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Renisha McBride, Trayvon Martin and Justice in America

Wednesday, July 23rd, 2014

renishamcbrideAs a former prosecutor, I’d like to think that justice will be done in the killing of Renisha McBride who was only asking for help at the time of her untimely death. But as a woman of color, I have my lingering doubts. The trial for the man accused of murdering Renisha McBride, who knocked on his door in the early morning hours of November 2, 2013 seeking help, started on Monday, July 21st .

Last year, 19 year old Renisha McBride knocked on the door of Theodore Wafer at 4:30AM in a Detroit suburb seeking help after a car accident. Instead of helping her, Wafer came to his door and shot her in the face. Wafer is charged with second degree murder, manslaughter and firearms violations.   He is relying on the Castle doctrine defense which states he has no duty to retreat if he is inside his house. The real question remains for the jury is why he didn’t first call the police. According to the Medical Examiner’s office report, there was no evidence of her being shot at close range.

The case, although not as highly publicized as the Trayvon Martin killing, is setting up to be defended much like the George Zimmerman defense. The defense has requested to show the jury photos of Renisha McBride from social media with her posing with a gun and marijuana. The same tactic was requested and also denied in the Zimmerman trial for the killing of Trayvon Martin to inflame the emotions of the jury.

And the defense has used verbatim the same words that Zimmerman used in describing Trayvon Martin, in describing that McBride was “up to no good”.   Defense attorney Cheryl Carpenter said that “our defense is blown to pieces if you don’t allow me to argue to the jury that she could have been up to no good.” Apparently, when it comes to African Americans, the defense of “up to no good” is a well-used one to appeal to white jurors. I would like to think that Wafer’s defense is a weak one but one never knows. The strategy of injecting subtle racial overtones that have nothing to do with the case have often worked in the past in cases involving a white defendant and a black victim.

The case of Renisha McBride is troubling on so many levels.   Her car was broke down. It was in the early morning hours and she was injured. She had no way to call for help. And she was nowhere near home. The defense has said that Wafer was afraid of what he heard early that morning. She was probably the one who was afraid and not Wafer. Stereotypically, women are thought to be more vulnerable except when it comes to African American women in need of help. Then they are perceived as “up to no good.” Wafer admitted on the 911 call that McBride was asking for help. As a woman, a former prosecutor and particularly a women of color, I would like to think that someone who shot and killed a victim under these alleged circumstances would be found guilty of second degree murder. Before  McBride’s case, I would have never thought that one of my white neighbors might shoot and kill me, if I knocked on their door late at night requesting help.

The defense will attempt to portray McBride as intoxicated and under the influence of alcohol. Her blood alcohol level was three times the legal limit. But Mr. Wafer did not know that at the time of his shooting her. And her intoxication has little to do with why he should shoot and kill her all the while inside his house behind a locked door. The same goes for whether she used marijuana in the past.

The case still begs the question of why Wafer chose to shoot someone when he was inside a locked house and was able to call 911 for help. Just like George Zimmerman being told by the police that he didn’t have to follow Trayvon Martin, Wafer didn’t have to shoot. If anything, his case is even more egregious than that of Zimmerman. Zimmerman at least called the police but failed to heed their instructions . If Wafer had first called the police and followed presumably police instructions to wait until they arrived, Renisha McBride would be alive today and Wafer would not be facing the rest of his life in jail. But it all begs the question of whether justice will be done in this case or will justice be denied once again for African American youth.

renishamcbride

Former VA Gov. Bob McDonnell Trial Will Test his Likeability

Sunday, July 20th, 2014

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Former Virginia Governor Robert (“Bob”) McDonnell and his wife Maureen’s criminal trial on federal corruption charges are expected to start on Monday, July 28 with the former governor likely learning from a defense used successfully by Maryland Senator Ulysses Currie, also accused but acquitted of federal corruption charges. McDonnell and his wife are accused of a conspiracy of taking gifts consisting of loans, Rolex watches, expensive shopping trips to New York, payment for their daughter’s wedding catering, golf outings and others from business man Jonnie Williams, Sr. and CEO of Star Scientific in exchange for the former governor providing official acts to promote the business man’s dietary supplement company.

