Double Standards at the Courthouse Door

There’s a new security regime in the Connecticut federal courts, so let me gripe about it a bit: You see, lawyers are now required not just to pass through metal detectors, place their briefcases on conveyor belts scanning for bombs and some such, remove their computers from briefcases, and empty their pockets. All that was standard fare. Now lawyers are required to take off their belts as well.

“What’s up with the new security requirements?” I asked a court security officer as I pulled the belt from pants.

“New orders from up top.”

I grumbled.

“Turns out someone complained that the lawyers we’re being searched the same as everyone else.”

A vision of the complainant formed in my mind’s eye: No doubt someone summoned to court for jury service, or as a witness. They’re not used to standing in line to enter a building. They empty their pockets. Perhaps they place a bag on the conveyor belt. Their cell phone is confiscated. They pass through the metal detector, and it beeps. A security officer requires them to go through the metal detector all over again. Now they’re told to remove their belt.

The visitor is fuming at the injustice of it all. He sees another person go through without as much fuss. When he complains about the double standard, he is told the other person is a lawyer.

Damn, lawyers, the man fumes. Why do they get special privileges? The man writes a letter to complain to the chief clerk about double standards. So the clerk acts. No more privileges for lawyers. Treat everyone the same.

Except the rule is not applied in an even-handed manner. Cops are still waved through security with a wink and a nod. Why? They are law enforcement, and, I suppose, therefore regarded as trustworthy. It turns out prosecutors are also given dispensation. The day I learned of the new security regime, I asked a federal prosecutor whether he’d been put through his paces. “No,” he blushed.

Here’s a newsflash to the pencil-pushing bureaucrat who decided to crack down on defense lawyers, but to leave prosecutors and cops alone: Criminal defense lawyers are law enforcement officers, too. In fact, assuring that the law is obeyed in some of life’s most difficult situations is a criminal defense lawyer’s job: We hold the Government to its requirement to obey the law. So why are criminal defense lawyers treated differently than prosecutors and cops at courthouse security checkpoints?

There is really no good reason at all.

I’ve long since gotten used to security checks at courthouses. Frankly, I don’t mind them at all. The sorts of passions that bring people to court can be deadly. I am glad the court has folks watching the doors, and, therefore, my back. Going through these security checks everyday has made be a compliant flyer, too. Going to court is sort of like going to the airport, with this difference: You don’t yet have to remove your shoes to enter a courthouse. Not yet, anyhow.

I do mind living with the consequences of stupid decisions by pettifogging bureaucrats. Whoever cooked up the new security requirements has the twisted genius of a circus public relations man: Anything to please the folks purchasing the peanuts being tossed into the ring. Anything -- no matter how stupid. 

So here’s a memo to the geniuses running the federal courts: How about one standard for all the professionals entering the courts? There are crooked cops and crazy prosecutors out there, too, you know. And a criminal defense lawyer representing the accused is not guilty by association. 

Put this memo right there in the same file as the note from the cranky citizen complaining about double standards. And do something about it. Or would you rather just cozy up to cops and prosecutors and treat criminal defense lawyers like criminals?  And you private lawyers out there: Give a copy of the column to the folks at the door every time you enter the building -- but take your belt off first.

Reprinted courtesy of the Connecticut Law Tribune.



Color Blind? Or Wilfully Blind?

When I have an African-American defendant in a criminal trial, I like to ask potential jurors the following question: What do you think of race relations in the United States — are they good; bad; is there room for improvement?

Almost everyone answers that there is room for improvement. What would you improve if you could do so, I then ask. Answers vary.

Don’t bother asking the Judicial Branch in Connecticut. Jury administrators — the folks responsible for assuring that a fair cross-section of the community reports for jury duty — just don’t care about race. By wearing blinders, and refusing even to tabulate data about the race of potential jurors, these officials act as if everything is just fine and dandy along the color line.

I picked a jury in a murder case not long ago in Eastern Connecticut. In six days of jury selection, we interviewed more than 120 folks.  We did not see a single African-American male, and we saw only a few black women. According to U.S. Census Bureau data, 6.5 percent of the county is African-American.

