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By Joshua Brownlee

Before getting bogged down in yet another article, ask yourself these questions:

Are 95% of people who are arrested guilty?
What percentage of people who get arrested are innocent?
Does police misconduct or overzealous prosecution increase convictions rates?
How do police know when they make an illegal search or seizure?
What happens to innocent people who are wrongfully accused?

Sadly, people from different communities and backgrounds will have very different answers to these questions. For some, it may be tempting to say “Hey I follow the law, so this doesn’t apply to me” or “Most defendants are guilty of something, right?” The five questions mentioned above are important because the answers have serious consequences for society as a whole. Tragically, most of these questions cannot be answered in the present judicial system. The purpose of this article is to demonstrate the ramifications of not answering these questions.

The ecosystem of the United States criminal justice system is based on adversarial relationships. Judges, prosecutors, law enforcement, and defense attorneys make up separate parts of that fragile ecosystem. Like any functional ecosystem there must be a balance. The system ceases to function properly when parts lack the power to keep the others in place. These checks are not just power point slides from a high school civics class. These entities wield real power that affects hundreds of thousands of everyday people. Let’s start with Defense Council. Public Defenders handle the overwhelming majority of criminal defense cases at both Federal and State levels. HBO host John Oliver recently ran a segment discussing Public Defenders’ lack of funding and overwhelming caseloads on HBO’s Last Week Tonight. If you haven’t seen it check it out. Last Week Tonight Public Defender Episode.

The HBO host does an excellent job covering funding and case load issues plaguing indigent defense and public defenders across the country. Among other things, John Oliver highlights that 90-95% of criminal cases end in a guilty plea (regardless of whether they have a public defender or private attorney). Mr. Oliver goes on to make a number of sound moral arguments about why we should care about funding Public Defender Offices. Unfortunately, at the end of the episode it still feels like a poor person’s problem. This isn’t John Oliver’s fault because it’s a mistake we all make. The American Civil Liberties Union (ACLU) reported that it’s currently suing the State of California for lack of funding for Public Defenders in a civil rights case. Again, at first glance it still seems like a poor person problem. The law suit claims lack of funding for Public Defenders “collectively result in the constructive denial of counsel.” See: Phillips v. State of California. This means a majority of the cases going through that system might as well have no attorney at all. The complaint in Phillips v. State of California lays out some compelling evidence to back that quote up. See also: Justice Policy Fact Sheet.

The evidence presented by John Oliver, the Phillips case, and justicepolicy.org demonstrate that most negligent, improper, or illegal actions taken by judges, prosecutors, and law enforcement in criminal cases not only go unnoticed and unchallenged, but may even be encouraged. The collective result of this practice leads to unconstitutional habits that infect the entire ecosystem. Institutions in the criminal justice system are designed to challenge the other parts. They are not designed to hold back and let a weakened adversary take a breath when it is at a disadvantage. At best this turns into accidental oversteps and at worst it turns into outright abusive bullying by judges, prosecutors, and law enforcement. And here good friends is the awkward part. An average person doesn’t have to look very far to find a fair judge, committed prosecutor, or dedicated police officer. For me, this is the most terrifying fact. Despite dedicated legions of well-meaning loyal public servants, the system is failing. This failure can best be summed up in a very common scenario:

A young police officer makes an unknowing illegal arrest and search in a case. The Defendant is too poor to hire an attorney and gets an appointed lawyer. At arraignment the court room has an overloaded calendar. Judges, prosecutors, and public defenders all have high caseloads. In response to high caseloads, the judge gives higher sentences to those who lose at trial and openly hostile towards attorneys and defendants who ask for evidentiary hearings. In response to high caseloads, the prosecutor adds more charges to accusations to increase the likely hood of a conviction and is encouraged by supervisors and third party activist groups (like MADD) to not reduce cases to lesser charges. In response to high caseloads, the public defender attempts to get the best deal for his clients as quickly as possible so he can talk to the forty other clients on the arraignment calendar. At arraignment (defendant’s first court date), a plea is offered along with a discovery package from the prosecution. After only a momentary glance at the police report and before the evidence can be thoroughly examined by the defender, Defendant pleads guilty to the charges. The officer never testifies and is never made aware that his arrest and search were illegal. Officer congratulates himself on getting a bad guy off the street and remembers “what works on the street”. At the end of the day, Judge nods approvingly at prosecutor and public defender for getting through another loaded calendar.

This scenario is how bad practices begin to take foothold throughout institutions. These bad practices have a powerful effect on anyone implicated with a crime as well as innocent people who have done absolutely nothing wrong. Look on any news channel for examples. James Blake, a world famous tennis player is leaning against a wall and then out of nowhere he is tackled by a police officer and thrown to the ground. See: Video of James Blake being attacked. Police end up apologizing because he is a world famous tennis player and there happens to be video. James Blake was the 4th best tennis player in the world and he got slammed to the ground for no reason. What about all the people who can’t afford lawyers who are not world famous tennis players?

The problem is made worse when the boundaries between prosecutors, judges, and law enforcement start to get blurry. Recently, the Atlanta Police Chief had the audacity to tell reporters “judges and prosecutors need to be on the same page” to get more jail time for repeat offenders. See: Atlanta Police Chief demanding higher sentences.

A Police Chief has no business encouraging a prosecutor and judge to have exparte sentencing arrangements in a court room. What kind of ecosystem of equal adversaries do we have if law enforcement, judges, and prosecutors are all on the same play book? Police officers, judges, and prosecutors must remain separate, not gang up on criminal defendants. The very same law enforcement, prosecutors, and judges that buddy up are the same ones who will prosecute and sentence a corrupt public servant if he or she commits an illegal act. How can they not be biased?

