Reasonable Courses of Action for Those Who Might Not Come Home Alive.

“This isn’t a court of justice, son. This is a court of law.” – Billy Bragg

When a jury of six people found George Zimmerman not guilty of murdering Trayvon Martin, I found myself utterly unable to respond to the verdict in real time. For those who have spent the past couple of months hiding in a cave with their eyes closed and ears plugged, George Zimmerman was a neighborhood watchman in Florida. Trayvon Martin was a teenage pedestrian who passed through the fiefdom over which Zimmerman stood vigilant against all the “punks” and “assholes” with his concealed 9mm pistol. Martin carried only Skittles and iced tea that he had bought from the store. Within seconds of spotting Martin, Zimmerman called 911 to report that he had seen Martin, in his neighborhood, doing nothing in particular. Although the dispatcher advised caution and restraint, Zimmerman lamented (in the recording of the 911 call) about how “assholes” and “punks” like Martin “always get away” and he decided to pursue. Zimmerman then followed Martin until Martin physically confronted the stranger who was following him for no apparent reason. In response to the nominal danger that he himself provoked, Zimmerman shot Martin dead.

I found myself unable to muster outrage because, frankly, I wasn’t surprised at the outcome. I also found myself unable to have any sort of conversation with anybody about it because those who either lamented or celebrated the verdict suffered from the same core delusion: that Court-With-a-Capital-C is a place for justice to happen.

Anyone who has spent one minute in an actual courtroom understands that a court is a machine; it has moving parts that fulfill their functions within predictable degrees of verve, skill, and enthusiasm. The list of possible outcomes for a case is limited, as are the possible options that the machine’s players can choose from prior to the case’s final outcome. And when the courtroom deputies radio to the basement to send their “bodies” (in-custody defendants) up to a courtroom for their court appearances, we receive a crude reminder of what this machine processes; it processes human beings. At no point during this process will the victims get their loved ones back, nor will this process heal any wounds or scars. Sometimes property is recovered, but more likely it will be repaid pennies on the dollar through the pittance that the defendant earns for his prison labor. At no point along this route does an accused receive the job training, addiction counseling, and/or long-term psychotherapy that would prevent a huge majority of all crime if they were freely available. At what point does anyone expect justice to squish through the sausage funnel at the end of this process?

Every final outcome in a criminal case represents an outcome that the system was designed to produce. Many years of lobbying by the firearms industry and self-defense enthusiasts produced Florida’s self-defense laws. These laws require no retreat and make no issue of who first instigated the violent encounter or why he did so. All a person has to do is claim that he feared for his life and kill the only other witness to the contrary. And when a person does this, faces trial on national television, and walks out the door afterward, the system works exactly the way that it was designed to.

Now, I have made no mention thus far of the races of either Zimmerman or Martin. The system flatters itself fair and impartial because–on paper–the race if the individuals involved should not matter. But if race does not matter, why was 71-year-old Trevor Dooley (African American) denied an acquittal when he claimed that he shot a man thirty years younger, four inches taller, eighty pounds heavier, and did so in self defense?  Why is a black defendant 354 times more likely to be convicted of murder than a white defendant in cases alleging “self-defense?”  A law that claims to be race neutral while producing racial injustice is, regardless of its intent, a racist law. The courts that enforce racist laws produce racist results.

The courts in Florida and elsewhere enforce laws that make it dangerous for young black males to walk home from the store and dare to defend themselves against a stranger who decides within seconds that they are “assholes” and “punks.” This is not justice, but justice is not what these machines produce.

The solution for law abiding citizens who want to come home safely from the store is to stop relying on courts to produce justice. For the past four weeks, a group of students calling themselves the Dream Defenders have been staging a sit-in protest at governor Rick Scott’s office seeking redress for the laws that allowed Zimmerman to legally kill Trayvon Martin; they are trying to stop the gears of the machine with their bodies. In response, Florida house speaker Will Weatherford has announced his intention to hold hearings on Florida’s self-defense laws. The Dream Defenders clearly understand that justice is something that must be sought outside the courtroom.

Please don’t think of this as a tardy Trayvon Martin piece; I prefer to think of this post as a timely piece in support of those actively resisting the systemic racism of our court system as though their lives depend on it.

Their lives do depend on it.

Respectfully Submitted,

Norm DeGuerre

Norm reviews Jeff Adachi’s “The Slanted Screen”

ImageI have been a Netflix subscriber for more than five years, and I am genuinely impressed by its ability to recommend movies based on my previous viewing habits. However, it’s recommendations rarely intersect with my work.

But recently, Netflix recommended a documentary on the changing roles of Asian-Americans in cinema. It was a film by none other than Jeff Adachi, San Francisco’s Public Defender who bears the distinction of being one of the few public defenders in the nation who is elected to his position by popular vote. His film is called The Slanted Screen and was released in 2006.

