” become exploitative?

April Grayson, a Represent Justice ambassador and statewide coordinator for the Young Women’s Freedom Center in California, has seen white attorneys and advocates get outsized attention for their work in the justice reform movement. “It’s a joke. Honestly, I think it’s a joke,” she said. “Everybody is so worried about who knows who they are or do people see them, or how many likes they’re getting that we’re losing the fight due to people and ego.” Grayson spent 17 years in prison and now trains formerly incarcerated women to become public advocates. “I’m from the era when our public defenders weren’t helping us, and I went to prison with a public defender,” she said. “Some public defenders have played the role in perpetuating the harm.” 

The best allies, according to Grayson, lead from behind. “You’re not the story,” she said. “The story is the person you are fighting for.”

While a compelling case might be good for press attention, clients often just want to go about their lives, said Tina Luongo, the attorney-in-charge of Legal Aid Society’s criminal practice. “You can’t push the class action advocacy litigation if your clients don’t want to go there, and so it’s often the case where we have this broader story to tell, but it’s not in the client’s best interest.”

When a person agrees to publicize their case, best practices are to explain the many ways that strategy could play out and to have an agreed-upon goal. By way of example, this summer, charges were dropped against Joseph T., an individual represented by Legal Aid who was accused of resisting arrest, obstruction of governmental administration, and taking up two subway seats, after he agreed to publish a video of his encounter with police on the subway on The City, a nonprofit newsroom in New York City. 

“The work is about freedom. It’s not about a person’s story,” said Reginald Dwayne Betts, the author of Felon and a Ph.D. in Law candidate at Yale University, who was incarcerated at age 16 and subsequently obtained a Juris doctorate at Yale University. He works with other incarcerated people on storytelling in his capacity as an artist and on parole applications in his capacity as an attorney. He also contributed to an attorney training run by Brooklyn Defender Services, when Zealous was an incubator project at the nonprofit.

Twitter has real limitations, according to Betts, who said he has often found other people’s tweets maddening, but that it’s a medium that encourages spur-of-the-moment dispatches. Twitter forces you to make decisions around how to push your agenda, he said, and sometimes that comes down to running what you see in court through a “personal filter for the kind of cases that shock the conscience.”

Inevitably, “people choose certain stories for impact because they’re thinking about the following that they have,” he continued. Betts has written about the limits of public sympathy around justice reform where violent offenders are concerned. Tropes like the “deserving poor” and “perfect victim” are argued by some to be bad for the prison abolition cause because they imply a binary of experience—deserving or undeserving of retribution—in the criminal justice system.

The high caseloads that public defenders shoulder leave little time for Twitter anyway, according to many of the public defenders VICE spoke to for this piece; and an attorney’s first duty is to their client, rather than to the broader goal of systemic change, or to the appetites of followers. 

At the same time, the ability of public defenders to speak out has been part of a shift in how Americans talk about criminal justice. “All of a sudden, [journalists] started quoting tweets rather than people,” said Lisa Schreibersdorf, executive director of Brooklyn Defender Services—and that put public defenders in the position of spokesman.

The visibility of public defenders is quite new. For decades, the dominant narrative perspective on criminal justice was that of law enforcement and prosecutors. Think Law & Order and its many offshoots, said Jody Armour, the Roy P. Crocker Professor of Law at the University of Southern California, and author of N*gga Theory: Race, Language, Unequal Justice, and the Law. “Twitter has allowed public defenders to start to present the criminal justice system from the defendant’s perspective,” he said. This is part of a monumental shift from a moral framework of othering those accused of crimes to one that humanizes them. 

At the time of her trial, Johnson said that “any voice that I had was taken away from me by the prosecutor,” who went to the media. 

Public defenders most often used to be asked “how can you defend that person?” Among a certain set, they are now more likely to be thanked for their work (the fandom extends to TikTok), and to use it as evidence of character, or of qualification. Seth Abramson was a public defender, as his 2006 contribution to The Iowa Review alludes (“You think your ears will bleed from out their drums”). John Adams was a public defender. President Joe Biden was a public defender, if not for long. Defenders, in concert with activists and communities, have successfully pushed for bail reform and discovery reform, in recent years, and against police stop and frisk practices, for example. Stories like that of Kalief Browder, who died by suicide while detained for more than a thousand days pretrial at New York City’s Rikers Island, helped drive changes in public sentiment.