We can’t rely on 1983 civil rights lawsuits to make up for criminal defense council. Most city police officers are good police. Sadly there is a cultural problem within the command staff and the city governments. Police leaders are all too happy to throw individual officers who make mistakes under the bus rather than correct bad habits and have the city be accountable for common practices or policies. Take City of Atlanta for example. Whenever there is a constitutional law suit against the City of Atlanta, the City is quick to deny any and all wrong doing regardless of what they know. If evidence is presented clearly showing wrongdoing authorities abandon the individual officer to avoid the City paying out. This means individual officers who may have been improperly trained or directed by a superior are left to fend for themselves when it comes to damages rather than have the City or Police Department held accountable. Bad habits go unchecked because there is no fiscal incentive for cities to fix problems until they get epidemic. Is it really that bad? The Federal Northern District Court recently held Atlanta Police Department in contempt of court for failing to follow the court’s orders on protecting civil liberties. See: Southern Center for Human Rights article on Judge Batten’s Order. After reading Judge Batten’s Order, one is tempted to call the Police Chief and City of Atlanta leaders repeat offenders.

Police have a difficult job, but all the more reason to be clear about the rules of warrantless searches and seizures. The best way to ensure officers understand their legal parameters is to have their work checked in the adversarial system. By the time civil rights lawsuits come along, it is usually too late. Take DeKalb County earlier this month. Three officers break into a house without a warrant, shoot the family dog, and then shoot an unarmed man. All of this action was based on an alleged 911 call about a suspicious person that was vague a best. See: DeKalb County Police Shooting.

Three officers participated in a search that had no exigent circumstances justifying a warrantless search. Their lack of training almost killed an unarmed father with his child in the next room. Some fathers, brothers, and sons are not so lucky. Let me be clear, I am not saying police shouldn’t defend themselves. People who point guns or knives at police have a death wish. That being said, some police have bad habits that go unchecked for a long time, and those bad behaviors can quickly and randomly hit anyone in a community.

Good public defenders counter balance bad police behavior and overzealous judges and prosecutors. A well-funded and well-staffed state wide public defender system is absolutely necessary for our legal system to function. Despite this fact, every year the Georgia Legislator tries to dismantle or chip away at the public defender system and replace it with the old appointed system. The appointed system saves the government a lot of money because it usually passes on the cost to the defendant. For private attorneys taking appointed cases, there is a strong fiscal incentive to get lots of cases and plea them out early. See: Blog on Georgia Legislature. There are amazing public defender offices but there’re understaffed. Which is amazing considering most legal magazines point out every month how there are currently more attorneys than legal positions available. Despite the glut of attorneys on the market, individual Public Defender Offices have to get by with less staff and more cases every year. This is a funding problem. We need more prosecutors, judges, and most of all public defenders to handle the case loads. It should not fall on a judge or prosecutor to ease up on litigating criminal cases because the system is overloaded, that isn’t their job. Police can’t be expected to manifest objective scrutiny on their search and seizure techniques, that’s not their job. It’s the responsibility of defense counsel, and most importantly public defenders, to challenge those elements in the judicial system with evidentiary hearings and jury trials to bring balance to the adversarial process. Our legal system requires fairness and equality before the law. Not giving those principles to the majority of people that pass through that system, renders Federal and State protections meaningless for society as a whole.

 

 

 

 

 

 

 

by Joshua Brownlee

 

Officer Ness: Hello again, Aspasia isn’t it?

Aspasia: Hi Officer Ness, how are you? Are you off duty?

Officer Ness: Yeah, it’s my day off and I felt like having one of those fancy iced coffees.

Aspasia: Care to join me, I was wondering if I could get your opinion on something?

Officer Ness: Sure, although I’m not in a very good place today.

Aspasia: Sorry to hear that, what happened?

Officer Ness: A buddy from the police academy was chasing some burglary suspects through a neighborhood. I guess he caught up with them and they gunned him down.

Aspasia: That’s horrible.

Officer Ness: He was a really good officer, everyone at the precinct is down about it. I’m guessing you wanted to talk about the shooting on the Southside?

Aspasia: No, not anymore. I have a lot of respect for you as an officer and I don’t want to offend you.

Officer Ness: I don’t know what I’m offended by. I just have a lot of strong emotions when it comes to shootings.

Aspasia: I think you’re entitled to feel that way. It’s much easier to deal with both incidents separately instead of at the same time.

Officer Ness: It is, that’s why the news channels only play the one story. Doesn’t matter which one, they pick one and forget the other. I guess I am angry they give more coverage to the police shooting a civilian and his dog instead of the officer gunned down chasing suspects. I’m not saying it’s right to feel that way, but it’s how I feel.

Aspasia: But they were very different situations right?

Officer Ness: It seems that way, but I don’t know, I wasn’t there.

Aspasia: Your friend, why was he chasing the suspects?

Officer Ness: There was a 911 call about a burglary in progress. It seems that he ordered three men who matched descriptions to stop and they ran away. He called in to dispatch and chased after them. At some point they shot him.

Aspasia: Did he ever fire his weapon?

Officer Ness: It doesn’t appear that he did.

Aspasia: If he shot them first, he would still be alive?

Officer Ness: Probably, he was a former military guy and a top marksman.

Aspasia: Why didn’t he shoot them first?

Officer Ness: It was dark and he probably didn’t see a gun.

Aspasia: So he risked being shot in the dark rather than shoot a group of potentially unarmed men?

Officer Ness: Yeah, that sounds like him.

Aspasia: Your friend was a good officer and a brave man. I’m not sure about the officers on the Southside.

Officer Ness: Why do you say that? They had similar facts.

Aspasia: How so?

Officer Ness: The officers were responding to a 911 suspicious person call?

Aspasia: How many officers were there?

Officer Ness: Three.

Apsasia: Did they ever see a suspicious person?

Officer Ness: No, they only had a vague description of a house.

Aspasia: How did they know they had the right house?

Officer Ness: They didn’t. It was a vague description on the 911 call.

