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How the Original Atticus Finch*, the Righteous Lawyer in To Kill A Mockingbird, along with Other Dramatic Works, Influenced My Becoming A Public Defender And Writing My Novel, Gideon’s Children

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When 1960 opened the door to the tumultuous decade of change to follow, I was in my sophomore year in business school at the University of Southern California. That summer I read the recently released novel, To Kill A Mockingbird, and was profoundly impressed by its lessons that emphasize tolerance and decry racial prejudice. The novel’s protagonist, Atticus Finch, who displayed tremendous courage in representing a black man accused of rape in the face of open hostility by the white community in which he lived in the American Deep South, made a like impression, serving as he did as a moral hero and model of integrity. And as these teachings filtered through my conscious mind and touched a nerve deep inside me at the same time that the fledgling Civil Rights Movement began to occupy center stage in newspapers and on television, the idea of becoming a lawyer and fighting racial injustice in the courtroom took hold.

Later the same year, I viewed a movie, Inherit The Wind, based on the play by Jerome Lawrence and Robert Edwin Lee (no relation to Harper Lee, Mockingbird’s author), and fuel was added to the proverbial fire. A fictionalized account of the 1925 Scopes “Monkey” Trial, in which Scopes, a high school teacher was prosecuted in Tennessee for teaching evolution, and in which the famous attorney, Clarence Darrow in defending him faced off against the equally famous William Jennings Bryan who led the team of prosecutors, as the drama unfolded, I was once again mesmerized by the idea of how one lawyer, with courage and dedication, fortified with careful preparation, could fight for truth, justice, and a free society of ideas.

In 1963, I entered the Boalt Hall School of Law at the University of California, Berkeley, and that year, the U.S. Supreme Court handed down the landmark case of Gideon v. Wainwright, standing for the proposition that if an individual is charged with a crime and is too poor to afford counsel, one will be provided to him or her free of charge. Reading about the story behind the case in Gideon’s Trumpet by Anthony Lewis, a non-fiction book whose author possessed the narrative power of a novelist, in 1964, my focus was fixed on the Criminal Justice System. Realizing that the decision compelled the birth of large-scale Public Defender Offices, during the summer after graduation in 1966 I clerked for the L.A. County PD Office, and became a Deputy Public Defender thereafter.

Stationed in the Compton Judicial District, a low-income area hosting a large minority population of African and Latino Americans, it was my privilege to serve there for several years, and alongside my colleagues to fight for fair treatment and justice for that population.

Today, all phases of the American Criminal Justice System are in crisis. And that is why I was inspired to write my novel, Gideon’s Children, to educate readers about the birth of the large-scale Public Defender Offices in the 1960s, and the mini revolution they created in the courtroom as part of the greater Civil Rights Movement. And my hope is that while the reader is being entertained by a fascinating drama, that he or she will also learn about the workings of the Criminal Justice System, the supreme value of individual constitutional rights, and the crucial role Public Defenders play in protecting same.

With the latter under attack today by the Patriot Act, the No-Fly Rule, and government spying at all levels, and racially-tainted tragic events in Ferguson, Detroit, Staten Island, Cleveland, and North Charleston propelling a growing discussion of the desperate need to fix our broken Criminal Justice System, G.C. seeks to contribute to enlarging that discussion and further stimulating the New Civil Rights Movement that is now underway fifty years after the original.

I chose the novel form to bring this vital message to the attention of readers, because of my belief that the drama that this genre offers presents the best opportunity to capture and hold an individual’s attention over a period of time sufficient to allow the message to sink in and become indelibly imprinted. As I looked back at the books that made such a profound impression on me, I found that all of them first entertained me to capture and hold my attention, then with me intensely focused on the drama, effortlessly educated me about the need to banish racial prejudice, the First Amendment’s freedom of ideas, and the right to counsel, before finally inspiring me to become engaged.

The heroic courage and high moral standards exhibited by Atticus Finch, Harper Lee’s fictional righteous lawyer, and echoed by the characters based on the real-life Clarence Darrow, entertained and educated and ultimately inspired me to participate, to become a Public Defender, and to write Gideon’s Children. And my wholehearted hope is that G.C. will entertain you, and educate you about the workings of our Criminal Justice System, and the crucial role Public Defenders play in protecting the supremely valuable constitutional rights that each of us enjoys. And ultimately, I pray that you will be inspired to support our Public Defenders by lobbying your governmental representatives to provide the funds to vastly increase their numbers so that their caseloads will be reduced to reasonable and they can labor at their best to serve the interests of justice.

Public Defenders are today’s righteous lawyers. They are real, flesh-and-blood men and women who day after day, underfunded and overworked, and mostly alone, face off against the massive power of  the State, courageously seeking justice for their clients and protecting our precious constitutional rights. They are noble warriors, and they deserve  the support G.C. urges you to give.