Former Governor McDonnell was well liked by Virginia voters before the time of the investigation and his indictment, was expected to be a rising star in the Republican party. McDonnell’s defense team of lawyers is likely to make the point of the former governor’s likeability a key factor in the trial by calling at least 10 key character witnesses on his behalf.

A few years ago, in 2011, Maryland State Senator Ulysses Currie, who had served since 1986 as a Maryland law maker, was charged with conspiracy along with two business men for receiving over a quarter of a million dollars in 5 years from grocery store, Shoppers Food Warehouse, without disclosing it on his ethics form and then acting on Shopper’s legislative requests in his official capacity. Like Currie, McDonnell also failed to disclose that he received bank loans from Jonnie Williams. Like the expected defense of McDonnell, Currie’s defense elicited the testimony of many prominent Maryland legislators to describe his character to the jury. Some who testified were now Democratic nominee for MD Governor Anthony Brown who described Currie as “a man of strong character”, Maryland Congressman and House Minority Whip Steny Hoyer who described Currie as a “decent, honest, person of integrity”, attorney and former Maryland politician Timothy Maloney, clergy and others.   The defense worked as Currie was acquitted of all charges and is still serving in the Maryland legislature. The defense used his likeability as one major factor to procure his acquittal. McDonnell’s defense team has the same opportunity.

 

By all accounts, it seems as if Senator Currie’s charges made for a stronger case than former Governor McDonnell’s case. Currie was intricately linked to the food chain company for which he obtained money and then made legislative appeals on their behalf, all without disclosing the fact. McDonnell’s case rests entirely on the testimony and believability of businessman Jonnie Williams, Sr. who received full immunity for his testimony. And while there will be many documents and other witnesses, the McDonnell prosecution rests almost entirely on the shoulders of Williams who will receive no jail time or conviction for his part. Currie did not testify in his case and it may be doubtful if Bob McDonnell will testify.

Bob McDonnell is betting on his character and good will to Virginians as a factor to enhance a non-guilty verdict.   On the other hand, Virginia jurors are not known for being favorable to the defense.   But the prosecution’s star witness, Williams, has a complicated past that will also be a factor. The defense will challenge the jury on whether to believe a business man with perhaps a jaded past to that of Bob McDonnell.

The defense will also be using another tactic used in the Currie trial. The defense team will likely try to explain that there were no “official” acts performed in exchange for the receipt of the gifts. McDonnell’s defense team in the past has said it was political business as usual and nothing illegal about his acts. And the Maryland jury in Currie’s trial said at the conclusion that while it wasn’t ethical, it didn’t rise to the level of a federal crime,

 

At the end of the McDonnells’ trial, the prosecution must convince the jury beyond a reasonable ground that former Governor Bob McDonnell and his wife committed acts with a criminal intent. A Maryland jury failed to convict in the case of Maryland state law maker Senator Ulysses Currie. Currie served   over 25 years in the Maryland legislature at the time of his trial. McDonnell served 37 years in politics. Whether a jury will believe the prosecution’s case and its key witness over McDonnell’s character is the question. And McDonnell’s legal team is trying to take a page out of Currie’s trial strategy and win the same results for their clients.

Why D.C.’s New Marijuana Law Will Help Blacks

Thursday, July 17th, 2014

2171_48010694635_9179_n[1] Thursday, July 17, 2014, the new District of Columbia marijuana laws went into effect after independent studies by civil rights lawyers in 2009 through 2011 revealed that the former possession of marijuana laws had a disparaging effect on the number of blacks arrested and charged for marijuana possession.   In effect, the police’s use of the former marijuana laws appeared according to independent studies, to target young blacks and Hispanics which has lasting effects on their record. The new marijuana laws, contrary to what some may believe, do not make it legal to possess and smoke marijuana. They decriminalize possession of marijuana of less than one ounce, making it a $25 civil fine without an arrest, handcuffs, fingerprinting and jail. But the law is not quite as simple as it may sound.

