A Jury of Your Peers

Ricky Whitfield's murder case served as the inspiration for me starting this blog. In March of this year, Co-counsel, Jackie Carpenter and myself set out to try the Whitfield murder case. The prosecutors in the case at that time, exercised peremptory challenges to strike all of the eligible black jurors from the panel. The Judge SUSTAINED! our Batson challenge and the prosecutors involved were disciplined by our current District Attorney for the move. The whole incident made the front page of the Houston Chronicle. Unfortunately, Whitfield's case was moved five months into the future. That incident served as the subject of my first post on this blog.

Well, Ms. Carpenter and I spent all of last week and yesterday again trying Mr. Whitfield's case. Surprisingly, we ended up with a Jury that did not have any African-American members (the jury appeared to consist of eleven Caucasians and one Hispanic). Again the State Struck nearly all of the eligible African American panel members. This time our objection was overruled. And the jury still found Whitfield "Not Guilty."

So after all of that time in Jail, Whitfield will be a free man. This was my one hundredth trial and a victory for which I am truly grateful. I was humbled by the care and concern our jurors showed. One of the jurors commented that he thought the experience of an African American was missing during their deliberations. He thought they would have benefited from added perspective. Their comments and evaluation of the evidence showed that they took their jobs seriously and had great respect for justice. If only prosecutors would value the perspective of African-Americans. Prosecutors routinely seek jurors that they stereotypically think will be prejudiced against defendants. But this jury looked to the lack of evidence in this case and returned a verdict that paid no attention to our client's race. In this case, justice was color-blind.

Handling Hate

Earlier this week three white men, Dale Howell, 36, Troy Elledge, 42, and Christopher Elledge, 20, were jailed in Houston and charged with aggravated assault with a hate crime enhancement for the beating of a black “ice cream man.” Aggravated assault is a second-degree felony punishable by up to 20 years in prison, but the enhancement raises the maximum penalty to life imprisonment. Such a brazen act of racial hatred may be a harbinger of the times due the turbulent storm of acceptable hate speech or a result of our frail umbrella of indifference to hate.

On July 22, 2009, the three men allegedly blocked the victim’s ice cream truck, pulled him from the truck and beat him while shouting racial epithets on a northwest Harris County street. The repeated blows broke the alleged victim’s nose and bones around his left eye. Victor McDonald, 44, the alleged victim of the assault, said the beating left him with facial fractures and blurred vision. "For God's sake, I sell ice cream," McDonald said. "What threat did I pose to them?"

The attack on McDonald was vicious and senseless. But so much about hate crimes do not make sense. They are neither motivated by reason, avarice nor necessity. They are motivated, in part, by hate for particular groups. They are as senseless as racial hatred itself. And unfortunately, many predict that hate crimes are on the rise. Anti-Defamation League Director Bruce DeBoskey observed that “History has taught us, that when the economy goes down, bigotry goes up…They look for people to blame, and often times that’s when hatred and bigotry come into play….When hate is not exposed, when it goes unchecked, it can lead to violence." On a national level racial bias is not currently being exposed. In fact, it is being made more acceptable by acceptable hate speech from commentators like Glen Beck and Rush Limbaugh.

Nationwide the statistics show that hate crimes were steady, showing a slight decrease from 2006 to 2007 - the last two years hate crimes statistics were reported nationally. According to the Federal Bureau of Investigations, hate crimes slightly decreased from 7,722 incidents to 7,624 incidents during these two years. Such national statistics are compiled nearly a year late (2008's data will be published in October of 2009), are dependent on each individual state’s reporting requirements and do not include data from every county in every state. In the State of Texas, however, the Texas Hate Crime Act directs every law enforcement officer to report crimes of bias to the Texas Department of Public Safety (DPS). In Texas, the DPS Annual Report on Crime showed that there was an increase in incidents of hate crimes from 2007 to 2008 (243 to 246) and, more importantly, a ten percent increase in victims of hate crimes from 2007 to 2008 (250 to 276). In both years, fifty-three percent of the hate crimes reported were based on racial bias.

