The System is Not Broken

I respect the decisions of the jurors in the Rittenhouse trial. The jury reached a verdict, but the process was flawed: the Judge was not impartial, which led in part to this outcome. He telegraphed from the onset, by way of his rulings, his racist statements about Asians, his inappropriate physical closeness to the defendant, and his conspicuous belief the defendant was innocent, We saw so many examples of actions by Judge Schroeder that communicated to the jury his support for the defendant, including having him in such a close proximity. This is highly unusual, and in 16 years as a prosecutor, I have NEVER seen this happen — it has certainly never happens with Black and Brown defendants. It raises issues of race, equality, and of judicial impartiality.

These not so subtle messages impact justice and verdicts. Judge Schroeder left any premise of impartiality at the courtroom door. 

That said, I see much deeper implications for the rule of law, race, equity, and justice in our country. Every day, defense attorneys nationwide fight to get their clients of color the same level of respect and dignity this defendant received in his trial. Prosecutors fight for  victims of color to be heard and respected. Kyle Rittenhouse blatantly benefitted from white privilege while many others in the system that are Black and Brown must overcome so much more just to be treated with a modicum of the decency they deserve, in a country that believes in the concept of “innocent until proven guilty.”

To me this case is just another example of systemic racism in our country. And it is a case that connects so many concerns —the murders of George Floyd, Ahmaud Arbery, Breonna Taylor, Elijah McCain, and the subsequent uprisings in the aftermath last summer. The procedural concerns impact, and further destroy,  the trust of some Americans in our criminal justice system. We are reminded of other cases in history including the violence the Freedom Riders, and others, faced during the first Civil Rights Movement in the 1950s and 1960s where perpetrators of violence were not held accountable. 

This case also raises issues surrounding who can, and cannot, exercise their First and Second Amendment rights. It infringes on the true use and meaning of “self defense,” and renews concerns regarding the application of ‘Stand Your Ground” as well as vigilantism. Perception is reality — and if people do not perceive the system to be fair, less people will report crimes, testify in trials, or respect the rule of law.

Judges are an elected to office. Schroeder is the longest-serving circuit judge in Wisconsin. He was first appointed in 1983 and has continuously won election since, often running unopposed. Free and fair elections are the backbone of democracy, and that includes having a choice of who sits on the bench.

I’ll conclude this message with a challenge: get involved in democracy in your community. Vote all the way down the ballot, without skipping judicial races and other less discussed races. Join or start a CourtWatch program to learn about your local judges. Help build a bench: get to know stakeholders in your community and recruit and encourage them to run for office. Get involved. Mobilize. Most importantly, whatever you do – do not sit quietly on the sidelines. Do not accept the status quo. Stay vigilant, never complacent..

 If you are neutral in situations of injustice, you have chosen the side of the oppressor.” — Archbishop Desmond Tutu

We stand in solidarity with those who are hurting today. I hope you will join me in the fight for our democracy, and to push forward equality for all in the legal system in this country.
 

Though we strobed
That we came in peace
He was already at war.
We have battled hard to be.
Nothing —
Nothing —
Can keep you safe.
Silence least of all.
Look alive, everyone.
May such a prayer,
A people,
A peace,
A promise,
Be outs.
Be right
& radiant
& real.
— Amanda Gorman

In solidarity & sadness,

M.

The Trouble With Being Young, Missing & Black

This story originally appeared in the Miami Times on October 12. Check out my thoughts!

Everyone has heard the tragic story of Gabby Petito. It captivated headlines and news reports for weeks on end, chronicling the search, the desperate pleas from her family and the eventual discovery of her remains. Televisions and every portable device blasted her picture. As one can imagine, this led to an outpouring of tips that led law enforcement to where Gabby was eventually found.

During that same time, two other young people went missing and two other families were searching for their loved ones. Miya Marcano (Florida) and Jelani “JJ” Day (Illinois) were both young people of color. They were both students. They had their futures ahead of them, were bright and loved by their families. Yet their stories did not get the same traction or attention.

Why does this happen? First, it has to do with the respect for Black lives in this country. Unfortunately, biases remain when it comes to law enforcement as well as those who are decision-makers in newsrooms.