Aspasia: Did the officers have a relationship with the caller?

Officer Ness: No, just a stranger calling it in.

Aspasia: What did the officers do when they got there?

Officer Ness: They snuck into the backyard and went into the house through the back door.

Aspasia: Did they have a warrant?

Officer Ness: No, I think they would claim exigent circumstances.

Aspasia: What are those?

Officer Ness: Those are situations which exempt law enforcement from the warrant requirements of the Fourth Amendment. For example if an officer is in hot pursuit of a suspect, saving a person from imminent danger, or keeping evidence from being destroyed.

Aspasia: Which exigent circumstance would apply to that situation?

Officer Ness: Maybe keeping someone from eminent danger. The suspicious person could have been in the house and hurt the people inside.

Aspasia: But without a description or some distinguishing factor how do they know who is supposed to be there and who isn’t?

Officer Ness: They don’t.

Aspasia: Why did they shoot the dog?

Officer Ness: It was a pit bull, so I guess they thought it was attacking them.

Aspasia: Was it barking before they went in the back yard?

Officer Ness: No, apparently it was sitting with the home owner, his wife and their one year old child watching a movie.

Aspasia: So the TV was on?

Officer Ness: Yeah apparently.

Aspasia: So the police didn’t see light from the TV flickering in the windows? Burglars don’t usually sit and watch TV in a house do they?

Officer Ness: No they don’t. It sounds like the police didn’t look.

Aspasia: So the dog wasn’t barking and burglars don’t bring attack dogs to rob a house?

Officer Ness: Not on any burglary case I’ve worked on.

Aspasia: So they shot the dog because it started barking at them when they entered the back yard?

Officer Ness: I think they entered the back door of the house and it started barking. That’s when they shot the dog.

Aspasia: Were there indications of forced entry on the back door showing someone had kicked it in or broke the lock?

Officer Ness: No, the back door was just opened.

Aspasia: What about the home owner?

Officer Ness: Apparently the man went to go check on what the dog was barking at and they shot him.

Aspasia: Was he armed?

Officer Ness: No, thankfully he was unarmed.

Aspasia: Why thankfully?

Officer Ness: Clearly those officers were high strung, if he had been armed I don’t think he would have lived through it.

Aspasia: So police can break into your house without a warrant, shoot your dog, and then shoot you in front of your family. No consequences?

Officer Ness: No way there will be consequences. There could very well be criminal charges and most likely a civil case against the officers.

Aspasia: Do you think your friend would have done the same thing?

Officer Ness: No way.

Aspasia: Why?

Officer Ness: He would always put himself at risk before a citizen. Hell, he probably wouldn’t even shoot the dog if he realized he was in the wrong house. Knowing him, he would have let the dog bite him because he was in the wrong. Come to think of it, I don’t see him being in that situation in the first place. He knew when exigent circumstances applied and when they didn’t.

Aspasia: How come he knew but the officers on the Southside didn’t?

Officer Ness: Partly because of the character of the officer and partly because of how cases are brought in our jurisdiction.

Aspasia: What does criminal procedure have to do with it?

Officer Ness: In our jurisdiction prosecutors and judges don’t penalize defendants for bringing cases to trial or motions hearings. This means defendants aren’t forced to plea out their case.

Aspasia: I’m still not following.

Officer Ness: At a motion to suppress hearing or a criminal trial, an officer has to take the stand and justify his or her actions under oath on public record in front of a judge. Those hearings teach officers, especially young ones, the functional application of exigent circumstances. If they screw up the judge and defense attorney jump down their throat.

Aspasia: I see, isn’t there a less humiliating way to do it?

Officer Ness: Maybe, but training and manuals can only do so much. Young officers need to be in the field and have their police work scrutinized. When criminal cases are rarely challenged in court bad practices go unnoticed and get worse over time.

Aspasia: So why doesn’t the criminal justice system do that?

Officer Ness: There aren’t enough judges, prosecutors, and public defenders to handle the current cases. So incentives are put in place for defendants who resolve their cases quickly and penalties in the form of increased sentences for those that challenge the state’s case.

Aspasia:  But doesn’t that help get rid of people that know they are guilty?

Officer Ness: Sure, but sometimes you get a kid who is caught with weed but the search is bad or unconstitutional. The prosecutor or judge may have a policy of doubling the sentence if the case goes to trial or motion to suppress hearing. Defendant ends up entering a plea at arraignment rather than taking a risk and the officer never gets called on making a bad search. The bad habits continues year after year.

Aspasia: So judicial efficiency isn’t always a good thing?

Officer Ness: It makes my job easier and saves the tax payers from hiring more judges, prosecutors, and public defenders. I guess it depends on the community, it’s definitely a messy issue. Most people are like the news channels, they only want to tell one story at a time.

Aspasia: I’ll pray for your friend’s family.

Officer Ness: Thanks.

A brief rebuttal on the misconceptions of “the flag” debate and why it matters most in the Deep South.

Racism can take root anywhere, regardless of the country or culture. Tensions between groups of people who look different can be the perfect catalyst for violence and oppression. Given that premise, why do we always focus on the Deep South when we talk about racism in the United States? Racism itself isn’t what’s unique in the Deep South, what is unique is the magnitude, organization, and brutality of discrimination. It’s the same reason 90% of citizens in industrialized countries think of Nazi Germany when they think of the word “Holocaust”. There have been other Holocausts since the 1940’s. Nazi Germany’s discrimination is remembered because it was extremely organized, lethally efficient, and widely accepted by Germany’s population of approximately 67 million people. From 1933 to 1945, 67 million people were apathetic to highly organized State institutions whose sole purpose was to subjugate and destroy an entire minority population. Stalin likely killed more people, and yet school children always remember Nazis Germany first. Of course during the Holocaust, Nazi Germany created a narrative and justification for their actions. After the Germans surrendered however, the rest of the world corrected the fiction. The concentrated effort to fix historical inaccuracies created by Nazi propaganda was necessary to correct the fantasies of psychopaths. In Germany and France, Nazi flags are outlawed. The majority of people in industrialized nations socially shun Nazis supporters from public. We do this because we have conditioned our children to be culturally opposed to Nazi sympathies.

