May 2002 - Department of Public Advocacy

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Another example arose when I was the conflict public defender
while in private practice. A conflict was discovered
right before court and I agreed to represent at arraignment a
young man who was in jail and charged with unlawful transaction
with a minor. Consistent with the practice in that
court, I went to talk with the complaining witness to determine
what resolution of the case might be possible. I’d reviewed
the petition and noted that my client, who was 19,
was charged with illegal sexual activity with a minor. Roaming
the hallway, I found a very angry father and a rather
sophisticated looking girl. The father stated that “that nigger
needs to go to jail for having sex with my daughter.” The
daughter, who was 17, appeared to want nothing to do with
this entire matter. The complaining witness was the father,
and he and his daughter were white.
I got the opportunity to meet my client when they brought
him over from the jail. My client was a young black man and
I advised him that I did not think that there was a crime here
since the girl was over the age of consent (16 years of age)
and thus I did not believe this could be “illegal sexual activity.”
I spoke with the County Attorney, explained my position
and asked that he request that the charge be dismissed.
He stated that he would have no objection to the client being
released and sentenced to time served if he would plead guilty
but that he would not agree to dismissal of the charge because
the father was so angry and “illegal sexual activity”
was not defined in the statute. My client’s major interest was
getting out of jail as soon as possible. Thus, after I advised
the court that I opposed that course of action, he entered a
guilty plea.
I explained to the court that I was objecting to entry of the
guilty plea because I believed that my client had not committed
a crime or been charged with a crime and that, in fact, the
only reason he was charged was because he was a black man
THE ADVOCATE Volume 24, No. 3 May 2002
who had had sex with a white girl. The atmosphere in the
courtroom was very tense as I talked about this, but the
client was appreciative that I had spoken the truth on his
behalf.
The third example is a client who was acquitted in federal
court of carjacking and then charged in state court with murder.
The client was a black man and the victims were white. It
was extraordinary for anyone to face a prosecution in state
court for the same transaction for which they’d been tried in
federal court. A question arose about why this particular
client was being picked out. We decided to move to dismiss
the prosecution as vindictive and selective and request an
evidentiary hearing.
The prosecutor was absolutely outraged at what he saw as
an accusation of racism against him. The judge decided that
there was no evidence to support our claim and refused to
grant a hearing. Of course, there was no “evidence” because
it is unlikely that an individual in the position to prosecute
for the Commonwealth would state that they were prosecuting
a person because of their race but the absence of other
successive prosecutions when the possibility had existed
but the defendants were white certainly set off alarm bells for
us. We didn’t even get a hearing on our motion but we hope
it served as a deterrent for future successive prosecutions.
In conclusion, we must litigate racial issues if they are present
in our clients’ cases no matter uncomfortable they make us
and others in courtroom because we owe it to our clients as
their advocates.
Gail Robinson
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Tel: (502) 564-8006; Fax: (502) 564-7890
E-mail: grobinson@mail.pa.state.ky.us
Lexington Police Chief on Profiling
(Lexington Herald Leader, February 22, 2001) Beatty says profiling banned: Lexington Police Chief Anthany
Beatty said yesterday that the police department is continuing to enforce a policy that bans the targeting of
individuals by race. Beatty, who was speaking on a panel at the University of Kentucky, said the police
department continues to track citations and arrests made by officers, watching to see whether blacks or other
minorities are being targeted. “I, as an African-American, fully understand the problem,” he said. Beatty said
that as a youth he watched Lexington officers discriminate against blacks. But he noted the department had
responded to the accusations of racial enforcement made three years ago by adopting a policy banning
profiling. “Whether it was real or perceived, it was an issue,” he said. After the session he said there had been
no complaints of profiling made against any officers since he took office in August.
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