Our Umpteenth Effort to End Racial Murder and Abuse

June 28, 2020

I wanted to deliver this last week but Trump’s use of the military against domestic protestors had me fear for the future of our republic and I put this off.

But I want to talk about these horrible scenes of murder of African-Americans by police. People killed who posed no threat, where the police had everything well under control, and it wasn’t even clear if the victim had done anything meriting police attention, let alone murder. Breonna Taylor, an EMT, was killed in her bed in Louisville.

This reminds me of the Civil Rights Movement I grew up with. People in prayer outside boards of election that wouldn’t let them register. 14-year- old Emmet Til killed on a visit to Mississippi relatives, accused of whistling at a white woman. Viola Liuzzo, a civil rights worker shot in her car. Michael Schwerner, James Chaney and Andrew Goodman, an integrated trio of civil rights workers, released by police in front of thugs who followed, murdered and buried them where they were not expected to be found.

The murders and lynchings stayed in front of our eyes until we hurt, just as we are hurting for George Floyd, choked to death in Minneapolis; Walter Scott, over a brake light in Charleston, SC; Ahmaud Aubrey, killed for jogging while Black in Georgia; Tamir Rice, a twelve-year old, in Cleveland; Stephon Clark, killed for holding a cell phone in his grandmother’s Sacramento backyard;  Michael Brown in Ferguson, Mo.; Eric Garner, in Staten Island; Tony McDade in Tallahassee; and Trayvon Martin, a teenager, killed by a neighborhood vigilante who thought he didn’t belong, compounded by the jury’s acquittal. Their stories, and so many more, are unacceptable. The police are supposed to protect us. But they kill too. African-Americans have learned not to call the police in order to protect their own families. I can’t forget the acquittal of four officers here in Albany for killing Amadou Diallo, a Guinean immigrant, in a barrage of forty-one shots for trying to put a key in his door.

The U.S. Supreme Court enabled a century of lynching in 1876 by holding that a U.S. Attorney had no authority to prosecute the perpetrators of the Colfax Massacre.[i] After that, police and the Klan, which also infiltrated the FBI, acted with impunity in much of the country. The Court now does its best to restore the worst abuses of that century of intimidation and impunity.[ii] I recently worked on a brief in support of the family of a Mexican boy, in a cross-border shooting by American officers for playing too near the border. The Supreme Court protected his killer. As Pete Seeger asked, “When will it ever end”?

And yet we can’t get tired, we can’t stop, we can’t let all the abuses this country has tried to stop elsewhere define life for a third of our citizens at home. No one is free when anyone is in chains. I don’t want to have the deaths of thousands of decent people on my conscience. I don’t want my darker skinned friends, colleagues, clients, neighbors, essential workers, athletes, entertainers or any other good people and their families having to worry day and night about eluding people who want to kill them or think they aren’t worth living?

When Yugoslavia started to come apart, we had an exchange student living with us who was from Belgrade. She cried about what was happening to her country – the whole country, Yugoslavia. There was intermarriage, friendship, strong neighborhoods, business partnerships, and none of that protected people. When things start to fall apart, there is no safety. We need to stand up for decent people of all backgrounds. And remember that none of us and none of those dear to us are safe when shooters are empowered, with or without a badge.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on June 30, 2020.

[i] LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction (Oxford Univ. Press 2008); Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt & Company 2008); and United States v. Cruikshank, 92 U.S. 542 (1876), the case that turned a massacre into a century of intimidation and impunity.

[ii] Stephen Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 189-208 (2016).


To Reinvent the Cops, Disarm Them

June 15, 2020

The Governor wants us all to reinvent policing in our own communities. Let’s pull that apart. He wants each separate community to have a conversation about policing and reset everything. Sounds good. Community is a lovely warm word. But I think the reality is a lot different than it sounds.