The facts and pictures used to tell the story of Nazi Germany in school text books tells a compelling story. Every child in the United States should remember the pictures in their world history book of ghost like children patiently holding their mother’s hand waiting in line to be gassed. The next picture that follows is a picture of a human sized incinerator in Auschwitz. These pictures were common in our text books because children think in images, they relate to faces, and it’s a powerful way to see past cultural barriers and teach empathy to the future generations. The evil of mass genocide was intentionally burned into our minds at a very young age by educators. Teaching discrimination and slavery in the United States however, especially in the Deep South, is a patch work of inconsistent narratives that disconnects institutionalized terror with “Southern Heritage” and “State’s History”. Our American History books have a picture of a few Klansman, we see a burning cross, maybe a hundred year old picture of a former slave with scars on his back. Mixed with those pictures are pretty hoop skirt dresses, spacious plantations, cotton bails, and heroic depictions of battles fought under the Confederate battle flag in the Civil War. The next chapter briefly discusses Reconstruction and Jim Crow in the same breath and then boom Martin Luther King! Civil Rights is over and we move on to the Cold War.

In children’s history books catch phrases like “state’s rights” and “agrarian culture” are tossed around to offer legitimate moral reasons Confederate States seceded from the Union. As if there could be a moral justification to cause a war revolving around terrorizing black people resulting in 620,000 dead American soldiers. The approximate numbers of blacks sold and transported between 1790 and 1860 in the United States is around 835,000 human beings. There are no good estimates on the number of blacks executed, tortured to death, raped, or lynched during that time period because the South’s “peculiar institution” did not require explanation when human property was destroyed or damaged by the owner. The Southern State governments and the majority of the 9.1 million people (excluding the 3.5 million blacks) were fervently committed to enslaving and trafficking men, women, and children to the point they were willing to sacrifice hundreds of thousands of lives to preserve that practice.

In 1865, the South finally surrendered. During the years of reconstruction the institutions of Deep South discrimination and false narratives were forced underground. As soon as Reconstruction was over, Jim Crow policies sprang up across the Deep South. Again there was racial discrimination across the Union, but there is no comparison to the organization and terror implemented in the Deep South. With Jim Crow came the old narratives, symbols, and justifications for discrimination. The “glorious cause” was idolized and indoctrinated in generation after generation.

Here are some examples of some glaring differences in how white southerners and black southerners view common concepts and symbols of Deep South history (make sure you click on both links for each category):

The Confederate Flag

Common Southern White Narrative

Common Southern Black Narrative

Anti-bellum Period

Common Southern White Narrative

Common Southern Black Narrative

The 1950’s America

Common Southern White Narrative

Common Southern Black Narrative

Besides the Deep South white narrative, we must also address some common defenses culturally implanted by Confederate defenders:

The Founding Fathers had slaves, no one hates them? Some of the Founders did own slaves and that needs to be part of the honest conversation when we talk about the roots of our Republic. Thomas Jefferson and Washington in particular struggled with their hypocrisy. In the first draft of the Declaration of Independence, Jefferson condemned slavery. The Confederate States had no such conflicts. Confederate States left because they chose to start a war rather than treat blacks as human beings.

You shouldn’t erase history. True, but we have an obligation to correct blatant fiction, we do it all the time. Let’s take Robert E. Lee and Nathan Bedford Forest as examples. Robert E. Lee’s treachery to the Union cost hundreds of thousands of lives on both sides. The underlying purpose of this bloodshed was to insure white people’s fundamental right to own slaves and the children of slaves in perpetuity. Nathan Bedford Forest is often portrayed as a cunning daring Calvary man. Romantic Depictions of Nathan Bedford Forest

In reality, Forest was as twisted as any SS man in Nazi Germany, and we should be clear about that fact. A witness from the massacre at Ft. Pillow wrote:

The slaughter was awful. Words cannot describe the scene. The poor, deluded, negroes would run up to our men, fall upon their knees, and with uplifted hands scream for mercy but they were ordered to their feet and then shot down. I, with several others, tried to stop the butchery, and at one time had partially succeeded, but General Forrest ordered them shot down like dogs and the carnage continued. Finally our men became sick of blood and the firing ceased

– Clark, Achilles V

How many buildings, counties, schools, and streets are named after Confederate traitors? What does that say to black people who are still struggling against institutions of discrimination in the Deep South? We pick the stories our children hear, and we choose how to tell those stories. Some fictions of the “Southern Cause” need to be corrected because they are false, misleading, and disrespectful to the mass suffering and horror intentionally inflicted on a population of millions of people. It is immoral to teach our children lies that dismiss the suffering of a large minority of our population.

Liberals are offended by everything and are more concerned with political correctness than protecting constitutional rights. Deep South defenders are not committed to one political party. Currently they have found refuge in the Republican Party, specifically the Tea Party faction. Before that, they hid in the Democratic Party, specifically the Dixiecrats. This debate is not about pitting liberal and conservative ideologies against each other, it’s about correcting and thoughtfully acknowledging the State sponsored domestic terrorism that has been going on for 150 years in the Deep South. State and local governments have absolutely no business carrying on the fictional narratives. If individuals wish to fly one of the Confederate battle flags, they need to realize many will justifiably view that as akin to wearing a white hood. What is our honest gut reaction when we see the Nazi flag? Do any of us really feel that reaction is inappropriate? Many kids of the 80’s watched and loved Dukes of Hazzard, it was a fun make believe TV show. The flag looked cool on the car and Dixie would play every time they jumped across a river. That is fiction. The reality is black men, women, and children hung from trees with burning crosses and Confederate flags proudly flying below dangling feet.

