The id Post: In the Wake of a Controversial Verdict, Why is No ...

The id Post: In the Wake of a Controversial Verdict, Why is No ...: Sorry for the screaming language, but I feel like Mrs. O'Leary's cow these days, unable to effectively communicate the obvious. I wr...

The id Post: In the Wake of a Controversial Verdict, Why is No ...

The id Post: In the Wake of a Controversial Verdict, Why is No ...: Sorry for the screaming language, but I feel like Mrs. O'Leary's cow these days, unable to effectively communicate the obvious. I wr...

In the Wake of a Controversial Verdict, Why is No One Talking About the Easiest and Surest Way to Avoid This Result in the Future? JURY DUTY!

Sorry for the screaming language, but I feel like Mrs. O'Leary's cow these days, unable to effectively communicate the obvious. I wrote a little about jury duty last week, and it's importance in creating better verdicts -- results that better represent the evolving America that we are. We cannot expect our government to do it for us; for then it would not be a democracy at all. Nor can we expect "the free market" that conservatives worship, but never existed, to render equity. Buying justice is not the way it is supposed to happen, but all too often the courtroom is just one more thing for sale here in America. Justice for all? How much justice can you afford? Or maybe we should ask ourselves instead: how much injustice can we afford, before our republic is no longer of any utilitarian use? It is up to us, we the people to demand that our justice system evolve, as we have.

Our system of justice was created at a time when those doing the deciding had a greater similarity in culture with those whose matters were being decided upon: a jury of one's peers. But who really has that in practice today? Historically, it has only been within the last 50 years that jury service, voting rights and greater opportunities in general have even begun to be available to all persons, regardless of race or gender. This is a relatively new concept on paper, and even newer in general practice. For it takes more than 50 years of starting to get it right to overcome centuries of getting it wrong. Those who have been excluded are more readily able to recognize the subtle signals of a subconscious bias towards them in others. White people, not experiencing the "otherness" of non-whites, are not likely to notice something that doesn't happen to them. This has nothing to do with good or evil; it's just human nature.

I have experienced how this shows up in jury verdicts. One of the cases I pursued in civil court early in my career is forever in my memory as a very confusing and humbling joke on American justice, or maybe on me. I represented the plaintiffs, a very kind and lovely Shiite Muslim couple, in an auto accident case in Orange County, California. The defendant was a blue-eyed, blonde-haired Marine. Do I even need to tell you who won? What if I told you that I called the Chief Engineer of the City of Buena Park, CA, who explained the way the traffic lights worked, the manner in which that particular traffic light in question was timed, and that his conclusion was that the accident could not have happened the way the defendant said it did? That's what happened. I was so proud of my direct examination of my expert and I was so filled with ego then, a bad thing for a Mexican in Orange County.

When the all white, and mostly retired, jury came back in a matter of hours for the defense, I was just crushed. I had proof! Isn't that what trials are supposed to be about? Evidence, right? I kept it together because I had to professionally. I tried to keep a poker-face, but I don't know how successful I was. I wanted to talk to the jurors because I was desperately seeking an explanation for my clients. And I knew that I needed to just listen, asking very few questions, and remaining objective and academic throughout. I thought it would be harder to listen than it actually was. I did not hear any overt hostility or negativity. I was grateful that some of them were willing to talk to me at all because they didn't have to; and they were all kind and gracious. As I listened, I really didn't hear them say anything of any real substance. They were just being polite. Some of them thought that maybe the light was broken, even though I entered records of their recent maintenance and no subsequent record of repair. I knew better than to try to challenge them with facts at this point.

I came away with a different understanding, a little bit of rage, and nothing to tell my clients except, "I'm sorry." My clients, however, were not nearly as upset as I was. In fact, they weren't really upset at all; but seemed to take it all in stride. They had a new baby and lived in a small apartment and were very happy together. They invited me in for tea and I asked about Ramadan, which they explained as we sat. They were very a lovely people. They brushed the whole thing off and seemed none the worse for wear.