Lots of folk assume what academics say is just theory. But the difference is addition. Academics add up all the examples. They take what Google calls the satellite view. They don’t necessarily interview people like cops and lawyers. They want the big picture – what’s happening. And when you do all the examples and add it up, what you discover are vast numbers of communities engaged in keeping everybody else out – using everything from acreage requirements to zoning. So, Governor, are you telling us all to rebuild segregation by having each of our communities use policing to keep everyone else out? “Looks like he doesn’t belong here; get rid of him.” Some communities will try to protect everyone, but they’ll be surrounded by rules and cops that say keep out.

So I don’t expect anything constructive to come out of the Governor’s mandatory conversations. Breaking us down into our little private sanctuaries, the game is already stacked.

Forgive me for repeated something I’ve said before, but guns should need an excuse and a warrant before they’re pulled out in public, because guns make bullies of us all. My cure for police misbehavior? Firearms aren’t always used, but to change the culture, to motivate people to use their heads, I’d put an unarmed force between the police and the public and call for arms only when necessary. Guns and ammunition can do a lot of harm – even if only by intoxicating the officers with a sense of power.

An unarmed force would need to use their heads, to de-escalate conflict instead of aggravating it with belligerent language and a show of force.

I was asked to speak to a group of high school students alongside a policeman about relations with the cops. He told them to show respect and everything would be OK. What about the adult? The police also have an obligation to show respect for people, old and young, upset or calm. Those guns make bullies of us all – cops included.

I have no objection if the cops think wireless video connections should be provided so the department could rush help if there really is any danger. But a video stream would be more effective than a gun in convincing people to cool it. I’d put officers on the street without their guns.

I helped do a memorial for a friend a few years ago – we were both on the NYCLU Board when Jerry died. Forty years before that he was in charge of a group of attorneys in Mississippi during Freedom Summer 1964. A historian, Thomas M. Hilbink, had done a study of that group of lawyers and, reading his paper while preparing for the memorial, I discovered that Jerry had been in numerous life or death situations. Down there, by the way, the police were closely allied with the Klan. But Jerry came back healthy and strong – one of the best litigators the Civil Liberties Union had. He used his head. He de-escalated. And he protected everyone working with him.

OK, Jerry was extraordinary. So was Mississippi that summer. Jerry was truly brave, not just filled with the bravery of firearms. And he wasn’t so foolish as to pack or pull heat.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 16, 2020.


Trump’s Second Amendment Hooligans

June 8, 2020

The pandemic has been making life quite difficult for many of us, but if we don’t figure out a way to deal with Trump’s invitations to violence things can get a lot worse.

Gun owners are not made in cookie cutters and the differences are large. I know lots of people who own guns and it’s never given me a moment’s concern. Many if not most gun owners are responsible and trustworthy. They are not killers and they’re not using their guns to play rough with people.

But there is a minority that believe that gun rights, or what Mr. Trump prefers to call Second Amendment rights, give them the privilege to threaten, intimidate and even kill to make things come out their way. Threats, intimidation and murder are not protected by the Second Amendment. They’re crimes. People who believe the Second Amendment gives them such rights are hooligans or terrorists, not responsible people who deserve anything but the insides of jail cells or loony bins. Those people are “deplorable.”

The statistics make clear that they’ve done more damage in America than the foreign terrorists we say we fear. Trump wants us to believe that there are, as he put it, good people on both sides, but White Supremacists account for the vast majority of home-grown terrorism in this country. And they reliably respond to his invitations, resulting in a very clear and present danger of violence and bloodshed.

When Mr. Trump told people to liberate Michigan with their Second Amendment rights, he was not suggesting that they keep their guns holstered or cased or even pointed at the sky. He was appealing to hooligans and terrorists to force the rest of us to do their bidding.

When Mr. Trump took office the Constitution required him to:

“solemnly swear (or affirm) that [he] will faithfully execute the office of the President of the United States, and will to the best of [his] ability, preserve, protect and defend the Constitution of the United States.”

Millions of Americans have taken oaths that we were

“not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence.”

