Tuesday, April 01, 2008

Hey, guys. Hope everyone is having a good Tuesday. I didn't do a whole lot last night. Certainly nothing interesting enough to merit any real discussion.

In a kind of interesting legal note (or at least interesting to me because it involves the criminal justice system) I saw on CNN today that a judge in Georgia, Marvin Arrington, Sr., has drummed up a bit of controversy for himself. Apparently last Thursday the judge (who is black) excused all of the non-black people from his courtroom in order to give some kind of mini-lecture to the black defendants, attorneys, and onlookers about the behavior of some of the black defendants in his court and about whether or not it was fair to blame their problems on whites (ok, the content of the speech was not exactly clear, but it was something along those lines).

Anyway, the judge's actions seemed to have drummed up controversy for several reasons. At least one of them involves the legal idea of courtrooms as open forums and tribunals which are meant to be open to all people, regardless of color or race. The idea here is that in order to keep everything above board, equal, and fair when implementing the law, the legal process should not occur behind closed doors. In this case, whites may have been made suspicious of some kind of special treatment that's occurring when they're forced to leave, or black people may feel that they've been singled out for some sort of rare and unfair punishment and attention because of their race.

Personally, I'm not sure how to feel about the matter. From a strictly legal perspective, I think the judge was in error because I don't think any judge should ever be allowed to exclude people from a courtroom on the basis of race (closing a courtroom should be a rare thing, anyway, but I definitely think the judge was out of bounds when he selectively removed some people on the basis of the color of their skin). On the other hand, anyone who's worked in criminal courts knows that things go on in them that fall outside of the textbook implementation of the law, and I'm pretty sure that Judge Arrington meant well and truly thought he might be helping some people when he chose to selectively lecture the black people in his courtroom. I guess that, ultimately, I feel like the judge may have been doing the right thing, but that he picked the wrong forum to do it in. If the judge wanted to deliver his lecture to a select audience, he could have done this at any number of other venues (political meetings, church, etc.), but our courts need to remain accessible to all people at all times in order to preserve a feeling of equality and transparency.

I remember when I first started practicing law- I was standing with one of my clients, who happened to be a young black guy, in front of one of our more intimidating, felony level judges, who also happened to be black, and the judge stared my client up and down. My client was wearing a tee shirt from some rap group and baggy pants, and the judge looked him over and launched into a speech from the bench about how, as a young black man "in America today" my client needed to be aware of the fact that he was going to be judged on the basis of his appearance, and in many cases, he would be judged more harshly than whites, who might wear the same types of outfits or clothes but not necessarily suffer the same negative perceptions because of them that a young black man might suffer. The judge went on to state that young black men had to try a little bit harder and present themselves a little bit better than non-blacks if they wanted to receive the same benefit of the doubt that people of other races were afforded. My client left the courtroom being plenty pissed off about the whole thing, and probably a little bit embarrassed.
I think I just ended up resetting our client that day, but I left the courthouse flabbergasted. I was kind of shocked and a little bit outraged that a judge would be willing to bring up questions of race in such a (seemingly) unfair way, and I was sure that my client must have felt that he had been singled out for unfair treatment on the basis of his race.
Steaming, I returned to my office and vented to my boss, Pat Ganne, who had already been practicing for at least 20 some odd years and who had known this particular judge for decades.

"He can't do that! He can't single someone out in court just because they're black!"
Pat just laughed at me.
"He can do whatever he wants. He's the judge."
This was true, but extremely unsatisfying.
"Look, the judge isn't picking on your guy- he's just explaining the facts of life to him. He's telling that kid how the world works, and the judge has seen enough of it to have learned some of those lessons the hard way. And if we go to jury trial on that case, the judge is right- that kid needs to be dressed in a shirt and tie."

It played out something like that. Or at least that's how I remember it.

