Standing in Cold Solidarity with My Client
It was a cold, windy day in Rochester which found me standing unprotected in the middle of a sudden snow burst, slamming wet, frigid snowflakes against my exposed skin. Sitting in his parked patrol car across the street, was a city police officer. The light was red in my direction and the crosswalk signal warned all pedestrians, “Don’t Walk”. There were no cars in the area and I easily could have crossed the street without interfering with the flow of traffic. But I remained standing, shivering on the corner, watching as several individuals passed by me, crossing the street against the light on their way to warm destinations; un-harrassed by the stationary police officer, who remained seated in the warm comfort of his patrol car. I maintained my position standing solemnly in the cold; fighting the wind to keep my hat perched on top of my head; cutting through my thin coat, like a hot knife through butter. One person looked back as she passed by, clearly perplexed as to why I was not crossing the street as had so many others before. I would love to say that I have never crossed against the light on this or any other street, safe in the knowledge I would not be stopped. I was safe in the knowledge that because of my financial position; because of the color of my skin, there was little to no chance a police officer would stop me. But on this day, I stood there, refusing to take advantage of the “White Privilege”, bestowed upon me by the society in which we live. I wish I could say my stand against White Privilege is one I fight every day. What I truly wish I could say is that in 2016, in the United States of America, where all persons are supposed to be equal under the law, regardless of the color of their skin, their socioeconomic status, or their sexual preference; there is no privilege granted to any race or class of society. I wish I could say that. But as we all know, it sadly is not true. The criminal justice and law enforcement system in America operates on a foundation of racism, where people of color and those lacking resources are forced to live under more oppressive conditions than those of us who bask in the security of White Privilege, granted to those with means.
What changed? “Why was I standing there, shivering in the cold”, you ask? It started with an increased awareness of our obligation as public defense lawyers. An increased awareness sparked by a presentation Jeffery Robinson, Director of The Center for Justice of the American Civil Liberties Union (ACLU), gave on Race in the Criminal Justice System. Mr. Robinson’s presentation included a discussion of the difference between being non–racist and anti–racist. He helped me realize that as first hand witnesses to the institutional racism that exists in the criminal courts, we need to become more actively involved in being anti–racist in our words as well as our actions—instead of remaining safe within the comfort of non–racism. This increased awareness caused me to be standing in the cold, silently protesting the institutional racism imposed upon our clients every day. My decision to stand in the cold was further compelled by a client to whom I had recently been assigned; charged with possession of a loaded gun. My review of the paperwork in that case immediately struck me, because the reason the police stated they tried to forcibly detain and frisk this young man was that he started to cross the street, in the crosswalk, against the solid “Don’t Walk” sign. It was not alleged that he disrupted the flow of traffic or crossing in the middle of the road. In fact, according to the paperwork, the traffic light in the direction in which he was walking, was green. However, the walk signal had just changed from a blinking “Don’t Walk” to a solid “Don’t Walk” when he started to cross.
So the picture is complete, my client is a young, African–American male. He committed this vehicle and traffic offense–which clearly threatened the safety of the community—in one of the impoverished sections of the inner–city. Ask yourselves (as I did myself), how many times have we seen people in the downtown Business District or the Bar and Restaurant sections, receive similar treatment? I’ve lived and worked in the cities of Rochester and Washington, DC for more than 20 years and I can say with complete honesty, my answer is never. So what was the difference here? I know it was time to start to take a stand and become more anti–racist and not just non–racist. I am not so naïve to believe that anything would change as a result of my actions, or rather inaction on this day. Instead, I believed I owed it to my client, out of my duty of loyalty, to try and stand in his shoes, and at least for this short period of time, gain a sense of understanding for what his life is like every day. A life that in my 47 years of existence, I have only experienced twice, first–hand.
The first time, I was stopped for what the officer claimed was a non–working tail–light. I was driving my old, rusty car, which was held together by little more than hope, duct tape, and the numerous liberal–messaged bumper stickers covering the back. After the officer asked for my license, registration, and proof of insurance (of which he openly expressed shock that I had all three) I looked around and realized there were at least six other police officers circling my car, looking inside. When the original officer returned to my car informing me that everything checked out, he started to question me about where I was coming from and where I was going. I answered all his questions, after which he asked me if he could look in my trunk. “Excuse me”, I asked? – surprised by the request, which he then repeated. Understanding what the officer was trying to do and where this encounter would be going if I gave the officer any reason, I made sure to remain calm. I asked the officer if he had a warrant, to which he answered he did not. I then explained that as soon as he got one, I’d be more than happy to comply with his request. The officer returned to his squad car, where he remained for about 15 more minutes while the buzzards continued to circle. By this time there were more than a dozen surrounding my car. The officer returned, informing me I was free to go. I was surprised at first that I did not get a ticket. That surprise quickly became anger when I arrived home and realized that all my tail–lights were in perfect working order. This officer saw me as vulnerable, believing from the appearance of my car that I did not have means or knowledge to prevent him from taking advantage of me. He believed he could get me to become nervous or intimidated by the show of force, causing me to either react in a way that would justify his goal of heightening the encounter or cause me to relent to his authority. He was wrong on both fronts, but only because of the knowledge and experience gained from learning about the way the police systematically violate the rights of my clients.
