BLACK LIVES (DO) MATTER / My Story – Part One

More than a year ago I got into a discussion with a very good friend about slavery, the Civil War, Southern Civil War heroes, Civil War monuments, how slave owners should be judged, and the existence and effects of racism today.  The conversation became tense when he said, “We have to protect our culture.”  I didn’t expect to hear such a statement from my friend.  It took me by surprise.  It wasn’t totally clear what this rather ominous statement meant, but it was clear that he felt he was under attack from outside forces intent on destroying something important to him.  Because we are white, I assumed that “we” meant white people, but he didn’t say that.  My friend, a very smart man who leans Republican, had his point of view and I had mine.  His argument made the usual point that all people are flawed and must be judged by the standards of their time, i.e., the morals, laws,  and customs of their time and place.  My argument was that brutal, coerced human bondage is so morally repugnant that it is indefensible.  Yes, I’m aware that George Washington, Thomas Jefferson, maybe even Alexander Hamilton, and many other historical luminaries whom I admire for other reasons owned slaves.  How should they be judged or should they be judged at all?  Maybe we have to accept the paradox that men who are capable of accomplishing great good are equally and simultaneously capable of monstrous wrongdoing?  Maybe we have to accept, however hard it may be, that some of our heroes held the belief that slaves were not human beings, that they were, indeed, just property the same as a mule or cow, or that they were lesser human beings?  Maybe our heroes, their judgment distorted and their character deformed by self-interest and greed, just couldn’t accept the devastating economic consequences of abolishing slavery?  Maybe we are better off not to erect statues and build monuments or, at the least, maybe should be careful to contextualize them so that it is clear that we are honoring good deeds, laudable achievements, high ideals, great service to humanity, etc. rather than a potentially flawed person.  The discussion went on far too long and there was no agreement to be found.  It was one of those discussions you should probably never have with a good friend that you want to keep as a good friend.  We should have never started it and we couldn’t find an agreeable way out. 

Because my experience is in law and his is in medicine, we shared our personal experiences with racism in our respective professions.  He is a highly regarded doctor whom I can guarantee, based upon more than 50 years of friendship, would never treat a patient differently based upon race.  However, he went one step further, he said that in his many, many years of medical practice he had never seen a patient discriminated against or treated differently based upon race.  I didn’t challenge him even though his claim is contradicted by what many of my Black and Hispanic clients have told me over the years and by countless scientific studies.  My friend was telling me his truth based upon his personal experience.

I told my friend that I had seen a lot of prejudice in the legal system, particularly against Blacks, but also against Hispanics and immigrants.  My friend seemed very surprised by my answer and I was surprised that he was surprised.  I told him a little more about my personal experiences and he probably finally decided to do as I had done, which was to accept my account as my perception of my experiences. 

Mercifully, the night and the discussion finally ended.  But, the unfinished debate has continued in my mind ever since.  The murder of George Floyd, the Black Lives Matter movement, the Presidential election and the rise of white supremacist groups have made it even more important to my peace of mind to reach a resolution.  What follows (this and the upcoming 5 blogs) is my attempt to recall my experiences, try to hold myself accountable for my own racism, and achieve some semblance of inner peace.

Thinking back over almost 50 years of practicing law, there was explicit and implicit racism. 

