|The African-American Prosecutor Roundtable
By Angela Downes, Candace Mosley and Whitney Tymus
There are many challenges facing the African-American prosecutor. It is beyond dispute that race and ethnicity have played a significant role in America's criminal case outcomes. While African-Americans comprise just 13 percent of the national population, they make up 39 percent of the population within the criminal justice system. Such statistics have prompted widespread concern over unfair racial disparity, leading to increased oversight of police practices and limitations on judicial authority. Yet, prosecutors continue to enjoy a high degree of autonomy, low levels of external oversight, and unrivaled influence over case outcomes -- exercising virtually unfettered discretion at every significant stage in the life of a case: charging, plea offers, and sentencing. In this context, some commentators have opined that the African-American prosecutor, by his or her participation in the system, is part of the problem to the African-American community.
In response to these issues, in April 2011 NDAA convened a group of African-American criminal justice professionals from a variety of local jurisdictions across the nation for a roundtable discussion on the topic of the African American prosecutor's role in the United States criminal justice system. Discussion topics included the following:
Whether African-American lawyers should be prosecutors;
Whether jury nullification is an appropriate citizen response to unjust laws or practice;
Whether, by participating in the enforcement of criminal laws, African-American prosecutors are widely perceived as complicit in perpetrating racial injustice;
Whether African-American prosecutors tend to exhibit unfair bias toward defendants of color;
Whether, in the face of ineffective assistance of counsel claims, police abuses of authority, or other breakdowns in the administration of justice, African American prosecutors act remedially to ensure fair outcomes.
Participants were selected with an eye toward achieving representation from the bench and bar, urban and rural jurisdictions, and various regions throughout the Unites States. In addition, conveners sought participation from criminal justice professionals believed to have an interest in issues relating to prosecution and racial justice. Points of view expressed herein are varied and no single comment reflects the position of NDAA. Yet, through this article, as a whole, we hope to encourage our colleagues, debunk the myths and stereotypes that undermine our effectiveness, and strengthen the presence of African Americans in the field of prosecution.
Participants: Hon. Judge Judy Draper, Associate Circuit Judge, Division 41 St. Louis, Missouri; Hon. Paul Howard , District Attorney Fulton County, Atlanta, Georgia; Bruce Brown, Assistant United States Attorney for the Southern District of Florida; Carmen Lineberger, President National Black Prosecutors Association; Malcom Harden, Senior Public Defender, Dallas County Public Defender’s Office Dallas, Texas; Claiborne “Clai” Richardson, Assistant
Commonwealth’s Attorney, Prince William County Virginia; Wayne McKenzie, VERA Institute, Director Program on Prosecution and Racial Justice, New York, New York; Candace Mosley,
NDAA Director of Programs Alexandria, Virginia; Whitney Tymas, NDAA Program Director/Senior Attorney Guns and Gangs and Southwest Borders programs, Alexandria, Virginia; Angela Downes, ABA Co-Chair Victims Committee.
What follows is an excerpt from the discussion.
Angela Downes: Welcome to the African-American Prosecutors Roundtable. I'll be your moderator today. NDAA has convened a roundtable of criminal justice professionals to discuss the role of African-American prosecutors in the criminal justice system. We have reached out to a cross section of African-American leaders in the criminal justice profession for this important discussion.
Q. Should African-American lawyers be prosecutors? Why would they even want to be?
Carmen Lineberger: I can say the answer to the question is "yes, yes, most definitely yes." I'm a prosecutor and my father was a prosecutor. He was a prosecutor beginning in 1978, so I say "yes" because you can't change the system unless you are a part of it in a decision-making position. As prosecutors, we are obligated to make sure that the system is fair and that's fair for everybody.
Judge Judy Draper: Absolutely. As a former prosecutor, I agree with Carmen. But I think that, yes, we should be prosecutors and we have to be part of the system because we can ensure that the system will be implemented fairly. Otherwise, if we are not prosecutors and not a part of the system, then we leave our destiny completely in the hands of the majority and we further perpetuate the paternalistic myth that the majority knows what's best for the minority.
Bruce Brown: Obviously I agree with the answer, "yes," and I think the added reason, in addition to what the Judge and Carmen have said, is I tell people all the time that as a prosecutor I police the police and that's not tongue in cheek; that's for real, because in our system, the police can't get a person to a judge without coming through a prosecutor. And so it's a very important role. Part of the great work that Wayne does is trying to sort of snatch the covers off of some of the things that happen very subconsciously, that you're not aware why you're doing them. And I think when you have African-Americans in the room making decisions, challenging decisions, folks are forced to look at the motives behind what they're doing and it's not until all those motives are questioned that we make sure that our system is working, not only effectively, but also efficiently and fairly for everyone involved.
