February 15, 2017

Midyear 2017: Public defense summit to examine racial justice and role of public defender

On one side, hundreds of policemen in riot gear, batons in hand, shields up.  On the other, hundreds of shouting residents, angry at the killing of yet another unarmed black man by police. In the middle, a figure in white shirt and tie.  

Toussaint Romain

Toussaint Romain

Standing in the middle of a downtown Charlotte, N.C., street on a Wednesday night last September, Toussaint Romain, a lawyer in the Mecklenburg County Public Defender’s Office, did what he does best — bridge the gap between ordinary citizens and the criminal justice system.

Images broadcast worldwide by CNN immediately thrust Romain, a nine-year veteran of the public defender’s office into the national spotlight — a stage he welcomes because it gives him a platform to spread the message that public defenders have a role in combating racial injustice in the criminal justice system.

“Public defenders literally defend the public. From a symbolic perspective, what I did that night on the street during the protests is nothing different from what we do in the courtroom every day,” Romain said. “We are that buffer between government – in essence law enforcement and prosecutors – and the public.”

San Francisco Public Defender Jeff Adachi says the nation’s more than 25,000 public defenders are “in the trenches” fighting for the rights of their clients, most of whom are black and brown, and all of whom are poor.

Romain and Adachi will be among the public defenders participating on the panel discussion “Racial Justice & Public Defense,” on Saturday, Feb. 4 from 1:30-2:30 p.m. during the Twelfth Annual Summit on Public Defense at Miami-Dade College. The all-day conference is held in conjunction with the ABA Midyear Meeting, Feb. 1-7 in Miami. The racial-justice panel will be moderated by Carlos J. Martinez, the nation’s first elected Hispanic public defender, who serves Miami-Dade County.  Also on the panel is Thomas Harvey, whose ArchCity Defenders nonprofit civil rights law firm in St. Louis began sounding the alarm two years before racial turmoil boiled over into the streets and onto the national scene following the fatal police shooting of unarmed black teenager Michael Brown in Ferguson, Mo., by white police officer Darren Wilson that spawned the Black Lives Matter protest movement.

Race is a constant in criminal justice. Policing, pretrial release, charging instruments and sentencing are all marred by racial injustice. These longstanding problems have again spilled over into the popular conscience, finding their way into television, radio and other media. The panel will explore implicit bias, structural racism and ways chief defenders, line defenders, investigators and others can combat racial injustice.

For Romain, being out on the streets playing the role of peacemaker between police and community and making every effort help ensure that no one’s right to peaceful protests is violated is one way he tries help combat injustice.

“As public defenders, we represent justice. That is what we do in the courtroom, we try to pursue justice,’’ Romain explained. “I think the same thing that drove me out on the street that night was to keep justice at the forefront. We have the right to assemble, we have the right to express ourselves in a certain way and I wanted to make sure that folks were able to express that frustration and their anger and assemble peaceably to get that frustration and that message out.”

Romain was quick to point out that the image of him standing between the police and protesters is only one image from that night. “There were police out there riding along on bicycles engaging with the crowd,’’ he said, adding that because of his role as public defender the police know him and he has a respect for law enforcement.

Romain said the way to fight implicit bias is to call it out when you see it in the courtroom. “What I say to chief defenders, line defenders and investigators is that we have had study after study on implicit bias. We have the information, the tools and now it’s time to just simply do something,” he said.

“What policies can you implement if you are a chief public defender? If you are a line public defender, what motions can you file? What arguments can you raise? Or if you’re an investigator, what things can you see and watch for over and over again that might help you bring some information to police internal affairs that might change the behavior of an officer?” he said.

Unless awareness is brought to the problems they will only persist, Romain said. You have to accept the fact that we all have biases and that can unconsciously affect our behavior in our interactions with others. “So we have to stand up and say something when we see it,’’ he said. “I do it often in the courtroom in front of the judge to the prosecutors. I’ll say, hey this officer keeps doing X Y or Z. I’ll  even ask the officer why do you keep doing this to this community in this way. Most people are shocked. No one wants to be called out in that way. But by bringing awareness to that person’s behavior it might alter their behavior or at least bring awareness to others as to how this person acts with regard to race.”

And it is the role of the public defender, Romain believes, to sound the alarm.

“Prosecutors can’t call out their own people, especially not when they’re trying to prosecute a case,” Romain said. “Judges can’t really say that. So the only individual within the system who can really bring complete attention to it is the public defender – a voice for the public.”

Adachi has a list of 10 things that public defenders can do to stand up for racial justice that he likes to share to “help public defenders strategize on how we can more effectively litigate racial justice issues,” he said. “That includes identifying legal and factual issues concerning race and raising them through effective litigation strategies, such as bail motions, motions to suppress, selective prosecution motions and the like.” The list includes:

  1. Talk about race with prospective jurors
  2. Insist on diverse juries
  3. Report prosecutors who use their peremptory challenges to strike black jurors without just cause
  4. Report and challenge biased judges
  5. Insist on bail hearings and raise racial disparities in pre-trial incarceration
  6. Sponsor a court watch program
  7. Identify unfair charging patterns by prosecutors
  8. Collect statistics
  9. Form a racial justice committee
  10. Let your clients know you care

Adachi agrees with Romain that public defenders have an obligation to raise racial justice issues in court and in their cases when the issue is presented.

“We need to understand the neuroscience of implicit bias so we can detect in in police officers, jurors, judges etc. And we have to have the courage to stand-up when racism is perpetrated against our clients.

The Summit on Public Defense is sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants. The daylong conference will also feature two guest speakers — Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights; and Nicole Gonzalez Van Cleve, an assistant professor in the Department of Criminal Justice at Temple University and author of the new book, “Crook County: Racism and Injustice in Americas Largest Criminal Court.” Other program topics include a look at the 50th Anniversary of the Supreme Court decision Gault, in which the court recognized the right to counsel in juvenile cases; access to counsel for juveniles, Miranda and juvenile justice; and a breakout session on how public defenders can fight structural racism.