 

There are many nuances to the new marijuana law which some police officers claim will make it difficult for them to enforce. And the police are required to take a tutorial and training before making an arrest for marijuana. No one is free to light up marijuana and start walking and smoking on the streets of D.C. Smoking marijuana in public is still prohibited in the District of Columbia regardless of the amount and subject to prosecution by the D.C. Attorney General’s office. Operating a vehicle while suspected to being  under the impairment of marijuana or drugs is still illegal and subject to the same arrest, charges and jail, as before. Due to the nuances of D.C. and federal property in the District of Columbia, smoking in public on federal property is still illegal and subject to prosecution by the U.S. Attorney’s office, regardless of the amount in possession.

 

The new marijuana law makes marijuana possession of less than one ounce subject to a civil fine of $25, in most instances. And any arguments, appeal against the fine or a defense against the fine will be heard by the Office of Administrative Hearings. The $25 fine for possessing marijuana in less than one ounce makes it similar to the jaywalking fines in DC or littering fines. They will not be heard in a criminal court with a criminal charge and possible conviction. But the marijuana may be confiscated. One distinct change will be in the area of car stops. If a police officer stops someone for a red light and then smells or detects the odor of marijuana, the smell alone will not be reasonable grounds for a search of the vehicle or its driver and occupants.

 

The independent report by the Washington Lawyers Committee for Civil Rights and Urban Affairs of studies which ran from 2009- 2011 found that 8 out of 10 adults arrested in the District are black where there are roughly 47% black and 43% white residents. It further found that 9 out of 10 people arrested for simple drug possession are black. It goes almost without saying that the disparities are racially based in nature. The report was researched with the help of prominent lawyers and retired or senior federal or district court judges.

 

The new law is one step in the right direction to avoid the racial disparities in arrests involving simple marijuana possession of less than one ounce. While there are many more racial disparities that affect the number of blacks arrested and charged with various crimes, the new marijuana law is one step in the right direction. And it will lessen the amount of those minorities who are charged for something so innocent that has a negative impact on them often for a life time, if not expunged from their record.   While the law may seem vague and confusing to some police officers with its various exceptions, over time, it will prevent many persons from a lifetime of heartache and pain from what a criminal conviction brings.

 

The new marijuana law can be found here on the   D.C. Police web site.

One Year After the George Zimmerman Verdict

Wednesday, July 16th, 2014

I still remember where I was, what I was doing and how I felt when the not guilty verdict of George Zimmerman for the murder of Trayvon Martin was announced. It seemed so surreal at the time. Before knowing the verdict would be announced, I was scheduled to appear on Fox 5 News in Washington, DC to give an update on the case at 10:00 PM on a Saturday evening. However, before I arrived at the station, the breaking news said a verdict had been reached. As I rushed to Fox 5 studios, I got in chair with mic on and waited for the verdict to be read. Although, I was in the local DC Fox studio, the station aired the Fox News network for the verdict. And I sat stunned, numb and outraged at the same time, but trying to appear expressionless as I heard the not guilty verdict read. And listening to the Fox News commentary while still in studio waiting my turn, I felt a sense of failure on the part of the criminal justice system, once again.

TrayvonMartinHoodedThe sense of failure on the part of the justice system to do what is right and fair in cases involving young black males is present whether I hear the George Zimmerman verdict or read the statistics on the number of black men in jail today or under the umbrella of the criminal justice system. Statistics and research show that there are more black men under the criminal justice system in jail or in the criminal justice system today than enslaved in 1850. For many African American males, our criminal justice system is the new slavery system. And for young African American teens, the number who are suspended or arrested while juveniles and committed to a juvenile or adult detention center is astonishing high compared to the same white population. While black teens represent 16% of the youth population, 37% of their cases are moved to criminal court with 58% ending in adult prison.