I began my legal career as a prosecutor in Dallas on January 3, 1973.  I stayed in that position for almost 5 years trying criminal cases to juries on a daily basis and handling a very big docket of criminal cases of all kinds. It was probably like working in the emergency room of a public hospital in a major city on a Saturday night.  It was fast, furious and intense.  The Dallas County District Attorney’s Office conducted an annual multi-day prosecutor’s school which included abundant written material.  This was long before the State Bar of Texas created mandatory continuing legal education for all Texas lawyers. Among the subjects which were taught in the school for prosecutors was how to pick a jury. We were taught by lecture and in the written prosecutor’s manual to not allow a Black person to be seated on a jury.  Blacks were thought to be soft on crime, sympathetic to those accused of crime, to be opposed to the death penalty and long sentences and, most of all, to be sympathetic to other Blacks.  It is true to say that if you allowed a Black juror to be seated on a trial jury, your judgment would probably be called into question by your fellow prosecutors.  Obviously, this “rule” was racist, but it was not illegal at the time and there was surprisingly little discussion about whether it was morally right or wrong.  Our sole objective was to win our cases and this policy was thought to enhance our chances of winning.  It was an open secret that this was our policy, but the defense lawyers and the judges had no legal power to stop us.  The result of this policy was that almost every jury was composed entirely of white jurors.  Can you imagine how it would feel if you were Black and every Black person was eliminated from the jury that would decide your fate?  If you were Black and called for jury service and then you and all other Black people on the jury panel were dismissed without serving, how would you feel?  The systematic exclusion of Blacks from juries over the years probably discouraged Blacks from even showing up for jury service because they knew it was pointless to take a day off work only to be “struck” from the jury panel. 

As a prosecutor you were allowed to negotiate plea bargains within a predetermined range of acceptable sentences based upon the type of offense, prior criminal record, aggravating circumstances, etc.  We were not told to take race into account in recommending a sentence, but it was common knowledge that crimes of violence committed by Blacks against Blacks were treated less seriously than Black on white crime.  In fact, it was not uncommon for prosecutors and police to sarcastically refer to the murder of a Black person by a Black person as a “misdemeanor murder.”  This was particularly true if the deceased had a criminal record.  Conversely, crimes of violence committed by Black defendants against whites were generally taken more seriously unless the white person was a criminal.  My fellow prosecutors of that era might disagree with me on this point, but I believe a review of all the cases we handled would probably reveal that Blacks received longer sentences for the same offenses.

It is also true that Black criminal defendants were represented by court appointed attorneys much more often than whites.  These lawyers, many of whom were inexperienced and poorly paid, had little time to devote to their mostly incarcerated clients.  To make a living these lawyers had to handle a lot of cases.  These lawyers actually fared better financially if they convinced their clients to plead guilty and did so quickly.  It is likely true that the cases of a lot of poor Black and white accused people did not receive the time and attention they deserved.  This may have led to wrongful convictions on rare occasions and, much more frequently, in longer sentences.  I did not see Black people prosecuted and convicted because they were Black.  I did see Black people and, for that matter, a lot of poor people of all races, who were victimized by a system that did not always give them a fair chance. 

One cannot forget the role poverty plays in the criminal justice system.  Poverty also plays a role in the commission of crime and, as a general rule, Blacks are much poorer than whites.  That was true then and it is just as true now.  Recent studies show that, on average, whites are 10 times more wealthy than Blacks.  If you are poor and charged with a crime, you can’t post bail and you can’t hire a lawyer.  If you are incarcerated for months or even more than a year awaiting trial, and if you are represented by a court appointed lawyer who is poorly paid, overly busy, and without the financial resources to properly investigate or try your case, it is highly likely you will ultimately agree to plead guilty just to get out of jail or, if you risk a trial, you will be convicted and sentenced to a term longer than you could receive in a plea bargain.  This is called the “trial penalty.”  If you cannot pay for a bail bond, the personal and financial pressure to plead guilty to get out of jail is often overwhelming.  In some instances prosecutors used this pressure to, in effect, coerce a plea of guilty in a questionable case.

As a prosecutor you are in close contact with law enforcement officers every day, all day.  They are your primary witnesses and they do most of the investigations.  The entire criminal justice system depends upon their integrity, objectivity, thoroughness, and impartiality. Law enforcement officers have tremendous power and a lot of discretion.  They decide who will be investigated and how, who will be arrested and, to some extent, what charges will be filed.  Before my employment as a prosecutor I had no experience with peace officers.  My prosecutorial experience gave me a close look at law enforcement officers of all kinds.  As you would expect, peace officers are not all the same and they are often one thing in public and another when they are in private, particularly when they are among their own kind in private.  There is a very strong bond among law enforcement officers.  They expect to be protected by each other and by prosecutors.  I learned that peace officers are not merely disinterested witnesses.  They take their cases personally.  They are active advocates for a conviction and are personally invested in the outcomes of their cases.  This is particularly true if the defendant has a long criminal history, fled, resisted arrest, threatened or harmed the arresting officer.  Nevertheless, my overall public and private experience with peace officers led me to believe that they are mostly good people trying to do a very hard job in an honest way, but there were some who held implicit or explicit racist views which affected how they did their jobs.  The same could be said for some prosecutors and some judges.  Black defendants  rarely got the benefit of doubt in the criminal justice system at that time and place, although I confess this is just my opinion.  Another thing I learned which is relevant to the use of deadly force by law enforcement officers is that, at the point of confrontation or arrest, most peace officers and most suspects are afraid of each other and this fear is justified.  Fear and guns are a  volatile mix.

