Changing the Criminal Justice system (Not a Clinton/Sanders diary)

Assumptions born from prejudice

The first case I ever tried, and my first jury trial, was in defense of man who was accused of stealing a Matchbox Car. Yes, a jury for a Matchbox Car.

According to my client, he was at the grocery store with his young son. The boy was antsy, and the man picked a toy car off the shelf, took it out of the box, gave it to the boy to play, and put the box in the cart to pay for it later.

According to the prosecutor and the store manager, he gave the kid the car and hid the box behind a bottle of bleach, on a store shelf.

After you're done wondering why the heck we were wasting two days of a juries time on a $1.38 Matchbox Care, you might ask, "well, how did this even come up?"

According the manager, he saw it because he was following my client around the store because "he looked suspicious."

Quick! Guess what color he was.

Right.

He was a grad student in the store with his 5 year old son, dressed in perfectly normal clothing, nothing different from anything anybody else in the store was wearing.

The jury came back with a "not guilty" verdict. Afterward, i asked the (white) prosecutor why she pressed the case, and why she gave so much more credence to the manager than the defendant? Her answer? It was his fault for not taking a plea. It never even crossed her mind that he wasn't guilty at all.

The prosecutor was a nice woman. She wasn't overtly racist or evil, and if you asked her, she would tell you she wasn't prejudiced, and that she had friends and coworkers who were black.But she had never been anything but a prosecutor. She had heard plenty of complaints from black defendants that they were unfairly singled out, but always from the other side of the table, always looking for ways to poke holes in their stories.

Getting some teeth pulled

Another case I handled was of an older black man, a migrant farm worker. He grew up in the South, quit his segregated elementary school in the third grade. He was a WWII veteran. One day, in Okeechobee, he came back to his hotel, a flea-bag joint for migrant workers, from a day picking blueberries. The landlord decided, that day, that he was going to start charging by the day instead of by the week, and the old man didn't get paid until the end of the week. The landlord put all his belongings on the street.

The man didn't know what to do so he called the police. They came and they ran a warrant search on him. He was the complainant, he hadn't done anything wrong, but they ran a warrant search on him. He had an old outstanding bench warrant for not paying a $25 fine for possession of marijuana. he was taken to jail. He spent two days in the Okeechobee jail, a day on a bus to Gainesville, then two more days in the Gainesville jail before the PD's office even knew he was there. i got assigned the case.

I could not get a hearing. Why not? The judge who signed the warrant was on vacation and the other judge refused to hear her cases.

All the old man wanted to do was get out of jail and go to the VA. As long as he was in Gainesville he wanted to get the rest of his teeth pulled because his pyorrhea was so bad. And then he wanted to get back to Okeechobee, because everything he owned was last seen piled on the curb, including his Sunday church clothes. It took me two more days and three times before the court, one time barging in when my guy wasn't on the calendar, to get him "time served" and a release.

Why was the warrant check run in the first place? Why did a destitute uneducated migrant worker get hit with a fine for a minor violation? Why didn't the cops in Okeechobee take a pass on something so petty? Why didn't they at least collect his property and save it for him?

He was invisible, irrelevant, unimportant, an annoyance to get out of the way, not a person in crisis.

In the Public Defender's Office we had a strong sense of urgency, even panic, and when we got him out we raised enough money to get him a suit of clothes and a bus ride back to Okeechobee. But the Court and the police and the prosecutor? It could wait until the other judge got back (until I was more annoying than handling it), and then they just wanted to wave him away like a buzzing gnat.

Welcome to the Prosecutor's Office

Let me start by saying I worked for the best prosecutor in America. She was honest to the core, fair, understood our job was justice, not victory, and did not like (but did enforce) the death penalty. I have as much respect for her as anybody I've met in my entire life. You might have heard of her. Her name was Janet Reno.

But she wasn't in the pits.

I started in the misdemeanor office. Three of the secretaries there were married to police officers.

I started in a class of 20+ new just-out-of-school prosecutors, about half men and half women. Within a few months, at least three of the women were dating cops. We interacted with officers all the time. We went to parties with them. We had breakfast with them before court in the Metro Justice Building. And they came to our offices every day.

