GPSolo Magazine - January/February 2004
Strategies for Representing Minority Clients at Court
Race matters in the courtroom. Such concerns as the racial makeup of the jury pool, the comfort level of a minority client in court, the necessity of constructing a good record for appeal, the biases of the judge, and the particular traits of the client’s subculture all must be carefully considered when representing minority clients.
The Jury Pool
The accused’s right under the Sixth and Fourteenth Amendments to be judged by a jury representing a reasonable cross section of the community is a cherished right. It is also a practical consideration for trial lawyers. In my first solo felony criminal jury trial in state court, I represented a young African American male. I knew that my client had the best chance of having factual disputes decided in his favor if at least some of the juror venire represented his community in North Tulsa. This was particularly true because of Tulsa’s difficult history of race relations.
My client had had the misfortune to run out of an alleged North Tulsa crack house when the Tulsa Police Department’s drug task force conducted a raid. At trial, after voir dire, preemptory challenges, and challenges for cause, only one African American juror remained. Despite my efforts, the prosecutor had struck two out of the only three potential jurors of color.
A factual dispute existed about whether my client threw down a quantity of drugs as he ran out the back door while the law enforcement team served a search warrant. The white officer covering the back door, at gunpoint, testified that my client came out and threw down the drugs as he put up his hands and surrendered. My client testified that the drugs were not his and that someone else must have thrown them down. Would the jury believe my young black client or the white police officer’s eye-witness testimony?
I toured the crime scene in preparation for trial and noted how the back door opened. I cross-examined the officer about the direction the door opened and realized it would have been impossible for my client to throw the drugs the way the officer testified, because the door to the back porch opened outward, not inward. I had established some reasonable doubt through testimony. The jury deliberated.
The trial resulted in a hung jury, a victory for a criminal defense lawyer. The prosecutor would have to retry the case, dismiss the charges, or offer a better plea bargain. The prosecutor spoke with the jurors afterward, and I learned the lone African American juror had held out, preventing the jury from reaching a guilty verdict. I am convinced that race was a factor in the reasonable doubt the lone juror had, based upon my client’s version of events.
During preparation for my first solo criminal jury trial in federal court, the prosecutor and FBI referred to my African American client as a “gang banger” and “serial armed robber.” The government charged my client with commission of violent crimes with a firearm under the Hobbs Act and alleged he was involved in a string of 19 armed robberies. The penalties were particularly severe, and my client faced a potential sentence of several consecutive life terms. Under the Federal Sentencing Guidelines, he would have to serve at least 85 percent of the sentence before he could be eligible for early release. For my client, who was 18 years old at the time and the father of two, the stakes were high.
During voir dire, the federal prosecutor tried his best to remove the potential lone African American juror from the venire, noting he disliked the way she answered certain questions and thereby demonstrated some sort of bias. I challenged the prosecutor’s preemptory strike based upon Batson v. Kentucky (476 U.S. 79 (1986)). Batson held that the Equal Protection Clause forbids the state from challenging potential jurors solely on their race, and shifts the burden to the prosecutor to prove a permitted basis for striking the juror. The U.S. district court judge upheld my challenge and kept the juror for trial.
In many cases, especially those involving overwhelming evidence, one of the few options I have for representing my client is securing a jury venire most representative of my client’s community, in the hope that such a jury would view the facts as favoring my client. Paul D. Brunton, a criminal trial lawyer for more than 30 years and Tulsa’s federal public defender, agrees: “Race is a big-time factor in the trial scenario. A criminal defense lawyer needs to develop a voir dire strategy to identify jurors to strike for cause—those jurors who will be biased against your client.” Brunton says that minorities are disadvantaged in any jurisdiction, civil or criminal, and adds, “What is most important is to try to pick a jury that is as race-neutral and subject-neutral as possible.”