*It has come to my attention via a book review in The New York Times on July 10, 2015, that in Harper Lee’s latest novel, Go Set a Watchman, the reader is presented with a second version of Atticus Finch that harshly contradicts the original character in To Kill a Mockingbird, portraying him as a racist who attends a Klan meeting and rails against desegregation.

I have not read Watchman, no do I plan to. It is my opinion that those persons responsible for the publication of this book, which tarnishes the reputation of the iconic “righteous” lawyer in what amounts to a paragon of crass commercialism, should be ashamed of themselves, and I refuse to contribute to their profiteering, and urge others to do likewise.

The Rule Of Law: Without Trust It Fails

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I focused on two of the World Justice Project’s four elements that form a working definition of the Rule Of Law, namely: Accountability and Even Enforcement. In that post, as well as several prior ones, I have stressed that the Rule of Law founds our society, and that in turn, trust founds the Rule, and Accountability and Even Enforcement found trust.

Yesterday, in The New York Times I read that two weeks ago four members of the British Parliament (two from the Labour Party and two from the Conservative Party) had traveled to Washington D.C. to argue for the immediate release of Shaker Aamer, a detainee at Guantanamo Bay Prison.

Mr. Aamer has been in American custody since he was apprehended in Afghanistan in 2001 where he was doing charity work. And after a stay in Bagram Prison, where he was tortured, he was transferred to Guantanamo in February, 2002, where he has remained for thirteen years without ever having been charged with any crime.

In our Criminal Justice System, the law requires that when a person is arrested, that he appear before a judge in court within a specified time period, usually 48 hours, and learn the charges against him. Under the Patriot Act, an enemy combatant has no such rights, and while I understand that in order to combat terrorism, those charged with the responsibility of doing so must be given some extra leeway, that flexibility to gather evidence and formulate a case should still be consistent with the concept of due process. Not being a terrorism expert, I’m not sure of what the time period for filing charges should be. However, I am sure that the Rule of Law requires the application of the principle of reasonableness, and that indefinite unequivocally fails to meet this test. Our federal government has never explained why, to keep us safe from terrorists, that if they suspect a person of being connected to terrorism, they cannot gather enough evidence to charge that person with a crime within a reasonable period of time.

So: Accountability score: Zero, as in none.

And to make matters worse, in 2007, during the Bush Administration, Mr. Aamer was cleared for release, but remained incarcerated. And in 2010, under President Obama he was again cleared for release after six agencies, including the CIA, FBI, and the Departments of State and Defense unanimously concurred, but remained in prison. And even after England’s Prime Minister, David Cameron, while visiting President Obama earlier this year, asked for his release and President Obama promised to pursue the matter, Mr. Aamer still remains in Guantanamo.

Why? There may be some security issues, is what the four members of Parliament were told. After 13 years, without a single charge being made against Mr. Aamer? When he’s been cleared for release twice? Utterly unconscionable! is the only term that comes to mind to describe the actions of all three branches of our federal government.

And a serious blow to the essential element of trust, to boot. For if government officials at the highest levels are blatantly unaccountable, why should we trust the Rule of Law?

But it’s only one case, runs the counter-argument. Well, stop and consider that the same Patriot Act that has resulted in Mr. Aamer’s tragic situation also applies to you and me, so just pray that some official in our security apparatus doesn’t designate one of us as an enemy combatant.

For an encore, this morning’s New York Times reported that Kalief Browder, a young man who was held at the Rikers Island Jail in New York City for three years without ever being charged with a crime, committed suicide three years after his release. It appears that Kalief was unable to recover from repeated beatings by correction officers and fellow inmates, and the two years he spent in solitary confinement after refusing several offers from prosecutors to take a plea deal. His mother reported that while Kalief did obtain his GED and started community college after his release, he was never able to recover from the years he spent locked alone in his cell for 23 hours a day and suffered a steady deterioration of his mental health.

Where was Kalief’s Public Defender, and why was he not arraigned in accordance with New York state law within 48 to 72 hours? And how can that misfeasance swell to 3 years? And who is responsible for this tragic miscarriage of justice? No answers to any of these questions exist in the article, and I was unable to discover any by researching the issue on the internet. New York’s mayor, DeBlasio, has called for a major reform of Rikers, and in a statement, said: “Kalief’s story helped inspire our efforts.”

Accountability score: Zero, as in none. And another serious blow to the element of trust, so essential to the Rule of Law.

And to demonstrate how trust is being replaced by distrust in the minds and hearts of many of our fellow citizens, this morning’s New York Times also reported that in Cleveland, “Community leaders, distrustful of the Criminal Justice System, said Monday that they would not wait for prosecutors to decide whether to file charges against the police officers involved in the fatal shooting of 12-year-old Tamir Rice last year.” Ohio is one of a few states that have a statute that allow residents to request an arrest without approval of the police or prosecutors. And not trusting the prosecutors in Cleveland, who work closely with the police, and who will proceed by the secret grand jury process, community leaders have instead chosen to directly petition a judge, so as to obtain an open hearing with evidence provided by all sides involved.