The racial dynamics can be fraught, though, where predominantly Black and brown defendants’ contact with the criminal justice system is driven by white decision-makers—prosecutors, judges, and public defenders, said Armour, who added that client stories are at risk of becoming “Black pain porn” when delivered through the lens of a white advocate. “It becomes even more fraught to publicize and broadcast that kind of information that is focusing on Black pain and suffering disproportionally, or mainly when the people broadcasting it themselves are not Black.” While public defenders have noble goals, Armour believes client privacy and agency cannot be sacrificed. “You do everything you can to reduce the harm,” he said.

A public defender’s access to these stories of individual trauma is complicated by the power dynamic between client and attorney, to the point that “informed consent” to share a story on social media might not really be valid, said Armour. “How involuntary [would] your agreement to have your information shared be? Because here’s the person, your counsel, your attorney, who holds your life in his or her hands, literally, and who you, therefore, don’t want to displease.” 

Smith Futrell echoed this concern and said, “I found that many clients don’t even have the greatest sense of what they can say yes or no to,” when they’re faced with a legal representative funded by the same government that is prosecuting them.

Twitter mirrors the broader justice system, in which people with law degrees debate policy, sentencing, and the very language that will be used, while those impacted by the system are often without a voice.

Rachel Foran, an abolitionist organizer with Tactical at the Community Justice Exchange, published a social media toolkit for justice advocates in partnership with Defender Impact Initiative in April 2020, following an influx to Twitter of public defenders and court-watching groups. “What I think you see now is more about people building a personal brand or sharing stories as a way to sort of shock people without there being much of a next step afterward,” she said. 

“Doing individual client work and representing individual people is just a very different thing than doing systemic work,” said Premal Dharia, a former public defender who founded the Defender Impact Initiative and co-created the social media toolkit. “Those lines, I think, often get blurred.”

Rebecca Kavanagh tweeted from court during her time as a public defender but said she became uncomfortable when she noticed that the public defenders were centering themselves in the narratives. “I also would read the threads some of my colleagues wrote and, quite honestly, they made me cringe, making analogies to Les Miserables and things,” she wrote over email. “It was public defenders doing the talking and clients almost became like props.”

Storytelling is a powerful tool, say those in the field, and one better suited to formats that are voiced by the impacted individuals themselves; the stories are less effective on a constrained medium like Twitter. If an individual does agree to have their story shared, it is important not to exploit them, said Johnson. “If they do tell their story, provide them with an honorarium or stipend because usually those individuals who are telling their story are still marginalized.”

In reporting on this conversation, I was unable to find a defendant who had been tweeted about with or without their knowledge. Those caught up in the criminal justice system are not advised to check Twitter for their attorney’s handle, and the conversation around ethics is blinkered in part by the confidentiality of complaints against attorneys. It is likely that those whose stories have been shared are not aware of it—Twitter is not representative, and skews toward young, left-leaning Americans with college degrees, according to Pew Research, with the top 10 percent most active users generating 90 percent of tweets. In that way, Twitter mirrors the broader justice system, in which people with law degrees debate policy, sentencing, and the very language that will be used, while those impacted by the system are often without a voice.

The stakes of this debate have been heightened by the toll of COVID-19 on prison and jail populations. COVID-19 cases have occurred in prisons at 3.7 times the national rate, and more than 1,700 people have died, according to data compiled by the National Commission on COVID-19 and Criminal Justice, a crisis that has been muffled by the widespread impacts of the pandemic. Incarcerated people sometimes have trouble communicating due to the exorbitant costs of outgoing phone calls, and, more recently, a lack of power in their cells, said Grayson. At the same time, arraignments have been held remotely, throwing proceedings back into the dark.

Brendon Woods, the chief defender in Oakland’s Alameda County Public Defender’s Office, has been in the field since the late 90s when there were a few shared desktop computers available for public defenders to use. He sees plenty of law enforcement outfits on Twitter and said the voices of public defenders have been game-changing. They have power, he said, but that power must be used with care. 

“Our clients, they’ve been dehumanized by the system so much, you don’t need to have it happen from people who are tweeting or posting stories on Facebook,” he said, “and without any thought or strategy being put into them or why they’re doing it.”

This piece has been updated to clarify which public defender was fired after publicly posting information about their client.

Follow Janet Manley on Twitter.