Texas' violent racial history dates back to the late 19th century when it was amongst the South's most lynch-prone states. At least 355 people, most of them blacks, died in Texas mob violence between 1889 and 1918 (an average of a person a month). In almost all of these cases, no one was ever charged for the crimes. Laws outlawing mob and less lethal hate crimes have since been passed, but incidents with racial components have continued to occur. One of the most vicious of such events occurred in 1998 in Jasper, Texas - a city that boasted a black mayor and a population that was 45 percent African-American (video). Outrage against that inhumane act was SUSTAINED! with the conviction of the men who committed the murder of James Byrd, Jr. The Former head of the Intelligence Project of the Southern Poverty Law Center in Montgomery, Ala., Joe Roy, suggested in 1999 that such crimes, though stereotypical of the South, no longer are limited to one region. "I think this is a stark reminder, this case in Texas (the James Byrd Case), of what can happen in this country," he said. "Education is not the sole answer, but it's one of the cornerstones of correcting it." The tension between the races is fueled by competition between economically marginal groups, Roy said. "This episode is a horrendous example of the rage that is out there."

Seeing such a violent case in a diverse city like Houston is disturbing. Such crimes need a strong and decisive response from law enforcement and the community. The Harris County District Attorney’s Office reports that this is the first such example of a second degree felony being enhanced by the hate crime enhancement and it is one of the only times a defendant has been prosecuted under the enhancement since 2001. But this is not true. Last year, I represented a defendant charged with a second degree felony enhanced to a first degree felony by the hate crime enhancement. The case initially received some media coverage, but was purposefully resolved out of the media spotlight. That client did not go to prison in that case. While there were evidentiary and legal issues in my client's case which created trial issues, it was apparent that there was no system or plan by the District Attorney’s Office for the handling of such cases. That case was resolved under the previous District Attorney’s administration. If the current District Attorney’s Office is unaware of that case, then I am certain there are others which received less media attention and were not tracked by Chuck Rosenthal’s regime.

From that case, it was apparent that hate crimes were not taken seriously in Harris County. In my opinion the individual prosecutors handling the case took it seriously, but their office’s response was lacking. The case was not handled by the office’s special crimes unit and was assigned to the number two prosecutor (the workhorse) in the court. There appeared to be little or no department oversight of the prosecutor handling the case. The opportunity to educate the public about hate crimes was not seized upon because the DA allowed us to kill media attention through off-docket resets and keeping the press out of the loop. No additional resources were provided for the handling of the case over and above that provided to other cases. Such cases are different from regular assaults. In a hate crime prosecution, a prosecutor is allowed to admit evidence of prior bad acts to established racial bias. Recovering such evidence may require specialized investigative experience. Such cases may also require collaboration with groups like the Intelligence Project which routinely assists law enforcement in many states to make cases against perpetrators of hate crimes and routinely helps law enforcement take a proactive stance in fighting hate crimes. To my knowledge Harris County does not seek the help of any of these groups. Such actions can only be undertaken by a specialized unit in the District Attorney’s Office. The legislature decided to treat hate crimes more seriously by passing the Texas Hate Crime Act, its time for Harris County to decide to take them more seriously as well. If not, it won't just be the ice cream man....brazen hate crimes will again become the norm.


HIGH-PROFILE RACIAL EPISODES IN TEXAS

Jasper, 1998: Three white men were charged with chaining a black man, James Byrd Jr., to a pickup and dragging him for three miles resulting in Byrd’s death.

Vidor, 1994: Civil rights groups sue the Ku Klux Klan, accusing the group of making threats to stop the integration of an all-white housing project. Black residents were frightened by death threats and the obvious patrols of Ku Klux Klan members through the projects displaying high-powered weapons. The FBI later investigated alleged Klan death plots against William Hale, director of the Texas Commission on Human Rights, and Attorney General Dan Morales.