They were the good guys. We were the good guys. We were a team, "Team Justice," and our goal was victory. We counted wins and losses. When we won, we went together to the Marine Bar to celebrate. When we lost, we went together to the Marine Bar to drown our sorrows.

We went on ride-alongs with the cops. We got in a police car in the middle of the night and drove. We didn't get out of the car to talk to anybody on the street. Not once. If we stopped for coffee and doughnuts (yeah, I know), we did it where there were other cops. The waitresses knew them by name. It was a cop joint. The only people that talked to the officers we were riding with were crack-addled hookers fake-propositioning them and laughing.

There was no interaction with the citizens. We just rolled on through, like we were in an MRAP in Baghdad. "We" were in the car and "they" were out there, and that was how it was.

Two different stories

Skip forward a few years. I was training a new intern, a law student who was scheduled to start in our office after the Summer. We were doing a victim intake interview on a robbery case. She was a perfectly lovely and normal working class black woman. I handed the newbie the arrest form (a document with basic information - who, what, where, when, plus a short recitation of the allegations). He started questioning her.

Q: You were at 186th Street and US1, right? A: Yes.

Q: And a man approached you, right? A: Yes.

Q: And the man pointed a gun at you and demanded your purse, didn't he? A: Yes, sir.

Q: You gave him your purse, right? A: Yes.

Q: Were you in fear for your life? A: Yes.

Q: Was the man black? A: Yes.

Q: Was he approximately 5'9" and 185 pounds? A: Sure.

Then I took the A-form from him and asked, "what happened?" She told a long, detailed story about standing at the bus stop, the man approaching her and talking to her for about five minutes, then pulling out a gun. She told us what he said, what he looked like, what he sounded like, the direction he walked away in, and more. Then we thanked her and she left.

I asked the newbie, "what do you think?"

He answered, "we can't file - she told us two different stories."

"She didn't tell us two different stories," I told him, "you told her one story and she told me another."

It was patently clear that this kid was sure of a couple of things. First, everything the police wrote down was true. Second, he was superior to this woman and knew better what happened than she did, even though she was there. Third, she really wasn't worth his time, so he was going to dot the I's, cross the T's, and get her out of there.

I made sure we did not hire him after all, but he went on to another prosecutor's office and never left.

He's not black

I represented a kid once, a black kid with an IQ just south of 70. He was 16, maybe 17. He was charged with a robbery, something that happened when he was tagging along with a bunch of kids from the neighborhood. He was the one the cops ran down and caught. The Prosecutor's office wanted to try him as an adult.

He came into the office with his mother, a tiny woman who spent 12-16 hours a day cleaning up after other people to make ends meet.

The kid was upset, confused, scared. He didn't know why he'd been arrested. He didn't do anything wrong - he was just with bunch of kids, and when they ran he ran. He also didn't understand why the officer had arrested him. "He's black, like me! Why would he arrest me? We're supposed to look out for each other!"

"He's not black," I told him "He's blue. They're all blue."

The mother nodded quietly.  

This was a kid who followed the crowd, who never really had any idea what was happening, but wanted to be where it happened.

Most of the cops he saw were rolling by in cars. Sure, there was a Police Athletic League, and sometimes kids played basketball in it, but the day to day interactions were watching them roll by and watching neighbors get arrested.

I fought long and hard to keep this kid out of adult prison. Eventually, we cut a deal that kept him out of prison, put him on probation with special counseling and a remedial GED program. I don't now what happened to him since, but I'm frankly, and unfortunately, not optimistic.

You made me lose

Back to division chief days. I was supervising a very bright well-meaning prosecutor handling a motion to suppress drugs found in a traffic stop. The cop testified he pulled the guy over because his license plate was partially blocked by a trailer hitch. I leaned over to her and said, "ask him if he's ever stopped anybody for that reason before." She did. He said "yes."

The defense attorney was Roy Black, one of the best lawyers to ever walk into a courtroom. Roy had the officer's prior stops. All of them. He had never stopped anybody for that reason before.

The judge granted the motion and the case was dismissed.