Wayne McKenzie: The other aspect of it as well is we always think of the system and we build it around defenders and defendants. Carmen mentioned something in terms of the impact we can have on juries and even among our colleagues. There are inequities, they cover everyone; it's systemic. So, I can personally talk about the effect on a victim when they walk into a room and, after the shock wears off that this is not just an African-American prosecutor, but a senior African-American prosecutor or a leader. You have someone like Paul Howard walking into the community and representing its citizens, that speaks volumes. Prosecutors make some very difficult decisions that impact people's lives every single day and when those lives involve people who look like me, I want to be at the table being part of that difficult decision-making process.
Paul Howard: Of course, after working as a prosecutor for 31 years, I believe that the answer to the question is overwhelmingly "yes." The reason that I think it is so important for African-Americans to be involved in this profession, which I also think is the greatest profession offered by this country, is that I see my job as one of keeping or making our community a better, safer place to live. That's what I want to do; I want to make this a safe place for my children and other families.
Q. What are our own aspirations as prosecutors and public servants?
Wayne McKenzie: There are three things that we focus on: recruitment, retention, and promotion. And in that regard, we're really interested not in just increasing diversity within our ranks; we're interested in actually growing prosecutors, not just someone who's going to stick around for three or four years and leave. The true power grows as you move up the ranks and you become deputies and chiefs and ultimately district attorneys in your various jurisdictions and, for me, that's what I would love to see in terms of the growth of this profession; seeing more of us, not just as line assistants, not just as supervisors, but as chief prosecutors and elected district attorneys.
Q. What is the public’s perception of the African-American prosecutor? By participating in the criminal justice system, are African-American prosecutors perceived as complicit in perpetuating racial injustice?
Bruce Brown: I think that really depends on where that prosecutor is or sometimes the community perspective on that set of prosecutors. I think that as African-American prosecutors we make a huge mistake if the courtroom is the first time or the first place that people are seeing us in that community. I happen to prosecute where I grew up, so I don't necessarily have to deal with that perception because they see me out in the community coaching their kids or talking to their kids’ way before they ever see me in the courtroom.
Paul Howard: It is very, very important, because one of the things Carmen mentioned is just having a black prosecutor to walk into the courtroom. Before I became District Attorney, when I saw cases that happened in our community, I never saw a black prosecutor who was participating. So, what we do now in our office, it's a requirement. There's going to be a black prosecutor and there's going to be some other nationality or race prosecutor because we want people to understand that we are partners in this process and I think that perception is very important.
Malcom Harden: As a former prosecutor and as a public defender, what I see goes to the policies of the office, to the type of people that are the leadership in that District Attorney's office that's going to make a prosecutor feel comfortable making a decision on a case.
Clai Richardson: If you're in the community, you've already been seen and the perception is going to be different as to where each individual stands, if they're a victim, I think they're going to be looking toward us to help them navigate through the system and protect them as well as showing that you are there to protect the community. I think Mr. Howard is correct in the fact that once the perception is out there, that you are trying to be as fair as possible, trying to protect the community, but on the other hand, making sure that you are doing or making the hard decisions in a fair, non-bias way, even those folks who are going to be part of the system on the negative end may be upset in the beginning, but they understand that you're doing what you need to do.
Judge Judy Draper: I read a brief article on this “Darden” dilemma. I guess, you recall when Christopher Darden prosecuted O.J. Simpson, and I think for the country, it was probably one of the first times that we've had a visible African-American prosecutor and a natural reaction from the public that he might be viewed as a sell-out, that was a misdirected racism, as they call it. I agree with Clai that to assuage those perceptions that the prosecutor is complicit, because they are looking at an individual who is part of the system and who is actually prosecuting their relatives, their African-American relatives, that in order for us to, I guess, limit that perception is to be in the community to let them know that this is simply our job and we should be in the system.
Wayne McKenzie: I've spoken to countless of youth, countless many, many, many law students and yet I have often heard that the initial perception is about being the sell-out and why are we part of this system putting our own people in jail. I've heard that a number of times. So, I'm not going to stick my head in the ground and say that that perception doesn't exist, but what my experiences have also shown is within 15 to 20 minutes of having a conversation, of being exposed that perception or the understanding usually changes.
Correlation Between Drop-out Rate and Crime
Q: Why are there so many defendants of color? What do you think the context of this is? What are the issues in communities that are creating this dynamic? Are there certain criminal laws that are selectively enforced more often against African-Americans?
Malcom Harden: One of the things that I do when I interview a client is to ask them: Did you graduate high school? And it is amazing that an overwhelming number of defendants, especially those charged with felonies, did not graduate high school. They would state: “ I dropped out in the ninth grade; I dropped out in the tenth grade because I got in trouble in juvenile”; on and on and on. And it's just one thing after another in terms of being able to go out and get a job and not do illegal things.