We have a black president and institutional racism is dead. It’s good to see diversity in Government, but the institutions of discrimination are difficult to dismantle. During Reconstruction (1865-1877) blacks were elected to every level of government because they were protected by the Feds. When Reconstruction ended (along with Federal protections) at least 35 black elected officials were murdered by the Klan. It’s tempting to write that off to 19th century history. But the violence and intimidation continued. A few years before the land mark case of Brown v. Board of Education (1954) Thurgood Marshall (who eventually became the first black U.S. Supreme Court Justice) won an acquittal of a black man in a Tennessee Court room. As Marshall left the small town, police pulled him over and drove him to a river bank where a large lynch mob was waiting for him. But for the heroics of Marshall’s co-counsel, the lawyer who would later argue Brown v. Board would have met his end on a bridge in Tennessee. Has it gotten better? Yes it has, but Marshall might say things in the 1950’s were better than the 1870’s. If a person needs further proof, find a county in the Deep South which has a minority population between 35%-60%. Go to any criminal court arraignment calendar in the county (doesn’t matter if it’s city court, state court, or superior court). Bring a calculator. Look at who’s sitting in the courtroom and crunch the numbers. It is not unusual to see minority defendants make up 90% to 95% percent of the calendar.  You can have a black judge and prosecutor and the numbers are the same. That’s institutionalized discrimination, one individual can’t even identify where it’s coming from let alone stop it.

This is my heritage, my family proudly fought for the South. My grandfather’s grandfather fought in the Battle of Atlanta for the Confederacy. There’s nothing wrong with telling people your family history, but it’s important to be honest about that history. It’s difficult to paint ancestors and local heroes as racists because that characteristic overwhelms our memory. But maybe it’s time we started valuing others besides Johnny Reb? Many Quakers were hung because they refused to fight for the South. Where’s their monuments? There are few if any. Honorable Christian people who opposed slavery and violence died for their convictions, they don’t get monuments in the Deep South. Even today, they are silently viewed as cowards by many.

We laugh uncomfortably as small town locals point to bronze Confederate Soldiers saluting with their left hand while facing North (military equivalent to giving someone the bird). We hear the word “liberal” and “politically correct” spit out like curse words to anyone challenging the established narratives of Deep South heritage and pretend that’s a reasonable position. The Confederate fiction has gone on for 150 years. The recent events in South Carolina have given us a bipartisan opportunity to end the historical inaccuracies once and for all. The flag debate isn’t just about a piece of fabric. It’s about finally ending terror and discrimination hiding behind a make believe culture in the Deep South.

 

Dialogue of Aspasia

An Honest Conversation Between an Officer and Citizen

by Joshua Brownlee

 

 

 

 

Aspasia: What’s going on?

Officer Ness: Please stand back ma’am!

Aspasia: Why does that officer have his knee in that man’s back?

Officer Critias:  SHUT UP or you’ll be next!

Officer Ness: Critias worry about keeping him under control I’ll worry about the crowd. Miss we had a group of trespassers in the private community garden and they scattered when we showed up.

Aspasia: Is that man one of them?

Officer Ness: We’re not sure to be honest, that’s what we’re trying to find out.

Aspasia: Do you know his name?

Officer Ness: No.

Aspasia: Why is he on the ground?

Officer Ness: Officer Critias saw him running and told him to stop.

Aspasia: Did Officer Critias see him in the community garden?

Officer Ness: No but he didn’t listen?

Aspasia: Was he running when Officer Critias first saw him?

Officer Ness: I’m not sure.

Aspasia: The man has jogging pants on maybe he was getting exercise?

Officer Ness: Well hopefully we’ll find out one way or another.

Aspasia: I noticed your comrade has his knee in the man’s back and is pushing the man’s face into the dirt. Is that the best way to find out his identity?

Officer Critias: She may be one of them, bring her over here!

Officer Ness: She’s not one of them, they’re all black males. Get the cuffs on him and put him in the car.

Officer Critias: Turn around and get her she’s recording this! She’s going to put this on the internet and we’ll be hearing about this for weeks!

Officer Ness: Are you recording this?

Aspasia: Yes and I will resist if you try and make me stop.

Officer Ness: It’s your right to record this as long as you don’t interfere. When did you start recording?

Aspasia: I started when I walked up to you.

Officer Ness: May I ask for a copy of your recording? Here’s my card, your video may help clear up who was here. Would that be ok?

Aspasia: Sure, I don’t mind helping, but I want to know why that man is being treated so violently?

Officer Ness: Officer Critias is a new to the force. His first assignment was a bad neighborhood and it made him overly paranoid.

Aspasia: Was the neighborhood a black neighborhood.

Officer Ness: Yes it was.

Aspasisa: My father and brothers are black, it bothers me that they would automatically be treated with such violence.

Officer Ness: As long as they didn’t run, I think they would be treated fine.

Aspasia: My brother runs track and my Dad was in the military. They run a four mile route around town. They like to race on the straight parts of the road together.

Officer Ness: They should stop if ordered to do so.

Aspasia: My Dad served in artillery when he was in Vietnam, he’s half deaf. Even if he could hear, he’s too proud to just stop because someone like Officer Critias says too.

Officer Ness: Your father seems like a good man.

Aspasia: He’s the best and he taught his children not to tolerate racists.

Officer Ness: He’s right. What’s your name?

Aspasia: My name is Aspasia.

Officer Ness: Everyone calls me Ness or Officer Ness if you want to be formal.

Aspasia: Ness, people who are black don’t trust police. A lot of us are taught to run from you especially if we’re not doing anything wrong.

Officer Ness: I didn’t know that. I’m retiring next month so I’ll be honest with you.

Aspasia: I appreciate that.

