LA Riots or Uprising?

I was reading a real estate blog, when I noticed a story about a community garden.  The garden had been planted on a lot that had been empty for 25 years.  The lot started out 1992 occupied by a structure, which was destroyed by arson during the civil unrest that followed the Rodney King verdict.  The blog described the structure as having been destroyed in the 1992 Uprising.  This is a term that I keep hearing more and more.  When the riots happened, they were called riots.

If you believe that words have whatever meaning we want to give them, then there’s no controversy over this issue.  People can use any word to describe any thing, up can be down, left can be right.  But if you believe words have a shared meaning that is not up to any one person’s interpretation, then you might be interested in which word fits this situation more.  Merriam Webster defines uprising as “an act or instance of rising up; especiallya usually localized act of popular violence in defiance usually of an established government.”  It defines a riot as “public violence, tumult, or disorder.”

Changing the description of something is often a political act rather than a descriptive act.  We may sympathize with the racial grievances of some of the rioters.  Some people may agree that the Rodney King jury got it wrong.  But we all know, since childhood, that two wrongs don’t make a right.  Legitimate racial grievances can’t be resolved through violence.  They can’t be resolved through arson, like the one described in the article.  They certainly can’t be resolved by looting, which only victimizes the rioter’s own community.

I can’t help think about what happened to Reginald Denny, who was pulled from his car, beaten, robbed and hit with a brick.  The man who did it, Damian Williams, was a gang member.  The other men involved in the attack were a convicted robber and two drug addicts.  Damian Williams would be convicted, released from prison early, and then go on to murder a man.

Uprisings are more noble than riots.  Some black journalists have described an uprising as “a group of people saying ‘enough is enough.'”  Uprising includes definitions that describe its purpose as overthrow of the political order.  Liberal opposition to President Trump is often described that way.  The use of the word uprising to describe noble behavior is the reason that it is being applied to the riots.  It reflects a retroactive attempt to burnish the image of the rioters from thugs to tragically failed revolutionaries.  Hijacking the facts to fit a political theory is dishonest, especially when the facts include death and destruction.

It makes me especially angry to think that we might be turning these rioters into heroes in some kind of anti-racist class struggle.  That could not be further from the truth.  You can’t fight racism by committing crimes.  Indeed, many racists probably saw confirmation of their racists views during the riots.  American history is full of examples of successful non-violent movements against racism.  Non-violent protesters are heroes.  The people that attacked Reginald Denny and burned down all those buildings are villians in this story.  As time passes, we shouldn’t forget that.

Six people died from arson during the riots, out of 53 total deaths.  The article I read does not say whether this community garden was built where one of those people died.  But those people who view the riots as an understandable or even justified response to racism, should read this list, containing a short accounting of each of those deaths.  The riots were nothing more that the sum of each of these crimes.  We do a disservice to these victims when we try to polish or politicize that fact away.

Public Defenders Play the Race Card

I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.”  It discusses a study out of Loyola Law school that

analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.

The authors did not consider the obvious: that relative poverty might cause this outcome.  In California, people of color are less wealthy.  If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits.  They wealthy can bail themselves out and fight the case, eventually securing a better deal.  If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal.  There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.

But the authors, without an explanation, go right to “prosecutors are racist” as an explanation.  That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.

Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory.  Is it bail that’s causing this?  Or racist prosecutors?  The authors can’t decide.  They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.”  Not criminals; prosecutors are to blame.  Who thinks like this?  More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.”  What?

I just hate-read this again before finishing up and noticed this was written by public defenders.  Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments.  Not all public defenders are quick to accuse the other side of racism.  But it seems like these two are a great example of everything that’s wrong with the defense bar.

Foster v. Chatman

On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters.

(Foster v. Chatman (2016) 578 U.S. ___.)  These are the opening lines of Justice Roberts’ majority opinion in the Supreme Court’s latest jury selection case.  Foster v. Chatman is a well-meaning decision aiming to strike a blow at racism.  Instead, it makes peremptory challenges against African-Americans extremely dangerous to prosecutors.

White lived by herself in Rome Georgia.  Early in the evening of August 27, 1986, a friend took White to choir practice.  When White’s sister stopped by early the next morning, she discovered that White’s house had been broken into and ransacked.

[The police] found White’s body lying on the floor in her bedroom covered to her chin by a blanket. Her face was coated with talcum powder. Her jaw was broken. She had a severe gash on the top of her head. She had been sexually molested with a salad-dressing bottle, and strangled to death. A number of her possessions were missing from her home.

(Foster v. The State (1988) 258 Ga. 736.)

Timothy Tyrone Foster was arrested for White’s murder a month later when he threatened another person and she turned him in.  The police recovered White’s possessions from Foster’s home and the homes of his two sisters.

Foster confessed.  He said that White got up to use the bathroom in the middle of the night.  She returned to her bedroom and turned on the lamp.  Then she noticed Foster in her living room.  White got out a knife and chased Foster, but he picked up a fireplace log and hit White hard enough to break her jaw.  He then admitted the sexual molestation and strangling.