And there is slow change coming with programs like President Obama’s initiative, My Brother’s Keepers, to help give young boys and men of color the necessary tools to get on and stay on the right path. However, many of the tools and programs fail to address the elephant in the room. Its name is racism. And for many young men and boys of color, who do all the right things, they still may face the injustice of a criminal justice system that should be just and fair with stop and frisks aimed at them for being black and “acting suspicious”, whatever that term means.

And in the year since the George Zimmerman verdict, I have felt the same sense of let down and outrage, at the system each and every day that I go to court and see the hallways and court rooms filled with young black boys, teens and men. I felt those same feelings when the verdict of Michael Dunn was read and the jury once again failed to find a non-black defendant guilty for the murder of a young black teen. Although, a re-trial is scheduled for September, I question why the jury couldn’t get it right the first time. And since the Zimmerman verdict, there are still over 26 states with Stand Your Ground laws that give many persons the legal right to kill like George Zimmerman.

But outrage and apathy will not solve the problem. First, there must be an awareness that a problem exists. Second, there must be solutions to the problem. And solutions cannot just rely on acting blind or indifferent to the real issue. Racism is the elephant in the room. And as Attorney General Eric Holder has said in a speech in 2009 and as recent as July 13, 2014, we are all a nation of cowards until we face and discuss the racism that exists in America. We have not had a meaningful conversation yet. I’m still waiting.

Father’s Day: A Day for Remembering My Dad

Sunday, June 15th, 2014

Every 3rd Sunday in June, we celebrate Father’s Day. Over the past years, I have had some struggles with Father’s Day. At times, I have focused on some of the bad traits involving my father. But as I have embarked on this thing called life, I have come to focus on the good. And I have finally come to accept my dad for the good that he did and the lessons that he taught me. I know that my sense of adventure and love of travel has come directly from my father. Unfortunately, his wonderful sense of direction has eluded me. Unfortunately, I acquired my mother’s poor sense of direction.

Growing up, my father would take us on family Sunday outings in the car. He loved to drive. And whenever he would say, “let’s go for a ride”, I knew I was in for a treat. My mother, brother and I would get in the car, never knowing where we were going. Sometimes, we might end up in Gettysburg, Pennsylvania and learn about the civil war. At other times, we might just drive and end up hours later at the most wonderful ice cream store. Of course, my question was always, “where are we going” or “are we there yet”. And he would never know or tell us until we arrived at a destination. We lived in the city so often a treat was driving to where we could see cows or horses. But it was always an adventure. Today I love to travel. Although my travel has been organized, I still believe my love of travel stemmed from my early years growing up in Baltimore and going for Sunday afternoon drives. I know my love of history and majoring in history in college was a direct influence of my dad on me. And although my father did not graduate from high school, he somehow knew the importance of knowing history.

One of my most important lessons from my dad and also my mother is the power and importance of voting. Although my parents often worked on election days, before there was early voting, they always voted. There was only one time that I recall that they missed voting. My dad was driving and rushing to get to the polls before they closed or speeding as the police officer would later call it. He was stopped by the police and received a speeding ticket. My parents were unable to vote that year. He talked about that mishap forever, it seemed. I understood from an early age that this thing called voting was very important. My parents would go together to vote. At times growing up, I would be allowed to accompany them. Those lessons have stayed with me for a lifetime. It is also why I feel so outspoken and compelled to protest against the conservative political forces who are trying to disenfranchise African American voters with felony convictions and disenfranchisement minorities through voter and photo ID laws.

My father worked as a laborer at Bethlehem Steel Company in Baltimore, MD. He rarely missed a day of work. He refused to let sleet, snow, rain, hail or anything except illness stop him from working. While later working in private practice of law in Baltimore, I had an occasion to visit the almost defunct steel mill. I saw firsthand the dangerous and dirty conditions in which my father probably worked. And I came to understand that my sense of hard work ethics came from my father who despite his work circumstances rarely missed time from work.