Anyway, that particular scenario has stuck with me, vivid in my memory for about ten years now. I'm still bothered by disparate treatment on the basis of race, especially in a courtroom, mostly because as flawed as the courts are, they still represent an ideal- people treating each other with respect and dignity, trying to resolve conflicts over extremely important matters (or matters that are at least very important to the parties involved) that might be settled through much less civil means (possibly even violence) were it not for the presence of the legal system. In the legal system, people really need to be able to believe that everyone is going to be treated equally and get the same, fair treatment from the courts, regardless of age, race, skin color, religion, or ethnic background. Without this belief the system loses credibility, and without credbility, it can't really operate effectively.
On the other hand, over time I've seen that the court system doesn't operate in a vacuum, and that the life experiences, viewpoints, and sometimes even the prejudices of the lawyers, judges, and court personnel all play their parts in effecting the operation of the system as a whole.
That judge on that felony case may have embarrassed my client a little, and he may have pointed out real world prejudices that I didn't like seeing in a courtroom, but what that judge may have already understood (and what I was still maybe a little too green or foolish to understand at the time) was that those prejudices were already there. The judge wasn't creating anything new or pandering to baser human emotions that otherwise wouldn't have found their way into the courtroom. He was pointing out things that the prosecutors, jurors, probation officers, etc. had already consciously or subconsciously taken note of. Despite the fact that my young, freshly-trained legal mind wanted to see jurors as purely logical, rational beings who would merely observe the presented evidence, listen to rational arguments, and fairly apply the law, the truth was that the prejudices of the real world were already present in the courthouse. Jurors, attorneys, and judges use their life experiences when analyzing cases and drawing conclusions, and it was unrealistic to expect them not to (thus the "white kids in rap tee shirts are just into music but, to a lot of people, black kids in rap tee shirts look like gangsters" lecture). I think that judge was just trying to prepare my client for the suspicious eyes of the jury, and perhaps more cynically (but still realistically, given the recidivism rate that we see for young defendants who have charges in felony court) for the suspicious eyes of a different judge that this defendant might one day stand in front of on some future case.
Man, once again I am totally rambling, but the point of all of this is that as a big ol', average, middle class white dude, I've mostly been raised and trained to try to deal with issues of race by avoiding them (by and large). I was raised under the kind of unspoken belief that if we avoid talking about racial issues, there will be an unspoken presumption that we're all seen as equals and that we will all be treated fairly. The black experience is, obviously, not my experience, but I have come to question whether I would have that same presumption if I were black. If no one discussed race or matters of racial equality in my presence, would I assume that I was being treated the same way that white people were, or would there always be a nagging doubt about the possibility that I was being treated differently, with that different treatment being politely undiscussed? Maybe these black judges are addressing issues that need to be addressed and discussed if black people are going to really accept the justice system. Maybe its just a lot more honest to openly discuss the weaknesses in the justice system and the steps that black people ought to take to overcome those weaknesses rather than pretending that such weaknesses don't exist (maybe the judge on my case was just trying to help my client get treated fairly, and he thought that dressing more appropriately would help give him that chance- even if it was an extra step that white defendants didn't necessarily need to take).
On the other hand, are the judges perpetuating stereotypes or reinforcing the differences in treatment between blacks and whites by singling blacks out?
Man, I am totally unqualified to answer those types of questions, but the issues intrigue me and trouble me a little. I'm convinced that both of these judges thought they were doing the right thing, and I'm not sure that I'm in any position to second guess their actions (although clearing the court of non-blacks has just got to be illegal or unethical on some level).
Okay. End of post. Hope you guys have a good one. I hope this post didn't some off poorly. This story today just reminded me of one of those moments from my early legal career that I've always been kind of troubled by, so I took the opportunity to ramble on it a bit.


Anonymous said...

If the tables were turned and the judge was white and the lawyers were black,the white judge would surely have been fired.

Anonymous said...

Black people have been turned away from many places that were for Caucasian only. Now you see how we felt. Bugs you doesn't it? But it served to make us stronger.

J.S. said...

I'm assuming you mean when he asked the lawyers to leave the courtroom? An interesting point.

J.S. said...