When it comes to the media, these cases really underscore the importance of having people of color in positions of power in newsrooms, editorial boards and anywhere news is being made. Many times, a story will hit someone to the core, because they identify with the people involved. Unfortunately, if newsrooms are predominately white, the stories that will resonate would be ones that remind them of their cousin, sister, brother or another loved one – people who will likely look like them. By default, Black stories get left out of the mix. If there are more reporters of color, then stories that resonate with people of color will also rise to the forefront, along with cultural sensitivity in the storytelling.

The other issue is law enforcement. This is not to say that police deliberately look at someone and say “This is a person of color, therefore we are not going to look for them.” However, due to biases based in stereotypes, there can be a belief that the person was a runaway even though they had no prior history of doing so. They could feel that since the missing person was battling addiction, or engaged in sex work or other risky lifestyles, they are not worthy of the same amount of attention and resources as someone who is a soccer mom. And that issue of not relating in the same way to a missing person of a different race, while not necessarily intentional, comes into play as an unconscious bias. This is why diversity in law enforcement is incredibly important as well.

For instance, it has come to light that in the initial stages of Miya Marcano being reported as missing, a responding deputy laughed and stated “this is not a high-priority case.” His statement shows not only a lack of sensitivity, but reveals the deeper issues that delayed Miya being found sooner. In the case of Jelani Day, the FBI only recently got involved after a month of him being missing. The family is upset that this is being approached as a suicide rather than as potential foul play. While more has yet to be revealed around his cause of death, his family is adamant that Jelani was in good spirits and showed no signs of distress.

Lastly, there is the issue of shifting blame to the victim. While there is an outpouring of sensitivity around Gabby staying in an abusive relationship, and people trying to figure out when the signs were missed or if earlier intervention could have saved her life, reporting around Miya has much to do with her rejecting the advances of a local man. The local man, who did maintenance for her apartment building, committed suicide and remains a person of interest in her death.

The fact that the focus is on her saying “no” rather than him stalking her, refusing to respect her wishes, breaking into her home and eventually (allegedly) killing her, is problematic. Shifting the focus away from his actions is giving a potential killer a pass, and also furthering the narrative that women do not get the right to say no. Their bodies, who they engage with, and how and when, is not within their control. This is not the lesson we want our young people to learn. We must also teach our kids that no means no. If someone tells you no, accept it for what it is and move on. Don’t be afraid to say no to anyone. No should never cost you your life.

Moving forward, it is incredibly important for all of us to support diverse news sources, as well as support organizations like NABJ & NAHJ to ensure that writers of color can thrive, and rise to the ranks in order to be in decision making positions. We need to follow, support and share the stories that are written by diverse authors, again, so that with the increase in their readership, their ability to be heard in rooms where decisions are made also increase.

Diversity in law enforcement continues to be a major issue that touches so many aspects of criminal justice. We need to continue that fight and support those who are looking to change the profession by eliminating bias.

Lastly, we must empower our young people to say no, accept no, and protect each other as much as possible.

Does The Florida Supreme Court Hate Diversity?

Last month, without any prompting from a pending case or matter, the Florida Supreme Court sua sponte ruled that the Florida Bar can no longer issue continuing legal education credits to any entity that requires diversity in selecting speakers.

At a time when our country is at a crossroads on racial issues—enduring the long painful trial of Derek Chauvin for the brutal murder of George Floyd, a summer of unrest due to his and the deaths of Breonna Taylor as well as Ahmaud Arbery, a huge rise in AAPI hate attacks, anti-Semitic attacks increasing by 40% in our state, and Charlottesville not far in our rearview mirror —it is incredibly irresponsible and concerning to take this approach.

If a CLE addressed Asian hate, and the sponsoring entity required at least one Asian speaker, the session would not see credit. Is the Florida Supreme Court saying that only white men can opine on anti-Asian hate? Or racism? Further marginalizing voices who can share lived experiences that can educate others makes our profession weaker. It goes back to days gone by when only white voices mattered or were heard in any discussion.

