Is it Racist?

Anonymous Harris County prosecutor AHCL, in a post that illustrates the need that she remain anonymous, wrote yesterday about African-American Jurors, Batson, and the D.A.'s Office. She said,

prosecutors are very much aware of the fact that probably every African-American member of a jury panel has been treated like crap at some point during his or her life by a member of law enforcement, or perhaps even a District Attorney's office

and argued that

if a prosecutor is wary of an African-American potential juror, its going to be because that the prosecutor knows the lengthy history of wrongs committed against African-Americans by law enforcement. That prosecutor doesn't want it to affect his case.

. . . therefore, the argument goes, it is appropriate, and not necessarily racist, for a prosecutor to use a peremptory challenge against a black potential juror because of his race.

How can the fact that the vast majority of black potential jurors have suffered at the hands of a concededly racist system justify excluding blacks from jury service? AHCL's position seemed reasonable though worrisome to me at first glance, but on further reflection it's flat-out wrong. A prosecutor has a duty to seek justice -- a prosecutor can seek his idea of substantive justice (a conviction) but can't forsake procedural justice to do so.

Regardless of the purity of the prosecutor's intent, excluding blacks from jury service perpetuates systemic racism and that, no matter what the verdict, is unjust.

Justice?

Gideon wrote:

Maybe I’m naive, but I thought it - what we do, this side and the other - was about justice. Righting wrongs. Then why, for some, is it about winning and losing?

What this side does is different than what the other side does. The other side has (but of course doesn't always follow) an ethical and legal mandate to seek justice. We have an ethical and constitutional mandate to zealously defend our clients.

The nature of justice is something that I spend a lot of time meditating. There are different sorts of justice. For example, there is restorative justice (making things right) and retributive justice (evening the score). Cleaving justice on another plane, there is substantive justice (making things right or evening the score) and procedural justice (regardless of the result, making sure that fair rules are followed).

If you accept that procedural justice is justice, then yes, criminal defense is often about justice. Part of our job is to seek procedural justice by making sure that fair rules are followed. When I say "fair rules" I mean rules fair to our clients. The other side, being the government, is not constitutionally entitled to fairness. Nor is the other side, being a non-living creature, ethically or morally entitled to fairness. So we seek procedural justice and, if we get it, our clients get all possible breaks.

Now, Young Shawn Matlock asks this question: "How many criminal defendants who hire a defense attorney will be happy being led into custody following a loss at trial knowing that justice was done?" and answers it: "None. That's how many." I disagree with Shawn's answer. I have had many clients unhappy with me for having helped them execute their decision to plead guilty, and many clients whose cases have been dismissed as a result of my hard work have acted as though the dismissals were nothing more than their due, but almost every client whose case I have tried has been happy with my representation. Lots of defendants have never had anybody fight for them before; procedural justice feels good to them.

But most (non-defending) people don't accept procedural justice as justice. In the criminal courthouse, it appears to most that the only justice is retribution. When rules fair to the accused are followed and the accused goes free, they call it a "technicality."

In a criminal case, the government is trying to put the accused in a box, whether real (coffin, prison cell) or metaphorical (probation, sex offender registration). The criminal defense lawyer is trying to prevent the government from putting the accused in a box. Sometimes nothing (not even a motion to change the facts) will keep the client out of a box. On those occasions the defender tries to make the box as big as possible (a prison cell instead of a coffin, probation instead of a prison cell, shorter probation instead of longer).

The people trying to put our clients into boxes think they know what substantive justice is. In fact, many of them work for a government agency known (in Newspeak) as the Department of Justice. The Department's official policy (holy writ to official woman) is to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case." So federal prosecutors must, according to law, seek justice, but must, according to policy, seek "the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence." In DOJ-world, substantive justice is what Congress and the Guidelines Commission say it is.

(A slight digression: the "charge the most serious offense" policy was a contribution to the American criminal "justice" system by proud evangelical Christian John Ashcroft; if Jesus had followed this policy, though, he would most assuredly have cast the first stone.)

Many of us who are forced by the lack of official policies to think for ourselves recognize that nobody -- including those charged with seeking justice -- has the slightest idea what constitutes substantive justice. We don't know what substantive justice is: we don't know what size boxes our clients deserve or, often, whether they deserve boxes at all. Not being omniscient, we can't know what substantive justice is. It's not our job to try to figure out what substantive justice would be, and it's damn sure not our job to seek it.

What about "winning"? Norm Pattis rejects the concept in favor of advancing his clients' interest (a definitional quibble, in my view; Norm views the term "winning" as part of the sports metaphor of trial that he rejects, but the concept of "winning" isn't really "drawn from sports"); Malum ignores it in favor of filling in the blanks in the government's poorly-written story (a nice way of putting it); Scott and Stephen accept it implicitly (Scott writes that "winning often has little to do with justice" and Stephen discusses "the winning argument"); and Matlock adopts it wholeheartedly.