The Slanted Screen begins with an interesting film history of Asian actors. Did you know that the silent film era was one of the golden ages for Asian actors in Hollywood? In his day, Sessue Hayakawa was a leading man mentioned in the same breath as Douglas Fairbanks or Charlie Chaplin. The film goes on to describe the next era for Asian American actors in war movies as well as the martial arts genre. The most interesting part of the documentary, for me, was learning about the responses to such roles. I think I now understand why contemporary Asian-American actors have such mixed feelings about Bruce Lee.

The second half is devoted in large part to discuss the desexualization of Asian-Men in mainstream American film. Essentially, systemic desexualization exists side-by-side with a pervasive refusal on the part of viewers to accept Asian-Americans as leading romantic roles. Adachi explores whether society’s racism is providing a market for media stereotypes, or whether the media stereotypes are the cause of society’s racism.

The documentary is directed in a way that feels like Adachi is presenting evidence backed with testimony to effect a certain point of view. This seems to be congruent with what one would expect from an attorney. And like one might expect, Adachi presents his cases well. The “evidence” Adachi uses are clips from popular movies and his “expert testimony” comes from Asian American actors and writers. The scenes he uses are well chosen to display certain stereotypes, both positive and negative. Whether or not I shared his interpretations, his examples are all thought-provoking.

Case in point: Adachi cites the character of Mike Yanagita,  of the Cohen brothers’ Fargo, as an example of the stereotypically desexualized Asian-American male.

Mike and Marge enjoy Diet Coke’s at the Radisson

When I first saw Fargo, I didn’t think that the Cohen’s poke fun at Mike Yanagita because he is Asian; I thought it was because he’s Minnesotan. And Marge Gunderson is not unavailable to Mike because he’s Asian; she’s unavailable because she’s happily married and pregnant. But just because one stereotype is more prominent doesn’t mean the other no longer exists; Choosing to see Mike Yanagita as a Mid-Westerner doesn’t make him less Asian. Would I view that scene differently if the man Marge meets at the Radisson was of a different race?

Adachi provides more questions to get your film club or class discussion going.

I thoroughly enjoyed The Slanted Screen. It’s about an hour long and it’s streaming on Netflix.

Respectfully Submitted,

Norm DeGuerre

Because You’re Next: Why Everyone Needs to Worry About Stop and Frisk

The surest way for those in authority to mask racism is for them to say that they “don’t see race” or that they are “colorblind” to race. To quell any doubts, they find one or two members of the group they are discriminating against who side with them, who they can point to and say, “See? We’re not racist!” This is the form that 21st Century racism takes; those with state power congratulate each other on how forward-thinking they are so that they can disown the actual consequences of their behavior. These consequences include overwhelming racial disparities in our prison population, which are exacerbated by draconian sentencing laws that affect minorities first and foremost, and police interference with civil liberties.

Imagine an African-American kid growing up in south Chicago. Or Los Angeles. Or in any neighborhood that hasn’t benefited from an economic boom since the early 1970’s. Kids growing up in these neighborhoods don’t have to be “jumped” into their local gang; simply living in a given neighborhood causes gangs from other neighborhoods to assume that you’re “cliqued-up.” Soon and sure enough, this kid will start to associate with members of his neighborhood’s gang both for safety and for social reasons. His world is artificially small because he can’t go outside of his neighborhood to make friends. It’s a safety risk. Like many kids with limited prospects for escaping an urban war-zone, he smokes pot to take the edge off. He has also taken to carrying a gun, because everyone else is.

Now, imagine that a police officer sees this kid walking around at night in a “high crime area.” The officer approaches and barks questions at this kid. The kid stops, not knowing what to do. Sure enough, the odor of marijuana makes its way to the officer’s nose. Marijuana is illegal! (The cop isn’t lying when he says he knows that smell; his non-cop friends give a heads-up warning before they light up at parties so he doesn’t jeopardize his drug test.) The officer notices that this kid is dressed in baggy clothing. Regardless of the ubiquity of this fashion choice, the officer grows worried that the kid has a gun in his waistband. The officer stops him, frisks him, and arrests him shortly after finding the gun. This kid is now in line to be punished according to “tough on crime” sentencing laws that get state legislators re-elected without fail. The presiding judge will reassure this kid that he “grew up on the streets” too, and that “there was no excuse” for this kid’s behavior. This hand-washing ritual will take place just before the judge hands down a sentence that will ensure that this kid will spend his 20’s among America’s bloated prison population.

“But Norm,” a reader might say, “clearly the officer was right to search this kid, and this kid is being sentenced just as anyone else would be for the same behavior. Haven’t you heard of Martin Luther King, Jr? Or Barack Obama? There is no ‘racism’ any more. How exactly does ‘race’ factor into that story you just told?”

