THE ELEPHANT IN THE ROOM

We blog where others fear to tread (type?...whatever). 

Is there systemic racism in the Court system?  Everyone take a deep breath and relax. We can discuss this without becoming over emotional. 

First we look in the mirror. White male. Raised in an enlightened manner in the 1960s, where marching for civil rights was part of our culture. So far so good. But what do we know about racism? When we walk down the street at night do people cross over to the other side because they are afraid of us? Was it hard to get a cab (before Uber)?  Did judges, clients, opponents make certain judgments about us because of our skin color? NO. So how can we understand racism when we have never walked a mile in the shoes of our colleagues and friends who have experienced  racism?  Have we experienced privilege because of our race? Perhaps.  We are self made. Working multiple jobs and taking classes at night to get into law school, and then working every day since the first day of law school. But did we have opportunities to get ahead economically because of our race? Most likely. 

So we do not understand racism at the gutter or gut level of someone who has experienced it.  It is like being shot at- you cannot truly understand the fear until the bullet whistles by your head and explodes into something behind you. Then comes the  sleepless nights years later, wondering why the bullet missed. Try and make someone understand what it is like  to bite into a lemon, or sip a cold beer on a hot weekend in a frosted glass. You can describe the experience, but not understand it until you have lived it. 

Does that mean we cannot talk about racism and try and help eradicate it? No. But when we say that a particular experience or institution is not racist, some of our colleagues react in anger. "What do you know about racism?" they will say or yell. And we will respond "So you mean to tell me you are singled out for a enhanced search almost every time you walk in (this particular) courthouse?" "Yes". 

Now lets translate that into what we do. The police stopped a car and pulled everyone out and searched them. The occupants were African American. Racism? Aggressive policing? Professional Policing? How can we tell? Should a Judge factor a defendant's race into their decision on a stop or search? 

Two eighteen year old young men are sentenced for fighting with their girlfriend and taking her phone and breaking it. Each defendant has a girlfriend of the opposite race. Wanna bet who gets the higher sentence? If the Judge is sentencing one to a stiffer sentence unconsciously, how do we stop this? How do we look inside ourselves and understand our unconscious prejudices? 

Many years ago we represented a middle aged Hispanic man accused of sexually molesting his girlfriend's niece. He showed up in our office in a white short sleeved dress shirt and black tie. His face was pasty, scarred with acne. He wore thick glasses, was balding with thin greasy hair,  and had a nervous tick and he just LOOKED like a child molester, whatever that means. Our legal assistant and young associate both females, could not stand to be around him. And after investigating the case we realized he was 100% innocent. He just looked guilty. We were able to hire someone to change how he dressed and looked, tried the case, kept him far away from the jury and he was acquitted. But we knew going into the case we were dealing with jurors unconscious perceptions. 

Isn't that the real battle these days? The unconscious perceptions about race. Pick two heart surgeons. Both age 50. Fit. Good looking. Distinguished. Each has an air of confidence. One is a female African American. One is a white male. Based on appearances alone,  who would be selected as the better surgeon? How can we change unconscious perceptions and prejudices that have no bearing on reality? 

So what does that mean for the Chauvin trial? By all appearances he killed George Floyd. And for that he should be convicted and punished. But lets change the facts slightly. Lets say he didn't use excessive force. He knelt on Floyd for ten seconds, called for help, had him cuffed and Floyd died anyway and after a trial Chauvin is acquitted. Is it another example of a justice system devaluing the life of a man because of his race? Or do we fix all the prior inequities of the past on Chauvin's back? That is what really worries us. That two wrongs do not make a right. That is why we are worried about this case. 

And yet... a colleague we very much respect replied to us the other day "Where were you when my family members were being lynched? Did anyone care about those wrongs? All of the sudden you care about  justice when this country has had injustice for as long as it has been in existence?" 

We could go on and on. But you get the point, so have at it.