I suppose I should be relieved that the nation’s top cop came waltzing into New Haven the other day talking tough about gun violence, and promising safer streets. But I’m not.
As it turns out, Attorney General Eric Holder was selling the same flawed premises of the war on drugs, a never-ending crusade that has done little to stem drug use, but plenty to fill prisons with non-violent offenders.
Operation Longevity is the name of this new initiative. It’s a tawdry form of guilt by association. At a press conference attended by Holder, Mayor John DeStefano Jr., New Haven Police Chief Dean Esserman, U.S. Sen. Richard Blumenthal and Connecticut U.S. Attorney David Fein, lawmen tried to adopt a swaggering braggadocio.
“The first person that shoots and drops a body, they’re making the choice of who we focus our attention on. We’re not making the choice,” a deputy police chief said, heedless of grammar. This new enforcement initiative is based on the notion of “group accountability,” the lawmen said.
Did they say group accountability?
Let’s get real about the law for a moment, and parse the barnyard offal from what can withstand legal scrutiny. But first, some basics on criminal law.
Almost all crimes require that a person perform some prohibited act with an accompanying state of mind. Lawyers with taste for a little bit of Latin refer to an actus reus and a mens rea. A person might commit a bad act, but lack any culpable mental state, for example; that would be legal insanity.
I assume by “dropping a body,” the new sheriff in town was referring to the crime of murder. In courts of law, murder is the simplest of crimes. A person commits murder when, with the intent to cause the death of another, he causes that death. It really is that simple. Murder is what is known as a specific intent crime. In other words, you have to have it in mind to kill another when you pull a trigger.
Suppose you kill another with something less than the specific intent to do so? If you are reckless, that is, engaging in conduct carrying a significant risk of harm while heedless of the consequences, you might be guilty of the lesser crime of manslaughter. If you were merely careless, or negligent, to some significant degree, you might be guilty of a still lesser crime, criminally negligent homicide.
These concepts lurk in the lawyer’s mind whenever one person causes the death of another. They are what are known as theories of liability.
You can be an accessory to murder if you solicit, assist, cajole or otherwise come to the aid of the person actually pulling the trigger. But, again, something other than being in the wrong place at the wrong time, or associating with the wrong people, is required to be liable as an accessory.
Finally, you might also be liable as a conspirator, meaning you entered into an agreement to engage in illegal acts, and another acts, within the scope of the conspiracy, in furtherance of your joint, and unlawful, ends.
(If your head hurts ever so slightly after this sprint through the basics of liability, you now have a partial answer to the question lay people like to throw at lawyers defending heinous accusations: How can you defend those people? Crime is never quite as simple as it looks in the boldface print of a headline.)
What’s this to do with Operation Longevity?
Prosecutors are promising to expand theories of liability in ways that bend the law in new and novel ways. If a member of my crew kills a competing gang member, just how am I liable for my brother’s actions? The criminal law abhors guilt by association. Indeed, the defense of mere presence at the scene of another’s crime is well known in the law. Operation Longevity seeks to eliminate that defense for unpopular people.
What’s particularly galling about this new initiative is that the law needn’t be stretched at all in an effort to keep guns out of the wrong hands.
In the civil courts, liability for the acts of another is imposed without the fussy distinctions common to the criminal law, at least where inherently dangerous products are at issue. Place a defective product into the stream of commerce, and you, and all others who distributed the item, share liability.
So why not a law that creates an incentive among gun manufacturers and owners to keep their guns out of the wrong hands? A firearm manufactured by Smith & Wesson is used to kill someone? Then fine the manufacturer $250,000. Don’t stop there. Fine the dealer who sold it $10,000. Fine the owners who registered the gun $5,000. All this could be done in the same manner we seize the property of drug dealers, by launching parallel civil proceedings once criminal charges are lodged.
Creating financial incentive for those who manufacture, distribute and legally possess guns to keep guns out of the hands of unlicensed users should be a law enforcement officer’s dream come true. Unlike the market for narcotics, which are often produced overseas and smuggled into the United States, we know who is creating guns, who is selling them, who is possessing them. Did someone say group accountability?