It took a while for the many lessons of this experience to seep into my marrow. My clients' ability to let it go, instead of complaining, made it easier to step back from it without judgment of anyone. Then, came a feeling of genuine compassion for those jurors, instead of resentment and animosity. They were just doing what made sense to them. My anger could not change that; it could only block me from absorbing this lesson in a positive way, and accept what is, even as I try to change it. White people and non-white people in America experience this country differently.

I began to realize that my clients, being from another culture altogether, never expected a different outcome. They did not expect justice from American courts. I did. They didn't grow up with all the hyperbole of American values; reciting them every day in the Pledge of Allegiance. How empty that pledge seemed on that day. This is not how I had imagined my law career unfolding. I wanted to stamp out injustice with my brilliance and bravado. I was the one who was the most disappointed because I was the one who expected the most. I expected justice -- global equality style; but what I got was justice -- American style. How naïve I must have appeared to my Shiite Muslim clients.

On another occasion a few years ago, I was co-counsel on a civil jury trial in downtown LA, where there are usually more ethnically diverse jury pools. Since our plaintiff was African American, as was our chief trial counsel, we were hoping for at least 2, maybe 3 black jurors. We had to settle for one -- an African American woman that we were lucky to get because the defense tried to kick her off. Even though this was not a racial discrimination case, when there are parties of different races, race matters. It just does, as my first example demonstrates. This jury deliberated for quite a while because the one black juror held out for a long time. In the end, however, the others simply wore her down; probably much like the one juror in the Zimmerman trial was worn down. It is really difficult for a lone non-white juror in any circumstance, much less one where race is the backdrop, to educate the non-whites about how the non-white experience in America differs from the white experience.

We spoke to her after the verdict and she recounted how difficult is was for her to be heard, as well as having her perspective honored in that jury room. She was tearful at times because the animosity toward her from the other jurors became unbearable and she just couldn't stand it anymore. She finally gave up just so that she could go home and not have to deal with the other jurors for one more day.

These examples are real and they are but two of dozens of stories any trial attorney could tell you on any given day; that is, if they're honest with you. This happens every day in courthouses and jury rooms all over the country. And the reason it happens is because non-whites are less likely to show up for jury duty. So if you are not white and you are unhappy with this verdict, show up for jury duty! In most jurisdictions, jury pools are created from voter-registration rolls, as is the case here in California. Voting, of course, is another duty of citizens to its republic. So, register to vote and then, show up for jury duty!!! Don't make me come and get you.

As I was standing in line to get into the courthouse one day, I began chatting with a young African American man who worked for a big law-firm and was showing up for jury duty. I can still hear him saying to me, "I just can't understand why the brothers don't show up for jury duty."

Neither can I, Brother; neither can I.

The id Post: Toward a More Perfect Union: The President Affirms...

The id Post: Toward a More Perfect Union: The President Affirms...: I was pleasantly surprised yesterday when I came home from a meeting and learned of the president’s speech regarding the overwhelming re...

Toward a More Perfect Union: The President Affirms Black Men, Like Himself; But if You Really Want to Change Things, Show Up for Jury Duty

I was pleasantly surprised yesterday when I came home from a meeting and learned of the president’s speech regarding the overwhelming reactions of Americans everywhere to the not guilty verdict for the shooting death of Trayvon Martin, a rather typical American boy. Except, of course, he was black, which according to defendant George Zimmerman, and the 6 jurors who acquitted him, was enough to cause fear substantial enough to justify a grown man shooting an unarmed teenager.

Many people, on the right and left, seem unable to grasp the awkwardness of the dance that this president, unlike any others before him, must do to combat those stereotypes of the angry black man; a scary image to white people, especially white women. Throughout his presidency, Barack Obama has stepped lightly when it comes to matters of race and racial identity. He has to work much harder to convince white Americans, especially those predisposed to white supremacy, that he is the president of all Americans; and so tries to avoid, sometimes to the ire of his base, even the appearance of favoring African Americans in matters of policy
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This was a very difficult message that the president needed to deliver to the American people at this time, and he had zero margin for error. We needed to hear from him, and we needed to hear him speak, not just as the president, but as a black man. It was a pivotal American moment in many ways; for it legitimized, and brought into the light of the biggest spotlight on earth, the reality of the long-term effects of centuries of white supremacist policies and institutionalized racism. He affirmed his experience as a black man in America, and so affirmed others like him. Like Trayvon Martin. What a lovely gift to Trayvon’s parents, who have been unwavering examples of grace and dignity under extreme emotional pressure.

