Zorro the Public Defender

Jordon Huppert

4 years ago

“From out of the night, when the full moon is bright, rides a horseman known as Zorro!”

I’m often asked why I work in public defense. Sometimes it’s a polite question, sometimes it’s phrased more as ‘why don’t you want to be a real lawyer’. While the answer to that second question is that I attended and graduated from a real law school, passed a real bar exam, opened a real law firm, then went to work for a real dedicated public defender’s office, thus making me as real a lawyer as you’re ever going to meet (to paraphrase Samuel L. Jackson); the answer to the first question is more complicated. When I’m asked I will typically give the following answer: because I grew up watching Zorro. Specifically, I grew up watching Disney’s Zorro starring Guy Williams in the titular role. With issues of policing and law enforcement in the news like never before it seemed an opportune time to share the story of how a legendary outlaw inspired me to work in the law.

Zorro’s Story:

The story of Zorro dates back to the 1919 serial The Curse of Capistrano by Johnston McCulley, and has been retold numerous times in all manner of media from comics, to movies, to TV, to ballet.[1] While there are of course subtle differences to the character in the retelling he is almost always portrayed as Don Diego de la Vega, the wealthy son of Don Alejandro de la Vega. The story typically place in the Spanish territory of California[2] where Don Alejandro has sent his son Diego to Spain for a formal education. While his son is away in Spain Don Alejandro’s compassion for and treatment of the peasant class (and in some versions, the indigenous people) has caused his influence to wane. As Diego is returning home from school he receives word from his father that the Governor has stationed a new military officer in Los Angeles who is implementing martial law and other tactics to force the populace back “into line”. Thankfully that wouldn’t happen today… what’s that about Portland?[3] Diego has become an accomplished swordsman and all around Spanish gentleman of the day, a caballero. Deeply concerned at the injustices his father describes to him, Diego creates two alternate identities for himself. The first is the foppish Don Diego de la Vega, a scholarly lad who is more interested in his books than in winning the acclaim of other young men his age. The second is the roguish outlaw Zorro, The Fox, who fights for justice for the people of Alta California at the tip of a sword against an overbearing military state. When Diego returns to his home he is a deep disappointment to his father who hoped that his son would aid him in rallying the other Dons to fight against the military control of the people. At the same time Zorro becomes an ever-present thorn in the side of the local Comandante, a hero of the people, and a beacon of hope. Eventually, in most stories, Zorro is successful at overthrowing the military control of the people and the Governor comes to the aid of the locals, reforming the government into something more equitable. Of course, that’s fiction. In real life there was a war and California becomes part of the United States.

The Story of Clarence Gideon:

Now, how does a masked man with a sword and a horse fighting an oppressive military force in the old territory of California equate to a kid from Atlanta deciding to become a public defender in Oregon? The answer lies in why we fight and who we fight for. Both public defenders and Zorro fought against oppressive government policing for the poor and lower class. Most people are surprised to know that despite the guarantees of the Constitution and the Sixth Amendment of the Bill of Rights for most of US History you only had the right to an attorney if you were rich enough to afford one.

To hire a lawyer in Eugene, Or (where I practice) on even a relatively simple case will set you back a few thousand dollars, and that’s if you aren’t looking to go trial. When I was in private practice I would bill around $200 an hour in most cases (relatively inexpensive for lawyers in the area). For just being in a short two day trial that’s $3,200, and that doesn’t count the time for preparation, pretrial motions, investigation, expert witnesses, etc. All totaled you’d be looking at easily double that figure for a relatively simple trial, vastly more as the complexity of the trial increases. That’s a pretty solid chunk of change for most people to put down, and before 1963 if you didn’t have it you were wished the best of luck and thrown to the wolves of the court system.

In 1963 however, the US Supreme Court decided Gideon v. Wainwright.[4] The Court heard the case of Clarence Gideon, a Florida man charged with breaking and entering. Mr. Gideon was denied a court appointed attorney because his wasn’t a capital case (punishable by death), and was forced to represent himself at trial. He was convicted and sentenced to five years in prison. From there he appealed up through the system until The Supreme Court eventually heard his case. The Court decided that the Fourteenth Amendment applied the Sixth Amendment’s guarantee of an attorney to the States through the due process clause. That is a longwinded legal way of saying that States were now required to appoint an attorney in all criminal cases where a Defendant’s liberty interests were at stake (where they could be put in jail). This was a landmark decision if ever there was one. It changed the very face of criminal law as it was known at the time with the simple statement that justice wasn’t just for the wealthy.

Practically speaking, this meant that the professional prosecutors, who before were simply rolling roughshod over the poor people who were forced to represent themselves now had professional attorneys to contend with who were educated and trained in how uphold the rights of criminal defendants. It meant that the State could no longer violate people’s rights just because the self-represented litigant didn’t know that they had rights and forced police to adhere to things like the requirement to obtain a warrant to seize people or property for search (ok, admittedly we’re still working on that last one but it’s getting better).

Zorro was the Public Defender of his Day

If the proposition that people, regardless of their income or social status sounds familiar, it’s because that was the same thing Zorro fought for way back when. Granted his law involved less briefing and fewer court appearances, but the reason Zorro fought all those sword fights was the principal that regardless of whether you were rich or poor, a Don or a commoner, you had meaningful access to justice.

It’s no coincidence that in the first season of Disney’s Zorro one of the central themes is Don Alejandro’s struggle to force the military to have a trial for someone they arrested without cause. It culminates in Zorro taking on a corrupt judge who has accepted a bribe in order to guarantee a guilty verdict even after there had been proof presented of the defendant’s innocence.

Since our modern justice system puts the burden of proving guilt on the prosecution, the government, as opposed to requiring the defendant to prove their innocence you might think that the system will work regardless of if there is a lawyer on the side of the Defendant. While that is certainly the aspiration, it is rarely (if ever) the truth. Prosecutors are partisan by design, meaning that it is their job to prosecute people, to put them in jails or prisons. They are often burdened by heavy caseloads and rarely have the time to truly look thoroughly at any given case, which can lead to them simply pushing files through the system from arrest to conviction without ever having the time to question if the evidence was lawfully obtained or if the proof really amounted to beyond a reasonable doubt. And that is assuming that the prosecutor is honestly committed to making sure that those issues are accounted for in the system.

The problems with prosecutors could be, and has been, the subject of numerous articles and books and are far beyond the scope of this article. Suffice to say that if the government, with all of its power and resources, accuses you of a crime you need someone in your corner. Someone who can work within the system, who knows the rules of the system and how to use them, someone who will fight for you, to make sure that no one is convicted of a crime without proof beyond a reasonable doubt that they committed it, and to make sure that even those who are guilty of crimes are sentenced fairly. Whether that’s a masked man who carves Z’s into walls with his sword, or an attorney in a suit who stands next you in court, regardless of how much money you have in your pockets.