Something is wrong with this picture. Ask lawyers and judges statewide, and many will tell you people of color are under-represented on juries statewide.

Jurors are drawn from four pools; the secretary of the state submits a list of registered voters; the Department of Motor Vehicles gives a list of those applying for driver’s licenses or state identification cards; the Labor Department provides the names of those filing unemployment compensation claims; and, the Department of Revenue Services tenders the names of those filing Connecticut income tax forms.

But if you ask officials from any of these departments about the racial makeup of the lists they submit to the Judicial Branch for potential jury service, you’re in for a disappointment. They have no idea. They don’t keep this data, or so representatives of each department said when I subpoenaed them to a courtroom looking for something to tell my client about why not a single black man was available for questioning on his jury.

Perhaps an answer would be found from the Attorney General’s Office, I thought. After all, that office is responsible for issuing civil summons to people who do not show up to court for jury duty. Surprise, surprise — since 2009, not a single solitary soul in Connecticut has been prosecuted for ignoring a jury summons. (About one in 30 people simply ignore the order to come to court.)

On the questionnaire potential jurors are given, they are asked to designate their race or ethnic background to help assure that jurors are selected in a nondiscriminatory manner. But the very next sentence tells them giving the information is not necessary. Indeed, the section ends by telling jurors they needn’t answer the question at all, if doing so is offensive. The form is pure gibberish, making a mockery of the commitment to ensuring that no group is discriminated against.

Can it really be that no one in the state of Connecticut keeps statistics on the race of jurors who respond to the call for jury duty?

There is a broad, and uneasy, silent consensus among criminal defense lawyers and judges presiding over the criminal courts that juries are too often too white. We try to keep it secret by refusing to talk about it. When I’ve complained about the lack of black faces in jury panels, I’ve actually had prosecutors stand up, with a straight face, and tell the judge they could not tell the race of panel members, this after having looked potential jurors in the eye. This sort of intellectual dishonesty makes a mockery of the deep wounds caused by this nation’s racial — and racist — legacy. How many prosecutors would be as blind if a black family took up residence next door in suburbia?

If white defendants routinely walked into courtrooms to face all-black juries, I’ve a hunch that serious questions would be raised about how jurors are selected. But we seem to accept the racial disparity when it cuts against a person of color. That’s Jim Crow’s legacy.

In employment law, a set of institutional practices that routinely produces results favoring the inclusion of one group at the expense of another group might be regarded as a sign of discrimination. A disparate impact on one group, we say, raises serious questions. Young black men are kept from jury service in Connecticut. It is disparate.

What accounts for this?

Don’t suggest that it is because so many of them have felony convictions, and are therefore ineligible to serve. No effort is made to screen folks with felony convictions before potential jurors arrive at the courthouse. The net we cast for jury service is simply coming up empty far too often when it comes to race. No one seems to care why.

Mounting a legal challenge to whether a defendant has been deprived a jury representing a fair cross-section of the community, a right we all enjoy under the Sixth Amendment to the United States Constitution, is all but impossible. Since the state refuses to keep statistics, any challenge must resort to guesswork. The few cases on point regarding challenges to the array of those called for service rely on sophisticated statistical tests that cannot be performed when there is no way of telling the race of those called to jury duty.

So we end up with largely, and often exclusively, white juries deciding the fate of young black men. We don’t raise questions. We don’t even make it possible to ask meaningful questions. The state puts on blinders when it comes time to give and tell us how many people of color were summoned to jury duty.

Is it possible that we don’t know the answer because we don’t want to know the truth?

Ideally, justice is color blind. I get that. But what am I to tell the next young black man who asks where his peers are when a panel of potential jurors enters the room — we’re all equal in the eyes of the law? That is a mere truism that denies the reality that race, like class, often defines and limits a person’s life chances.

That no one in the Judicial Branch can answer the simplest of questions about the racial composition of juries in Connecticut is a disgrace. When will we learn to have candid and courageous discussions about race?

Reprinted courtesy of the Journal Register company.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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