Paul Howard: When you look at the statistics in Atlanta, our graduation rate for African-American males is 44 percent. As we have looked at the folks that we prosecute, this 56 percentile those are the very same people that we see in our courts. With the drop-out rate, the truancy rate, and the third factor being raised by a single parent home or family; I believe those are the three characteristics that probably lend themselves to a large proportion of African-Americans being involved in our criminal justice system.
Carmen Lineberger: I recently moved to Florida from Philadelphia and like Atlanta there are the same problems. There is a high drop-out rate. There is a high percentage of single parent households; and that single parent is usually a woman who has had children at a very young age. The role models come from the street a lot of time and these are also lower economic households. They are desensitized to crime. There's nothing preventing these young people from getting involved in crime, so they get into it because Mom's friends, boyfriends, neighbors are involved in the crime, too. So, to see a shooting means nothing to them, to hear gunshots at night means nothing to them; it's just another day in the neighborhood.
Wayne McKenzie: Even the International Association of Chiefs of Police; recognizes this relationship between lack of a high school diploma and who they're seeing as arrestees on the streets.
Reaching out to the Community
Q: How is community outreach an important role for the African-American prosecutor?
Paul Howard: In the Fulton County office we adopted a program first implemented at the Kings County office with Wayne McKenzie presently with VERA. This program sends our lawyers out to public schools, primarily just to expose those young people to our lawyers. From that effort, our Junior D.A. program developed, bringing young people into our office, and teen courts. We also have a Perfect Attendance program. All of these programs operate around the principle of involving young people, of giving them some additional exposure that they normally would not encounter in their everyday lives.
Additionally, we have the Mobile Crime Unit (MOC) What we do is when certain crimes are committed, for example violent crimes, sex crimes, and certain property crimes, on the next day, we will send one of our victim witness advocates and an investigator to that home; first of all, just to say, "I am sorry that this happened to you and we're going to work with you to make sure that it's rectified." What we also try to do is to immediately try to provide services.
Candace Mosley: I had the opportunity when I was in South Carolina to go out to the detention center for juveniles to speak on two separate occasions and it was a very memorable and moving experience. I had the same experience as many of you have articulated in seeing diverse youth who had never seen an African-American lawyer or professional at all. These kids were smart but cut off in their growth by very unfortunate life circumstances. When NDAA is invited, our administration gives these invitations priority and we go.
Q. Are African-American prosecutors more likely than not to take steps to ensure fairness in their prosecution of African-Americans? And, therefore, would they be more sensitive to, racial profiling than the majority?
Carmen Lineberger: I was recently accused of prosecuting somebody because they were black. All the law enforcement officers were Caucasian. It was a high profile attorney and I can say that having that complaint lodged against me was very offensive. It would have been a whole lot easier for me personally to just cave in and give a deal and I didn't because I didn't want race to play a part in it at all. I personally do not feel that I have met any African-American prosecutor that is unfairly biased toward defendants. I think we're sensitive to it. I think we will speak up probably faster if there was something wrong in the prosecution. But unfairly biased? No. I think we try to right any wrongs regardless of where they are.
Clai Richardson: I think we are more likely to try to ensure fairness. We know the danger signs. We are in a position to question what facts were brought, why the facts were brought; and if something doesn't feel right, we're in a position to ask questions and, unfortunately, we get labeled or confronted with that issue, I think, more as a tactical leverage issue than anything else.
Paul Howard: I think in analyzing this question we also need to look at the structures of offices and to talk about what many of us have talked about today. That is having black supervisors with the power to make decisions, having District Attorneys and chief prosecutors who are African-American, because in most offices there are rules that one is required to follow and so if you are going to unnecessarily discriminate or treat blacks fairly, you still are doing this within some structure in the office. So, I think it's kind of a far-fetched thing to blame and to say that this is something that African-American prosecutors are doing. I think part of the reason this perception becomes fueled is because of the lack of African-Americans being in control of the policies and offices.
Q: Is jury nullification an appropriate response to the injustice of a law or its enforcement?
Judge Judy Draper: Jury nullification is, to me, akin to civil disobedience.I think that we have to be careful because, for example, you have a black defendant who is charged with selling cocaine in rock form face a range of punishment ten times higher than their white counterparts selling cocaine in power, notwithstanding the fact that the “rocks” are cheaper in price and higher prices are charged for “powder.” If a jury is eighty (80) percent African-American because of the jurisdiction, just for example, the weight of the evidence is that the individual is guilty, then if we have a jury that says, "Well, we're going to find them not guilty because we know that the law is unfair." Is that something that we're wiling to accept? And that's not a question; that's just my statement.
Wayne McKenzie: I share the Judge's sentiment. Jury nullification, it's been and always be a part of the American criminal justice system. Now, as a prosecutor and you've chosen to take someone to trial and you feel that the evidence proves this person is guilty, do you necessarily like jury nullification? My strong sense of that is, "no." But on the other hand, given the historical history of jury nullification and the fact that I too see it as civil disobedience, that's something that I'm willing to accept in my role as a prosecutor.