The Procedural Posture

By the time the parties completed for cause challenges in the trial court, four black jurors were left out of 42 total jurors.  The prosecution exercised nine of its ten peremptory challenges, removing all four of the remaining black prospective jurors.  Foster was convicted.  During the sentencing phase, the prosecutor urged jurors to sentence Foster to death to deter people “out there in the projects.”

After the trial was over, Foster filed a series of Open Records Act requests.  He obtained documents related to jury selection at trial.  On the jury venire list, the name of each black juror was highlighted in green.  On these jurors’ jury questionnaires, their race had been circled.  On a list of jurors remaining after for cause challenges, there were ten “N”s next to jurors the prosecution intended to remove, including next to the names of all the black jurors.  The five black jurors were included in the prosecution’s list of six “definite NO’s” [sic].  There were three handwritten notes on black prospective jurors in which they were labeled “B#1”, “B#2”, etc.  There was a handwritten document titled “Church of Christ”.  A notation on that document read: “NO.  No Black Church.”

The jury list (Prawfsblawg)

The prosecution employed an investigator who was black himself.  The investigator wrote a draft document with his views of the jurors.  In it, he wrote: “If it comes down to having to pick one of the black jurors, [this one] might be okay.  This is solely my opinion.”  This language was removed from the final document by the prosecutor.


Many Courts Reviewed These Facts And Only The Supreme Court Found Racism.

The defense challenged the prosecution under Batson v. Kentucky (1986) 476 U.S. 79, claiming that the prosecution’s challenges were racially motivated.  The trial court denied this claim.  Following sentencing, Foster renewed his Batson claim in a motion for a new trial.  After an evidentiary hearing, the trial court again denied his motion.  Foster sought a writ of habeas corpus on the Batson issue.  He discovered and admitted the evidence from the prosecution file, described above.  The state habeas court considered this evidence and denied relief.  They held that Foster “fail[ed] to demonstrate purposeful discrimination.”  The Georgia Supreme Court then reviewed the case.  They denied Foster his ability to appeal the case further, holding that his claim had no “arguable merit.”

Despite the fact that the trial court had denied Foster’s Batson claim twice, the habeas court denied his claim, and the Georgia Supreme Court held the claim had no merit, the United States Supreme Court granted certiorari and reversed all of these courts in holding that the prosecution was motivated by race.

During oral argument, Justice Kagan said, “Isn’t this as clear a Batson violation as a court is ever going to see?”  Justice, Roberts, writing for the 7-1 majority, gave what has been described as “a devastating indictment of the prosecutors.”  Ironically, the only justice in dissent was Justice Thomas.

The Court reversed Foster’s conviction, meaning he can go back to the Georgia Supreme Court and will probably get a new trial.

Prosecutors Are In A No-Win Situation When Deciding Whether To Document Race.  

Justice Roberts was particularly troubled by the “arresting” number of references to race in the prosecution file.  He criticized prosecutors for “the persistent focus on race in [their] file.”  The clear implication is that prosecutors who make notes about the race of the prospective jurors might be keeping track in order to discriminate.  Indeed, Roberts and the other justices considered these notes as evidence of racism.  A conscientious prosecutor, who is actually not violating Batson, would not want to make such notes.  Such a prosecutor might reasonably believe that such notes may be used against him by a zealous defense attorney and a hostile appellate court.

On the other hand, prudent prosecutors need to keep track of the race of all the prospective jurors to protect themselves from Batson challenges at the trial court level.  For example, a prosecutor defending against a Batson challenge might need to point out that she has challenged jurors of all ethnic and racial backgrounds.  She might need to rely on more than her memory, especially in a high-pressure trial.  She might need notes.  Moreover, courts don’t review cases for many years.  Memories fade.  Prosecutors therefore need to document the grounds for their peremptory challenges, in order to explain them many years later.

At The End Of The Day, We Should Not Forget That There Is No Real Doubt As To Foster’s Guilt.

Foster confessed.  The confession was voluntary: there isn’t even an allegation (much less evidence) that this confession was coerced.  The confession was corroborated by the recovery of the victim’s property in Foster’s home.

Timothy Foster (AP)

This is not a case in which an innocent person of color ended up in jail due to racial prejudice, as some commentators have suggested.  This is a case in which a murderer had his conviction reversed on a flimsy technicality by well-intentioned justices.  As a result, prosecutors are facing an even more difficult situation during peremptory challenges.  Maybe we should just get rid of them altogether.

My First Felony

It was after dark in a small coastal town, and the sea fog was coming ashore off the ocean.  Just a few blocks from the water, a fight broke out between several men, and a neighbor called 911.  The police arrived a few minutes later, to find only one man left out on the street: the Defendant.  He had his shirt off, even though it was a cold night after dark, and the officers could see his tattoos.  These included the name of the town in black letters from shoulder to shoulder across his chest, a “locals” tattoo on his hand, and many others, each discrete, so that they appeared to be the accumulation of many years.