Who can blame them, after so many unarmed African-Americans have been killed by police, and with rare exception were the incidents fairly and openly investigated?

For a significant portion of our fellow citizens, and in particular people of color and the poor, events, from Ferguson, to Cleveland, to Detroit, to North Charleston have seriously eroded the trust that is essential for the Rule of Law to continue governing our society. As my novel, Gideon’s Children, illustrated, the growing conversation about the crucial need to fix the serious problems in all phases of our Criminal Justice System needs to grow larger and louder now! Please let your municipal, state, and federal representatives know that reform should be at the top of their list of priorities. Nothing is more important than ensuring that the Rule of Law continues to found our society and all of the citizens who comprise it!

The Rule Of Law: Accountability Requires Recognition Of Everyone’s Humanity

In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I noted that four principles formed the World Justice Project’s working definition of The Rule Of Law, and thereafter focused on accountability as one of the two most crucial factors in building the essential element of trust that underpins this Rule on which our society is based.

In an article by Gary Younge, the brilliant New York correspondent for The Guardian newspaper, which I received via a blog post on Goodreads (Younge post), Gary pointed out that all lives matter, and the failure of U.S. governmental authorities “to keep track of how many people its police kill” detracts from their humanity. In agreement with this opinion, and the loss of accountability that it entails, I responded to Gary’s post on Goodreads as follows:

Gary,

Your point is well taken. In the era of high-tech, where computers have made record keeping easy+, one could validly argue that the failure by governmental authorities to record the names, ages, race, and other vital statistics of every person killed by police is deliberate, and intended to dehumanize these individuals.

As my novel, Gideon’s Children, illustrates, Public Defenders must constantly remind judges, juries, and other court personnel, that their clients are human beings. Cases begin with the Judge stating: The People versus Joe or Mary, and prosecutors constantly cloak themselves in the aura of The People, i.e., The People will prove, the People contend, the People object etc. As my characters do in Gideon’s Children, when I was a Public Defender, when the jury was being selected, I would ask potential jurors if they realized that the term, defendant, was just that, a term, and that my client was a person. Thereafter, I used to object in open court to these constant People references, so that I could remind the judge and the jury that my client was a person, a real live human being, and one of the many individuals who comprise the People of the State.

This effort to dehumanize by the white power structure, which was begun in the era of slavery, then furthered fostered during the Jim Crow Era, was poignantly illustrated by Ralph Ellison in his classic novel, The Invisible Man. And while American Society has made progress on the issue of race, it remains a serious issue as recent events in Ferguson, Staten Island, Cleveland, North Charleston, and Baltimore serve to illustrate.

Under The Rule of Law which founds our society, everyone must be accountable, and that includes the individuals who comprise our government.

In conclusion, I would emphasize that the essential element of trust underlying The Rule of Law cannot be maintained if those responsible for enforcing the law are not subject to the critical principle of accountability!

The Rule Of Law: Fair Or Foul

Two of the hottest topics receiving media coverage today are Income Inequality and The Rule of Law, the latter founding both the civil and criminal aspects of the American Judicial System. Recently, I read a concise yet well-documented treatment of these interrelated subjects, The Golden Rule: How Income Inequality Will Ruin America, by Renwei Chung, the brilliant young columnist for the highly regarded website Above The Law. In this post, I want to focus on Rule of Law as it applies to our Criminal Justice System, leaving the civil aspect for a separate post.

In his book, Renwei cites the World Justice Project’s four basic principles for a working definition of The Rule of Law, which are as follows:

  1. A system of self-government in which all persons, including the government, are accountable under the law;
  2. A system based on fair, publicized, broadly understood and stable laws;
  3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced; and
  4. Diverse, competent, and independent lawyers and judges.

Now while all four principles are important, I want to focus in this discussion on numbers one and three, accountability and even enforcement. For above all, these two factors are crucial in building the essential element of trust which underpins the Rule of Law. Our society is based on law and the attendant order it brings. And the great majority of citizens follow the Rule, because they trust that its workings will result in a just society.

Let’s take a look at accountability. The principle dictates that all persons, including the government, must be accountable under the law. In the past few months, numerous incidents have occurred involving the deaths of unarmed individuals at the hands of various police agencies. Most police departments prefer to handle such incidents by having their Internal Affairs Departments investigate the officer’s conduct, or have a Grand Jury do likewise. Both of these methods do not offer the transparency necessary to produce accountability. The Internal Affairs Departments conduct their investigations in secrecy, without the public being privy to the testimony of witnesses, or other forms of evidence. And Grand Jury proceedings are likewise conducted in secrecy, with same being led by a prosecutor, who works with the police on an on-going basis, and without any other attorney or attorneys present to cross-examine witnesses or challenge the validity of the other forms of evidence presented.