It’s 2021. Gone were the days that you do not find diverse attorneys—women, various races and ethnicities, LGBT+—locked out of various areas of practice. Seeing experts that are different than you broadens your horizons, and helps attack implicit bias. The Supreme Court, ironically, highlighted the importance of diversity and eradicating implicit bias—yet attacked the very means to be able to accomplish diversity by using a misguided application of the Regents of University of California v. Bakke, 438 U.S. 265, 307 (1978). Their basis—that requiring diverse speakers equates to an unconstitutional quota—blatantly ignores the fact that while people may have good intentions, guidelines are needed to ensure diversity. By saying “at least one speaker should be a member of a group based upon race, ethnicity, gender, sexual orientation, gender identity, disability and multiculturalism” does not act to the detriment of any other group.

Sadly, several of the Supreme Court justices were appointed by this governor, who has made it clear he is hostile to communities of color. From his comments disrespecting the jury’s verdict in the Chauvin case, to signing an unnecessary and regressive anti-protest bill that attacks free speech, to stripping access to the ballot box, and unevenly distributing the vaccine to the point that 100% of wealthy white people are vaccinated in this state as opposed to only 31% of Black residents, his intentions have been clear as day. Lastly, he recently signed a bill demanding all university professors to fill out regular surveys to determine their political beliefs, and empowers students to secretly record their professors for daring to opine differently than the conservative status quo.

The judiciary is supposed to be independent, not following lock step with the governor’s war against social media and any opinion that is not conservative. The goal of having a diverse panel is to ensure diversity of ideas—conservative, progressive and independent. It is to raise awareness around a particular topic, which makes us better lawyers and people.

This ruling will have wide consequences. Several organizations are discussing no longer hosting events in Florida, which will cause attorneys to have to travel longer and further to get quality content while depriving our economy. Locally, as bar associations grapple with engaging and retaining members, if they are barred from presenting quality programs with diverse speakers, it will only further harm their finances and relevance.

Requiring diversity is the furthest thing from discrimination. This is still in the comment period—if you believe that having a variety of speakers uplifts our profession, please contact the Supreme Court and tell them to rescind this misguided rule. If it does stay intact, I hope that organizations will continue to practice bringing diverse speakers. It is unfortunate that those with oaths and responsibilities continue to make Florida the laughingstock of the country. Those of us who truly care about diversity—with more than words, but with actual deeds—will continue to push forward.

This piece originally ran in the Daily Business Review. You may see the order from the Florida Supreme Court here.

So I Did a Thing….

Hey RLD Family!

I hope everyone is well, healthy, and on the way to being vaccinated!!

Things have been good and hectic in my world (yes, I know, shocker!), but lots of great projects have come to my world!

This week, I was featured in the documentary “Last Day In“, which critically examines the US criminal justice system. It was a project in collaboration with several filmmakers and the hip hop artist Kodak Black, who had several high profile brushes with the law before being pardoned by the last presidential administration.

We do not speak about his case; instead, we focus on what the average, every day person encounters after being arrested, and the collateral consequences that impact entire communities for generations.

See the video below, and share your thoughts!!

Legal Divas of Color: Rep. Barbara Jordan

Hi RLD Family!

Every year for Black History Month, I highlight trailblazing female attorneys that made it possible for me to do what I do today! This year, my Legal Diva of Color is Representative Barbara Jordan, who made history on a number of levels throughout her career.

Rep. Barbara Jordan, photo credit: Associated Press

Barbara Charline Jordan was born February 21, 1936, in Houston, Texas. Her father was a Baptist minister and warehouse clerk; her mother was a maid, housewife and church teacher. Greatness was pre-ordained in her blood. Rep. Jordan’s great-grandfather, Edward Patton, was one of several Black representatives who served in the Texas legislature during Reconstruction — prior to disenfranchisement of Black Texans under Jim Crow.

Rep. Jordan attended the segregated Phillis Wheatley High School, where a career day speech by Edith Sampson, a Black lawyer, inspired her to become an attorney. Never underestimate the power of career day, and of role models to open the door to new career paths!