Here are some places where race intersected with this kid’s life and where our legal system paved them over so that it can continue to appear colorblind:

Historically, marijuana was made illegal specifically because it was more popular among people of color. It was consumed in jazz clubs and similar dens of depravity. Marijuana was made illegal specifically as a means of social control. If you think about the social effects of drugs, marijuana is pretty benign. “Smoking a bowl” doesn’t inspire my clients to violence and mayhem as alcohol, cocaine, or meth often does.

Today, marijuana laws (and many others) are selectively enforced. Officers can’t possibly detain every speeder, red-light runner, loiterer, or weed-smoker. Thus, officers get to pick and choose which neighborhoods are most “deserving” of having these laws enforced. Now, guess which neighborhoods they choose. And in those neighborhoods, guess who they choose to stop.

Let’s discuss that stop. In my story above, the officer covered his tracks by not actually “ordering” the kid to stop or place him under physical restraint. He didn’t have to: the underlying power dynamics of society–as well as the officer’s  visible weapons–told that kid he was not free to go anywhere. The courts, however, are willfully blind to these dynamics. The courts decided long ago that an officer needed no legal excuse to have a “consensual encounter” with a civilian. A “consensual encounter” takes place any time the officer interacts with a civilian without physical restraint or verbal orders to stop. The courts believe that an “objectively reasonable citizen” would understand that they were free to leave or otherwise end the conversation because “reasonable people” are well-informed of their rights and feel empowered to check the authority behind an officer’s badge and gun. I wonder what race these “reasonable people” are.

Now, let’s discuss that frisk. “Stop and frisk” policies have been in the news frequently given the lawsuits in New York City. Although the publicity is new, the law that allows this behavior is not. In 1968, the Supreme Court decided the case of Terry v. Ohio. In that case, the officer decided to frisk three suspects whom he believed were getting ready to rob a store. Since then, an officer may stop and frisk anyone whom he believes to be “armed and dangerous,” so long as that belief is based on specific, articulable facts.

Today, those specific, articulable facts take the form of sweeping generalizations that officers assure us are based on their “training and experience.” This phrase comes from the Evidence Code section stating the sources an expert can use to form their “expert opinion” in court. Today, police are taught to repeat this phrase on the witness stand when they want the court to take their bullshit speculations and generalizations as actual evidence. “Based on my training and experience,” the officer in my story might say, “I know that suspects in this high-crime neighborhood often conceal weapons underneath baggy pants and sweatshirts.” Every officer knows this is the magic phrase which turns every dubious stop and frisk into a legal search-and-seizure.

Don’t bother trying to say that an officer’s “training and experience” are correct simply because they find something illegal during their search. We only see and hear about cases where an arrest is made, i.e. cases where the officer’s guesswork turned out to be right. You’ll never hear about the cases where this officer’s “training and experience” caused him to rummage through some kid’s oversized pants without finding anything.

Which brings me to the punchline of this post; all of these things affect everybody because it creates judicial precedent. When a lawyer fails to convince a judge that the evidence against his client was seized in violation of the Fourth Amendment, the reasoning behind that decision is used to decide other similar situations. This is known as precedent.  It happens when a judge finds no constitutional violation when an officer’s “training and experience” leads him to target kids in certain neighborhoods, or because he expects a “reasonable” person to walk away from a jumpy cop with one hand brandishing a flashlight and the other quivering over his holster. The problem is that when the judge finds no violation of Fourth Amendment rights in a situation like the one I’ve described, a kind of law is created which isn’t limited to kids in hooded sweatshirts. The “colorblinding” of the law makes heavy-handed police tactics immediately applicable to everybody.

In short, when vulnerable members of our community are illegally stopped and searched and when what is found is nevertheless used against them, a precedent is set making it legal to use evidence collected in that manner in court. Effectively, the style of this search becomes law and you, dear reader,  just lost a little bit of your own civil liberties. Courtroom drama doesn’t go into the books as, “A scruffy looking darker-skinned guy was stopped in a really nice part of town because he didn’t look like he ‘belonged’ there and sure enough, the cops found some drugs on him!” The precedent becomes, “A man was strip searched because police thought he looked suspicious.”

I believe this process is quietly setting a legal foundation for a possible police state. Because what is a free society without actual freedom? If we don’t have the freedom to privacy or the freedom to go where we want, then what are we free to do? I don’t want to give the impression that I’m paranoid or that I have an irrational deep-seated fear of government. Quite the opposite: I believe that we are the government and that gives us quite a bit of power. We just need to be aware of our power and that awareness is fostered through education. Hopefully, that awareness leads to participation. A great way to participate in our government is by voting and the more informed you are when you vote, the better for our democracy. I think that participation in government is what differentiates between being overpowered by the government and being empowered by it.

