When I was in my 20’s, I was convicted of an offense based on the false testimony of a police officer. It was not a major crime. I had been riding my bicycle to work in New York City. Just as I finished walking my bike through a pedestrian crosswalk, I got back on my bike and an officer turned around, saw me. riding my bike toward him with a red light behind me. He issued me a ticket despite my explanation and said “tell it to the judge.”
In court, the officer said I raced through the red light, “pedestrians were fleeing” and he apprehended me as I fled. I began my defense when the judge cut me off mid-sentence, hit his gavel and said “guilty”, $50.
I was shocked. All I could think about was if a police officer would lie so blatantly for a motor vehicle offense, what would they do in more serious cases?
A few years ago I spent 19 weeks as a Essex County NJ grand juror. It was the most dispiriting thing I have ever done in my entire life. The far majority of cases were almost identical: young, black males being charged with drug crimes coming from only four of the sixteen towns in the county: Newark, East Orange, Orange and Irvington, towns with very high poverty and populated mostly by persons of color. The only testimony was from a single police officer.
It was almost a relief to get murder cases. We would get highly detailed evidence, including watching video surveillance tapes, and I felt we had the tools to make the best decisions.
Why were almost all the cases only of young, black males from these four towns? I remember only a few odd cases that were exceptions including an almost humorous case of some boys getting caught trying to grow magic mushrooms in a county reservation. I once asked my daughter, who went through the Montclair public schools if she knew many kids who smoked pot in the school. “Dad”, she said, “It would be much easier for me to tell you the few who didn’t.” Why did we not see any of those who distributed drugs from that and other primarily white Essex County towns come before us?
When we were initially instructed as a jury, we were told that we were not making a determination of guilt or evidence, just that the preponderance of the evidence presented led us to believe a crime may have been committed. We only needed a majority of those present to vote to indict. The DA told us only about 4% of the cases went to trial. The remainder generally resulted in plea deals.
That was chilling. In almost all the cases before us, a single officer’s testimony, that my personal experience led me to believe could be suspect, was all that was provided.
I really began to understand the famous statement from the former New York State Court of Appeals judge Sol Wachtler that district attorneys now have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.” In one case, a man was charged with possession with intent to distribute pain killers, despite only having 2 pills in his possession and only less than $30 in his pocket. I asked his why there was a distribution charge and he responded: “he didn’t look like a junkie so he must have been selling them”. I asked what a junkie looked like and his response was, ‘You know, all gaunt and pale.” We thankfully came one vote short of indicting this man on the distribution charge.
At lunch one day, a fellow juror, a petite, polite and well dressed African American woman who lived in Newark, came up to me and said, “you know, we’re not here to send black boys to prison.” I asked her about a case where she and the far majority of jurors voted to indict a young man for conspiracy to commit a crime when we heard nothing in the testimony to suggest that he was part of the crime. Her response was that if he was there, at that time, and at that place, he was definitely up to no good.
There were much higher penalties for certain offenses and additional charges in certain cases. Controlled substance and some other offenses had much higher consequences that occurred within 1000 feet of a school or 500 feet of any public building or public park. I asked where in Newark, where the far preponderance of the cases presented to us came from, did not meet the criteria. After a pause, with a slight smirk, the assistant DA stated that there as a tiny strip of industrialized land near the airport where this was not so.
Conspiracy to commit a crime was a separate offense which could add years to a sentence. In one case, an officer said he saw a man in the back seat pass a “brick” of heroin, about the size of a pack of gum, to another person in the back of the car. “Why would someone pass this to someone else in your clear view?”, I asked. I was one of only a few jurors to vote not to indict the individual not in possession of the drugs.
The system is broken. The system is designed and carried out to do exactly what the woman I spoke to at lunch said it was not designed to do: send young black men to prison. It was absolutely chilling that almost every case before us was only those committed by black males from four towns only.
Cash bail reform is an important improvement, but much more needs to be done. We need to legalize marijuanna and release all prisoners charged with marijuanna possession and distribution crimes. There needs to be a much higher standard to indict since it is a virtual conviction in almost all cases. Three quarters or more of jurors must vote to indict for a case to move forward. Laws which disproportionately affect persons in urban areas should be repealed or changed. We should look at the model of Portugal, where the decriminalization of drugs and the emphasis on treatment has led to a much lower incidence of use and death. The drug laws from outdated notions from the last 40 years need to be drastically reformed. Being excused from jury duty should only be allowed in very specific documented cases, such as caring for a young child at home or providing an essential service in a time of need.
Of course, there are much greater societal needs which will lead to fewer young men of color going to prison: reducing poverty, improving education, improving employment opportunities. These defendants do not have expensive lawyers to get them free or 51 senators to look the other way at their charges. It became blatantly obvious that the justice system seems almost exclusively concerned with actions by young black and Hispanic males in urban areas. That is morally reprehensible and it is our duty to change it.