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Public Defenders’ Podcast Prods New Dialogue on Criminal Justice

Henry Sires parked his green Oldsmobile in the East Foothills to smoke weed with friends on the morning of March 25, 2015. Little did he know, tensions were running high for local law enforcement. A day earlier, in San Jose, a suicidal man had ambushed and killed police officer Michael Johnson. But when a cop approached Sires’ car, he panicked, bumping a police cruiser as he tried to flee the scene. The officer shot at the car six times, injuring Sires’ left hand. When the charges came down, Sires was accused of felony assault on an officer with a deadly weapon.

San Jose public defender Avi Singh took his case, and twice the jury came back hung, leading the District Attorney’s Office to drop the charges. Singh rejoiced with Sires and his family, who he’d gotten to know well.

“I’m going to keep believing that people are more than their police reports,” Singh says. “They could fall down again—be addicted to drugs, make bad choices—but it’s still worth believing in their cases and fighting for them.”

Singh has worked in Santa Clara County’s Public Defender’s Office since 2009. It wasn’t until this January that he and his friend and colleague, Sajid Khan, started the Aider and Abettor podcast to shed light on their profession.

They’ve released eight episodes of the podcast so far, each about an hour long, and though they keep details of their own cases confidential, the attorneys offer a rare insiders’ take on high-profile crimes. Singh edits the recordings and adds splices of music—Khan listens to DMX and Tupac to fire himself up before trial—and tries to ensure it’s a fun listen regardless of the audience, whether it’s public defenders, Law and Order addicts or tech engineers on their Caltrain commutes.

The goal is to counter default tough-on-crime messages. The attorneys want to “shift the narrative in terms of how our clients are perceived and how humanity looks at each other,” Khan says.

“The absence of public defenders talking about the truth of what happens in the court process has created a vacuum,” says Raj Jayadev, founder of Silicon Valley De-Bug, a community-based media and social justice organization. “As a result of that vacuum, what’s happened is the tough-on-crime, knee-jerk mentality, and prosecutors have been able to dictate how the public consumes these issues.”

A side effect of the podcast, Singh says, has been building a new public narrative. “We have a very unique jury pool” in Santa Clara County, he says, which includes an influx of immigrants and tech workers. “Sometimes it’s essential to be able to bridge the gaps in the jury pool with our client population,” Singh adds, noting that the podcast can help with that.

For example, in one episode, Singh and Khan explained how engineers on a jury might assume that a “San Jo 408” tattoo indicates gang membership, rather than simple San Jose pride. Capital cases can take six weeks, meaning juries often consist of retirees and salaried workers, rather than blue-collar potential jurists who can’t miss work but who might be more sympathetic to Singh and Khan’s clients.

Michele Diederichs, an assistant public defender who has supervised both Khan and Singh, calls the podcast a “valuable addition” to the criminal justice conversation. “The thing we fear most as public defenders, and defense attorneys in general, is that a jury sees our clients as monsters,” she says. “These two have a gift for relaying the humanity of our clients, the struggles they go through, the adversity they face, and the pain they experience.”

The podcast idea bubbled up on New Year’s Day, when Khan texted Singh with a resolution to make their lunchtime conversations into a public podcast. Singh, a podcast geek, had gotten Khan hooked on Serial, the hit nonfiction podcast about a Muslim teen wrongly convicted of murder. Khan has kept a blog—an outlet for “word vomit,” he says—since 2009, as a way to process his thoughts outside of work. Singh already had recording equipment that he’d brought to their prep meetings when they tried a case together.

“Maybe our kids will listen to it,” he joked at the time.

But the more the pair recorded, the more the podcast felt like an important forum to talk about issues, such as the right to counsel, presumption of innocence and individual dignity. Their goal is to change the criminal justice narrative, “both in terms of how our clients are perceived and how humanity looks at each other,” Khan says.

Those are big ideas, but empathy is a big part of Singh and Khan’s work. “Now that I’m a dad, I see my younger clients as my boys,” Khan says. “These clients could be my sons, or vice versa.”