But the greatest service President Obama did to our country with that speech is to pull the covers on his harshest and most extreme critics and their insistent denial of white privilege in America. Oh, they will, of course continue to live in their fantasy post-racial world; but the president has reinforced his non-white base, which is growing by the day, and we will all continue to speak out about our experiences, and now with a newfound confidence and strength. For now, our strength lies not only in our numbers, but in the recognition of, and identification with, the President of the United States of America. The leader of the free world. That’s gotta be a first!

I have a lot of white friends who are just waking up to the notion of white privilege, and claim that they are just starting to hear about it. Now everybody’s talking about it because the President of the United States spoke unscripted for over 17 minutes in front of the White House Press Corps about being a black young man in America. Thus, blissful white ignorance, and denial of their white privilege that comes from centuries of legally sanctioned white supremacy, can no longer be the norm in the United States of America. As non-whites are beginning to outnumber whites, the true history of the United States must be appreciated for what it is, revealing a past that is often more American Holocaust, than Manifest Destiny. That is a big deal.

And that is not to say that there is something inherently wrong with white people, or any other kind of people of the past. That would be a silly and misguided use of emotional energy. The historian in me is often rather astonished that so many Americans are uncomfortable talking about race in America; seeming to be running away from a misplaced sense of guilt or shame. There is no need for that kind of negative energy. In fact, when we look back on several centuries of an entire country legally sanctioning inequity, how can we not be where we are? How can our laws and policies not be confusing, outmoded and inequitably applied, when the foundation upon which they are laid down have now decomposed and are beginning to emit that sour odor of something dead?

Time to evolve. Time for that lovely Phoenix to arise out of the ashes of our former foundation, and soar to greater heights.

And I applaud the president also for what he didn’t say. He didn’t make the typical Washington move of appointing some commission, or a study, or some new government program, or even call for a national dialogue; because he knew that all of these suggestions would just become more political red meat to throw into the piranha tank that Washington has become.

Moreover, I think that he lay responsibility squarely where it belongs – on we, the people. It is up to us to create something different than what we have now.  And there are activities in which we must all engage in order to take greater responsibility for the communities and the nation we create. Chief among these, are showing up at the polls – in every election, especially the local ones – and showing up for jury duty.

It is not an accident that there were no black people on that jury. There were probably few in the jury pool to begin with because black and brown people don’t show up for jury duty in the same proportional numbers that white people do.  Neither do young people. I know that the one non-white juror was not black because a black mother would have advocated for Trayvon, even to the point of hanging the jury if necessary. The Latina juror seemed to identify with Trayvon more than the others, if reports can be believed; but still not to the extent that a black mother would have, and so Trayvon was abandoned in that jury room.

If you want to do all you can to be the change you want to see, then for the love of America, let’s all at least do that which is immediately available to us, i.e., voting and jury duty. We can do this! The tide is turning and momentum is with us, and turning away from racism and oppression; but we have to do our part as good citizens and good stewards of our democracy.

So, register to vote and next time you get that jury summons, take it seriously. Who would you want reviewing your child’s murder? If you want to be judged by people like you, then show up to adjudicate the legal matters of people like you, people who are your neighbors. Jury duty is a powerful, powerful tool. Let’s honor it and use it, in order to do our part in creating that “more perfect union.”

It is up to us. Vote. Be a juror. It’s the best thing you can do for America. In fact, it is your duty; and the only penalty for not doing your duty is injustice for all. How’s that working for you lately?

The id Post: The Bizarre Legal Bazaar of the Trayvon Martin Cas...

The id Post: The Bizarre Legal Bazaar of the Trayvon Martin Cas...: Like most of the country, I've been mesmerized by the trial of George Zimmerman for the murder of Trayon Martin. I didn't watch ever...