On the second occasion, I found myself sitting on the side of an Arizona Highway during a desert windstorm, while the police searched my rental car—without a warrant. My stated crime—driving in the center lane at 72 mph on a highway posted with a maximum speed limit of 75 mph. The real reason he stopped my car was that he profiled me. Add to that my long, flowing hair which was not tied back in a pony–tail; my exposed tattoos; and the fact that I was driving a rented Mustang in the direction of the Mexican border, making me a good target in his mind. After determining that my driving privileges were valid and the rental paperwork checked out, this officer also asked to search my car. As with my experience in Rochester, I informed the Trooper he could not until he first obtained a warrant. However, this time, unlike in Rochester, the rule of law and the Constitution did not matter. I was escorted to the back of his squad car, where I was left to stand, exposed to the elements, while he searched the entire car from stem to stern. After the Trooper finished his violation of my rights, he informed me that “I was lucky. I was only getting a verbal warning”. I snatched my license from the Trooper’s hand. Annoyed, frustrated, and angry, I let my emotions show, responding, “Of course, I wouldn’t want me appearing before a Judge either if I were you”.
I know the anger and frustration I felt on both occasions. They stand out in large part because they are not the norm in my world. Sadly, though, they probably would not stand out as much for my clients or many other people of color, as they are a more regular part of their daily routine as a result of the way in which the police selectively enforce and concentrate application of the law. Each gave me a brief preview into the lives of our clients. However, these two experiences do not provide me a true understanding of what it must be like to live in their worlds every day. I know standing in the cold on that blustery February afternoon, will never give me a complete understanding of how my clients are affected by the racially based harassment to which they are subjected on a daily basis. But in my mind at least, it served as a start of my effort to be more consciously and actively anti–racist, as well as being more client–centered, refusing to accept different privileges from the people I represent. I always knew that as public defense lawyers, we are witnesses to the institutional racism to which our clients are subjected. We fight against these injustices on a case–by–case basis when we fight for the lives and freedom of our clients in court. I now understand that we also have a greater responsibility to cast a more public light on these racist practices, educating people about their prevalence and fighting against them both in courts of law and public opinion. Too many in society want to believe that the administration of “justice” is fairly balanced and non–racist. We know that is not true.
We have the opportunity and I believe the obligation to fight against and break down this racist system that exists in criminal courts around the county. We need to be more totally engaged in this fight against racism every day both in court and out. Before, where I had framed my positions in legalistic arguments citing case law and precedent; now I make sure to draw the Court’s attention on the equal protection requirements of the Constitution and the racially motivated, discriminatory practices to which our clients are subjected by the police and the Courts in their selective and unequal application and enforcement of the law. I take a more vocal stance against my clients’ plight in public forums, as well as in my conversations with prosecutors and judges. All should want to be involved in this effort, because without a unified and vocal front, we will not be able to effect the change that is so desperately needed.
Serving as Client Centered public defense lawyers requires that we strive to better learn about and understand the lives lived by our clients. Learning from their stories and experiences; striving to try to see the world from their vantage point. Trying to get a better understanding of our clients takes time. We must listen to the people we represent; to learn about and from them. We must make the effort to learn what they want; what experiences they’ve had; and how those experiences make them feel and react; as opposed to limiting our conversations to the case against them. We need to be open to our own stereotypical beliefs, ingrained in us by years of living in a different world than that of our client’s and their families. We must conduct investigations which not only address the facts of the case, but also the lives and background of our clients. We have to take the time to speak with and listen to family members of our clients. Armed with this greater insight, we must then advocate against the racism that exists in the lives and communities of our clients; fighting openly against the injustices imposed upon them every day. We must fight against these racist practices wherever and whenever we see them. We must not be afraid to draw the courts’ and prosecutors’ attention to the difference in the worlds in which they live and those of the people we represent.
When the crosswalk finally flashed the white “Walk” signal, I crossed the street after what seemed like forever. I was cold, angry, and upset, but my perspective into the worlds in which my clients live was broadened a little by forcing myself to follow the same rules which they must to prevent against racially motivated enforcement of the law. I will channel this anger into fighting even harder for my clients, doing everything in my power to fight against the racism that continues to adversely affect their lives in the criminal prosecution system. Have I moved the needle? Probably not. But that does not mean I will change my efforts to shed light on and fight against the institutional racism that exists in the criminal court and law enforcement systems. I may not see the end to this racism in my lifetime, but it will not be for the lack of trying. The walls which separate our lives from those of our clients can be broken down, but only if we admit the existence of these entirely different worlds and fight against them in every way we can. If I remain silent; if we remain in the safe and comfortable confines of being non–racist, then we are just as responsible for the continued racism that exists in our society; as guilt as those who are actively involved in violating the rights of our clients.
It’s time for these differences to stop. We should all become more actively involved in fighting against them every day. If more join the ranks of the anti–racist, anti–White Privilege movement, then hopefully we can further move this country in the direction of fair and equal justice under the law. Because, as John F. Kennedy so eloquently stated “If not us; who?, If not now, when?”