All too frequently, the finding is that the officer or officers involved in a given incident acted properly. But the lack of transparency leads the general public, which is presented only with the investigation’s conclusion, and which might be perfectly proper, to sense a failure of accountability, and hence the Rule of Law. In the recent Baltimore incident, the District Attorney charged the officers involved in a method that will result in a trial that is open to the public and the media, thereby providing a forum where the officers start with a presumption of innocence, evidence can be provided by all parties concerned, and a judgment can be arrived at that honors transparency and accountability.

I am not suggesting that every incident of this type requires a full-blown trial. However, where the conduct of those individuals charged with the responsibility of enforcing our laws is called into question, I am suggesting that the investigation of that conduct must follow a process that is totally transparent in order to ensure that the principle of accountability is being followed, and faith in the Rule of Law is justified.

Of equal importance in maintaining trust in the Rule governing our society is the even enforcement of the laws we are all commanded to obey. And in this area, recent events give cause for serious concern.

As depicted in my novel, Gideon’s Children, our prisons are overcrowded with individuals who have been convicted of crimes involving drugs, the overwhelming majority for being in possession of relatively minor amounts of a proscribed substance. They broke the law, and they must pay the penalty, argue the adherents of the War on Drugs.

However, a totally different picture is painted if one enters the rarified atmosphere of white-collar crime, particularly if large corporations or elite Wall Street investment banks are involved.

Last week, five of the world’s biggest banks plead guilty to an array of felony criminal anti-trust and fraud violations for rigging the price of foreign currencies. All five paid enormous fines of billions of dollars, but no one is being sent to prison. This, of course, follows the pattern born in 2008, when the largest Wall Street investment banks packaged sub-prime mortgages into investment securities that virtually no one understood, and then added credit-swaps to engineer a economic crash that without intervention by the Federal government would have produced a depression that would’ve made the Great Depression look like a Sunday-school picnic, with no major person going to jail.

In 2014, an internal investigation of General Motors by General Motors condemned a decade-long failure to fix a deadly safety defect with respect to a faulty ignition switch installed in hundreds of thousands of its cars, and which resulted in a huge number of accidents and at least 13 deaths. Fifteen employees, including one vice president and a senior lawyer responsible for product liability cases, were dismissed.

Dismissed? Okay, that’s an obvious first step. But why was not one single person held criminally responsible for his or her totally reprehensible conduct? The report indicates that complaints had come in steadily over a ten-year period, including reports of deaths, and that despite internal discussion of same with engineers and amongst senior executives, nothing was done to correct the matter, nor did anyone blow the whistle. When negligence reaches a level of grossness such as occurred here over a ten-year period, with deaths occurring, criminal charges are clearly called for. Yet not a single person was charged.

Undoubtedly, this seriously sad fact was factored into the game plan of Takata, one of the largest suppliers of airbags in automobiles, in denying for more than a decade that its airbags were defective even as motorists were killed and maimed by exploding airbags. Apparently it’s more financially beneficial via a cost-benefit analysis to settle the relatively few lawsuits that occurred over a ten-year period than to initially admit the problem and issue a major recall. Finally, on May 20th, Takata admitted that its airbags were defective and agreed to double the number of vehicles recalled in the U.S. to nearly 34 million. Fines? Oh, yeah, they are sure to accrue. But how about something stiffer, like prison time for those who tried to cover this up and hope that the problem would go away? How about letting executives at major corporations know that if similar incidents occur, there will be major consequences, that you can’t just pay large fines, then compute them into the cost of doing business?

Moreover, this disparity has a cancerous effect on the trust element underlying the Rule of Law. If some of our fellow Americans can draw prison sentences for being in possession of heroin or cocaine, but executives who conspire to rig currency prices, or consciously decide to ignore product defects that kill or maim their trusting customers, only have their corporations pay a fine, what does that do to faith in the Rule of Law? What lesson is our Criminal Justice System teaching us, and our children? And what other areas of our society are likely  to be infected?

All of us need to let our governmental representatives know that we condemn this unequal enforcement of our criminal laws, and that executives who conduct themselves like those at GM and the banks and investment banks referred to herein above need to be punished in accord with the crimes they commit.

The Force Behind Gideon’s Children

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Recently I have received emails referring to my novel, Gideon’s Children, inquiring as to why I wrote it, and why I believe it is so very relevant to today’s happenings in our Criminal Justice System. The best answer to those questions, as well as several others that naturally flow from them, were set forth in a telephone interview I participated in with Renwei Chung, the brilliant young columnist for the highly popular and well regarded website, Above The Law.

Renwei and I connected through exchanges on Twitter, and after he read G.C., we agreed to a chat, which afterward was reduced to written form to insure accuracy. That format is what appears below, and most hopefully provides in-depth answers to the subject queries.

  1. What motivated you to write the book?

The current decade, 2010 to 2020, is the 50th anniversary of the 1960s and the Civil Rights Movement’s struggle for freedom and social justice. I wanted to highlight the role of the newly created Public Defenders Offices in fighting to protect individual constitutional rights in pursuit of justice, in particular for persons who are poor and of color, as part of that revolution, and because those very rights are under attack today due to the War on Terrorism which has spawned The Patriot Act, The No-Fly Rule, and virtually unrestricted spying on Americans by the FBI, CIA, and NSA.