When I moved back to Brazos County and began to practice criminal law, I found no difference in the criminal justice system.  Racism was present and practiced in the same way that it was in Dallas County.

Since becoming a civil lawyer, I have continued to see examples of implicit bias and, occasionally, explicit bias in the judicial system.

You will recall that I said Black jurors were systematically excluded from serving back in the 1970s.  The practice of striking all Black people from juries finally came to the attention of the U.S. Supreme Court in the case of Batson v. Kentucky.  The Court ruled that it is unlawful to exclude people from juries based solely upon race.  However, the Court left a big loophole.  The Court allowed lawyers to strike (dismiss) people of color if the lawyer exercising the strike could give a race-neutral reason for doing so.  This loophole immediately became nothing more than an opportunity for lawyers to use their imaginations in coming up with race-neutral reasons for excluding non-whites, particularly Blacks, from serving as jurors.  The Batson case also applies to civil cases.  Nevertheless, Blacks are often excluded from jury service in civil cases because they are stereotyped as being too sympathetic to Plaintiffs in injury or death cases, anti-big business, too liberal and, in highly technical, complex cases, as not being educated or smart enough to understand the evidence and the issues.  Of course, lawyers will deny what I am saying, but it is still happening.  If, for example, you are Black and you have to take your personal injury lawsuit to trial, in many counties in Texas it is likely no one on your jury will be Black because whites are seen as more reliably conservative than Blacks.  Of course, the number of Blacks serving on juries will vary depending upon the racial makeup of each county, but I can assure you that insurance defense lawyers usually strike Black jurors in general and this is particularly true if the plaintiff is Black. 

In the present era, are white jurors biased against Black people in civil and criminal cases?  I am not acquainted with the empirical evidence one way or the other, but I think, based upon my personal experience, that racist views are still common among whites in general and it is very easy for an overtly racist juror to be seated as a juror.  There is also a problem with implicit bias, sometimes known as “soft racism.”

Considering the possibility of racial bias, one would assume that lawyers would always ask potential jurors during the jury selection process about racial bias and prejudice.  However, that is rarely done.  Why?  First, it is incredibly rare for a juror to admit racial prejudice.  It is ironic that even overtly racist people don’t want to be seen publicly as racist.  It is also mystifying that many racist people believe they aren’t racist if they don’t publicly use the N-word. Second, lawyers are afraid to ask questions about racial prejudice because they don’t want to risk alienating a juror or the entire jury panel by asking about racism.  Consequently, a juror with racial prejudice has a very good chance to be selected and to take their prejudice with them into the jury box.

On rare occasions, a lawyer will ask about racial prejudice, but that questioning is usually limited to cases wherein race plays some role in the operative facts of the case or if there is some outward, objective manifestation of racial prejudice indicated by a potential juror or by one of the parties.

All in all, Black people have no reason to be optimistic about their chances in the judicial system.  This is not to say Blacks never get a fair shake or a fair verdict or that every verdict involving a Black person is tainted by racism, but they face potential obstacles in predominantly white counties that whites don’t have to worry about.

A district judge in Dallas taught me many years ago that the perception of fairness is crucially important to the administration of justice. By that he meant that the proceedings should have the appearance of fairness to the parties directly involved, to the jurors and to the spectators. If we want Black people to have confidence in the judicial and law enforcement systems, appearances truly matter. Changes must be made.