George Floyd, James Batson and our long racial reckoning

by Editorial Team

(Washington Insider Magazine) – As a former district attorney, I was relieved by the guilty verdict against police officer Derek Chauvin for George Floyd’s death. The evidence against Chauvin was overwhelming, but, given the racial animosity fostered by our former president and his right-wing allies, I was concerned about possible holdout jurors. It was a sign of progress — and a commitment to the rule of law — that a diverse jury convicted Chauvin on all counts.

Nonetheless, the continuing deaths of unarmed Black men at the hands of white police officers shows how much hard work remains. I know, because for eight years, I was Brooklyn’s district attorney, and confronted some of the same issues.

Nearly 40 years ago when I took office, racism was commonplace. My very first case involved a prosecutor’s right to remove Blacks from juries. Prosecutors and defense counsel routinely used peremptory (discretionary) challenges to strike potential jurors because of race. The practice was permissible in most states. And, the U.S. Supreme Court allowed it if it took place “only” in an individual case and was not systemic.

I didn’t want the right to discriminate. Racism in jury selection was abhorrent. I outlawed it in my office, and then challenged the practice in state and federal courts. Unbelievably, New York’s highest court approved of racial peremptory challenges. Finally, overturning its own precedent, the U.S. Supreme Court, in Batson vs. Kentucky, declared the practice unconstitutional in individual cases. Significantly, no other prosecutor in America would join in my amicus brief to the Supreme Court opposing racial peremptory challenges.

There were three Black men, one Black woman and two jurors who identify as multiracial on the Chauvin jury. Without the Supreme Court’s Batson ruling, would there have been any? If not, would there have been a conviction? Batson condemned racial jury selection, but it has been criticized for not being effective enough, since it leaves enforcement up to local judges and the good faith of prosecutors and defense counsel. Given the importance of racially diverse juries, we must ensure that Batson’s ban works in practice.

The country needs to see Blacks sitting in judgment on white police officers accused of killing Blacks. It increases confidence in verdicts and demonstrates that Blacks can be entrusted with meting out justice. Some police officers testified against Chauvin, breaking the blue wall of silence, but all police officers should realize that exoneration is no longer a certainty in police misconduct cases.

Technology has also advanced the cause of justice. Decades ago, without a video, my office could not persuade a jury to convict a police officer of multiple rapes, even though there were multiple witnesses. In the Floyd case, a bystander’s video showing Chauvin’s knee on George Floyd’s neck for more than nine minutes was key. Without it, bystander testimony might not have been enough for conviction. Now, bystanders armed only with cell phones can effectuate racial justice. That will have a major impact in the future.

As DA, I identified another obstacle to justice. Prosecutors worked side by side with police to solve ordinary crimes, like robbery and assault. Could the same prosecutors vigorously investigate those very police officers for racial crimes? To avoid appearances of favoritism in the handling of police abuse cases, I created a special unit to handle police abuse cases that would not normally interact with police. This angered the police. Five thousand officers protested, demanding the unit’s abolition. I didn’t budge; the unit remained. When I left office, it was disbanded.

But many years later, the case of Eric Garner — an unarmed man selling cigarettes, who died after a police officer used a chokehold on him and no prosecution resulted — finally prodded New York State to deal with the problem. The attorney general was authorized to replace local DAs in certain police abuse cases, eliminating possible bias. Similarly, Minnesota’s AG, Keith Ellison, stepped into the Floyd case at the behest of Minnesota’s governor, adding prosecutorial firepower and credibility to the proceedings. This approach should be considered in other cases.

Legislation before Congress contains many reforms, but the whole enterprise of policing needs thorough review and improvement. There should be better recruitment practices to weed out racists and other abusers, and more effective training, particularly in defusing tense situations and restraint in the use of weapons. We need to overhaul supervision and disciplinary procedures, undertake demilitarization of the police, and, where safe, utilize more non-police actors in cases of mental illness and the like. Rooting out racism in the entire criminal justice system, not just policing, must be a top priority.

There is no single, sweeping solution to this complex, deep-rooted problem. More progress on multiple fronts must take place now, and with support in Washington and a determined electorate, it just may happen.


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