By Allan W. Jennings, Jr.
As a former City Council member from Queens, I followed the Sen. Malcolm Smith political trial with keen interest. The government’s first attempt at this prosecution ended in one plea bargain, one conviction and a spectacular mistrial for the remaining defendants because the government withheld thousands of hours of recordings — apparently in Yiddish.
Now we read as reported in the New York Post, New York Law Journal and The New York Times that the government has opposed an otherwise run of the mill request for a medical adjournment by the lead counsel to one of the defendants. Deborah N. Misr is in her sixth month of a high-risk pregnancy and has therefore asked that the trial date be pushed back from its start date in January when she will be eight months pregnant.
The government has opposed her very reasonable request. How can the government be so insensitive and treat women as second class citizens?
The chief argument by the government is that Misr, 43, is six months into a high-risk pregnancy can not be so bad off as she and her doctor’s claim, since she was planning to be a panelist in a legal conference on Nov. 6, for one week. This challenge is unintelligible.
First of all, she never went to the conference and if she did, so what? One cannot compare a flight to Washington, D.C., where she (at six months pregnant) would be in a hotel and have the ability to excuse herself anytime she wants, to go to her room and relax, with being eight months pregnant when the trial is to start in January.
It certainly will be a high-stress trial where all of her attention should be on the defense of her client. Not to mention she would have to travel from Suffolk County, where she lives, to White Plains in Westchester County (a distance of at least 101 miles) everyday during the trial. That commute alone is stressful enough for anyone, much less a woman in a high-risk pregnancy of eight months.
What is the message that the government is sending to women of child-bearing age? What about the Parent Leave Act? What message is this to employers? Should employers deny a woman her 12-week leave when she is not able to work due to her pregnancy? The government’s actions here are certainly chilling.
Were the court not to grant such a request (the court can simply start the Smith trial and adjourn for the other co-defendant she represents), not only would it interfere with the defendant’s 6th Amendment right to effective counsel, it would undercut the substantial gains women have made as attorneys at the bar over the past 50 years. If female lawyers are not routinely granted adjournments for pregnancy but male lawyers are granted adjournments to say deal with prostate issues what does it say about our society and equal protection before the law?
Pregnancy must be afforded the same protective treatment as a disability or the discriminatory impact on woman members of the bar would be indelible.
It seems that the handling of this decidedly bizarre case will continue to have far reaching consequences for our polity and our society.
Equal protection under the law has to extend to everyone or it will be rendered meaningless.
Allan W. Jennings, Jr.
Former Community Council Member