The question I wish more people would ask of themselves is, “How willing am I to be harassed by the police so they can be lazy when they skip any detective work and just detain and search whoever they want?” Remember that it only takes one incident, one “misunderstanding,” one off-day to change your life forever. If you’re not willing to put up with an intrusion of your privacy, then you need to make sure that others aren’t subject to an intrusion of theirs. An invasive search may start with “a scruffy looking [insert preferred racial slur here]” but it sets precedent as “a man.”

And this is why public defenders are so important; by defending the rights of our most vulnerable citizens, we are protecting the rights of everybody.

Respectfully submitted,

Norm DeGuerre

Did you ever want to be a DA?

Dear Norm:

Did you ever want to be a DA? Doesn’t part of you wish that you prosecuted criminals rather than defended them?

Sincerely,

Buford T. Justice

Dear Buford:

Once upon a time, I did want to be a DA. As of the second year of law school, I knew that I had little interest in helping companies amass wealth by suing each other over obscure patent rules. Also, part of me doubted that my personality would mesh with the ethos of a big law firm.

I’m sure that my regular readers will find that last part absolutely shocking.

So I knew that I wanted to do criminal law and that I wanted to do jury trials. The only question was whether to be a DA or a defense lawyer. Being a DA seemed easy to conceptualize, so I intentionally sought work with a public defender’s office over the summer to get an idea of what that side looked like.

After two weeks working at the PD’s office, I never thought twice about being a DA. The idea of nailing the “bad guys” may be fun, but in the process I knew I’d have to put a lot of poor people in jail. My “a-ha!” moment came when I realized that many of the sentencing laws that we passed to protect us from people we were scared of were actually being used against people who we were simply mad at. I saw how the Three Strikes law was used against shoplifters or crank dealers who sold to their junkie friends far more often than rapists, kidnappers, armed robbers, or other really “scary” people.

What shocked me most was that most DA’s were never allowed to do what I considered “the right thing” on a case (ie: reducing the charge, offering a lower sentence) without meekly seeking his or her supervisor’s approval. In contrast, my client is ultimately my boss – he or she decides whether to take a deal and whether to testify at trial. I get to make lots of other decisions, but the most important ones belong to my client and my client alone.

Unfortunately, DAs take marching orders from their supervisors, and apparently one does not become a DA supervisor without being a small-minded, wrathful asshole. (Seriously – these are really unpleasant people.) The DAs who are sharp, easy to negotiate with, pleasant, punctual, prepared, who know the law and don’t appear personally offended when I do my job: those guys don’t get promoted.

I like that my decision making process about a case is simpler than a DA’s; I am obligated to advise my clients as to what is in their best interest. Beyond that, the ultimate decision-making power belongs to my client, and he or she is under no obligation to take my advice. So once my client decides what he or she wants to do, my only obligation is to continue to pursue his or her legal interests as best as I am able.

There is a disparity between what we think DA’s should do and what they actually do. In theory, a DA is tasked with weighing all of the mitigating and aggravating factors in a case and then deciding the charges and plea offer based on a concern for overall justice. In reality, DA’s are “just following orders” from supervisors who have no connection with the case and who bear no personal consequence for their decisions. In theory, DA’s are the ones who put the “bad guys” in jail. In reality, they put whoever they can in jail and then call them “bad guys” after. And I found I would rather spend my day trying to keep everyone out of jail than finding vulnerable members of society, calling them “bad” and then putting them in jail.

Remember that minorities are overrepresented in the prison system. And I can tell you from experience that at any given time, our local juvenile hall has between one and three white kids being held for trial. This is one of the end products of marching to a supervisor’s orders. If DA’s are “just following orders” on which cases to pursue, they’re also “just following orders” on which cases to settle or dismiss.

I’ll give you an example.

A few years ago, Meg Whitman’s son was arrested for assaulting a woman in a bar which caused great bodily injury (Ms. Whitman is the former CEO of Ebay, current CEO of Hewlett Packard, and failed gubernatorial candidate). Apparently, Griffith Harsh V (yes, actual name) pushed this woman, causing her to fall and break her ankle. There were several witnesses, one of whom was a bouncer. Now, if I put my “DA hat” on, I can say that this was a solid case. It’s a felony! It’s even a strike! There was a credible witness (and the only witness in the bar who probably wasn’t drunk)! As a prosecutor, I would love to try that case. So why was it “resolved” with an outright dismissal in some private, back-door deal?

If I were a DA, I would hate letting rich, white sociopaths get away with serious societal harm even more than I would hate going after poor people and minorities for petty crimes. It happens all the time. And that is not justice.

And that just wasn’t how I wanted to practice law. So to answer your question, yes I did want to be a DA for a little while. And then I got over it.

As always, I welcome questions and comments from my readers.

Respectfully Submitted,

Norm DeGuerre