Minority clients typically are not familiar with or prepared for their day in court. Montie R. Deer, a clinical law professor at the University of Tulsa College of Law and a member of the Muscogee (Creek) Nation, recommends early preparation and teaching clients about the legal system. “Take your client to the courthouse and into the courtroom before trial. Put the client in the jury box, ask them questions there so they are familiar with the setting and more comfortable when they testify at trial.” Deer advises lawyers to do “whatever your jurisdiction allows you to do to delve into the background of the jury pool” and to use juror questionnaires where allowed.
An Effective Record for Appeal
Lawrence Baca, a senior trial attorney in the civil rights division of the U.S. Department of Justice, remembers a particular case from early in his career. He represented a Native American candidate in a voting rights case in South Dakota who was denied eligibility to be placed on the ballot for county commissioner, allegedly because he was Indian. Baca, who is a member of the Pawnee Nation, remembers the case as being stacked against his Indian client before it ever began—primarily because it would be heard in a predominantly white justice system.
Baca spent the night before the hearing preparing in the U.S. attorney’s library. The judge came in and criticized him for filing the voting rights case, telling Baca there was no racism in that particular jurisdiction and he should not discuss race in the courtroom the next day. At the hearing, everyone in the courtroom—the judge, the court reporter, the witnesses, and the defendants—was white, except for Baca and his client. Baca knew that he would not fare well in the district court and that his best strategy thus was to make a good record for appeal. He lost at trial, but the appellate court reversed.
Montie Deer, a former trial judge in Kansas for a decade and currently a justice on the Sac and Fox Nations’ Supreme Courts, recommends knowing about your judge well. “Judges come to the bench with their own personal perspectives and biases,” he says. “You should always know the likes and dislikes of your judge to represent your client well. This is particularly true when your client is a minority,” he advises, because some judges may be more predisposed to protect the interests of minority litigants.
Often a lawyer does not have much choice in who will judge a case. In Arizona and a few other jurisdictions, trial lawyers are afforded the opportunity to strike the first assignment of a trial judge and seek another assignment. That is not the case in federal court, or in Oklahoma state courts, where assignments are random. Asking a judge to recuse is difficult and could cause negative ramifications for you and your client from the beginning. “If you ask a judge to recuse, make sure your evidentiary record is very strong and persuasive—you don’t want to lose that motion,” Brunton says.
Judges of color are few and far between. Minority clients might be likely to feel they will get a fairer hearing and ruling if their cases are tried before a judge of the same racial or ethnic background. It’s rare, however, for a minority to draw a judge of the same race, at least in state or federal courts. Baca, who has spent his entire 28-year career representing interests of racial and ethnic minorities on behalf of the United States, has appeared in federal courts in 14 states. In all those cases, he has appeared before only one judge of color and no female judges. As chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, Baca would like to see that change. Long-standing efforts to place minority judges on the bench are taking hold. (Additional information on this topic is available from the ABA Judicial Division’s Standing Committee on Minorities in the Judiciary, which produces the Directory of Minority Judges of the United States, 3d ed., 2001.)
My personal experience has been different. More than a third of the judges in my 30 or so federal, tribal, or state district court trials have been Native American, African American, or female. I clerked for an Indian appellate judge and a female state supreme court justice. Much of my practice involves representing Indian tribes and nations, so many of the judges I appear before (or my colleagues on the bench) are Native American.
Understanding the Subculture
Understanding a client’s subculture is very important. Chief District Judge Philip D. Lujan, a member of the Kiowa/Taos Pueblo Tribes, recalls having judged a custody case in tribal court. A white lawyer represented the father and made strong closing arguments criticizing the Indian mother for allowing their five-year-old son to sleep with her. “I slept with my grandmother until I was eight years old,” Judge Lujan says. “I knew that most of the Indian people in the courtroom had slept with their relatives during part of their childhood as well. This was a common Indian family way and certainly not a basis to change custody.” The father lost the custody motion.