  1. Tell me about your career, what motivated you to become a public defender?

Gideon v. Wainwright, which expanded the right to counsel when charged with a crime to persons unable to pay for same, was handed down by the U.S. Supreme Court in 1963, my first year in law school. And as I watched the Civil Rights Movement expand during 1964 and 1965, I realized that while the opportunity to participate in Freedom Rides and marches like Selma had passed, I could still join the struggle by becoming a Public Defender and fighting for justice in the courtroom through protecting individual constitutional rights and insuring that poor people and people of color were treated equally and fairly.

  1. How has the profession changed since you started?

When I began as a Public Defender in 1968, the U.S. Supreme Court under the leadership of Chief Justice Warren was focused on expanding the meaning and enforcement of constitutional rights, in particular, the 4th, 5th, and 6th Amendments. Today, the Court has a conservative bent under Chief Justice Roberts, and has grown more restrictive in interpreting those Amendments, making defense counsel’s job more difficult.

  1. What would you do differently if you could go back to any point in your career?

My years as a Public Defender during the late 1960s and early 1970s were the most rewarding years of my 30-year legal career, so I wouldn’t do anything differently with respect to that period. Looking back at the years spent in private practice afterward, the one change that I would make is to have become much more involved in my local bar association, as well as the state bar association, so as to advocate that both groups work harder in designing and executing programs that foster social justice in the private sector, and use their influence to lobby local and state governments to prioritize programs to alleviate poverty and inequality.

  1. What advice do you have for aspiring public-service attorneys?

If you are going to be a Public Defender, nourish your passion for justice, and remind yourself daily that the work you are doing is both noble and valuable. Representing a fellow human being who is charged with a crime, is lonely in the sense that you stand against the awesome power and resources of the State, and because the hostility focused against crime and your client spills over onto you, you will not be popular with the police authority, the prosecutor, court personnel, and often your own client. Therefore, it is essential that you maintain a strong sense of how noble and valuable your contribution is to our system of criminal justice is, so that you can fully appreciate the difficulty and the rewards of your work.

  1. What is the greatest injustice or discriminatory policy you believe we are fighting today? What are the biggest injustices we have overcome?

American society has a long history with the problem of race. It began with the importation of slavery at the time of Jamestown and the Pilgrims, and was further augmented with the extermination and subjugation of Native Americans. After 250 years of slavery and 150 more of Jim Crow, even though we achieved some progress during the Civil Rights Movement with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, this problem of race, of color, still bedevils our society, economically, politically, and in our Criminal Justice System. A few months ago, Nicholas Kristof in an Op-Ed raised and explored the question of: Isn’t Everyone a Little Bit Prejudiced? Inspired by his discussion, I explored the question in a Blog-Post on my author’s website on January 19th, and just yesterday in a speech, James B. Comey, director of the FBI stated: “Maybe it’s a fact we should also face: Everyone makes judgments based on race.”

We are all human beings: average citizens, political leaders, police officers, teachers, CEOs of international corporations, and so on. And as human beings, consciously or unconsciously, we all make judgments based on race, as well as many other factors such as good looks, gender, status symbols etc., but racial differences are at the top of the list for factors clouding our judgment. There is no easy solution to this problem, but what is necessary is for us to admit that this problem does exist, and for each of us to summon Lincoln’s better angels of our nature and remind ourselves daily to do better, to try harder to treat others as we ourselves would like to be treated.

  1. What made you successful in your career?

Two Ps: Passion and Perseverance. I believed wholeheartedly in protecting my clients’ constitutional rights and in doing everything I could to insure that they received fair and just treatment at all stages of the Criminal Justice System. And in pursuing justice for my clients, I prepared as assiduously as time permitted, spent much of my off-time reading and studying case and canon law, and in the courtroom followed a firm resolution to never, ever, give up, no matter how dark the outcome appeared.

  1. If you started today, what causes would you fight for?

As recent events from Ferguson to Cleveland to Los Angeles illustrate, the struggle for freedom and social justice that was highlighted during the tumultuous and transformative 1960s is still very much with us today, fueled by the historical legacy of racial bias. So if I started as a Public Defender today, I would still fight to protect my clients constitutional rights and make every effort to ensure that they received fair and just treatment at all stages of the Criminal Justice System.

In addition, as a member of the state bar association, I would work to move that association to exert its power to educate the public to the terrible danger to our democracy presented by the abrogation of our constitutional rights presented by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA,

  1. What is currently keeping you busy?

As part and parcel of publicizing Gideon’s Children., I am blogging on my author’s website (www.howardgfranklin.com) on the Criminal Justice System, its component parts, the problems it faces, along with possible solutions, in an effort to contribute to the growing conversation in this area.