Two officers approached the Defendant.  He was sweaty and obviously agitated.  They immediately recognized him; he had a long local history of fighting and public intoxication.  Defendant recognized the officers.  The white officer had previously encountered the Defendant when he was outside fighting with his girlfriend.  Ever since that night the Defendant hated the officer.  Defendant walked towards the second officer, who was Hispanic.  The officer told him to sit on the curb – standard practice for the police deparment in this small town.  But the Defendant refused.  He was too riled up.  He seemed to know that the officers had been called there to respond to a fight.  He said that they ought to talk to some other people, and motioned with his head towards an apartment building.  The officers kept their eyes on the Defendant.  The Hispanic officer told him a second time to sit down.  Defendant insisted he didn’t do anything.

After the Defendant ignored the second command to sit on the curb, and as he kept advancing, the Hispanic officer put his flat palm on the Defendant’s chest.  He told him to sit down a third time.  But the Defendant wasn’t having it.  He slapped the officer’s hand away.  Both officers then grabbed him, one on each arm, and tried to move him to the ground.  The Defendant broke free, but after a struggle, the officers were able to get him down to the ground.  Other officers arrived.  It took four of them to get the Defendant handcuffed on his belly.  As they flipped him over onto his stomach to begin to talk to him about what happened, the Defendant kicked at the officers standing over him.  He was able to kick both of the original responding officers several times.  Then, he looked the Hispanic officer for a brief pause, and spit in his face.

The officer didn’t take a baton to him, or tase him, or shoot him.  He just continued working with the other officers to restrain the Defendant.  They flipped him back over onto his stomach, wrapped his legs up in nylon, and put him back into the patrol car, but not before he struggled his way back out and landed face first on the sidewalk.

Defendant spent five days in jail.  The officers have video and audio of him sitting in the back of a patrol car, screaming his lungs out.  Challenging the officers to fight.  Questioning their manhood.  Telling them he didn’t do anything.  He was charged with two counts of using force to resist an executive officer.  This is a pumped up version of a regular resisting arrest charge.  Defendant faced a maximum of three years eight months in state prison on those charges.

To the surprise of many observers, the Defendant found representation with an extremely competent, razor-sharp Defense counsel.  But one look at this lawyer’s resume told the whole story.  He was a “civil rights” attorney, who made a living out of suing police and their employers.  He would collect damages, and then use the civil rights law to make the losing party pay his legal fees as well.  These fees can, and have, been set by courts at $800 per hour and more.  Clearly, the lawyer was using this Defendant as part of a plan to sue the City.  But first he had to win this criminal trial.

I got the case on a Thursday, with jury selection to begin on Monday.  Sitting at my kitchen table that weekend, I reviewed the photographs and video of the incident.  I noticed photographs of a man arrested at the same time as the Defendant.  He had a six inch swastika tattoo on his body.  And the Defendant in my case was also covered in tattoos, although I didn’t see any swastikas.

I don’t know if it was lack of focus or what, but I stopped working on my pretrial briefing and started looking into Defendant’s tattoos.  In another context I might even criticize myself for failing to stay on task, but it paid off big time.  I found a lot of material.  In particular, a powerpoint listing tattoos banned by the military had a symbol that matched one of the symbols on the Defendant’s body.  I don’t know how long I had been searching, but it wasn’t long, and it paid off.

1. Aryan Nations; 2. National Alliance; 3. National Socialist Movement; 4. Volksfront; 5. Blood& Honor; 6. Hammerskin Nation; 7. Northwest Front; 8. American Front; 9. White Revolution; 10 Klu Klux Klan.

I immediately began to find out as much as I could about the tattoo and the organization it referenced.  I found out that it stood for a well-organized neo-nazi gang that promoted white power music.  I found out that they had a gang sign.  I then reviewed the preliminary hearing transcript in my case and discovered that the Defendant had flashed this gang sign during his arrest.  And I noticed the officer that the Defendant initially assaulted was Hispanic.

Everything started to come together.  I found an expert on white supremacists and convinced him to come testify, virtually for free.  That part was actually pretty easy: it turns out that no one likes racists and everyone jumps at the chance to put them behind bars.  I drafted a motion to admit the evidence.

We had a rough and tumble argument in court about what evidence to admit.  But the court agreed to allow me to present evidence of the defendant’s racism.  After the hearing, the court said, “now, is the Defendant still considering any offers?”  He talked with his high-priced lawyer for about 30 minutes and pled open.  That’s the criminal law equivalent of throwing yourself on the mercy of the court.

I didn’t get to conduct the trial, but I did get the satisfaction of watching the Defendant realize he was going to lose and give up.  Even more than that, this Defendant was planning on suing the City that arrested him.  In today’s climate, with the lower civil standard, the City had a very real chance of being found liable.  The conviction I obtained, however, bars this suit.  In other words, the conviction may have saved the city and its officers hundreds of thousands of dollars in damages and legal fees.  A very satisfying way to begin what I hope is a long career trying felonies.