Officer Ness: I’ve been on the force for 30 years and race is a part of police work. We have Black officers, Hispanic officers, and Asian officers. All of them will tell you privately that race is at play in police work.

Aspasia: It shouldn’t be. It seems like police pick on blacks more than whites for stupid little things.

Officer Ness: You’re right that race shouldn’t be a factor but it is. The communities we serve want us to keep the streets safe and they don’t want to know the realities we face every day. The supervisor that trained Officer Critias’ had his partner shot in the stomach at a routine traffic stop by a young black man and now has a colostomy bag for the rest of his life.

Aspasia: That’s sad. How often do officers get shot?

Officer Ness: In our city, every other year or so. Police officers are a small community and we’re very close. One shooting has a dramatic effect for every person that knows or trains with that officer.

Aspasia: Does officer safety trump my race’s constitutional rights and presumed innocence?

Officer Ness: The politically correct thing to say is no, but the actual answer is yes. Last year I collected 58 illegal guns, countless kilos of cocaine and heroin, 3 murder suspects, 9 armed robbery suspects, and about two dozen others for various petty theft crimes. Most of those didn’t come from warrants or informants, they came from traffic stops and gut instincts.

Aspasia: Were most of those suspects black?

Officer Ness: Yes.

Aspasia: Do white people commit crimes?

Officer Ness: Certainly, I have just worked in majority black neighborhoods for most of my career.

Aspasia: So with a neighborhood like this, do you and Officer Critias still look for black faces or do you learn to recognize white criminal suspects?

Officer Ness: I sincerely try to adapt to each little community I serve.

Aspasia: I believe you do. What about him?

Officer Ness: I don’t agree with Officer Critias’ methods, quite frankly he’s kind of an asshole. At the end of the day though I don’t trust anyone else on this street with my life. Before I leave, I hope to guide him to a less authoritative approach.

Aspasia: But I’m a law abiding citizen, why are you afraid of me?

Officer Ness: I’m hope you are, but I don’t know if I can trust you.

Aspasia: That’s not ok.

Officer Ness: No, it’s not, but I’m sad to say that’s the way it is.

Aspasia: What will you do with the man in the back of the police car?

Officer Ness: Dispatch just came back that he has a bench warrant from State Court.

Aspasia: That court is for misdemeanors like traffic tickets?

Officer Ness: Correct.

Aspasia: So isn’t that why he ran, because he couldn’t pay for a ticket?

Officer Ness: Possibly. I have a duty to enforce the warrants though. If you have a problem with your courts blame your elected judges, mayors, and politicians. People always blame us, but I can’t turn a blind eye to an active warrant. If this had been your father or brother I probably would’ve let them go.

Aspasia: I don’t think you would have.

Officer Ness: Why?

Aspasia: My father didn’t surrender at Khe-Sanh, he won’t surrender to you. That makes me scared for him.

Officer Ness: Keep my card, call me if you ever need anything.

Aspasia: I’ll send you my video tomorrow.

 

Dialogue of Aspasia

By Joshua Brownlee

Visit us at: andresbrownlee.com

For the last few decades there has been a growing cultural phenomenon among jurors regarding forensic evidence. Reasonable and intelligent people confuse what’s on TV with what is physically in front of them. Unfortunately these assumptions have dramatic consequences every day in court rooms across the country. The phenomenon comes from the endless barrage of criminal investigation series on television. Shows like C.S.I., N.C.I.S., Criminal Minds, Law and Order, Bones, and Dexter all revolve around clever investigators who are able to catch horrible criminals by using almost magical scientific abilities. The phenomenon also called the “C.S.I. effect” is the belief that all the hocus pocus in daytime TV actually exists and is readily accessible to modern law enforcement agencies. At its core, the “C.S.I. effect” comes from everyday citizens blindly believing that accurate scientific methods exist to identify everything from ballistics (firearms and bullets), hair, fingerprints, blood spatter, breath tests, field sobriety tests, and even DNA evidence without knowing how these disciplines actually come to their conclusions. The “C.S.I. effect” is nurtured by real world forensic analysts and law enforcement with over confidence and biased data.

Let’s take fingerprint identification as an example. It’s assumed by the public that finger prints are unique to an individual and that a match is conclusive evidence of placing someone at a crime scene. In actuality, there is a great deal of disagreement on how many points of similarity should be observed before a match is declared. There is also disagreement as to whether fingerprints are unique, but let’s take that assumption at face value. In fingerprint identification matches are made by finding similar points (the little squiggly curves and lines in your finger print) in a print taken from a crime scene with an already existing sample from a suspect. The first issue, how many points of similarity do we need? Do we need 5, 9, 14, or 21 points of similarity to get a clear match? Forensic scientists can’t seem to agree. The logical question is then: why don’t they just check 30 points to be sure? Unlike TV, most forensic labs have only a few people qualified to test samples. Most forensic labs also have large jurisdictions sometimes covering an entire state or region. Agencies are handling large numbers of samples with limited staff. Given that reality, it’s easy to see why law enforcement and forensic labs would be content to have a reduced number of points to make an identification. When called into trial, analysts testify they have so many hours of training or went to some institute of forensic science. They’ll discuss the procedures of their lab and how it’s double checked with other forensic scientists. The word science is thrown in as much as possible. In truth most forensic disciplines are not peer reviewed by outside groups and more importantly, neither is the data they rely on. Studies that back forensic research are often paid for and conducted by law enforcement agencies or labs that have a clear law enforcement bias. When cornered on inconsistencies the response is usually “well it’s an applied science and experts get better with more experience”. That kind of phrase is a red flag. Scientific results shouldn’t depend on subjective experiences. Once a method is known, a student and teacher should have the same statistical results using the same method. It’s not to say that there is no place for forensic studies. It is fair to say that forensics is more of an art than a science. So analysts who testify in court about fingerprints are making educated guesses that two pictures have similar points.

