Black Mirror: Just Though You Should Know 7/22/16

 

Based on a true story...

 

Sorry for the late post.  I almost didn't write anything this week because I don't like sounding like a broken record. However, the spectacle we saw at the Republican National Convention in Cleveland only reinforces what most of us who are not swooning over Donald Trump's unconfirmed net worth (release your taxes, Donald) have been saying since he started his campaign. His leadership style is more in line with a dictator than a president.  He is a narcissist, whose first second and last concern is his own profitability and notoriety. Why else would you as a husband allow your wife to be embarrassed the way she was on the podium?  Though if we're being honest, his acceptance speech had even more falsehoods than hers did.  So there's that.

The real reason that I put fingers to keys this week, though, is this guy...

Sheriff David Clarke...oh wait...!

Whoops!  Sorry folks, wrong photo!

This guy...

Milwaukee County Sheriff David A. Clarke Jr. (Photo: wkow.com)

Watching his last two public appearances, an interview on CNN in which he tried to intimidate Don Lemon and his speech at the Republican National Convention (link) left me wondering, what happened to this man to make him hate himself so much that he uses his position as an elected Democrat (yes he's a registered Democrat) to reinforce willful blindness to the suffering of his own people?  Rather than write him off as a sell-out Uncle Tom, which I'm reluctant to do since I've long advocated the idea that it's black people that define blackness and not the other way around, I thought I'd highlight some of the things that might motivate someone to turn his back on his people.  

Notoriety:

There's an old saying that a dog biting a man isn't news but a man biting a dog is.  African Americans are surprisingly very socially conservative.  Even as a 1st generation West Indian American, I see that most of them believe in the family values, limited government, and personal liberty Republicans constantly drone on about as if they invented them.  Who wouldn't want the freedom to not be stopped, frisked, and questioned because of what you're wearing or the neighborhood you're walking in?  The divide between us and the GOP is that they seem to think only their base is entitled to these rights.  Naturally, that doesn't sit well with us.  So when one of us jumps ship, he/she goes from being just another "plantation" dweller (isn't that such a nonracist way of opening dialogue?) to being "smart", "a truth teller", and "one of the good ones."  Suddenly, you're special.  Acceptance from a group that's long told you your entire existence is "less than human" and whose approval you've been culturally conditioned to seek is powerful.  It's not just African Americans either.  Former Louisiana Governor and failed Republican Presidential Candidate Bobby Jindal and current South Carolina Republican Governor Nikki Haley have benefited politically and financially from "assimilation" even if it meant throwing their own culture under the bus.  Obviously, not every non-white Republican subscribes to this mindset.  Senator Tim Scott (R-SC) and Former Secretary of State Colin Powell walk in conservatism and self-awareness without compromising their heritage though now it seems the more extreme your views are, the more spotlight you receive.    

Spotlight:

Speaking of the spotlight,  would anyone outside of Wisconsin have heard of Sheriff Clarke if he was towing the Democratic party line?  How about Jesse Lee Peterson?  Omorosa Manigult if you never watched "The Apprentice?"  Stacy Dash if offbeat comedies and late-night B-movies aren't your thing?  How about Trump spokeswoman and failed congressional candidate Katrina Pierson? Being a willing surrogate for racist propaganda can earn you a lot of money. Each of the aforementioned "conservatives" has a warm seat waiting for them on any Fox News show, anytime they want it.   There's a lot of financial security in being able to rationalize racist viewpoints and obviously, the degree to which some people's consciences are eased is directly proportional the number of zeros in their paychecks.  Perhaps some of them fear a return to poverty more than they love themselves.  

Cultural Conditioning: 

There are a few unwritten rules about being black in the United States if you want to thrive (by unwritten I mean no longer codified in law).  The first is that if you want to succeed you have to work twice as hard as everyone else.  Your blackness is already seen as 2 strikes against you so excellence is the only way to even have a chance at success.  If you're average, you're already dead in the water.  The second is that unless you're good at a sport or other form of entertainment, good diction aka "talking white" will get you much further than "talking black."  For you non-Americans/Canadians that means speaking any form of ghetto slang English will usually bar you from getting a job that pays a real living wage.  Third is that you must know history.  "History" being European history or world history from a European perspective.  You must know basics like America was discovered by Christopher Columbus in 1492 despite the fact that he found a native population that had been thriving and repelling European attempts at colonization since at least 1000 AD.  You must know that America gained its independence from Britain through the cunning tactics of George Washington without help from anyone else.  Especially not a Native American/black guy named Crispus Attucks who was the first American to die in the Revolutionary War.  You must also know that the only role African Americans played in the building of our country was carrying the terrible burden of slavery that they couldn't free themselves from so white men fought the Civil War to free them.  There were never any attempts by the slaves to free themselves and after the war was over, blacks were free to do as they wished with full rights as equal citizens granted immediately.  In all seriousness, with these socially accepted "rules" in place it's not hard to imagine a black person being inherently ashamed of who they are and seeing assimilation into "white" culture as a step up. It's ingrained into our "education" from day one.