Paul Howard: I really think that the question that should arise is whether or not there should be a prosecutorial nullification and, that is, even though something is technically against the law, it doesn't make sense to pursue it against an individual.
Clai Richardson: I agree with the last statement. I would never agree with jury nullification. I think that's a slippery slope to embrace it in any fashion. The effort should be placed either on the prosecutor who is bringing those cases or the pressure that can be brought from there or the political pressure through changing laws and then through the system. I think, fortunately, the more prosecutors that we have that are African-American that we can at least try to affect- some of those situations.
Bruce Brown: I agree completely with Clai. I think this jury nullification thing puts us on a slippery slope that as African-Americans, we just can't afford. It's never going to have rules to it, it's never going to have a process assigned to it, and we've come up short on that for so long.
Q: When confronted with ineffective assistance of counsel, what is the African-American prosecutor's role in ensuring that justice is done?
Judge Judy Draper: As a former prosecutor. I think the prosecutor should not support any defense attorney's ineffective assistance of counsel; black or white. And I think we should, though, proceed with caution because we have to remember that the record of conviction can very well become tainted.
Whitney Tymas: The question, I think, can also be viewed more broadly, not just as regarding ineffective assistance of counsel, but generally whether we, as African-American prosecutors, see ourselves as being in a position to exercise a remedial influence over the process generally. And the extent that we may have greater sensitivity, awareness's, or understanding of certain types of potential injustice in the process.
Bruce Brown: I think the thing that we get to do as prosecutors is marshalling the evidence in. What I'm supposed to do is to put the evidence in, not take luxuries where I shouldn't, and put my case on and, when I see that the opposing lawyer may not be completely up to snuff, I've got to be dedicated enough to justice and to the process to make sure that I don't take advantage of that. That’s what I think we bring to the table and it's a responsibility that, I think, is very serious and we've got to be dedicated to 100 percent of the time.
Wayne McKenzie: If we call ourselves wearing the white hat, being ministers of justice and the gatekeepers to the justice system, then we have that responsibility and our responsibility is to seek justice and to get convictions fairly. Now, there's a gray area there, because someone may not be as aggressive or as prepared as I am doesn't necessarily mean it's ineffective assistance, but there are those things that we see when we know that the defense attorney is being ineffective and I think you've got an obligation to step up and say something about it.
Paul Howard: This is an important part of our function as prosecutors and I believe that it's one of the important parts of our function as African-American prosecutors, because one thing that I'm sure about is that people in our community demand fairness. That's why they were so displeased with past District Attorneys because they felt that they were not being treated fairly. By treating people fairly, it allows you to walk around without security, without armed guards, because even when you see them, they recognize you as someone who is simply trying to be fair. So, I'm very aggressive about reporting ineffective assistance of counsel.
Wayne McKenzie: I would like to go back to some things that we talked about earlier and that Bruce actually mentioned as well and I know personally how hard we work and the long hours that we put in and all of the various directives that are placed upon us, but we have got to find that additional free time to also engage ourselves in the community where everyone, from that five-year-old up to the 75-year-old, see who we are, what we're about, where we're educating them about the criminal justice system, and actually that's where the pipeline really starts, because another solution has to be increasing our ranks.
Judge Judy Draper: I think convening meetings like this is one way because in order for us to rectify any problem, we have to first discuss it and come up with a solution; obtain input from everyone involved. So, I think there's no other way around it other than to do what we're doing right now and having more meetings like this where everybody puts their experiences on the table with a collective intellect to come up with some type of solution.
The role of the African-American prosecutor is multi-dimensional. There are perceptions from every angle regarding what we do, how we do it, our credibility, and ethical considerations; all these apart from and in addition to those perceptions and misperceptions that we are subjected to as American prosecutors. While there are issues impacting all prosecutors, those that are intrinsic to individuals from unique cultures take on an added level of complexity. The participants of the African-American Roundtable reflected a deep respect for the criminal justice system and the role of prosecutors and how issues of race and culture can dramatically impact the way in which justice is dispensed. The challenge for all prosecutors is to be mindful of the disproportionate number of people of color arrested, prosecuted, and incarcerated. To create prosecutor offices that reflect the diversity of the communities they represent while integrating race and culture into the work place by breaking down stereotypes and biases.
District Attorneys Offices have the communities’ lens of the world focused on them. With our goal of assisting to make all communities safer, it is inherent that those in our profession as well as members of the prosecution team and all allied professionals are educated and made aware of the cultural nuances of the individuals they are tasked to represent as well as cognizant of how these same nuances may impact those professionals who work side by side with them. We have to be the leaders in spreading education and awareness on these issues to ensure that justice and safety continue as top priorities for America’s Prosecutors.