In fact Mr. Trump is trying to overthrow it. A leading, so-called birther, he denied Obama’s right to the office though Obama was properly elected and behaved in a careful and thoughtful way for the good of all of us. By contrast, Trump uses the classic methods to try to overthrow the government by force and violence. Budding dictators encourage violence, create chaos and then pose as the savior to take over. When Trump creates a clear and present danger of violence by inviting gun owners to use their Second Amendment rights, they get the signal, and Trump relies on their lawlessness to put people in terror if they oppose him. Like other budding dictators who’ve called out the military against their own people, Trump called out a show of military force against domestic demonstrators to clear his path to a photo op in front of a Washington church and over-awe Americans with his control of the levers of deadly power. A would-be dictator, Mr. Trump is repudiating his American citizenship.

Guns owners who respond to Trump’s incitement are giving a very bad name to responsible gun owners, to owners who don’t use their guns and their votes to constrain political behavior like that. It’s time to take back the NRA from the unreconstructed Civil War rebels, terrorists, hooligans and their enablers who claim the protection of their guns and the Second Amendment in your name. It’s time to break the White House link with liars, hooligans, and terrorists.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 9, 2020.

REFERENCES:

New America Foundation, IN DEPTH, Terrorism in America After 9/11 https://www.newamerica.org/in-depth/terrorism-in-america/what-threat-united-states-today/;

Daniel Byman,  Right-Wingers Are America’s Deadliest Terrorists, Slate, Aug. 5, 2019, https://slate.com/news-and-politics/2019/08/right-wing-terrorist-killings-government-focus-jihadis-islamic-radicalism.html.

DANIEL MORITZ-RABSON, New NRA President Is Board Chair for Organization Managing Country’s Largest Confederate Monument, Newsweek, 4/30/19 AT 10:52 AM EDT – https://www.newsweek.com/nra-president-chairs-organization-country-largest-confederate-mounment-1409648

How the NRA went from a marksmanship group to a controversial political powerhouse. In his new book, investigative journalist Frank Smyth explores the group’s rise to favor, particularly under the Trump administration. By Hope Reese  Updated Apr 2, 2020, 11:00am EDT, The Highlight by Vox, https://www.vox.com/the-highlight/2020/3/24/21191524/nra-national-rifle-association-history-frank-smyth-wayne-la-pierre

 


Cops, Blacks, Presidents and Stereotypes

June 2, 2020

After practicing law, it’s hard to stick to stereotypes about people, whether the police, the looters, whites, presidents or anyone else. Lawyers see the best and the worst, Mother Teresa and Jack the Ripper. The good and bad aren’t predictable.

We have lots of stereotypes about African-Americans. I’ve worked in and for the Black community but I’ve never met the stereotype. Instead I’ve gotten to know a lot of wonderful people at all levels of American society.

Police? Actually I think the police are like rest of us in all other walks of life, comprised of everyone from the best to the worst. We stereotype the police. Since they’re brave, we stereotype them all as good people. Americans don’t like to call people they despise brave, but if risking death is brave, the cops share that honor with lots of the people they pursue – gangsters, gang members and terrorists. So it’s pretty obvious that I don’t see the connection between bravery and decency. There are police who heroically track down dangerous people and rescue the innocent. But there are other police convicted of everything from fraud to the murder of women and children as well as unarmed and peaceful African-Americans.

Presidents? It had to happen that we would have one who’d try to preserve his power against the wishes of the American people. He fans the flames and encourages chaos so that he can gather the military and pretend to put out fires that he fanned, using the military against domestic dissent. He stripped many of the finest military men from command to quote “work” in his White House, and when they discovered they could not behave intelligently and patriotically they resigned. Monkeying with military leadership is dangerous. And Trump is using his die-hard armed supporters with their “Second Amendment rights” as Storm Troopers in disguise. It couldn’t be clearer that he wants to become dictator. That’s the route they take – encourage violence, create chaos and then pose as the savior.