Actually, it bugs me that blacks were turned away from any place on the basis of their race in the first place, believe it or not.

Eric Bowers said...

As a legal assistant to an attorney in Alabama, most of the cases that come across my desk are racially motivated. I have recently started reading a book entitled 'At The Hands of Persons Unknown: The Lynching of Black America' by Philip Dray. It gives detailed accounts of the American Justice system failing at handling issues involving racial discrimination. However, it was always white court officials and and white representation. To see Arrington's scenario played out as I'm reading this book now would make his actions seem hypocritical and contradictory to the very nature that blacks had to endure for years. On the other hand though, you have to take into account his means and motive for wanting to address his 'black only' audience. There are two different stances you can take on this:

A) The man is merely trying to demonstrate, to his race of people by addressing them specifically in a closed audience, the ideals and hardships that the black race has already been through and that their actions aren't helping or;

B) That he was singling out his OWN race and trying to make a point that it was a 'blacks only' matter, you 'white folks' wouldn't understand.

Last time I checked, I'm not black, nor do I pretend to be. However, being white and living in America, it's common to make the shoot-from-the-hip assumption that it's a form of racism. It's a case of 'black people are excluding the whites, therefor it's racist'. Give me a break. I completely agree with you that this is an uncommon and unpractical means to prove a point, however, to say that it's racist (not saying that you have) or even close to it (as many news sources have deemed it to be) is absolutely asinine and needs to be examined again.

J.S. said...

I agree. I don't think it was appropriate for Judge Arrington to dismiss all the whites from his courtroom, but I don't think his actions were racist. Simply addressing one race at a time doesn't mean that the judge was in any way racist (racism being the belief that one group is superior to another on the basis of race and maybe worthy of different treatment), but I think that all races need to be treated with absolute equality by the judge in order to avoid any appearance of impropriety and to avoid raising suspicions (and suspicions are going to invariably be raised when the judge talks to one group while excluding another- this is the same reason we have rules which typically don't allow ex parte communications with a judge- communications with only one side on a case while the other side isn't present- while a case is going on).

Eric Bowers said...

And you may also agree with me on this, but do you believe that stories such as this one have been trumped up due to the Obama presidential race? I'm noticing a lot more aggressive stances on race since his announcement for nominee... I understand the media plays into this a great deal, but they don't realize (or maybe they do, sick as that is) that people buy into it and we end up fighting over Vogue magazine covers and BLACK judges wanting REPRIMAND young BLACK men. These are old stereotypes that were on the verge of being phased out and we (as a nation) were making baby steps in terms of closing the gap of racial publicity. I by no means think that we should disguise racial incidents, when they are indeed REAL incidents such as Rodney King and James Byrd Jr. (Jasper, TX lynching).

This is media hype but I think it does a serious number to Americans on a social level. I think a lot of the underlying conditions for today's public and private stances on racism is what we're taught in school growing up or, perhaps, what we are NOT taught. This begets an entire society of whites (primarily) that it's ok to keep racism on the down-low. Then when such stories as the afore mentioned in this blog come to light, suddenly it's a big deal and people can't understand why he should get away with it.

And jeez I'm really talking your ear off! I apologize for these long responses, but as you can see, this kind of thing perturbs me.

J.S. said...

I actually do agree that the media is having a negative effect on discussions regarding race issues. I think that people need to be more comfortable in discussing issues about race with one another (especially interracial discussions), but the media jumps on just about any small comment regarding race and tries to portray it as extremely controversial and inflammatory. This ends up making people feel afraid to talk about issues regarding race (because everyone's afraid of saying the wrong thing or being painted in a bad light), and then we end up with a situation where no one discusses issues of race and no progress gets made in the effort to make people of different races feel more comfortable with one another- all because people are afraid to even address these issues in the first place (to your point- the media tries to drum up controversy and put people on the defensive even when that need not be the case. They want to sell add time and attract a bigger audience, and the appearance of conflict accomplishes that more readily than cooperation).