Another problem with fingerprints is the lack of data on how frequent certain characteristics are in a given population. For example, human beings look different. To find an individual we need to identify certain traits that identify that person from the rest of the species. So let’s take 7 individual factors to make an identification. The factors are: height, hair color, eye color, skin color, foot size, number of teeth, and number of fingers on each hand. There are some variances in these points of identification but many are so common they are not reliable for blind match. It may help an investigation, but does it really close the case to know a 5’9, brown haired, blue eyed, white person with 32 teeth, 10 fingers, and size 10 shoe may have been at the scene? Notice the sex of the suspect wasn’t even identified. This is called frequency testing. Much of the controversy revolving around forensic analysts is due to a lack of frequency testing.

Even for respected peer review sciences like genetic identification with DNA evidence, where frequency testing is supposed to be part of the process there are still problems. Ideally analysts can run allele frequency testing to see how common a particular allele is in a population. But the analyst will only check frequency if it’s requested. Law enforcement agencies will often not request DNA frequency testing because they assume (as do many jurors) that a match of alleles is a solid DNA identification. When law enforcement forget to ask for frequency testing we end up with DNA alleles matching but without an indication of whether an allele has a 99.99% chance of being unique to the individual or if the allele identified is extremely common and could match any sample from any person in the court room.

So why don’t defense attorneys just say all this to the jurors? They do, but one of the most difficult things to overcome when discussing these issues is the blind trust and romantic fascination people have for the Federal and State agencies that analyze samples. Jurors see the expert and think of Ducky from N.C.I.S., Dexter, or that lady from Bones. Now the defense attorney has the difficult job of telling 12 people that’s just a fictional story. The result, silent broken hearts in the jury box (for some people this is like being told about Santa Claus and the Easter Bunny), and the defendant is often blamed. It makes sense. What if Dexter or Ducky from N.C.I.S. were just using junk science to determine a fact? The good guys go from being educated investigators to mystic gamblers fighting crime. The certainty of being right is gone. Dexter isn’t as romantic if he’s torturing innocent people based on a hunch. To be fair, most forensic analysts are trying to do their part in a criminal investigation and generally have good intentions. That being said, good intentions don’t equate to reliable results or remove subjective inaccuracies.  The Washington Post recently ran a story about F.B.I. analysts exaggerating testimony about hair identification. The story stated “Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.”

We may be tempted to think law enforcement still got the right guy because of other evidence, but already 4 cases have been exonerated. This means there is uncertainty, one may even say reasonable doubt in these identifications. The Washington Post also states “cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.” Hopefully there was other evidence to convict, but now a society that values justice and fairness must spend millions of dollars reinvestigating hundreds of cases across the country. Those resources don’t come out of thin air. Scandals like the F.B.I. hair analyst story are uncovered every few years and yet society still clings to the magic of forensic science. We can make reasonable fixes that both support law enforcement and protect defendants from voodoo methods of identification:

  • If an area claims to be science, open all the data to the public and let it be peer reviewed by the scientific community as a whole.
  • Teach scientists who are not obligated to law enforcement these techniques and see if their conclusions are statistically reliable.
  • Hire scientists (people that understand statistics, biology, and chemistry) not analysts to conduct these tests (some forensic specialists have only a high school diploma). When a Defendant is evaluated for competency to stand trial in a criminal hearing a Doctor does the evaluation. Imagine if we let a high school graduate with a few classes in psychology determine a competency evaluation?
  • Finally, if the government and law enforcement agencies want to use these methods let’s stop over working and under paying staff poorly trained analysts. Instead, let’s use some of that forfeiture money to properly hire the right number of people who have biology, chemistry, and statistical backgrounds to conduct these scientific tests.

Everyday forensic evidence is being used to convict people in the criminal justice system from in cases ranging from D.U.I. and drugs to rape and murder. Let’s do it right the first time so society doesn’t have to say “sorry, we destroyed your life, we weren’t as sure as we thought.”

Joshua Brownlee

Visit us at http://civilrightsga.com/

In the trenches of fighting for fair and equal justice, the battle is difficult and often discouraging. Plaintiffs and their lawyers must overcome what often seems to be a hopeless no man’s land of procedure, financial costs, and protective politics. If we succeed, then what? Is the local culture magically transformed with all wrongs mended? Once the Court hands down a favorable opinion many activists hang up their signs thinking the battle over and done with.

U.S. history tells us, in no uncertain terms, an opinion from the High Court is only an opening salvo. The true struggle comes in using that hard won precedent to slowly shape hostile practices and local governments into institutions that value equality and fairness for everyone. Only then do our efforts bear fruit.

A grim reminder of how case law plays out with local politics can be found in the Court’s landmark decision Brown v Board, 347 U.S. 483 (1954). Despite the unanimous opinion of Chief Justice Warren’s Court, clearly holding segregation to be unconstitutional, Southern States dug in and fortified their institutions, defying the Federal Government at every turn.  United States Senator Byrd of West Virginia stated:

If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South

Senator Byrd wasn’t alone in his opposition, President Eisenhower told the Chief Justice over dinner:

These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.

Eventually, President Eisenhower would reluctantly help enforce Brown and its progeny. It is fair to say, President Eisenhower’s support seemed to come more out of a respect for the rule of law and public safety, than a need for fair and equal treatment of blacks and whites. No credible historian would ever say segregation ended with the Brown decision. History tells us that the violence and hatred within the nation escalated with frightening momentum once the status quo was disrupted. Even now, 60 years later, we still struggle with many of the same issues.

I am reminded of the difficulty of enforcing Brown as SCOTUS prepares to decide same sex marriage. 36 States now recognize same sex marriage. Once again the South is resisting, the big holdouts to same sex marriage are TX, LA, MS, AL, TN, KY, and my home state of GA. The U.S. Supreme Court has recently granted cert to three cases dealing with marriage equality. After reading United States v. Windsor, 570 U.S. 12 (2013), it seems very likely the high court will strike down what’s left of the Defense of Marriage Act and hold same sex marriage as a protected right that is to be respected by all states with full faith and credit. Big smiles all around, until I read a statement by presidential hopeful Mike Huckabee:

This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government. . .