The men who created our country knew that power corrupts. They made no assumptions but tried to create checks and balances to counter against the certainty that it would happen. They didn’t figure out how to control the Senate before it made a mockery of the impeachment process. Yes, he’s guilty of lying and a cover-up, but no matter, that’s not serious enough. Is abandoning world leadership to the Russians and Chinese disloyal enough? Is a daily string of lying to the American people and making up fake quote “facts” serious enough? Is threatening insurrection with what he refers to as “Second Amendment rights” serious enough? Is there a Second Amendment right to storm state houses and threaten governors with their weapons? Is that serious enough? Is trying to poison Americans with fake so-called “cures” serious enough? Is the slaughter of a hundred thousand Americans because he dithered in dealing with disease serious enough?

Yes, along with decent and heroic officers, there are some who are intoxicated by the power of their weapons, corrupted by their stereotypes of African-Americans, and protected by a culture of silence and solidarity. But their faults are encouraged by a pretender in the White House for whom nothing is too much to keep him in power.


Don’t let fear-mongering about bail reform make things worse!

February 2, 2020

People are being scared about the new bail reform statute. What they are not being told is that the new statute doesn’t leave the public less safe and isn’t responsible for much of the crime it’s getting blamed for.

Bail means that people can get out of jail so long as they can buy a bond. All bail statutes involve some risk of what defendants may do while out on bail. The worst criminals, the ones who have garnered the most ill-gotten gains, have the least problem getting out. But the public is not being told when the defendant would have been out anyway.

Under previous statutes, judges imposed bail based on the likelihood that defendants would run away. But the bail reform statute defines situations where there is reason for concern about public safety and provides for electronic monitoring and other restrictions in those instances, restrictions that keep people from causing trouble.

So the new statute is not likely to let people loose who would have been confined under the old statute and who shouldn’t have been under the new one.

What the old statute did was to make it impossible for poorer people to hire an attorney – in jail they couldn’t earn anything to pay for lawyers, or feed their families.

DA’s liked the old statute – they could force people to plead guilty just so they could get out and try to earn a living. That’s been a scandal well known among lawyers.

And as for discovery, most lawyers in cases in all other fields have to tell the other side what they’ve got in the way of evidence. And if there’s any reason for a defendant to be scared, there are ways judges can deal with it.

Don’t be scared by misinformation.

And don’t forget the benefits. Actually we are safer when we don’t unnecessarily destroy lives, make people less able to support themselves and their families – that drives people to desperation, and it leaves their kids feeling hopeless which drives lots of counter-productive behavior. Hopelessness causes kids to drop out of school or go on drugs or both, with horrific consequences for all of us. Don’t let fear-mongering make things worse when we are on the verge on ending the scourge of mass incarceration and all the costs and damage that has been causing.

For more information, a couple of excellent articles are by Emily Bazelon and Insha Rahman, There’s a Strong Case for Sticking With Bail Reform; and by the author, John Grisham, Bail laws a lesson in New York’s strong leadership. The statute is lengthy and the currently available version includes many provisions in unrelated areas of law; it begins at page 109.

 

 


Another Black man shot in the back by police

January 15, 2019

Albany’s DA recently decided against prosecuting anyone in connection with police shooting of a Black man and paralyzing him. He may have had a hunting knife. But police first charged that he was  charging them. So the apparent justification was that the police were scared. Then reports of a video showed that he was running away and was shot in the back.

I have no inside knowledge of this case but, unfortunately, it’s part of a pattern. Police claim that a Black man was charging them when a video shows that the guy was running away with his back turned. Or the police acknowledge that he was running away but claim to be scared because he was carrying something, maybe a knife or the keys to his apartment. One Black man after another has been shot in the back by police who claim to be scared that he would turn around, too scared of Black men to hold their fire when they have no reasonable fear of his behavior.

Actually it’s systematic partly because police are trained that they have no time. So they shoot first and ask questions later. Shooting is a first, not a last, resort. As a result of that training, even some Black officers have bought into it.