Men like Sheriff Clarke are always a hard pill to swallow for those of us that want to see us thrive, connect, and put this racial crap behind us.  Instead of using his position as a vehicle of change, he uses his blackness and his badge as a shield for racists.  There are other police chiefs that are being fired for standing up for their communities but he selfishly chooses to join the chorus of criticism of a people that have historically never been given a fair shake.  He, and people like him are respectability politics taken to an extreme.  They are a cruel twist on the old saying "if you can't beat 'em, join 'em."  Like Kevin Durant, however, instead of being hailed as a hero for joining a winning team, you've only proven that you're not built for the fight and would rather take the easy path to victory.  I hope the perks of being a Republican shill are enough of a comfort to you at night, Sheriff Clarke, and that you never take your uniform off because we both know the first thing everyone sees when you take it off.  Oh?  You don't know what everyone else sees?  Ask Senator Tim Scott.  He'll fill you in.

 

...Til Next Week.

Mark Godsey: For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man

Ken Anderson defends himself at a Court of Inquiry investigation in Georgetown, Texas, on Feb. 8, 2013. (Photo via Propublica.org)

Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime's only eyewitness that Morton wasn't the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson's career flourished, and he eventually became a judge.
In today's deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench.
What makes today's plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct--including disclosure breaches known as Brady violations--occurs so frequently that it has become one of the chief causes of wrongful conviction.
What's newsworthy and novel about today's plea is that a prosecutor was actually punished in a meaningful way for his transgressions.

Disgraced Judge Ken Anderson

I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, "What happened to the police/prosecutors who did this to the poor guy?" The answer is almost always, "Nothing," or worse, "The police officer was promoted and now is the chief of his department." The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America--even when they send innocent people to prison from their misconduct.
My client Roger Dean Gillispie of Dayton, Ohio, for example, spent 20 years in prison as a result of police misconduct. In 2007, we presented overwhelming evidence that the police officers, like Anderson in the Morton case, failed to turn over evidence to the defense before trial that would have cleared Gillispie. We also supplied the court with evidence that the police officer in charge had harassed and intimidated witnesses helpful to the defense, and had manipulated the evidence. Before going to court to clear Gillispie, we met with the local prosecutors, hopeful that they wouldn't tolerate such misconduct and would do a thorough (and neutral) investigation to get to the truth. Instead, they simply denied everything in knee-jerk fashion, and fought to keep Gillispie in prison until a federal court finally found government misconduct and threw out his charges in December 2011. To this day, the police officer in the case has not been investigated by a neutral, independent body. The only thing he has received is promotions.
Rogue cops and prosecutors going unpunished is the rule rather than the exception. In Illinois, two police officers whose improperly grueling interrogation techniques led to the wrongful conviction of Juan Rivera and others were not penalized when their 3rd degree tactics came to light. Rather, they were recently hired at taxpayer expense to teach interrogation courses to other police officers around the state.
A recent study found prosecutorial misconduct in nearly one-quarter of all capital cases in Arizona. Only two of those prosecutors have been reprimanded or punished. This led the Arizona Republic to conclude:

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct. In fact, they are often congratulated.

Other studies/articles with similar troubling results can be found here, here, here, and here.
Fortunately, there is something very simple that judges across the country can do to eradicate this problem. All judges, state and federal, should issue the standing "ethical rule order" proposed by the Hon. Nancy Gertner and Innocence Project Co-Founder Barry Scheck. The proposed order requires prosecutors to disclose, pre-trial, all evidence that "tends to negate the guilt of the accused or mitigates the offense." Details regarding the proposed ethical rule order, including all the justifications supporting it, can be found in this article by Barry Scheck.

Michael Morton, exonerated in October 2011 (Photo via innoncenceproject.org)

The reason such standing ethical rule orders are important is that they allow prosecutors, like Ken Anderson, to be held in criminal contempt if they are later found to have engaged in misconduct. Anderson could be punished today only because such an order had been issued in the Morton case.
Today's conviction of Ken Anderson stands out as an extreme aberration in a society where police and prosecutorial misconduct goes largely unpunished. But it is a step in the right direction. Hopefully, today's result will deter rogue cops and prosecutors in the future from engaging in similar misconduct. But this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring that proper disclosure to the defense, or risk criminal contempt proceedings.

This post originally appeared in The Huffington Post.
Mark Godsey is a Professor of Law at the University of Cincinnati College of Law and the Director of the Ohio Innocence Project.  Follow him on Twitter @wrongconvblog

Visit http://www.innocenceproject.org