10.  What specifically can lawyers do to change the system? What can ordinary citizens do?

Lawyers can work through their state bar associations to advocate that the associations use their power and influence to press mayors, governors, and state legislatures to place improving the Criminal Justice System at the top of their list of priorities and provide the necessary funding for example to hire more Public Defenders so that their caseloads can be reduced to a level that allows time for full and proper representation. Recently, Governor Cuomo of New York requested their state legislature to provide substantial funds for this purpose, and state bar associations across the country need to lobby government officials for like funding. Likewise, additional funds must be provided to the various police authorities who provide extremely valuable services, and do so under dangerous conditions, so that they can: (1) Improve the training of officers, particularly in the area of dealing with mentally ill persons; and (2) Enlarge their efforts to meet with and better understand the communities they police, leading to a better understanding of the extremely difficult job officers perform, and hence more cooperation, thus building essential trust on both sides.

Average citizens can contribute to this effort by emailing and telephoning their governmental representatives to support the programs outlined above. And the value of thousands and thousands of emails pouring in to express support for such necessary funding of these programs should not be underestimated.

11.  Anything else we should know about your book?

I wholeheartedly hope that my novel, Gideon’s Children, will make a positive contribution by educating its readers about the workings of our Criminal Justice System and the critical need to improve those workings, as well as the equal importance of protecting our individual constitutional rights in the face of their abrogation by The Patriot Act, the No-Fly Rule, and the virtually unrestricted spying on Americans by the FBI, the CIA, and the NSA.

Pluses And Minuses I: Race And The Police

In past posts, I have opined that race remains a major problem in American society. True, on the plus side, after 250 years of slavery and 90 years of  Jim Crow, we have made some progress, most notably the desegregation of schools, the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the election of African Americans to local, state, and national governmental offices, culminating in Barack Obama rising to the Presidency. On the minus side, however, racial prejudice, both explicit and implicit, nevertheless remains, and most visibly in the relationship between minorities and the police.

The incidents in Ferguson, New York City, Cleveland, North Charleston, Baltimore, Tulsa, and Los Angeles have been well covered by the print, television, and social media platforms, so I will not reiterate the tragic details in this post. Instead, I want to suggest what is necessary to alter the sad state of affairs that exists today and thus prevent further abuses.

To begin, let me make it perfectly clear that our police perform an extremely valuable service to our society, and place themselves in harm’s way to do so, as evidenced by officers being killed in New York City and Hattiesburg, Mississippi, to name just two tragic incidents. Further, when I was a Public Defender, I had the experience of riding with officers of the Compton Police Department during night patrol, and I most definitely learned that their job is both difficult and dangerous. That said, however, the events from Ferguson to Los Angeles still scream out for police reform.

By reform, I mean a serious renewal of allegiance by police departments to community policing, i.e., maintaining public safety by engaging with communities. This requires increased foot patrols that bring officers into direct contact with residents, as well as working groups that foster dialogue between police and the community. If thoughtfully applied, this approach builds the essential element of trust and naturally encourages citizen cooperation that aids the police in performing their duties.

Further, to boost the building of trust, the police must demonstrate the same accountability that we require of ordinary citizens under the Rule of Law. Numerous officials, including police chiefs, have recognized this critical element and have implemented change to achieve transparency and accountability. However, many heads of police unions, like Thomas Lynch in New York, are married to the status quo and seek to protect their members even in cases where police officers acted wrongly. This problem must be addressed.

I would like to suggest that our police departments be further improved as follows:

First, in the hiring process, candidates must be thoroughly screened, with added emphasis placed on psychological and sociological attributes. Right from the start, let’s explore a candidate’s psychology re power and how it’s applied, and his or her viewpoints on community policing and minorities; and

Secondly, training periods must be lengthened so as to train future officers in how to separate the necessary use of force from the aggressive form, how to handle the mentally disturbed, and how best to build trust with and gain the cooperation of the community they are policing.

All of us have a huge interest in seeing that our police officers are selected from the highest quality applicants possible, then are exceedingly well trained, and like us are held to be accountable for their actions if they act improperly. And I urge everyone to communicate this message, and to keep communicating it to his or her elected officials at the local, state, and national level until change occurs and this goal is achieved.

Cross Currents

On March 22nd, I wrote a blog post entitled: When Freedom Of Speech Bumps Heads With Civil Rights. Since that time, a number of other similar issues have flashed into view and received heavy coverage by all the various media platforms.

Most notable perhaps, has been the passage by the states of Indiana and Arkansas of so-called Freedom of Religion Laws, but there has also been a controversial bill on Abortion in Kansas, and heated debate about Vaccinations and Death With Dignity statutes in a number of other states. In all of these social issue situations, religious belief is a current crossing the opposing current of civil rights.

At present, a growing majority of Americans do not have a problem with same-sex marriage, a woman’s right to choose, vaccinations that prevent epidemics of disease, or in preventing extreme suffering in terminal illness cases. However, a well-organized and highly vocal minority, asserting that their religious beliefs are being threatened, assiduously seek to overturn legislation and court decisions which conflict with their beliefs, which if successful would have the effect of imposing their viewpoint on the far greater majority that does not agree with them.