As a Southerner, I find Mr. Huckabee’s comments deeply disturbing. Contrary to common belief, individuals in the Southern States are no more hateful or intolerant than individuals in California, New York, or Chicago. Please understand I am not saying we don’t have our fair share of crazy and I’m not excusing people who are intolerant that live in the South, I am saying there are no more of them here as compared to anywhere else in the nation. What is unique in the South, is a cultural tradition of discriminatory institutions. These are the demons of our past. Like mythical gremlins on a perfectly good airplane, institutionalized discrimination hides within well meaning mechanisms of government.

People who are not from the South often have difficulty seeing the difference. A good example can be seen in our criminal justice system. Most prosecutors, public defenders, and judges in Georgia honestly strive to be fair and unbiased. Most prosecutors I know are not racist or intolerant people, on the contrary they take their job very seriously. Despite that, we incarcerate blacks more than whites, we execute blacks more than whites, and minority offenders often get harsher sentences than white offenders convicted of similar crimes. Again, I will vouch for many of Georgia’s Judges, Prosecutors, and Defenders. They are not racist. The institutions those people work in, is another matter. The public defender system is an excellent example. The public defender system in Georgia is critically underfunded. In order to conserve their resources public defenders are forced to determine which defendants receive services, and which do not. This is unfortunately the state of affairs, 52 years after Gideon v. Wainwright, 372 U.S. 335 (1963), which guaranteed the right to counsel during trial.  In many courts, if a person does not qualify for a public defender they are forced to sign a waiver of counsel form. It happens so fast and so often that no one even questions it. If you make just enough money to not qualify for an appointed lawyer, you are forced to waive the right to counsel. That person can certainly go out and reassert the right and spend a few thousand dollars to hire a lawyer, but it is troubling that this is being done on a large scale at arraignments in numerous courtrooms. Compile that practice with a thousand similar ones and you begin to see the old demons at work. They don’t require individuals to operate them, once in place the system operates itself.

Will the same thing happen with same sex marriages? Florida counties are refusing to issue marriage licenses for the sole purpose of blocking same sex marriages. This seems to echo the hateful resistance of desegregation. How will institutions in rural Mississippi, North Georgia, or West Tennessee react to an Equal Marriage Opinion? Will systems be put in place by a few closed minded people that takes decades to undo? I don’t think there will be any comparison to the bigotry that ran rampant in the 1950’s and 1960’s. So no, there won’t be rioting in the streets, churches burning, or civil anarchy, but there will be resistance in some form. Don’t get me wrong, I will be the first to celebrate a favorable decision that finally acknowledges equality to our L.G.B.T. friends, but I would advise civil rights attorneys to keep their phones charged. As we have seen in Brown and Gideon, fair and equal justice takes a while to trickle down.

– Joshua Brownlee

http://civilrightsga.com/home.html

The United States Constitution embodies all the hope and complexities of 18th century thinking. Somehow modern concepts of equality, due process, and freedom of expression were put next to clauses upholding the brutality of slavery and subjugation of women. Our Constitution was not perfect, yet it paved the way for the modern society we live in. What does every person say when we are threatened by authority: “Where’s your warrant?”, “I don’t want to talk to you without my lawyer”, and perhaps the most important “I have a right to speak”. These concepts are part of the foundation of every citizen’s thinking. We take them for granted, but travel outside of the United States and you will see very different schemas at work.

The Constitution has more than a few shortcomings, however it does implement two underlying principles. First, a restriction of government power by separation of responsibilities and authority to govern. Second, it allows for gradual change and growth of our legal systems and government. It is easy to take one of these principles and conveniently forget the other. Marriage, for example, is not regulated or defined in the United States Constitution. Therefore, it would seem that the Tenth Amendment guides us on the issue of life long partnership vows and their benefits. The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Given the Tenth Amendment’s clear language, conservative views of marriage would seem to prevail under individual state constitutions. And so the victory would go to L.G.B.T. oppressors such as Chief Justice Moore of the Alabama Supreme Court who said in a letter to Alabama’s Governor “As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.” Is the Chief Justice of our Union’s most conservative state court correct? Short answer, absolutely not. This is because of the second Constitutional principle, today’s document is not the same as the one from 1789.

Given the Tenth Amendment, how can the United States Supreme Court hold same sex marriage legal in all states? The Federal Constitution doesn’t say anything about marriage, but it does have the Equal Protection Clauses in the Fifth and Fourteenth Amendments. The Constitution also created Article Three Courts. In 1803, the U.S. Supreme Court made a bold declaration:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. (emphasis added).

Marbury v. Madison, 5 U.S. 137, 177-178 (1803). Unfortunately for Alabama’s Chief Justice Moore, the separation of church and state and judicial oversight were decided well over two hundred years ago. The United States Supreme Court has since had to expound and interpret the Equal Protection and Due Process Clauses in order to protect the citizen’s freedoms from a misguided majority (and occasional minority). Most famously in 1967, Chief Justice Warren of The United States Supreme Court held:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. (emphasis added).

Loving v. Virginia, 388 U.S. 1 (1967). Alabama’s Chief Justice wants to reboot the Federal Constitution and Marbury v. Madison and erase 212 years of history and precedent. With only obligatory respect, I must strongly disagree, too many of our countrymen and women have suffered and died to get us here. Healthy debate is always welcome, especially within the legal profession. Refusing to uphold a Federal Court’s decision that protects a group of people’s fundamental rights, rights that are considered essential to existing in a free society is not healthy debate or political opposition. Such acts go beyond disgrace because they fuel institutions of ignorance and bigotry within the government itself.

Joshua Brownlee

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