One of my last memories of my dad was as he was suffering from Dementia and Alzheimer’s. He was watching a TV show with Judge Joe Brown. And without even thinking, he said that I would make a good judge. At most other times, his memory was fading of people, faces and events. But somehow he never forgot that I was a lawyer.

Today I choose to honor my father by remembering all of the good that he brought in my life. Happy Father’s Day to all the dads and to my dad. To my dad, I will forever be your little girl.

With love, from Deb!

Post Script: Photo to follow

O.J. Simpson Trial 20 Years Later: Has Anything Changed?

Monday, June 9th, 2014

O.J._Simpson_1990_·_DN-ST-91-03444_cropOn the 20th anniversary of the killings of Ron Goldman and Nicole Brown Simpson, O.J. Simpson’s ex-wife, very little has changed in terms of how Americans view race and the criminal justice system. Shortly after the murders on June 12, 1994, O.J. Simpson was arrested and placed on trial. As everyone in the world knows, he was found not guilty of the murders. Depending on one’s race is the lens through which the OJ trial was viewed. For most white Americans, O.J. Simpson got away with murder. For most African Americans, the prosecution did not do its job and O.J. was not guilty. As a former prosecutor, I did not find that the prosecution proved their case beyond a reasonable doubt—the criminal standard for a conviction.

Those sentiments on the OJ case remain the same some 20 years later. As President Obama stated about the Trayvon Martin killing and ultimate acquittal of George Zimmerman, most African Americans see the criminal system through a different lens than white America. Those words could have been said 20 years ago at the conclusion of the O.J. trial verdict. In the O.J. trial, many minorities believed the system worked for O.J. Simpson the way it had worked for many white Americans accused of a crime committed against a black man. The jury found him not guilty.

Equal justice under the law has been elusive for many African Americans who enter the criminal justice system. Michael Jackson sang the lyrics that “it don’t matter if you’re black or white”. But whether you’re black or white matters in the criminal justice system. It matters in terms of how the justice system treats people and how Americans view the criminal justice system, in terms of race.

In 20 years, not much has changed in the criminal justice system. O.J.’s trial and verdict was an aberration in so many ways. The norm is what we are experiencing today and in many past years. In the cases of George Zimmerman and Michael Dunn, both were not found guilty of killing a black teen. In Dunn’s case, the jury was hung on the murder charge of Jordan Davis so there is still hope for a conviction there. In Zimmerman’s case, he got off with what many blacks believe as getting away with murder. And ironically that was how most white Americans saw the O.J. verdict.

The O.J. Simpson trial left as many questions as answers. It opened the way for America’s obsession with court trials. It did little to explore the issues of race and the criminal justice system. That is a conversation that Attorney General Eric Holder says Americans are too coward to discuss. But until we have the discussion, African Americans will continue to see the criminal justice system for what it appears. It appears as one where equal justice depends, in many instances, on the color one’s skin. It appears as if the scales that Lady Justice holds are bent against minorities. In many cases involving blacks and a white victim or a white or non-black defendant and a black victim, it appears as if Lady Justice and her scales of justice pull open or peep under the blindfold and dispense justice according to race.

One need only to look at the statistics that send many African Americans to jail to realize something is wrong when it comes to equal justice and criminal law. African American youth are 4.5 times more likely than white youths to be detained for the same crime. While African Americans make up less than 14% of the U.S. total population, they make up over 40% of the prison population. Perception appears to be everything. But these facts speak to an unequal reality.

In the 20 years since O.J. Simpson verdict, there has not been much change in the criminal justice system. Race still matters in the criminal justice system, how we view it and how it is dispensed. And O.J.’s verdict still remains an open race discussion and an aberration.

Washington, DC based Debbie Hines is a practicing trial lawyer and former prosecutor who has tried murders, rapes, burglaries, robberies and narcotic crimes. She founded LegalSpeaks to address issues in law and politics affecting race, gender and class. She frequently appears in the media as an on air legal analyst.