To me, the greater worry, however, is that these culture wars spill into the political arena and further fuel the political divide between the extreme left and the extreme right elements of both of our major political parties, thereby contributing to the gridlock that has paralyzed not only our federal government, but many of our state governments as well.

America, while wonderfully protecting everyone’s freedom to worship as they wish, is basically steeped in the Christian tradition. I’m Jewish, but as I read the teachings of Jesus, I find that he taught love and inclusion, not the opposite. Pope Francis agrees. And I’d like to suggest that it is high time that we cease these wasteful culture wars, as well as labeling ourselves individually as universally conservative or liberal, and join hands and turn our focus onto solving the many serious problems that our country faces.

On the home front we must deal with the Earth’s deteriorating environment, an educational system that is failing, our infrastructure that is badly in need of repair, and the income inequality that plagues our economy. And abroad, we face challenges from anti-democratic and anti-humanitarian forces, from terrorist organizations to nations ruled by religious extremists and other forms of dictatorship to name but a few. And the solutions to these problems, especially on the home front, are not conservative or liberal solutions, they are practical solutions which our ingenuity and resources can provide if we join together and summon the will to do so.

We are a nation that can send people to space and turn watches into computers. Our ability to innovate and create solutions is limitless. Only our inability to reach a consensus is holding us back. All of us agree that these problems must be solved. So how about we all start taking an active role and for openers, relentlessly email and telephone our governmental representatives and let them know that compromise is not a dirty word, and that we demand that they formulate practical plans for solving our problems and begin implementing them now, or we’re going to vote for officials who will!

When Freedom Of Speech Bumps Heads With Civil Rights

A couple of days ago my good friend, Renwei Chung, the brilliant young writer for the esteemed website, Above the Law, asked me what I thought about the University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus. My immediate response was that it was a tricky issue, and upon sober reflection I have come to the same conclusion.

Why? Well, to begin with, as several legal scholars have pointed out, the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech. These opinions were based on numerous court decisions holding that hateful, racist speech is protected by same.

Now, exceptions do exist. And official punishment could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it was likely to provoke an immediate violent response. Such was not the case here, however, as the chant occurred on a bus occupied by all-white fraternity members and their dates heading to a formal event, causing neither of the two aforementioned caveats to occur.

Later, though, videos of the chanted song emerged online, with the lyrics using racial slurs to boast that the fraternity would never accept an African-American member, and going so far as to refer to lynching with the words: “You can hang’em from a tree” according to newspaper accounts. The University President, Mr. David L. Boren, concluded that two students who had a leadership role in leading the racist and exclusionary chant should be expelled, as the subject chant created a hostile educational environment for others, which is a violation of Title VI of the Civil Rights Act of 1964, which forbids creation of a racially hostile environment in schools.

While I find the actions of the two students to be despicable, and I applaud the prompt action of President Boren to make it crystal clear that such behavior is odious to the University and reflects only the attitude of the two students (and some of their cohorts), and no one else, I nevertheless believe that the punishment doled out was illegal.

Why? First of all, there is no significant evidence that a racially hostile educational environment was created. The University of Oklahoma has many thousands of students, and the actions of a single fraternity involving say approximately 100 people chanting an admittedly obnoxious racist song on one occasion does not instantly create such a racially hostile educational environment.

Secondly, even if one could find that it did, many legal scholars who were interviewed in different news articles that I read were universal in pointing out that Title VI could not take precedence over First Amendment rights.

What I believe President Boren should have done is: (1) Condemn the students’ actions in the strongest possible language, which he did; (2) Have all of the student leadership groups at the University issue like statements of condemnation on behalf of the student body; and (3) Notify the subject students and all of their fraternity members that while their First Amendment Rights were in effect at the University, their future actions were going to be closely monitored to insure that as a result of same no student would have to fear for his or her safety, that no provocation of an immediate violent response was likely to occur, and that no racially hostile educational environment was created—and should the exercise of their First Amendment Rights meet either of the two exceptions, that expulsion would immediately follow, along with prosecution for violation of Title VI.

The great philosopher, Voltaire, taught that: while I may not agree with a single word you say, I will defend with my life your right to say it. We live in a free society, and in it one is free to be a bigot under the First Amendment, as long as the aforementioned exceptions to it are not in play. As a society our remedy is to condemn such bigotry, and if education of right and wrong cannot persuade bigots to eradicate their odious views, then to refuse to associate with them, socially or economically.

 

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Selma Revisited

Typewriter With Special Buttons

Last Sunday marked the 50th anniversary of Bloody Sunday, when 600 protestors, led by Martin Luther King, Jr., began marching from Selma to Birmingham in support of voting rights. They were met on the Edmund Pettis Bridge by Alabama State troopers dispatched by segregationist Governor George Wallace, who attacked them with tear gas, leather whips, and billy clubs, an unprovoked act of violence whose bloodshed outraged most Americans and was a major factor in the subsequent passage by Congress of the Voting Rights Act of 1965.

