Saturday, May 31, 2014

Black and White-A Tale of Two Clients

There are large segments of America (mostly white America, but not exclusively) that want to convince themselves that we now live in a "post-racial" country. A majority of the Supreme Court wants to believe that. If you are upper-middle-class or above (I don't think an actual middle-class exists much these days) it is easy to convince yourself of it. Overt racism does not smack you in the face. We have a (half) black President. What's the problem? Well, let me tell you about two recent cases of mine that, I hope, will demonstrate to you that "white privilege" is not a fabrication. It is very, very real and clouds what happens in my world, the criminal justice system, on a daily basis.

The first case involves a young black kid. He's 18, about 5'2" and maybe weighs 120 lbs. When I first met him and his family, he was charged with breaking and entering and larceny after breaking and entering, both of which are felonies in North Carolina. What I immediately noticed about my client was that he was extremely quiet, pleasant, but answered all my questions with a smile and "yes". I've been doing this awhile--I knew something wasn't right. I turned to his mother and asked if my client was in school and she told me that he was, but that he hadn't graduated and had a cognitive impairment. Bingo. As my investigation of the case would reveal, my client had made it to about 10th grade, but had reading skills of a 4th or 5th grader. His grades were mediocre to poor and there were complaints that he was "inattentive" in class. His full-scale IQ was somewhere in the mid-to-high 70s--quite low but not "low enough". He had never been in any type of legal trouble before this case. The facts of the case, boiled down, are that my client was hanging out with some other guys and his co-defendant, all 6"2" and 230 lbs. of him, decided they were going to break into the neighbors' house and take the Playstation (or X-Box, or whatever it was). So big guy breaks the window and shoves my kid into the house, because he's the only one small enough. Oh, big guy and the two others beside my kid suffer from no cognitive impairments, by the way. They are caught about two hours later playing the Playstation at the big guy's house (a couple doors away). My kid doesn't ask for a lawyer, doesn't ask for his parents, and tells the cops everything.

Given my client's background, I entered into plea negotiations with the DA hoping for a result that will spare my kid at least a felony record, but perhaps any record at all. Perhaps a deferred prosecution of some type that will enable him to work for an eventual dismissal of charges. Surprisingly, I am told that the only offer that he will get is to plead as charged and to serve a split sentence of 30 days in jail and then 3 years of probation. I remind the DA that my kid has no record, is on the cusp of mental retardation, clearly was not a leader in this incident, and immediately and fully cooperated with the police. No dice. Felony and jail or nothing. So, I went to my client and his family and told them the options. I also told them that I wanted them to consider entrusting me to take a risk on their behalf. Turn down the deal and plead "straight up", with no agreement as to sentence. I told them I thought I could convince a judge to do at least as good as the DA offered and, perhaps, much better. Of course, it was a gamble. The judge could elect to do much worse and put my kid in jail for several months. But my client's mother and father (she drives a school bus, he was a laborer) trusted in me and wanted to try and get the best result for their son that they could. So, that's what we did. And it worked! The judge listened to my pitch and decided to impose what is known in North Carolina as a "prayer for judgment continued" or PJC. What that is, basically, is that the judge finds the client guilty but does not impose sentence. He, therefore, does not officially have a conviction. There are normally strings attached to PJCs and the judge wanted my client to continue to work towards a high-school diploma, do some community service, and, of course, stay out of trouble. As I've said, I've been doing this a long time and don't get too high or low about cases, but this one really made me happy. For a while. We'll come back to that.

My other client is the son of an old friend of mine. At the time he got in trouble with the law, he was 17, white, nice-looking kid, who went to one of the nicest public high-schools in Charlotte. But he had developed a nasty drug habit. When I started representing him he had caught a bunch of charges, including obtaining property by false pretenses, larceny, credit-card fraud, and carrying a concealed weapon (a knife). There was also rather horrible side stories of his having been taken advantage of by adult predators who helped supply his habit in exchange for other things. The larceny and credit card offenses grew out of that side story and the alleged "victim" of those crimes was the vermin of which I speak. When I approached the DA about that set of charges, unlike client #1, they were willing to help. They reduced the charges to misdemeanors and took no position when I plead my client guilty and asked the judge in that case for a PJC (when the DA "takes no position", the judge knows they are consenting, albeit silently). Granted. Yay! But there were other charges of unlawful concealment and the aforesaid weapons charge that, while growing out of his drug dependency, were not tied to the other problems. So, I tried to buy time and we plead to those charges and appealed them to Superior Court for a jury trial--without going into detail, this was a way to buy us about 2+ years of time before we'd have to try those cases. In the interim, I was hoping my client could get his life straightened out. And he did. To his great credit, he and his Dad moved to another state, he got into rehab, has been over 2 years sober, and has worked steadily and impressively for an employer who loves him. I took that information back to the DA with the pitch that, "Look, the kid has turned his life around, let's not screw up what the judge was trying to do with the prior PJC". And, again, they were willing to help. Cases dismissed. Yay! And for this client, happy ending to the story.

Not so much for client #1. Because when he was charged with the felonies I talked about before, he was kicked out the high school he was attending and had to go to "training school" (another story for another day). Well, in the interim, he had gone back to his old high school one afternoon, not causing any trouble just hanging out with some friends, and the cop at the school (knows euphemistically as the "School Resource Officer") saw him and charged him with 2nd Degree Trespassing, a relatively minor misdemeanor but, again, would leave him with a criminal record. I am convinced that my client did not know enough to know that going back to his old school was a crime. But, I thought, surely the DA will see the same logic as with client #2. I talked to the school officer, imploring him to relate to the DA the "no harm, no foul" nature of my client just standing around with a couple other kids. Not so much. OK, then surely this judge will see what the first judge did for my client and, given the circumstances, will impose another PJC (rare, but it can happen). Just stand silent, I asked the DA and the officer. Nope. Guilty, no PJC, criminal record. I was mad. Really mad. I went into the hall with my client and his father (his mother could not be there that day because, ironically, she had to work driving a school bus) and I told his father that this would not have happened to his son if he had been white and from a nice neighborhood. And the damnedest thing happened. He just gave me a half-smile, said "I appreciate you doing everything you could for my son", shook my hand, and headed with his son to probation. He wasn't shocked, wasn't outraged. He knew what had just happened and HE EXPECTED IT. That made me about as sad as I've been doing this job.

This is just one example. Stuff like this happens every day, from the granting of favorable bond terms, to disparate plea offers, to sentencing. White privilege is alive and well. You can deny it if you want....doesn't mean it's not real.