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November 06, 2020 Feature

Blowing the Dust into the Light

By Colleen McNally

For the first time in 40 years, I found myself without work pressures, without a reliable cohort of colleagues, and without a definable purpose. Welcome to my retirement from a rewarding career at the bar and on the bench.

I started working at age 14, and except for some wonderful vacations and a short maternity leave, I had devoted myself to my career nonstop. In my view, my devotion was to the cause of justice, meaning, I never resented it. But when it came time to consider retirement, I'll admit that I felt fatigue and increasing disillusionment with what it had all meant.

After law school, I served as a deputy county attorney, prosecuting all types of felonies, including special assignments in the Narcotics and Sex Crimes Units of the office. I served as an assistant attorney general, representing the state child welfare agency in juvenile court and in a constitutional challenge to policy in federal court. I served as a deputy public defender in felony defense and for a short time in juvenile delinquency matters. Except for the federal court matter, all of this occurred in a large urban trial court.

I was appointed as a commissioner and later as a judge in that same court. For the next 20 years, I presided in almost every case type seen in such a court: civil, probate, criminal, family, and juvenile. I was fascinated by the civil trials where I had the opportunity to hear expert witness testimony on everything from mold remediation to the neurological consequences of prenatal medical care. I was keenly interested in the introductions from prospective jurors who explained their occupations and introduced me to aspects of our community that I had never considered before.

I had made my bones in criminal prosecution and had always been intrigued by the question of what made people hurt other people. Later, as a defense attorney and as a drug court judge, I learned that the most common answer was that they had experienced trauma and pain and had never achieved a recognition or reconciliation of what that trauma had done to them so that they could begin to heal--a simple answer, but one that has significant implications to our response to criminal behavior. I had the opportunity, through my participation in problem-solving courts, to affect some changes in that response, but 30 years in, there are many miles to go.

All that is to say that I found my career as a lawyer and a judge rewarding and fulfilling. But the disillusionment came in the last several years, when it became more and more apparent to me that we were not delivering equal justice. In civil and family law cases, most people in our community could not afford to even access the justice system. This was apparent in the kinds of cases that came before the court and the observation of who was not present or represented in these cases. In criminal and juvenile justice, improvements in data collection and analysis made it undeniable that Black and brown men and women were overrepresented in who was prosecuted and in who was jailed and imprisoned. Conversely, they were underrepresented when it came to who was given an opportunity for diversion.

I witnessed racism in policing, in prosecutorial charging decisions and plea offers, in jury decisions, and in sentencing decisions. I worked on system improvement, particularly in child welfare and juvenile justice. In these two systems, a disproportionate number of Black and brown children are removed from their families and marked by the trauma of system involvement. We knew this to be true; we formed committees and task forces and organized trainings to address it, but the disproportionality persisted and persists to this day.

A couple of vignettes to illustrate these observations:

  • I represented a 21-year-old Black woman who was accused by a white cashier at a grocery store of substituting a flavor in the four-pack of wine coolers that she was purchasing. My client responded that she had just pulled the item off of the shelf and hadn't substituted anything and would be glad to have the original flavors. The cashier refused to accept her explanation or substitute the item and ordered her out of the store. The off-duty police officer providing security escalated the situation, dragging my client by the arm and throwing her into a display of dog food bags, bruising her eye. He then arrested her and charged her with resisting arrest. My client, a student and working mother who had no prior convictions or arrests, had lived with her mother locally her whole life. The initial appearance court set bond at $10,000. In our jurisdiction, these circumstances would call for release on her own recognizance or at the most a $1,000 bond. She spent several nights in jail as her mother raised the money and we sought bond review. I can't imagine in my wildest dreams this outcome for someone who wasn't Black.
  • I represented a young Latino man who was charged with robbery and theft for grabbing a man's backpack at a bus stop. The case relied entirely on the victim's eyewitness identification of my client as the robber. My client was apprehended shortly after the event, in the vicinity, with none of the victim's property or any other corroborating evidence. At the jury trial, my client testified, with his mother and girlfriend present in the back of the courtroom throughout, about his presence near the bus stop, his business at the store where he was going to buy milk for his baby, and his lack of involvement in the crime. The jury accepted the victim's version and convicted him of the crime. What was shocking to me was what came next. The judge called us in after the verdict to explain that several jurors felt threatened and unsafe and were concerned about leaving the courthouse. The stated reason, the judge said, was that although my client had been taken into custody, they were concerned about gang retaliation. There was not one word or one hint of any gang involvement. Neither my client nor his family wore anything or said anything that indicated gang involvement. There was no gang involvement. The jury was afraid because my client was Latino.
  • I presided over a child welfare case where a young mother, who was Latina, was struggling to regain custody of her four young children. The children were being cared for by her mother, their grandmother, in a small home. The family was working together to provide for all the children's needs, and the children were thriving. The child welfare worker was unwilling to allow the mother to move in with the grandmother and the children even though this was what the whole family wanted. The child welfare worker testified that she expected the mother to obtain full-time employment and her own residence in order to regain custody. This was never going to be possible, given the mother's lack of job skills, the cost of child care, and the cost of housing. There was no remaining issue of abuse or neglect, but the white child welfare worker clearly had no cultural understanding of the dynamics of this extended family's efforts to care for the children. The family did not look like the child welfare worker in skin tone or in family structure.

My own experience on the bench, which is limited to my perspective, was that the judges, the administrators, and the lawyers were not consciously, overtly, or purposely racist. I limit that comment to my own perspective because I have recently been made aware of several specific instances of overt racism that occurred while I was on the bench that demonstrate the limits of my perspective. The point, however, is that it doesn't take racists to preserve a racist system.

I had the opportunity to participate in leadership on our court. I was the presiding judge of our Family Court Department for three years and our Juvenile Court Department for four years. Contrary to what those outside the court thought, that did not mean that I had any authority over my fellow judges. Instead, it gave me the opportunity to influence policy and decision-making on a systemwide basis. I did not sit on my hands regarding issues of equal justice. I participated and promoted efforts to drill down on decision points in cases where we see disparate outcomes. I encouraged community input in our policy decisions. But at the same time, I cannot say that I acted with urgency to eradicate systemic racism.

Why not? There are many excuses to explain why the demands of a changing and growing judicial system elevated priorities that did not include racial equality, but I don't want to spend any more time explaining or excusing. If equal justice is not the pinnacle value of a justice system, then what is? If we as judges don't stand for equal treatment under the law, then what do we stand for?

As a new retiree, whatever I did or did not do to promote racial justice and equality as a judge was behind me now. The question for me, personally, was what would I do about it?

Many of my friends had found new careers after retirement from the bench, including advocacy, mediation, and teaching. I considered all of these possibilities and engaged in some consulting in our state and across the country on legal issues. But it soon became clear to me that we are in a moment in time that requires something different, something more, from all of us.

The pandemic, the civil unrest, and the everyday pounding of new instances of injustice gave me the time and purpose to reflect on my own place in the world and what it means for me to operate in it.

I took the reflection seriously and considered how I have benefited from systemic racism.

I realized that although I had never considered myself racist, and that I grew up recognizing the evil and wrongness of racism, I had been a mostly silent witness to racism my whole life.

I remembered certain family members using slurs or making ugly comments from my earliest days. It was made clear to me by other adult family members that this was uninformed and distasteful, yet nonetheless it was tolerated with a head shake and a shrug that this was "just how they were."

I started trying to understand the ways in which I had benefited from racism my whole life. It isn't easy to accept that I have enjoyed freedoms and privileges that others have not. I mean,

  • I never asked the police to let me go with a warning.
  • I never asked banks to review my mortgage application without the scrutiny given to my Black and brown potential neighbors.
  • I never asked retail staff not to follow me around the store as I shopped indecisively.
  • I never asked my neighbors not to call the cops when I locked myself out of the house and had to break in through a window.

