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Vol. 41, No. 4

NCBP panel discusses role of the bar association in issues of community concern

by Marilyn Cavicchia

In introducing the opening plenary for the National Conference of Bar Presidents at its 2017 Midyear Meeting in Miami, Carl D. Smallwood, past president of NCBP and of the Columbus Bar Association, set a tone that carried through the rest of the discussion.

“This is not a big-city problem. It’s an 'every city' problem,” he said, referring to police-involved shootings and other incidents that erode trust in law enforcement and the justice system. “This is not a black/white issue. It’s an ‘everybody’ issue.”

Joining Smallwood in a panel discussion that sparked an unusually active question-and-answer period—and a standing ovation—were Dana Tippen Cutler, president of The Missouri Bar; Harold Franklin, immediate past president of the Atlanta Bar Association; and Robin Wolpert, president of the Minnesota State Bar Association.

Ferguson shooting didn’t occur in a vacuum

Given that she lives and practices in Kansas City, Mo., Cutler said that when Michael Brown was fatally shot in August 2014 by Officer Darren Wilson of the Ferguson Police Department, like many others, she needed to look up where Ferguson was, exactly.

What she has since learned about the majority African American and low-income municipality near St. Louis includes the following:

  • In a recent year, more than 14 percent of Ferguson’s total revenue stemmed from municipal court fines and fees.
  • As of October 2014, there were 103,000 pending cases in the municipal court, in a city of just 21,000 people.
  • “The least able to pay were being charged the most”—including one woman who owed $1,000 for two parking tickets dating back to 2007.

This meant the waves of protests and riots that occurred both immediately after the shooting and when the decision was made not to indict Wilson took place in a context of inequity and mistrust that had existed for years before the shooting itself, Cutler said.

In the months after the shooting, The Missouri Bar joined with other bars in the area in a response aimed at community education, including a Mini Law School for the Public session that covered many topics related to the Ferguson shooting; coordinated a pro bono effort in which 100 volunteers helped individuals who were affected by the subsequent riots and looting; and endorsed and financially helped support the establishment of the Missouri Supreme Court Commission on Racial and Ethnic Fairness.

Cutler noted that she is in an unusual position, in that part of her practice is to defend police officers, including when they “don’t do the right thing”—but she is also African American and the mother of sons who have been pulled over and have been at risk of biased or discriminatory treatment.

During her term as president, The Missouri Bar has been teaming up with the state’s three metropolitan bars on a CLE series called “Courageous Collaboration,” in which participants are encouraged to “run to the roar” by confronting and consciously challenging their own biases, in hopes of creating a less biased legal profession. In the Q&A, Cutler again emphasized that this isn’t strictly an issue for those who are white: We all have certain unconscious biases, she said, noting that she does, too.

By educating the public, addressing inequity, and discussing such matters openly as a bar community, Cutler said, “We hope that the divides that led to [the shooting and protests in] Ferguson are slowly being closed.”

‘We Are in a Box as Lawyers’

Over the July 2016 weekend right after Philando Castile was shot by a police officer in a suburb of St. Paul, Wolpert “got so many emails and calls—and not just from criminal lawyers.”

This immediate wellspring of concern prompted her to reconsider whether her bar association should think only in terms of fairly cautiously helping to preserve the rule of law, or whether to take a bit more of an activist position when it comes to matters of community well-being and justice.

“We are in a box as lawyers,” she said, explaining that lawyers and bar associations often think in terms of limits rather than operating in “the governance realm” in which effective new solutions can be envisioned.

The very nature of the profession can be a hindrance, she added, in that lawyers are often “locked in a zero sum game” that is adversarial at its core. In thinking about how her bar would respond to the shooting, Wolpert said she wanted to “embrace a leadership role” rather than thinking just as a lawyer.

“No one has to lose,” she said. “We need everyone to win.”

Ultimately, Wolpert recalled, “What happened is that we put on the biggest event in our history.” The bar decided to help “demystify the criminal justice system” via a public forum held this past September at University of St. Thomas School of Law, and “we had no idea so many people would be interested.”