The Bizarre Legal Bazaar of the Trayvon Martin Case

Like most of the country, I've been mesmerized by the trial of George Zimmerman for the murder of Trayon Martin. I didn't watch every minute. I've been involved in enough trials to get bored; and besides, I have a life and work to do.

Now that the jury appears to be settling in to thoroughly review the evidence, the verdict is likely to take awhile. It's interesting to hear the pundits and lawyers trade quotes, barbs and predictions, as they sell more Cheerios and Chevys on TV.

Maybe predictions would drive more traffic to my blog, but I don't have a crystal ball and I have no idea what might happen. There are so many variables that are unprecedented in big trials like this one. First, there are only 6 jurors. I've never done a trial with 6 jurors. Nor have I ever argued to an all female jury. I have done trials with a jury of lopsided racial make-up, mostly white, of course. And my experience with overwhelmingly white juries in seeking justice for non-white litigants has been that white people decide for white people.

While Zimmerman is of mixed race, he is probably perceived by the jurors as more white than indigenous. He presents himself as mainstream, and the jurors may see him as "one of us." Let's face it, Caucasians see things differently than non-Caucasians; and Caucasian Americans seem to have a need to see themselves as the best in the world in all things. I don't think these attitudes are malicious, or even deliberate, but are subconscious and subliminal choices. In fact, I would find it illogical to think that we all don't have subliminal biases, of which most of us are woefully unaware, given our controversial racial history, starting from the moment Europeans set foot on American soil.

I've seen enough irrational verdicts from white, or majority white juries, to render me unable to escape this American truth. Look at the OJ trial, and the reaction to that verdict. Black people rejoiced. White people were stunned. And we cannot pretend that race is not an issue here in this case. I worry that if Zimmerman is acquitted, it sends a message that it is normal and acceptable to be afraid of black people because they are black, especially men.

The OJ jury had several non-white jurors, and that's important because there is strength in numbers. When there is only one black person on a jury, they have a really hard time trying to explain the perspective of the non-white, non-middle-class life, and all the challenges inherent therein; challenges white people don't have to face and so don't know about, and so tend to discard or discount. If the non-white woman is black, I think it might be more likely to see some accountability, maybe a manslaughter. If the woman is a Latina, an acquittal might be more likely. But to be honest, I really wouldn't be surprised with whatever verdict they reach. These are uncharted legal waters in many ways.

I wasn't particularly impressed with either team of lawyers, the exception being John Guy's closing. The prosecution did an adequate job, but I think there were a number of missed opportunities, and a little bit of sloppiness with the facts in closing argument, relying on the jurors to have taken good notes. The lead prosecuting attorney has to have these facts, names and places down cold. It lends authority to his presentation, and invites trust with the jurors. Their case seemed to revolve around Zimmerman's lies, but failed to clearly identify a coherent theory of the case, a narrative thread for the jury to follow.

And the defense attorneys? They seemed arrogant and out of touch, especially Mr. West. They did a very fine job of creating confusion, which is what they are supposed to do, and painting their client as a victim. I'm not sure arrogant, cocksure men like these are really capable of humbling themselves enough to connect to a jury of women, a jury of mothers. Or maybe I just think most attorneys are arrogant pricks. They did a good job with obfuscation of the evidence and sequence of events, but I'm not sure they connected with that jury of mothers.

My take on the evidence is this: Zimmerman racially profiled a minor, who was a complete stranger to him, stalked him, and then shot Trayvon when the kid fought for his own life. That scream is that of a young person, not a grown man. This is not deep. Moreover, there is no indication that Zimmerman ever had a moment of grief over the fact that he took someone else's child away in a moment of mistaken fear. No, "Oh my God, what have I done?" Instead, Zimmerman sees himself as some avenging angel, saying it was "God's plan"? He obviously has no regard or respect for the life of this teenager, nor for the grief of his parents. He's as guilty as the day is long, but he may very well get away with it. Then, that would make him the asshole who gets away with it, wouldn't it?

The id Post: Fourth of July Weekend 2013: Longing

The id Post: Fourth of July Weekend 2013: Longing: This 4th of July would have been my mother's 88th birthday. I love that she was born on the 4th of July because a more independent perso...

