Members of the Washington Association of Criminal Defense Attorneys (WACDL) are all buzzing over an article in the Seattle Times today that the U.S. Department of Justice is investigating the Seattle Police Department regarding their “use of force” policies and treatment of minorities. “About time!” is the comment that pretty much sums up the opinion of most experienced Seattle criminal defense attorneys.
I could not agree more.
Not long ago I was in Island County Superior supervising the felony caseload when an African American defendant had the audacity to appear in court. He and his family were the only people of color in the room. His public defender was making a brilliant argument for his client’s release from jail pending his jury trial.
Never mind that this particular defendant had a ton of prior felony convictions and was looking at serious prison time if convicted. That is not the point. The point is that his lawyer was doing an exemplary job advocating and protecting his client’s constitutional rights, including, above all, the right to be presumed innocent. (After all, it is far more likely that an African American citizen in Island County with a criminal record will be falsely arrested and prosecuted than a white guy like me with no criminal record… it is the other side of the coin when it comes to who is likely to become a suspect.)
So, here is the valiant criminal defense lawyer (yes, public defenders are lawyers too) making his best effort to get his client released from jail, and I am listening to his pitch, thinking that I should order a transcript to use in the classes I teach to trial attorneys. When he finished I just wanted to jump up and applaud. Instead, without missing a beat, the judge grimaced, put his head in his hands, and barked, “DENIED!”, without any if’s, and’s, or’s or but’s.
How do you think that looked to the client and his family of color? Would it have been so hard, to say, “Now, Mr. X, your lawyer makes an excellent argument for your release, and I am very mindful of the fact that you are presumed innocent. Nevertheless, Criminal Rule 3.2 requires me to evaluate a number of factors before making a ruling on this request. Unfortunately, in your case, that means taking into account your prior criminal history, the risk of flight, strength of the state’s case and so on. Based on that I have no choice but to order bail, as you have a history of failing to appear for court and of being convicted of several felonies.”
If only the judge could take a few minutes to say this. But, no. Instead, for all the client knew, he was being held because of his skin color.
This appearance of fairness is just the tip of the iceberg. Years before, this same judge had expressed amazement at our local Law and Justice Council that anyone could find him racist. I explained to him that several of my clients felt that way, and that it was not so much whether he was, but how he appeared to be. If clients felt he was racist, that alone was a problem. He seemed to understand that. However, based on this appearance, I guess he hadn’t learned his lesson.
The Seattle Police Department has the same problem. Although they claim they aren’t racist, when so many feel that they are this is a problem, in and of itself. Let’s hope they finally learn their lesson