Key stakeholders who attended and spoke included a police chief; one person who is a law enforcement analyst for CNN, was part of a White House task force on policing, and is the director of public safety for DeKalb County, Ga.; and the president of the Minneapolis NAACP.

The next step, she said, is to develop an online community to keep everyone talking as openly as they did at the forum. Wolpert said she would like to hold a second forum, and noted that as the discussions move forward, it’s important to celebrate law enforcement and the good things that officers do, at the same time that stakeholders confront the aspects that need improvement.

A vital role for bar associations, she said, is to “get the best people at the table,” and to make sure those people represent a variety of different backgrounds and perspectives.

“Our job is to open up those worlds for people so they can understand them,” she explained.

Speaker diversity lends balance

“I don’t believe that this is something new,” Franklin said, referring to inequity in policing practices. In fact, he noted, both he and his brother (they are African American) have been pulled over for reasons that seemed questionable.

It’s important not to shy away from discussing how to eliminate biased or discriminatory policing practices, Franklin said; otherwise, the public will not have confidence in the system. Still, Franklin believes, most officers do the right thing, and they, too, want the “few bad apples” to be removed from the force.

As part of its Equal Justice in Law Enforcement Initiative, which Franklin established during his term, the Atlanta bar held a symposium in January 2016, with several panels featuring experts from across the country—and CNN’s Fredricka Whitfield as a moderator.

One of the speakers, from the University of Chicago Law School, discussed the fatal shooting of Laquan McDonald in October 2014 by a Chicago police officer. Another panel covered the judicial system and changes that might result in less bias—and more likelihood of charges or other consequences—in cases of police shootings. For one thing, Franklin said, until spring 2016, Georgia's grand jury process in such cases used to allow the police officer to sit and listen to the proceedings and then give a statement at the end—without a rebuttal.

“There were some people who had heartburn” because of the nature of some of the discussions, Franklin recalled. Echoing what the other NCBP panelists said, Franklin noted that diversity among the speakers at such an event is key.

As another part of the EJLEI, he added, Atlanta bar members have thus far met with more than 2,500 young people in metro Atlanta to help break down barriers and educate them about law enforcement, their rights and responsibilities, and how to stay safe if they are pulled over or have another type of encounter with the police.

Additional thoughts and resources

The three panelists each made a final comment or two before opening things up for questions and remarks from the audience:

  • This past December, the Minnesota bar announced the formation of the Commission on Juvenile Sentencing for Heinous Crimes, which Wolpert said arose from the fact that an unconstitutional statute in her state allows a life sentence without parole for juveniles.
  • Franklin reiterated the need to craft a neutral, balanced approach that focuses on identifying and solving problems that erode public confidence in law enforcement and justice. “If we see injustice, and if we see ways to make the system better, we should do that,” he said.
  • Cutler noted that some board members may ask why the bar association is taking on a controversial issue. However, she added, “If something happens, people will say, ‘Where is the bar association?’ If you fail to respond [to a community concern], you’re part of the problem.”

Audience members and panelists mentioned the following issues and related resources:

  • Leaders of two different state bars said that their bar associations had passed a resolution or otherwise taken a position on President Trump’s executive order regarding travel from certain Muslim-majority countries. (Note: This new resource page from the ABA Division for Bar Services gathers bars’ statements on that executive order and on judicial independence.)
  • Smallwood announced that the ABA Task Force on Building Public Trust in the American Justice System had completed its report, which was subsequently approved by the ABA House of Delegates. One goal of the task force was to encourage state, local, and special-focus bars to convene stakeholders in their jurisdictions.
  • Two attendees who are members of the National Conference of Bar Foundations mentioned the role of the bar foundation in convening discussions along these lines, and in educating the public (see “NCBF panel: Bar foundations can play a key part in addressing community issues,” also in this issue).
  • Smallwood also mentioned a toolkit and other resources from the Divided Community Project at the Ohio State University Moritz College of Law.
  • Nate Alder, secretary of NCBP, suggested that NCBP as an organization should keep in touch between its Midyear and Annual meetings. Thanks to technology, he noted, NCBP can convene at any time. If this occurs, members will be informed via NCBP’s website, its Listserv, and/or the NCBP President e-newsletter.