The African-American Prosecutor Roundtable

By Angela Downes, Candace Mosley and Whitney Tymus

Introduction

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.