Cleveland, 1988: Kenneth Simpson, a black man arrested for stealing an ink pen, dies in his jail cell after struggling with white officers, who are eventually cleared in the death. The police chief resigns under pressure the next year.

Hemphill, 1987: Loyal Garner, a black Louisiana truck driver, is beaten to death in the Sabine County jail. Hemphill's police chief and two county deputies are eventually convicted of murder, although one deputy's conviction is overturned.

Mount Enterprise, 1987: Troy Lee Starling, a 24-year-old black man, is fatally shot in the neck by a state trooper after a high-speed chase in Rusk County. The trooper is cleared but Starling's family files a civil rights suit.

Smoldering And Still Burning at HFD

The fire at the Houston Fire Department is far from being extinguished. Amid complaints about noose-like knots being found in other Houston fire stations, two women found racist and sexist graffiti near their quarters at a department fire station about a month ago. One woman was named Ena Jane Draycott. Immediately following the disclosure by the women, the Houston Fire Department was on fire with additional complaints of racism and sexism. Today, in an attempt to extinguish the fire, the Houston City Council approved a $190,000 contract with two law firms selected by Mayor Bill White to investigate whether systemic racism and sexism exists in the Houston Fire Department. Astoundingly, the firms selected, Thompson and Horton, L.L.P. and Lemond and Lemond, L.L.C., are both civil defense firms who only represent employers in discrimination cases. In fact, Scott Lemond, one of the principles in Lemond and Lemond, L.L.C., previously served on the city’s civil service board. Both firms have handled city contracts in the past and have close ties to the city officials.

“It just doesn't smell right,” said City Councilwoman Jolanda Jones, who made numerous critiques of the contract before voting against it along with City Councilmen Mike Sullivan and James Rodriguez. Councilwoman Jones argued that there appeared to be nothing “independent” about the city’s investigation and handling of this situation. She protested that this all seemed like a cover up. Councilwoman Jones’ courage and willingness to “speak truth to power” is refreshing. Her opposition to the city’s efforts to conduct business as usual should be SUSTAINED! She is correct. It does not smell “right.” It smells “wrong” because it is wrong. The city’s entire handling of this situation is indicative of politicians seeking appeasement and not solutions. They want to put out the fire without extinguishing the coals. As long as it looks like nothing is burning, they feel confident that the electorate will blindly perceive through the smoke that everything is okay. Such actions are indicative of city leadership failing to take discrimination serious.

Last week, investigators handling the case for the City’s Office of Inspector General sought and obtained a court order to compel one of the women who complained about the racist and sexist graffiti to submit to handwriting exemplars. Judge Susan Brown of the 185th Criminal District Court of Harris County, Texas signed the court order authorizing the taking of Ena Jane Draycott into “temporary custody” for the limited purpose of obtaining handwriting exemplars for comparison. Simply put, the court order authorized city investigators to arrest Ms. Draycott, an alleged victim of sexual harassment, to obtain examples of her handwriting to compare to the writing on the hate material found in the station. This clearly crosses the line. Now, alleged victims of discrimination are being investigated and arrested. Giving the Office of Inspector General this type of authority without a grand jury subpoena or any sworn testimony that there is probable cause that a law has been broken offends the constitution and due process. Such unfettered authority allows the city the ability to openly retaliate against employees who oppose the city and administrators. Predictably, the arrest of such a high profile complainant will have a further chilling effect on reports of discrimination amongst city employees. No one who cherishes their freedom would want to report discrimination if they would face arrest and intense scrutiny for merely reporting a perceived wrong.

But the city is desperate to bring this to an end. It has been reported that firefighters are saying that the incidents and the controversy over the contract have had a bruising impact on the fire department, driving a wedge along racial lines between some firefighters and causing a potentially dangerous atmosphere of distrust between city residents and first responders. This entire situation is jeopardizing public safety. The city might put out the fire and cover things up, but public safety will continue to be jeopardized until the smoldering coals of discrimination are extinguished.