We won’t do it. We love our guns. We want to protect ourselves against dangerous criminals, those gang-bangers who “drop bodies.” But who is going to worry about the kids swept up by eager lawmen armed with this novel embrace of guilt by association? Not the gun lobby — these kids are too often black, Hispanic, broke and trapped in urban enclaves the privileged avoid.
This is more than a war on gun violence. It’s just like the drug war. Cast a wide net, arrest ’em all, lock ’em up, and throw away the key. It won’t stop the body count. But it will imprison the bodies we refuse to integrate in a healthy society.
When I wrote last week about seeing a jury panel in Norwich from which black males were entirely absent, I assumed there must be some reasonable explanation. So this week, when I subpoenaed state officials to an evidentiary hearing, I was stunned by what I learned. No one, apparently, has a clue about how and whether the state is doing more than playing lip-service to producing juries that represent a fair cross-section of the community.
How, I asked senior jury administrators from the Judicial Branch, am I to explain to my client, a young black man accused of murder, the fact that not one African-American appeared to be interviewed as a juror? The Judicial Branch hasn’t a clue. It doesn’t keep records on race or ethnicity. The standard juror questionnaire informs potential jurors that demographic information is requested, but no one needs to respond to questions about their race or ethnicity if the question is offensive.
Question: How do you assure representative juries when you choose willful blindness over the truth?
Perhaps, I thought, the administrators of the various pools from which jurors are drawn would have answers. The Secretary of State’s Office, from which lists of registered voters are generated; the Department of Revenue Service, from which list of taxpayers are gathered; and the Department of Motor Vehicles, from which lists of those seeking state identification cards are provided, all had a simple and elegant answer: We don’t keep statistics on race.
As of the time of this writing, only the Labor Department, which garners list of unemployment claimants, could offer the promise of any information, but, a lawyer for the department told me, they didn’t think there was information about the racial makeup of lists of potential jurors sent to the Judicial Branch.
So here is where things stand: The Judicial Branch obtains lists of potential jurors, but makes no effort to determine whether the lists yield representative juries. The administrators of the various pools from which venire people are drawn have no idea. We simply summon people to court and hope for the best. The lists reflect a bias in favor of taxpayers, voters and folks with a declared stake in the world as it works right now. News flash: The world isn’t all peaches and cream. Why not include those struggling at the margins?
Criminal defense lawyers statewide whisper about the racial bias jury panels. Black men are as rare a Summer’s snow on most panels.
I thought I might be able to learn a little something about the racial composition of the panels by finding out about the race of those prosecuted for failure to respond to a jury summons, which is, after all, a violation of the law. It turns out hundreds of names of so-called delinquents are sent to the Attorney General’s Office each year. Guess how many of these folks have received a summons for violating their civic duty in the past three years? Zero.
Huh? I thought service was a civic duty? I guess we only want the right sorts of people to show up.
The state is quick to declare that these mere numbers mean nothing. We need to do a statistical analysis of the panel to determine whether there is some sort of disparate impact, or racial bias, at work. But if the state refuses to keep any statistics on the potential jurors who do get summoned, it is impossible to do more than speculate about the composition of those who show up to serve. Just try proving a case based on speculation, go ahead.
I know what I see. One panel after another devoid of black men. Try asking questions about where they all are, and you’ll be met with incredulity: I had a prosecutor say on the record he couldn’t tell the race of the panelists. Open your eyes, I say. Or imagine how you’d react if you walked into a courtroom to face a jury of 12 souls with skins as dark as my client’s. Some part of you would feel betrayed, I am sure of it.
Start putting young white men on trial before all black juries and watch how quickly folks scramble for an answer to how this happens. I doubt tolerance for willful blindness would exist for long in such a world. But we tolerate the imbalance when it cuts against a black man. Why?
The Judicial Branch isn’t prepared to act on this topic without legislative guidance. I am calling on the General Assembly to convene a task force on how to create more representative juries in Connecticut. We would do better if we wanted to do so. It shouldn’t take litigation to force the issue, although, I suppose, the challenge of attacking this in justice is an invitation worth accepting.
Reprinted courtesy of the Connecticut Law Tribune.