Judge Lujan notes differences between tribal law and Anglo-American law, which can affect an Indian client’s expectations and approach to trial. “Tribal law is based not on punitiveness as a deterrent. . . . [T]he Indian way is that there is a sense of inappropriate behavior and consequences.” He describes criminal proceedings in tribal court as being much more community oriented, with a focus on shame and the remediation of bad acts rather than guilt and punishment. Tribes place much greater emphasis on social standing and respect than on money or material possessions. “In Anglo courts, there is an emphasis on contriteness of defendants,” Judge Lujan explains, which works to the disadvantage of many Native Americans when they are in Anglo courts. As a part of their cultural way, Indians would look down in a deferential and respectful way. Anglo courts, juries, and boards often interpret this type of expression as evasive, “hiding the truth,” or failing to take responsibility for one’s actions.
Acknowledging the Past
Knowing about the history of a community is important as well. Tulsa has a dark history of race relations. During the 1920s, the Ku Klux Klan flourished, the city was geographically divided between black and white communities, and racism reigned. In 1921 hundreds of African Americans perished in the Greenwood race riots. Although the evidence remains uncertain, the riots supposedly erupted after an African American man groped a white female elevator operator at the courthouse. White citizens sought to lynch the man; black residents believed he was wrongly accused and mobilized to save him.
Much of North Tulsa, then a vibrant and bustling community and center of commerce for black Tulsans, burned. The Oklahoma governor called out the National Guard, and martial law ensued. The Greenwood area, once known as “Black Wall Street,” had been one of the most prosperous and innovative African American communities in the country, but the area has struggled economically and socially since the riots. Most insurance companies refused coverage for the devastation.
Although much healing has occurred, wounds and memories from that event continue to this day. Tulsa in large measure remains geographically segregated, and race relations continue to be an important issue. Attitudes about race can impact everyone’s decision making for years, for generations. Race matters.
How Else Can You Help?
The courtroom is not the only place you can help bridge the gap between minority clients and the majority-culture institutions and services they need. As a lawyer you work routinely with the governing judicial, penal, and political institutions of our society; even outside the legal setting, your expertise can be an invaluable resource for people new to these systems or unfamiliar with the best ways to navigate them. Sharing knowledge of the majority culture’s basic norms and societal expectations can change someone’s life—as one lawyer learned.
Lawrence Baca, chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, relates having led an Indian student organization in California in 1973. The Major Crimes Act grants federal jurisdiction for a long list of crimes committed by Indians within Indian country. As Baca knows well, the United States goes to great lengths to exhaustively investigate cases before bringing them to court. As a result there is a significantly high population of Native Americans in federal prison, particularly at the Lompoc federal correctional facility. Most Indian inmates were from Indian reservations throughout the country, far from the prison.
The organization received a letter from Native American inmates at Lompoc who desired visits from people from “the outside.” One of the biggest problems, the letter stated, was that day in and day out, the only people the inmates met were “people like us who are incarcerated for crimes.” Indian inmates were not successfully achieving parole or early release. Most inmates who had grown up on the reservation had very limited education, and most came from homes where native language was the first language and English was a distant second. Many Native American inmates spoke with broken speech patterns and heavy accents (which likely scared members of the parole board).
Baca visited and decided to help by teaching English and speech courses to the Native American inmates. He put on programs and panels of speakers and taught Indian history as well as “white” cultural mores. The training was both popular and practical. Baca said he “taught them how to talk like white people, look the parole board members in the eye, and tell their story. It was like giving them a new suit to put on when going out—a transitional suit. Guys would literally stand there [at their parole hearings] looking down at the ground. We took folks who probably had a limited education on the reservation and anglicized their speech patterns.”
The program was very effective. After two or three years, the parole rate for Native American offenders rose dramatically, and recidivism declined. “None of the guys came back,” Baca says. He recalls class members thanking him and parolees telling him his class “made a difference to me to be able to go back into society.” The students told him he was different because he didn’t talk down to them or “use big words or use the words against them.” Baca recalls the period as “one of the more rewarding experiences during that time of my life.”
D. Michael McBride III has a practice emphasis in federal Indian law including trial and appellate practice and is a director and shareholder of Sneed Lang PC ( www.sneedlang.com) in Tulsa, Oklahoma. He is an associate justice on the supreme courts of the Pawnee and Kaw Nations.