Both Khan and Singh have two children under the age of 5. They’re also both first-generation kids of Indian immigrants, lovers of Warriors basketball and grew up playing high school football—Singh in the East Bay and Khan in Milpitas.

Khan, 34, has been a public defender since 2008 and works capital cases in the county’s alternate defender office. Singh, 33, is on the team at the main public defender’s office. Both have trim salt-and-pepper beards, though they don’t look alike otherwise. Judges still mix them up anyway, congratulating them on cases the other attorney won.

Taking such a public stance is rare in the world of public defenders, who aren’t known for hosting flashy press conferences like prosecutors. This is partly because they don’t want to risk sharing information that would compromise their clients. “The textbook is: say nothing, don’t get into a story, no comment, nothing to say, leave the microphone for somebody else,” Singh says.

More recently, however, defense attorneys like Bryan Stevenson, whose book Just Mercy was selected as the focus for San Jose State University’s campus reading program, have begun to speak out about plea bargaining, juvenile sentencing and racial biases in the system.

Khan and Singh represent a new breed of defense attorney. “They’re more akin to being part of a social movement than a bureaucratic court system,” Jayadev says.

Public opinion in California appears to have turned against mass incarceration. In 2016, voters passed Proposition 57, which makes it more difficult to try juveniles as adults. Possession of marijuana with intent to sell is now a misdemeanor instead of a felony. And a 2011 law made more people eligible to go to jail instead of state prison.

As a result, Singh and Khan’s day-to-day caseloads have changed even since they began their public defense careers. Now, aiming to sell marijuana without a license—a felony until last year—can result in as little as a $500 fine.

Santa Clara County funds its public defender office well, allocating $59 million for this fiscal year, what Singh calls a “gold standard” for their profession. But justice can still be hard to come by for their clients. Khan recalls an eye-opening case that he worked on with Silicon Valley De-Bug in which a 14-year-old was tried as an adult for attempted murder.

“No young person should be prosecuted as an adult,” Khan argues.

Direct files, or the practice of charging 14-, 15-, and 16-year-olds as adults, were far more common in Santa Clara County than the rest of the Bay Area until voters passed Proposition 57 in November. That ended prosecutors’ ability to send teens directly to adult court without judicial review, which the office of Santa Clara County DA Jeff Rosen had done at the fourth-highest rate in the state. Judges can still choose to try teens as adults, however, and the prosecutor’s office will continue to recommend that they do so for murder and serious sexual assault cases.

Those requests from the DA continue to affect Khan and Singhs’ clients. “We know of transfer hearings where there’s almost absolute certainty that a judge is not going to grant their request to be tried as an adult, but they still push forwards,” says Jayadev, who notes that such efforts cost the county money and force parents to miss work to support their kids in court.

For Khan and Singh, ending mass incarceration means finding better solutions than jail time. This includes people convicted of the most heinous crimes.

In their most recent podcast, the attorneys explain why Lauren Kirk-Coehlo, who was convicted of a hate crime for vandalizing a mosque in Davis, shouldn’t serve time. In Brock Turner’s high-profile sexual assault case at Stanford, the pair argued that Brock Turner’s short sentence was sufficient. Neither stance was taken because Khan, who is Muslim, condones hate crimes or sexual assault. Khan sees a direct connection between his clients and the public outcry against Judge Aaron Persky in the Brock Turner case. He worries that because of the vitriol aimed at Persky, judges will be afraid to appear soft on crime, even subconsciously, and his clients will receive harsher sentences as a result.

“Our clients are below the headlines, in the nondescript quiet courtrooms across our state,” Khan says. “No one’s covering their cases, and that’s where the injustices or the perpetuation of mass incarceration occur the most. But they often are intangibly influenced by the high-profile media cases.”

Singh’s focus is practical when considering what kind of sentence someone is likely to receive. “Does this person get some shot at rehabilitation?” he says. “Does the public become safer?”

They take pride in their roles, especially in the face of anti-immigrant sentiment that has swept across the nation over the last several years.

“It’s cool that two Indian-American sons of immigrants are fighting these battles,” Khan says. “We’re talking about these constitutional principles, trying to breathe life into them, trying to make America beautiful.”

Tori Truscheit
San Jose Inside

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