In this and in many other ways, I realized that I have been a beneficiary of systemic racism my whole life. The privileges that I have enjoyed often were not what was given to me but, rather, what was not brought down upon me. The freedoms were not just the freedom to move around unencumbered physically but the freedom of challenge and disruption from my fellow citizens and from authorities. Privilege in my life looked like the lack of impediment rather than being boosted up or helped. It was hard to see because it wasn't what was there; it was what wasn't there.

The inward journey to uncover how racism has affected me has been a necessary first step. I will admit feeling challenged, vulnerable, and uncomfortable, but I can also report that I have felt more hopeful, more emboldened, and more liberated as I walk this path.

For me, the path has looked like other paths of discovery that I had taken as a student and as a lawyer and a judge. It requires curiosity, study, and effort.

I started listening more to people like Tiffany Cross, Shaun King, Elon James White, and Imani Gandy, to name a few, about what they experience and what they think. I started reading books by people like Robin DiAngelo and James Baldwin to try to gain a deeper understanding about the historical and social underpinnings of racism.

And, very recently, I started asking Black and brown friends, and people in my orbit, about what they experience and what they think. What I am not asking them to do is to explain our racist culture and how it came to be. It is up to me to do that work.

I have stopped thinking that I understand what racism is like for people of color. I am doing my best to uncover and unlearn the racism that I grew up with and that became a part of me without my even realizing it. I am doing my best to let down my defensiveness and to figure out what I can do to fix a system that I unwittingly benefited from at the expense of others.

I communicated, for the first time, to my friends through social media and to my community through an opinion piece in our local newspaper, some of the thoughts that I have expressed here. That communication resulted in many friends from the past and some new friends reaching out and expressing interest in continuing the conversation. Some of those people have come together to organize a regular videoconference conversation where we are speaking openly about the impact of racism, the legacy of slavery, and the impact it has on each of us, no matter what we look like or where we came from.

These conversations are sometimes difficult, but they are always enlightening. I am talking to people I have known for 30 years and hearing for the first time about their experiences with racism. Those experiences are horrifying and heartbreaking. But it is making me realize how blind I have been to the trauma and assaults that people around me have been enduring this whole time. There is something about this moment that has freed us to talk about racism and white supremacy in a way we never have before.

Our group intends to move from talk to action, but there is a recognition that we are unraveling a lifetime of education and knowledge that was bereft of certain truths. We believe that it is important to do this work first. Each of us has to come to the recognition that Kareem Abdul Jabbar described in his opinion piece in the Los Angeles Times, "Racism in America is like dust in the air. It seems invisible--even if you're choking on it--until you let the sun in. Then you see it's everywhere."

If you have been curious enough to read my thoughts to this point, and you have felt uncomfortable or challenged by some of my words, I encourage you to start on your own path to let the sun in. You know how to gain knowledge on a subject. You know how much there is to learn. Reflecting on your own history of living in this country and examining the racism that you have experienced, witnessed, or benefited from takes courage.

As members of the judiciary, we have a powerful position from which to act. We know that it takes courage to render unpopular decisions. We know that it takes courage to make rulings where there is no option that will not cause pain. We know that it takes courage to climb up to the bench and take on the mantle of being a judge when we are human just like everyone else.

We act with courage every day. Today, we are called to act with courage to join our brothers and sisters in reflecting how racism has affected us personally and has become integrated in our institutions. We are called to act as community leaders to dismantle practices that lead to unfair and unequal outcomes by race. We have much work to do, but the work is fundamental to our highest value--equal justice under the law.

Staying silent, actively or even passively resisting the changes that are needed, will have consequences. The public already has lost some confidence in the judicial branch as a legitimate and neutral institution. But it is not too late. The time has come to make sure that we live up to the promise of the American justice system and for each of us to do our part to do whatever it takes to ensure that the judicial system delivers equal justice for all under the law.

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    By Colleen McNally

    Colleen McNally retired from the Superior Court of the State of Arizona, Maricopa County, in 2017 after serving 20 years on the bench.