Fourth of July Weekend 2013: Longing

This 4th of July would have been my mother's 88th birthday. I love that she was born on the 4th of July because a more independent person I have never known, not even me. I miss her. I miss her more than I could have ever imagined. I thought I was prepared because we had created The Daniel Family Trust, and took care of all of her estate planning needs. She was old and slow and often cranky and forgetful; not at all the woman who raised us. She had grown disillusioned with her life, and when it was her time to go, she was ready. From diagnoses of an inoperable tumor in her extremely enlarged heart, to her last breath was about a month. She died in the home she loved and in which she worked very hard to create and maintain, not just a home, but a hearth. A place to gather; to mourn, to celebrate, to laugh and to learn. I am now in the process of selling her house, and closing a chapter of my life; even though I know now that I can never completely escape that homestead and our hometown. I carry it all with me, but it is time for me to move on.

Unable to tolerate festivities this year, I buried myself in the John Adams miniseries, rerun by HBO on the 4th. It was fabulous and, once again instructional for me. I have always loved history and politics. Always. In fact, I got on the very last nerve of just about everybody in our town when I was growing up. It's just a part of me, just as much as my big thighs and curly hair.

So I watched and was mesmerized by the whole thing -- the stellar cast, the excellent photography and, of course, a great written work, David McCullough's 'John Adams,' upon which to base this miniseries. It was everything I love: history, politics and great writing. And it reminded me that it is time for me to spend more time on my writing. And so, I am clearing my head of administrative matters and clearing up matters left over from my practice, so that I can create the necessary space for my imagination to thrive. It's hard to write when I'm stressed out and unsettled. I still do it; it's just harder to focus with too much monkey mind. I needed to clear my head.

As I watched, I remembered how much I love early American history, and how miraculous that our democracy is still ever-expanding to include all of "the people." One of the most fascinating lessons of the Revolutionary War period and the drafting of the Constitution, was the art, and pain, of compromise. The largeness of the issues, actions and consequences before these men was something they all grew to understand and respect.

And treating one another as brethren was extremely difficult at times, as they all felt very passionately and argued fervently; first, about breaking from our mother country, and later in the Constitutional Convention, about how to govern ourselves. They were the landed gentry, of course, but they also took their roles in history very seriously and understood the importance of the future nation that they were building. And so, as one of the delegates from South Carolina said to John Adams, "Gentlemen can always come to an agreement." These men were on bitterly opposite sides of the matter; and yet, they saw past themselves, to the future greatness of the United States of America. And this new America could never be without respectful men on opposite sides of an issue being able to come together and compromise for the good and the glory of future generations of Americans to come. We could use their wisdom and sense of compromise today.

And as I ponder my new life, my Mexican-American Yankee-Doodle-Dandy mother's life (our anchor baby), and the gift of a great nation that is just starting to fulfill those promises made 237 years ago, I am filled with longing. It is the longing of the in-between spaces in life; when one thing is finished and another has yet to begin. I long for the sound of my mother's laughter and the feel of her hugs. I even long for her sometimes childish insults.

And mostly what I long for is the true America that we were always meant to be. So much of who we are is the result of the inspiration, ingenuity, risk, mistakes, institutionalized racism, hope and continuous forward progress of our nation's many people. I love my country enough to forgive the unenlightened, and often brutal, manner in which it has treated its own people; and to encourage it as it races to act affirmatively to make amends to those treated unjustly.

I say this because I realize now just how absolutely crazy the whole idea of Independence was at the time, and how miraculous that we won the war. I love my mother for the way she loved this country; and I love this country because it had the courage to strive for such a comprehensive, personal and unique freedom, that it has taken us nearly 240 years to just begin to fulfill. We still haven't completely gotten there yet, but we are ever so much closer than we were that 4th of July that my mother was born in 1925, into a segregated Ajo, Arizona. I am glad that in her lifetime, she was able to enjoy watching, at least some of, the barriers to equality torn down before her very beautiful brown eyes.

Happy Birthday Mom!! I miss you.