Her education continued as a member of the inaugural class at Texas Southern University, an HBCU (historically Black college/university) quickly created by the Texas legislature to avoid having to integrate the University of Texas. While at Texas Southern, Rep. Jordan was part of the debate team, helping them reach national acclaim. The team famously tied Harvard’s debaters when they came to Houston — a huge feat for a fledgling team, while simultaneously challenging the notion of white supremacy. She graduated magna cum laude in 1956, heading then to Boston University School of Law. Three years later, Jordan earned her law degree as one of only two African American women in her class. After passing the bars in Massachusetts and Texas, she decided to come back home to Houston, where she opened a law office.

Her pivot to public service began when Rep. Jordan volunteered for John F. Kennedy’s presidential campaign in 1960. She was a masterful organizer — driving 80% voter turnout in Harris County (which is where Houston is located). In a classic case of “if at first you don’t succeed“, she ran twice for the Texas House. The first two times she lost, but she finally won in 1966 — where she became the senator for a newly formed district. As a state senator, she worked to pass a state minimum wage law that covered farmworkers. Ever the hard worker, she co-sponsored over 70 bills. 

After her success as a a state senator, Rep. Jordan ran for Congress as the Democratic nominee for Houston’s 18th District. She won, becoming the first African American woman from a Southern state to serve in the U.S. House of Representatives. She enjoyed a mentor/mentee relationship with Lyndon B. Johnson, which enabled her to be appointed to key posts such as the House Judiciary Committee. Her breakout moment came on July 25, 1974, when Rep. Jordan gave the 15-minute opening statement of the Judiciary Committee’s impeachment hearing for Richard Nixon. Her speech was a staunch defense of the U.S. Constitution and its checks and balances designed to prevent abuse of power. She said, “I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.”

She further stated “I felt somehow for many years that George Washington and Alexander Hamilton left me out by mistake. But through the process of amendment, interpretation and court decision, I have finally been included in “we the people””

Rep. Barbara Jordan, 1974

The impeachment speech helped lead to Nixon’s resignation over the Watergate scandal and won Jordan national acclaim for her rhetoric, intellect and integrity. Her speech was so amazing that two years later, she was asked to deliver the keynote address at the 1976 Democratic National Convention— a first for an African American woman! Rep. Jordan was even floated as a potential running mate for Jimmy Carter. She turned that down — but ironically, even though she was not a candidate, one delegate was so moved by her speech that they voted for her to be the Presidential nominee.

When she was not making history, Rep. Jordan was hard at work on legislation promoting women’s rights, supported the Equal Rights Amendment and cosponsored a bill that would have granted housewives Social Security benefits based on their domestic labor. She co-sponsored close to 300 bills, many of which are still law today. 

After more than a decade of service, Rep. Jordan retired from Congress in 1979 to become a professor at the Lyndon Baines Johnson School of Public Affairs at the University of Texas. It was a nice full circle moment, being able to teach at the university that she could not attend due to segregation, as well as in the school named after her mentor. She became an active public speaker and advocate, receiving 25 honorary doctorates. Her vehement opposition helped derail George Bush’s nomination of Robert Bork (who had opposed many civil rights cases) to the U.S. Supreme Court. She gave a second Democratic Convention keynote address in 1992. In 1994 then President Bill Clinton awarded her the Presidential Medal of Freedom, the country’s highest civilian honor.

Rep. Jordan died of leukemia-related pneumonia on January 17, 1996 at age 59. Breaking barriers even in death, she became the first African American to be buried among the governors, senators and congressmen in the Texas State Cemetery. Her legacy includes the main terminal of the Austin International Airport bearing her name, along with a statute of her likeness. In 2000, the Jordan/Rustin Coalition (JRC) was created, honoring Rep. Jordan and Bayard Rustin, a leader in the civil rights movement and close confidante of Martin Luther King Jr. The organization’s goal was to mobilize LGBT+ African Americans to aid in the passage of marriage equality in California. Rep. Jordan had a long term companion named Nancy Earl, who was with her until the end of her life. No public statement has ever been made about their relationship, but it is believed they were life partners. 

Thank you Rep. Barbara Jordan for being a trailblazer, and a Legal Diva of Color!

Photo credit: Associated Press