May 2002 - Department of Public Advocacy

The Influence of Race and the
Defense Lawyer’s Responsibilities
THE ADVOCATE Volume 24, No. 3 May 2002
Last year I served on a panel at the Department of Public
Advocacy’s 29 th Annual Conference on race and the criminal
justice system. The following is an edited version of my
comments at that panel.
Steve Bright has said the following, and I agree completely
with him: “Racial bias influences every aspect of the criminal
justice system. African-Americans, Latinos and members of
other racial minorities are more likely than similarly situated
white people to be stopped by the police, to be arrested after
being stopped, put in choke holds by arresting officers, denied
bail, denied probation and given harsher sentences including
the death penalty.” I believe that from the moment
the officer sets out at night and decides what neighborhood
he or she is going to drive into through the decisions made
regarding what kind of stop he is going to make, through
who gets out on bail, through who gets probation and who
gets treatment, who gets the good deal and who gets the take
it or leave it deal, who gets the death penalty notice and who
doesn’t, I absolutely believe that race is at the core of those
decisions.
If Steve Bright is right on that, then we as public defenders
have an absolute obligation at every one of those flash points,
from the moment of arrest until the end of that case to raise
race as an issue and to litigate it fully. If you don’t believe
what Steve and I are saying, or if you need some background
on some statistics to show that is true, Mark Mauer of The
Sentencing Project has written a book Race to Incarcerate
(1999) which gives careful and substantial support to the
manner in which race is inherent in each of those stages. I
would encourage all public defenders and other criminal defense
practitioners to get that book and to interpret and translate
what’s in there for your judges, your prosecutors, your
police and for each other.
We raise race really in two ways, 1) in litigation, and 2) as
managers, directing attorneys and participants in the criminal
justice process. What we are really trying to do by litigating
in every one of these instances with our clients and by
being co-managers of the system is to change Kentucky from
what was the reality in 1954 toward the vision that Senator
Neal and Representative Crenshaw have for our society.
That’s really what we’re doing, we’re about changing Kentucky.
Of course you are representing your individual clients.
But, when you represent your individual clients you are
also changing Kentucky for the better.
Let me give you a couple of brief examples. Back when I
began my 14 years practicing in the trial arena in the Richmond
office, one of the things that I would do from time to
time was particularly, mostly in serious cases, murder cases,
was to attack the jury
commissioner’s system
that we had in place then.
Most of you are young
enough not to member that
system. In the not too distant
past, our circuit judge
Ernie Lewis, Public Advocate
would appoint 5 jury commissioners, most of them appearing
to be Presbyterians in Richmond, and the jury that resulted
looked like a pot-luck supper in the Presbyterian church. Now,
try to try a case consisting of 12 Presbyterians. It’s not pretty.
(By the way, I have been Presbyterian for the last 25 years).
So I, from time to time, would raise that issue statistically.
Once I began trying the case, when I would go out after
choosing a jury, or to go out to choose a jury after voir dire,
this particular judge would tell the panel how certain people
were raising this issue. Those of you who remember this
particular judge after he exhausted talking about all the people
on the walls in the courtroom would then go in to describing
how some lawyers in Kentucky were try to challenge the
fairness of the process. Then I’d walk back in and try to try
a case in front of the jurors who had just heard the judge’s
diatribe.
Raising that issue, and Gail Robinson’s raising it and Kevin
McNally’s raising it and people all over Kentucky raising
that, including civil practitioners resulted in a change. The
Kentucky Supreme Court was receptive to the issue, and
changed the rules so that what you now have is the ability to
try a case before a true cross section of the community. Juries
now look more like you’re trying it at Wal-Mart than at
the Presbyterian Church, because you’re getting a computer
selected cross section using driver’s license and voter’s registration.
I use that as an example because that’s a way you
can go at the race issue, litigating it one case at a time, and
ultimately changing a system.
I have a second example. I tried a capital case toward the end
of my time in the Richmond Office. Three migrant workers
from Taumelipas, Mexico, were charged with having murdered
2 white men in Clark County. Clark County had experienced
a lot of organizing by growers and other white folks
against migrants in Winchester and in Clark County. As we
neared the time of our trial, we received an offer from the
prosecution of life without parole for 25 years. That’s what
the prosecutor thought that they could get if they tried the
case. We had made a motion for a change of venue and it
used statistical analysis to show the attitudes towards specifically
Mexican migrant workers in Clark County at that
time. A very wise circuit judge delayed ruling on that until the
day before the trial was to start. On Friday afternoon, he
called us all together, while the offer of life w/o parole for 25
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