A New York Times editorial points out that lawyers and courts are ignoring the landmark case of Batson v. Kentucky. In Batson the Supreme Court held that peremptory challenges to jurors could not be based upon race.

Yet, according to the Times, prosecutors often challenge African American jurors in death penalty cases who are less likely to vote for the death penalty. In Jefferson Parish, Louisiana African Americans are challenged three times as often as Whites. In Houston County, Alabama 80 percent of the African Americans placed on jury panels in capital cases are subject to peremptory challenges.

If opposing counsel can make a prima facia case to show race-based peremptory challenges the lawyer, and it is not only prosecutors, must give a race-neutral
explanation of the peremptory challenge. One Alabama prosecutor who challenged eleven of fourteen African Americans on a panel gave excuses such as one African American panel member was arrogant and another was not sophisticated enough.

The editorial is based on an excellent report by the Equal Justice Initiative, (EJI) a Montgomery, Alabama based private organization which represents indigent defendants, which reviews the enforcement of Batson in eight Southern states. Among the EJI findings is that the appellate courts in Tennessee have never reversed a conviction for Batson error and that some District Attorney’s teach their deputies how to select jurors based on race and avoid sanctions. Among the recommendations are that courts and bar associations be more vigilant in enforcing Batson and that increased diversity be required among prosecutors, court personnel and defense attorneys.

Justice Thurgood Marshall who wrote a concurring opinion in Batson predicted that prosecutors would come up with excuses and he suggested that we abolish peremptory challenges. By taking the first twelve jurors we would not only abolish race-based challenges but we would speed up trials considerably. Not a bad idea.

Following up on the recent release of statistics showing that the number of African Americans and Latinos stopped and searched by New York City police vastly exceeds their percentage of the population, the New York Civil Liberties Union filed suit against the city claiming that under state law the names and other identifying information regarding those searched but for whom charges are later dismissed must be purged from the records. In the first three months of this year 9% of those searched by New York police officers were white, 33% were Hispanic and 52% percent were black.

But ironically even if the suit is won, the much larger group of people who are searched but never charged will remain in the database. In 2009 police reported 575,000 people were stopped and frisked. Since 2004 the police admit to stopping and frisking three million people. Over eighty per cent of these were either African American or Hispanic. But only six per cent of these people are charged. The percentage that the suit affects would be considerably less than six per cent of those stopped and frisked.

The New York Times has released some startling new statistics.

African Americans and Latinos were nine times more likely to be stopped and frisked in New York City than Caucasians in 2009. Police stopped 209,000 Black and Latinos in 2009 while they only stopped 53,000 Caucasians. In Ohio v. Terry the Supreme Court found it permissible to stop an individual if a police office has a reasonable suspicion that the person was involved in a crime. Furthermore the Supreme Court ruled that the officer could frisk the person if the officer has a reasonable suspicion that the person might be carrying a weapon. But in the New York City searches, less than two tenths of a per cent of the frisks yielded guns. Furthermore force was only used in 19 per cent of the stops of Caucasians while it was used in 25 per cent of the stops of African Americans and 27 per cent of the stops of Latinos.

But once the stop occurred arrest rates were similar. Slightly over six per cent of the Caucasians who were stopped were arrested and slightly less than six per cent of African American who were stopped were arrested. The primary reason given for stopping individuals were furtive movement which is so vague that anyone can be stopped for making a ‘furtive movement.” Only fifteen percent of those stopped are alleged to look like a person wanted for committing a crime.

The First Circuit Court of Appeals reversed a ruling by the District Court suppressing evidence on Fourth Amendment grounds and upheld a search by a Hooksett, New Hampshire police officer.

Officer Aaron Brown of the Hooksett, New Hampshire Police Department pulled over a vehicle driven by Renee LaFontaine for having a burned out headlight. After informing LaFontaine of the reason he pulled her over, Brown questioned Vincent Chaney who was in the right front seat. He asked Chaney for his ID. Chaney said he did not have it with him. (He wasn’t driving so he did not need his ID.) Chaney was not sure what jurisdiction issued the ID. Chaney gave his name as Jacob Williams. Chaney was unable to provide his Social Security number or his current address. Brown was unable to verify Chaney’s information on his radio. It took approximately five minutes to do the records check for Chaney. Brown then interviewed LaFontaine and Chaney separately. He did not learn much but he saw a bulge in Chaney’s pocket which he thought might be a weapon. Chaney was evasive about the contents of his pocket. He handcuffed Chaney and pat searched him. He found a pouch with a gun in it. Chaney was charged with being a felon in possession of a gun.

The District Court granted his motion to suppress the evidence on Fourth Amendment Grounds and the First Circuit reversed.