Harris County DWI Diversion Program: Forced Rehabilitation? Or Rehabilitation With An Incentive?

Through my practice, I know people who struggle with different forms of addictions. On a weekly basis, I interact closely with substance abusers, sex addicts and people with other self-destructive compulsions. Many do not think they need treatment. Some of them have allowed their addictions and compulsions to destroy their careers, relationships and families. Yet they are adamant that they do not have a problem. They do not need any help. Courts have forced treatment on them. And with a great degree of predictability, the treatment has routinely failed. Professionals skilled in substance abuse treatment widely acknowledge that a person will not accept treatment until that person is ready to do so. Some people need to hit "rock bottom" before they are ready to respond to treatment.

Texas leads the nation in alcohol related traffic fatalities. And according to the Harris County District Attorney's Office, Harris County leads the state in alcohol related traffic fatalities. Knowing that the county is a leader in this category does not make me feel safe on the road driving with my family. I am a strident proponent of civil liberties. But I am not a proponent of any man or woman abusing their civil liberties at the expense of innocent people. Anyone concerned with safety would recognize that things need to change.

After August 1, 2009, the Harris County District Attorney's Office will begin administering a new DWI diversion program which the DA argues will curb recidivism and make our streets safer. Some defense lawyers, upset about not being invited to the table when the DA crafted the program, argue that the program is coercive and illegal. However, despite the rhetoric being spouted about the program, it appears to be a marked improvement above the status quo. Although not perfect, it is a needed change.

Defense lawyers correctly argue that the program is coercive. As part of the program, the DA is offering a first time offender a plea bargain deal where a defendant can accept the program or accept 30 days in jail. The program will require first-time DWI defendants to participate in substance abuse treatment and community service. All will be required to install a vehicle interlock device on their vehicles (a device which will check a driver for the presence of alcohol before allowing the vehicle on which it is installed to start). And all will receive licenses that will allow them to drive to and from work and to and from treatment. It will also require defendants to waive their rights to a jury trial. Upon successful completion of the program, a defendant will be able to avoid a conviction on their record and will have the case dismissed. Before this program, defendants could resolve their cases by paying a fine with no additional jail time and no probation (and consequently, no treatment).

Defense lawyers have criticized the program by asserting that the program impinges on a defendant's constitutional rights because it coerces them into the program. But all prosecutions impinge on a defendant's constitutional rights. All plea bargaining is inherently coercive (a defendant enters a plea and waives his right to trial to avoid a harsher sentence at trial). It is totally legitimate plea bargaining for a DA to offer a plea deal without any other option besides trial. The DA could offer the program without the 30 day offer and tell defendants that they could take the deal (the program) or go to trial and face jail time. The obvious effect will be that first-time DWI defendants in Harris County will either opt for the program or opt for trial. The program is no more coercive than plea bargains where the DA makes a firm offer.

But the question that our defense bar seems to miss is the age old question in treatment for substance abusers: Will a system that forces a person who may not be ready for change into treatment, be successful in curbing recidivism? Time will only tell. But on its face, this program is different than current attempts at rehabilitation in that it offers a defendant a unique incentive. It is the only means for a first-time DWI defendant to avoid a conviction by not going to trial. DWI is one of the few offenses were the legislature requires a conviction with any resolution (besides dismissal or acquittal). Even if a court considers this program an illegal deferred adjudication and fails to grant an expunction (and that is a huge if because the case will be formally dismissed like a pre-trial case and not like a deferred adjudication which happens without a formal dismissal motion); then a defendant would still have avoided a conviction on his record. This is still far superior to the manner in which DWIs have been resolved up to now. The DAs efforts to change the status quo should be SUSTAINED!

Perhaps this new incentive will encourage some to seek help. If not, facing 30 days in jail will certainly cause many to "bottom out" and realize the need to get help.