When I picked up my newspaper on the following Monday, the front page featured coverage of the celebration of that anniversary, highlighted by a photo of President Obama hugging Representative John Lewis of Georgia, who marched alongside MLK, Jr., and was bloodied during the tragic events of that historical day. And as my mind flooded with memories of the 1960’s Civil Rights Movement, the question Have we overcome? also trailed into view and set off an intense reflection.

Well, we have done better, I concluded. After Brown v. Board of Education desegregated schools, we further reduced discrimination in commerce and transportation via the Civil Rights Act of 1964, and with respect to voting courtesy of the Voting Rights Act. And, I noted with a smile, in that photo my eyes were focused on the President of the United States—an African-American. That’s something I wasn’t sure I’d ever live to see, flowed my next thought, so yes, we have progressed, some positive change has occurred. But, Have we overcome? still lingered to narrow my smile.

In view of recent events, the answer to that question is a resounding no! First off, in 2013, the U.S. Supreme Court gutted the key enforcement provisions of the Voting Rights Act, removing the Federal Government’s authority to supervise electoral requirements in our states and insure that discriminatory practices were not in play. Then, further, as David Love reported in via the Tribune News Service, “the Tea Party-led Republican Party has made voter disenfranchisement and suppression a top priority. Voter ID laws across the country have put up obstacles for blacks, Hispanics, Asians, the elderly, young people, and others. Some state legislatures have reduced voting days, including the Sunday before Election Day, when black churches organize campaigns to go to the polls. Moreover, as Al Jazeera has reported, Republican officials in 27 states have initiated a program that could purge 7 million voters from the rolls, particularly brown and black Americans.”

And, why? To prevent voter fraud is the answer provided, despite the fact that study after study after study reveals that voter fraud is so insignificant as to be almost non-existent. The real reason is that the voters sought to be removed from the polls overwhelmingly vote for Democratic Party candidates!

So, a new version of the poll tax, calling into mind the phrase, the more things change, the more they stay the same. And what is truly tragic is that most Americans, including most of our citizens who identify themselves as Republicans, are not in favor of retreating from the racial progress America has made, but are witnessing a regression fostered by a small, highly vocal, and extremely well funded right-wing minority that has hijacked the Republican Party and is dictating dangerously undemocratic policies that threaten to undermine the fundamental right to vote of millions of their fellow citizens.

No, indeed, we have not yet overcome. Race remains a huge problem in America, and if anyone doubts that sad fact, recent events in Ferguson, Missouri, make the truth of that assertion clear and undeniable.

In a community that is 67% black, the police department is almost exclusively white. An accident? No. And after a thorough investigation of the events and the culture surrounding the Criminal Justice System in Ferguson, on March 5th the Justice Department issued a scathing report, describing the Ferguson police and Municipal Court “as a system whose primary function was to make poor African Americans pay as many fines and fees as possible for petty offenses, real or invented.”

After reading accounts of this report in The Oregonian, once again that haunting phrase, the more things change, the more they stay the same, echoed into mind and triggered a vivid memory of the first jury trial I was involved in when I was a Deputy Public Defender in Compton, California, almost half a century ago. Depicted in detail in my novel, Gideon’s Children, the main character, Matthew Harris is defending a male African American charged with having been drunk in public. And when the jury panel of 200 persons from which twelve would be selected for trial is seated in the courtroom, Matt is stunned by his observation that not one of them is black, even though the community from which they are drawn is upwards of 80% African American.

The good news is that while Matt Harris was defeated by the stacked deck a half century ago, today the outrageous situation in Ferguson is being corrected. In the past few days, the officials responsible for the conspiracy of discrimination at work there have resigned or been removed, including the city manager, the police chief, and the municipal court judge. Unfortunately, the anger from years of persecution has unleashed violence from a few members of the community, resulting in two police officers being shot. Most hopefully calm will prevail so that plans for a new and better government in Ferguson can be implemented. I also believe that it would be helpful if those persons responsible for the utterly despicable actions in Ferguson were prosecuted for civil rights violations, thereby sending a message to all who would engage in like actions.

What worries me is that if the regressive forces at work are allowed to prevail, and millions of people of color are disenfranchised, and other Ferguson-like conditions are not ferreted out and remedied, then violence of a more significant magnitude will occur. For if a huge segment of our populace is not allowed to participate, and also feels that the Criminal Justice System is targeting them for grossly unfair treatment, then the respect for the Rule of Law necessary for it to govern disappears.

All of us lead busy lives. But each of us needs to make the time necessary to contact our local,  state, and federal representatives, and let them know that we are adamant in our desire for a new Voting Rights Act that insures voter participation by all segments of our society, and urges them to foster and nourish programs designed to promote excellent relationships between police and the communities which they serve.