Think about it. If you were charged with shooting a man in the back and you told a jury that you were scared because the man was carrying something, you’d be convicted of manslaughter at the least. You and I have no right to shoot on the basis of speculation of what could be. You can’t mow people down because one of them might turn around revealing an unseen weapon, perhaps a gun in his briefcase. That’s not reasonable behavior; it’s not a rule we can live with. A rule of fear would put us all under ground. The law properly requires more before you can kill. But put on a badge and strap on a holster and suddenly there are no rules.

If this were the Philippines or Indonesia we’d call it “impunity.” When big shots over there act with impunity it means they are not accountable for their behavior. It’s here too when police treat Black men as if their lives do not matter.

The public seems to think that brave people must be honest and decent. But what do you do with the bravery of athletes who abuse women? I don’t know the percentages, but what do you do with the regular revelations of police who commit crimes, frame people for crimes they didn’t commit, and abuse women and Blacks? In addition to repeated revelation of Black men shot in the back by police, we’ve had revelations in New York about police ordering women to strip on the highway and revelations about frame-ups on the southern tier. We know that prejudice compounds the message of training that drives police to shoot African-Americans in the back. Should we assume that badges and guns will produce honorable behavior, make police feel empowered to take advantage of others, or both?

I would make it illegal to shoot anyone in the back unless they are in fact armed and dangerous. Or I’d require a warrant before police get to strap on weapons. A free country cannot have armed men acting with impunity, with or without badges. It is totally unacceptable. You can’t correct death.

— This commentary was broadcast on WAMC Northeast Report, January 15, 2019.


Impunity of the men on top?

July 12, 2018

The news has just announced that Alain Kaloyeros has been convicted on all counts. What he was convicted of doing was steering contracts to friends/supporters of Andrew Cuomo. That’s infuriating. Did Cuomo favor projects that went to his friends? That would have put everyone in a position where they had to break the law to be treated decently by the governor. And of course someone else gets the rap. I’m disgusted.

By the way, did the same thing happen when Trump removed Preet Bharara as the United States Attorney for the Southern District of New York? Since shortly after he was dismissed, we have heard nothing more about Bharara’s investigation of Fox. Coincidence? A subsequent US Attorney understanding who butters his bread? Or was he appointed because he and Trump had an understanding?


The Nunes Memo and Trump’s Disloyalty

February 6, 2018

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.


The Innocence Project

December 26, 2017

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.


Shots Fired – The Tragedy of Police Shootings

August 15, 2017

Last night I heard an episode of Radio Lab, which they call “Shots Fired,” that is far and away the best presentation I have heard about the persistent tragedy of police shootings.

They were very blunt about the part that racial prejudice plays in leading cops to make all the wrong assumptions with tragic results, as well as the disasters brought about by those cops who use positions in the police force to act out their aggressions, who are, in a word, bullies. It was also realistic in analyzing steps that a few departments have taken to break or attenuate the chains of events that lead to tragedy.

I’ve known, written and spoken about police shootings for decades and am well acquainted with the outlines of what has been going on. This program was a very well-rounded, well-done piece. It had me in tears for a full hour, but it was by no means all “touchy-feelie;” the program explored stories, facts, statistics, a support group, conversation with police administrators and some real understanding and sleuthing by some very dedicated, thorough and persistent reporters.

This is a podcast everyone should see and hear, including the police – the reporting is done in a way which can even reach police administrators who are looking for why these events happen and how they can deal with it.

Radiolab did us a service; now we need to get the story out.

For the podcast, click here.

You will see mention of a very different follow up which was not aired and is for podcast only. It examines the miscommunications which led to the killing of a white woman. The point they try to make in this second podcast is that there are multiple opportunities for miscommunications which can and did have tragic results. In this case the woman, thinking the police were intruders, came out holding a shotgun, the last trigger to the barrage of shots which killed her.

 

 


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