Citing Supreme Court precedent, The Court ruled that

“[d]uring an otherwise valid traffic stop, ‘an officer’s inquiries into matters unrelated to the justification for the traffic stop, the Supreme Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ Arizona v. Johnson, 129 S.Ct. 781, 788 (2009).”

The appellate court ruled that once Chaney said he did not know what jurisdiction issued his ID, the officer had a reasonable suspicion of wrong doing and could continue the detention. Furthermore, the bulge in the pocket gave the officer the right to pat search Chaney for officer safety reasons. Since Chaney’s statement that he did not know what jurisdiction issued the ID came shortly after the car was stopped, the limited period of time prior to Chaney’s statement did not overly extend the stop and did not violate the Fourth Amendment.

PS I know nothing about Chaney and LaFontaine besides what I’ve written, above, but I’m willing to bet that Chaney is African-American. How do I know. An officer would not question or search a passenger in a car unless he is African- American or unless the people in the car are mixed race. Any takers?

The charges have been dropped against Henry Louis Gates, Jr. the Harvard professor and distinguished African American intellectual for disorderly conduct who was arrested for attempting to open his front door which was jammed when he returned home from a trip to China. Its the right decision but before we get to it I would like to discuss an article by Jesse Washington of the Associated Press on the arrest. He wrote a good article bringing up many of the issues involved in the incident.

As Washington pointed out

The police report said that Gates yelled at the officer, refused to calm down and behaved in a “tumultuous” manner.

But if a police officer cannot deal with a man who yells at the officer and behaves in a tumultuous manner then he should not be a police officer. Even if the man calls him a racist. If you think this would have happened to Lawrence Tribe or any other distinguished white member of the Harvard faculty, I have a bridge to sell you. In fact it would not have happened to any white professor at Harvard if he or she showed a Harvard faculty ID along with a driver’s license when asked for ID by a police officer.

Washington rightly points out that it is hard to prove police profiling. That’s true. It not only that African Americans are arrested for crimes they did not commit, but police have discretion in who they arrest and all too often what they will ignore in a white person they will arrest in an African American. For example the police will ignore it when a white person jay walks but they may stop the African American. Not only will they stop the African American but they will find an excuse to search the African American. While the white person who left rear light is out will often not be stopped, the African American will be stopped and everyone in the car will be forced out of the car, told to lean up against the wall and be searched. The officer won’t say he/she is doing it because there are African Americans in the car. Rather the officer will point out that it was a bad neighborhood or that the officers were outnumbered by the passengers in the car and they were doing it for officer safety. Even if the white is stopped they certainly won’t be searched at gunpoint. Thus if the white person has drugs or weapons on him no one will know but the passenger and driver in the African American’s vehicle will be arrested on felony charges.

Yes the charges against Gates should be dismissed. But the problem is the millions of other African American men who are not distinguished Harvard professors who get arrested, thrown in jail, denied bail and get convicted following bad searches or on trivial charges, and as a result lose their families or cannot get jobs.

Harvard’s Henry Louis Gates, Jr. attempted to enter his house after the door lock jammed. As he tried to get into his house someone called the police and reported an attempted break-in. By the time the police came Gates was in his house. He showed them his driver’s license and his Harvard ID. Despite this they arrested him for “exhibiting loud and tumultuous behavior” after he called the police office who was trying to arrest him for breaking into his own house a racist.

Gates, director of the W.E.B. Du Bois Institute for African and African American Research at Harvard, is one of the most distinguished professors at Harvard. He is the Alphonse Fletcher, Jr. University Professor. He is the recipient of almost 50 honorary degrees and numerous academic and social action awards. He was named a MacArthur Fellow in 1981 and was listed in Time among its “25 Most Influential Americans” in 1997. In January 2008, he co-founded The Root. In 2002 the National Endowment for the Humanities selected Gates for the Jefferson Lecture, the U.S. federal government’s highest honor for achievement in the humanities.Gates has been the recipient of nearly 50 honorary degrees and numerous academic and social action awards. He was named a MacArthur Fellow in 1981 and was listed in Time among its “25 Most Influential Americans” in 1997. On October 23, 2006. In 2002 the National Endowment for the Humanities selected Gates for the Jefferson Lecture, the U.S. federal government’s highest honor for achievement in the humanities.

Gates’ arrested has started a debate about racial profiling. Here is the pre-eminent African-American scholar trying to open the jammed door to his upper class house arrested after he shows identification in response to a burglary report. I cannot imagine this happening to a White professor, This is not a post racial society. Rather it is a society where African Americans and Latinos continue to get the short end of the stick. You can go into any criminal courtroom in this country and you will note that the percentage of minorities being charged with crime exceeds by a significant percentage the percentage of minorities in the community.