The new prosector was upset. "You made me lose my case," she said. "No I didn't," I answered, "you won.""What do you mean I won," she asked, "the case was dismissed?""Right," I said, "and it needed to be. The cop was lying.""Our job isn't winning," I told her, "our job is justice."

To her credit she took it to heart. She was always willing to listen when I was on the defense side, and she was one of the good guys.

Community Police, not Community Policing

What do these stories, and hundreds of others, have in common? Two things. The first is the "rolling through Baghdad" problem. Police aren't part of the community, and the community never wants to be part of the police. That's true even if they're neighbors, old schoolmates, even old friends. They put on the uniform, they get in the car, and they turn blue.

That's not going to get fixed with community relations boards. It's not going to get fixed with training. It's not going to get fixed with quotas for hiring. And it's not going to get fixed with showy but ultimately irrelevant programs like the Police Athletic League or DARE meeting.

That's only going to get fixed when you get the cops out of the cars and on the streets. Put them on bicycles, let them roll through the same neighborhood every day. Let them got off the bike and help carry in some groceries, shoot some baskets with a kid outside alone, show a kid his radio. Let them really know the people.

If a cop shoots baskets with a 6-year old and helps him mom bring in the groceries, brings a kid's badge in wrapping paper for Christmas, waves a genuine "hello," that mom will tell him when he starts hanging out with the wrong crowd. Heck, the cop will notice when he's hanging on the corner instead of shooting baskets at the park. And if he really knows the kid, likes the kid, he'll bring a ball and ask him to shoot some, and talk to him, instead of writing an incident report and putting him on a gang watch-list.

And one more thing. That kid might want to be a cop when he grows up. He might want to serve his community they way the officer served before him.

Team Justice

The other problem is the team attitude, the idea that police and prosecutors are working together against the "bad guys." People they call "mopes," and "scumbags."

This doesn't happen because they're bad people. Sure, some of them are like that intern, racist to the core. But others are more like the Matchbox Car or the trailer hitch prosecutors, trying hard to do the right thing but cloistered in a team atmosphere that slaps on labels and looks for wins. It assumes the cops and victims are telling the truth and filters everything through that assumption.

Why was I a little different? Why could I see things from both points of view?

Because I spent a little time, just a tiny little bit of time, on the other side. I saw defendants as people accused of crimes, not criminals who got caught.

That doesn't happen very often. Sure, people leave the prosecutor's office all the time and become defense attorneys. But most people in the prosecutor's office started out of school and never defended so much as a traffic ticket.

What does that mean? It means when there's a police shooting the first response is to team up, to assume the cops are telling the truth and the "mope" deserved what was coming. It's not intentional. It's not even racist. They're just raised that way from the moment they get out of school.

Assigning yet another group of prosecutors to make charging decisions won't change anything. They, too, will have a mindset and a starting point that comes from "Team Justice." It adds another layer to the same spoiled cake.

What if, instead, people didn't work for a prosecutor's office or a public defender's office? What if they worked for a justice office, handling cases as they came in, prosecution and defense? What if they had to spend as much time with the accused and their families as with police officers? (Yes, there are legal conflict issues, but there are ways around it and a state Supreme Court approved pilot program could get around it, even if just as a small monitored experiment.)

That might change not just the effect, but also the cause. Attorneys in a Justice Office would know cops can lie, defendants can be innocent, even the guilty can have problems to be addressed instead of evils to be avenged. They would also know police are hard working, decent people, people who really do put their lives on the line in a dangerous and important job.

They would work for justice, not for "Team Justice."

Let me close this with the words of Justice Robert H.Jackson, US Solicitor General, US Attorney General, Supreme Court Justice, and Nuremberg prosecutor. He was a giant of the law and our history. He dissented in Korematsu (arguing Japanese internment was unlawful) and concurred (after much legal- and soul-searching) in Brown v. Board. He prosecuted Nazi war criminals, too. These are the words he spoke to the Second Annual Conference of United States Attorneys, in 1940 (if you want to read the whole thing, it's worth your time). I had this framed and hanging in my office every day I was a prosecutor:

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.