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Stephen Gottlieb: Misconduct In Mislabeled Criminal Justice

Lawyers can get cynical, especially in fields they see up close. A judge called me over in the halls of a courthouse to tell me he believed what one of my clients said. And when I asked him why he didn’t acquit him, the judge said, “I couldn’t do that to the police.” My client went to jail so the police wouldn’t be embarrassed. Other judges told me they believed the police only half the time – but they didn’t know which half. Their decisions suggested it never mattered. A federal Marshall told me he would not tell the truth about theft by cops even if I subpoenaed him. Police in a course designed for them who told me they arrested Black people carrying hunting rifles in a completely legal and unthreatening manner, realizing they themselves were violating the law they were sworn to protect. You can get pretty cynical.

And then the cases attacking widespread stop and frisk of people whose only crime was walking while Black. The Albany police chief who years ago told the Times Union that there were as many drug crimes in white suburbs but magically it was only Blacks who were arrested. And the data we all know or should know by now that people in prison are overwhelming Black, after being railroaded at every step of the system of injustice, and the economic, family and electoral consequence of their discriminatory policing – the fact that prosecuting attorneys can ramp up the charges so that defendants don’t dare plead innocent and go to trial in a court system from which they expect no favors.

So I am disgusted by the lack of bite in the Albany so-called plan on fair policing. I am disgusted by prosecuting attorneys who plead terror that we might require fairness and honesty from them like we require of everyone else. The court we call Supreme defends prosecutors who commit fraud and fail to turn over the information that long established law required them to turn over, or who, instead of dropping charges, hid evidence that they were going after the wrong person and then put those people in prison for crimes they didn’t commit. And then they resist our passing law that would require their honesty. I sat in the U.S. Supreme Court in front of one of the lawyers defending one of those prosecutors. He and other prosecutors were discussing the tools available to help prosecuting attorneys sharpen their skills, in the course of which he told his fellow attorneys that the plaintiffs had a very strong case against the prosecutor he was defending. But the Court wouldn’t allow any litigation against a prosecutor for misbehavior no matter how blatant. Yes, you can get pretty cynical.

No I won’t be satisfied until I see real bite and action on rules that reign in everyone involved in so-called “criminal justice.” And I won’t feel safe until they do because the cynicism and explosions of anger from that misbehavior hurt everyone. I won’t feel safe while prisons function as education for crime for which Blacks need not apply. I won’t feel safe for my Black friends who have to walk, drive and work while Black. American hearts have no trouble bleeding for Jews in the Holocaust, Uighers in China, the Yasidis in Iraq and Syria, the Rohingya and other Muslims in Myanmnar, Christians and Muslims in much of the world. But we have our own persecution going on in front of our noses against Blacks, People of Color, Indigenous Americans and others. It’s time to stop it and start living up to what we call American ideals.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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