"Winning" is a vague term. An ethical prosecutor might consider an acquittal a win, and a defense lawyer might consider a conviction a win. By "winning" I doubt that Scott or Stephen or Matlock means anything other than "getting the best possible result for the client." I'm okay with defense lawyers seeking to "win" as long as winning and losing refer only to the client's interests, and not to the lawyer's ego. Sometimes, though, the goal is not to win because winning is impossible. Sometimes the result of a trial is a foregone conclusion (though we usually, in the grips of trial psychosis, convince ourselves otherwise). Sometimes (rarely, but sometimes) we try cases because we have nothing to lose: the inevitable result of a trial is no worse than the result of a plea.

If we have no hope of winning, why do we try those cases? I have an idea about that; more tomorrow.

I'm Back

Bennett & Bennett are back from seven days in Paris.

A few of the things the French do exceedingly well:

• Food and drink.
• Subterranean transport.
• Historic preservation.
• Clothing.

Something the French do less well:

• Technology.

While the hotel at which we stayed in the 7th Arrondissement provided, in theory, a high-speed internet connection, that mostly-theoretical connection didn't work well enough to stay online for long enough to do more than just check email. And while I had planned to have GMail forward emails from our answering service to SMS on my French cellphone, I discovered that this was a non-trivial undertaking, and that my French -- limited mostly to cognate words of Spanish -- was not up to the task of explaining what I wanted to the cellco's customer service reps. Even in league with the hotel's concierge and the sales guy at the cellco store across the street, I was unable to make the email-to-SMS connection.

No matter, though. I needed a week away from constant and instantaneous communication with clients, potential clients, and everyone else who needs my help from time to time. It was, as I noted before, a well-deserved break; I recommend it highly.

I did check email a couple of times a day, and had young criminal defense lawyer extraordinaire Sarah Wood covering for me, so the practice didn't self-destruct. But, with wine to drink and museums to tour, I couldn't be bothered to blog much, or even to keep up with happenings in the practical blawgosphere. So I was pleasantly surprised on my return to find that Gideon's post about whether it's about justice or winning had triggered some discussion of one of my favorite topics: the nature of the criminal "justice" system, especially as it affects the players' roles and responsibilities. I'll have a good deal more to say on that a little later today.

Until then, here are the contributors to the discussion so far: Malum, Norm Pattis , Stephen Gustitis , Scott Greenfield , and Matlock (thanks to Scott for the links); and here are some of my earlier posts related, generally, to the topic: A Truly Compassionate Profession Redux, Different Sorts of Justice, Who Are You Helping and Who Are You Hurting?, Right v. Legal -- an Example, Right v. Wrong, Vanity, and Unimpressive.

Why Let Juries Sentence?

When Texas legislator Scott Hochberg sought to ban probation for murder, he was able to get a bill passed preventing juries from recommending probation in murder cases. Judges can still, if prosecutors play along by agreeing not to have jury trials, put people on probation for murder.

If things had to change (there really was no good reason; Rep. Hochberg's yearning to change the law was reportedly based on one probation decision by a jury with which the representative didn't agree), this is the opposite of how they should have changed. The Texas Legislature has, once again, taken power out of the hands of the people (juries) and put it in the hands of bureaucrats (prosecutors and judges).

Justice is not something that can be defined by fiat. Justice is a personal moral judgment, and -- except for parents trying to imbue their children with morals -- no person is competent to tell another what justice is.

If you ask a judge to tell you what justice is, you're not assured of getting justice. There's some chance that you'll get what that judge considers justice, and if you're lucky it'll be something you can live with, but there's no reason to think that a judge has any more of a clue about justice than the man on the street. Judges (especially elected judges, and most especially those elected in partisan elections) aren't generally selected based on their life experiences and wisdom. In fact, our elected judges are often young and callow, with no life experience beyond the halls of the District Attorney's office.

Justice is not something that can be legislated. Legislatures are filled with politicians: crooks, addicts, and perverts who have been trying all their lives to prove that they are not crooks, addicts, and perverts by passing draconian laws against other crooks, addicts and perverts (I don't have anything against crooks, addicts, and perverts; hypocrisy is by far the greater sin). Politicians are the last people we should be expecting to tell us what justice is.

Justice is certainly not susceptible to the paint-by-numbers approach taken by states using sentencing guidelines. No two crimes are identical, no two victims are identical, and no two offenders are identical. Sentencing guidelines may eliminate unwarranted disparities, but they create something far more insidious: unwarranted similarities. Sentencing guidelines promote consistency, but only of the foolish kind.

So, if judges, legislatures, and sentencing commissions are not competent to declare, "this is just!", how do we achieve justice in the criminal courthouse? We can't. Because justice is a personal moral judgment, nobody will ever make a justice-decision that everybody else agrees with. We talk about justice in the courthouse, but the very best we can hope for there is that the results thee reflect the community's sense of justice. Since nobody will ever agree, "this is justice," the best we can do is approximate, in each case, what the community might consider justice. And that's why we let juries decide sentences.