About Eric Davis

Eric J. Davis is an assistant public defender with the Harris County Public Defender’s Office. He has been a criminal defense attorney since 1997 and was in private practice prior to joining the PD Office. Before his defense practice started, he spent 3 years as a prosecutor honing his trial skills. He has tried over 100 cases to verdict as lead counsel, winning over 80 percent of them. In 2006, Mr. Davis received an “Unsung Hero Award” from the Harris County Criminal Lawyers Association. In that same year, he received the “Man of the Year Award” from the Houston Business and Professional Women’s Association, and helped free a man who had been wrongfully imprisoned for over 18 years. In 2016, Eric received the “Mentor of the Year Award” from HCCLA for his continuing commitment to training lawyers.

In 2003, Mr. Davis received a commendation from the Texas State Legislature for his service as Special Counsel to the Texas State Commission on Judicial Conduct. Mr. Davis was lead counsel for the Commission to remove a judge from office who was mistreating citizens by wrongfully jailing them and addressing them in an abusive manner in court.

Biases Make Bad Lawyers

I remember the first time I represented a known member of a white supremacist organization who prominently displayed a swastika tattoo on his hand. I was a young lawyer, just starting my practice, and his wife paid me to represent him before I knew about his affiliation in that group. I remember the surprise in his eyes when he first saw me during my visit to him at the jail. It was an interesting first client meeting. I considered abandoning the representation once I learned his views. But, needing the fee, I put aside my feelings and pressed forward.

His wife was one of the nicest people. She disagreed with his views and hired me because I was black. Throughout the representation, I was always trying to make sure that my feelings were not interfering with what was best for the client. I constantly had to be honest with my feelings and manage my fears. Doing so, we were able to obtain a very favorable result for the client. He and his wife were very happy. I learned the value of our constitution and the value of unbiased counsel. Thereafter, I started getting calls from other members of his organization seeking my representation.

One of my concerns is that criminal defense lawyers often let bias and fear influence the outcome of cases. It is one of the reasons many of us have concerns about someone who leaves the DA’s office immediately representing people in first degree felony cases….. Also, the fight of some lawyers is determined by how the client treats them. And the fight of other lawyers is determined by their view of the value of the person they represent. This cannot be. Lawyers simply should not accept representation if this is the case. Some clients are assholes and treat their lawyers badly…. And some are poor and uneducated…. But none are destined to get in trouble or commit crimes. None are disposable and “throwaway able.” We should not assume that. We have to avoid the mindset that “if it wasn’t this case, it would have been another one later on….” That mindset will cause us to push our clients into making bad decisions. It will taint our representation.

If you think I am wrong, please let me know. And let me know why. This article might back up my feelings…

http://www.abajournal.com/news/article/white_lawyers_may_have_biases_that_hurt_their_black_clients_says_op_ed_call

The Nightmare of Perceptions Clouding Reality

I no longer wonder why myths about there being more black men in prison than in college got so much traction…. Despite the statistics and credible studies, people quickly believe it. In fact, they will fight you on the point. In 2003, according to Justice Department figures, 193,000 black college-age men were in prison, while 532,000 black college-age men were attending college. And a reference to this study from a researcher at Howard University also disputes the myth.

eric1Yet folks are quick to believe it. Some are quick to believe it (and will fight you on the point) because they are racist and have a need to feel superior. But I think the reason most people believe it is because of unconscious bias. Even some black people have unconscious bias towards other black people. Consider this quote from Jessie Jackson…. “There is nothing more painful to me at this stage in my life, than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved.” Quoted in Chicago Sun Times, Nov 29, 1993.

With weekly stories of police shootings of black men crowding out the commercials on our television sets, the current climate is stormy for many. And with black men recently shooting police officers, the storm is growing to hurricane proportions. Many are taking refuge in the words of politicians that conjure up sunshine in the hate hidden in unknown chambers of their hearts. In this current climate of increasing racial polarization, it seems imperative to understand unconscious bias.

Danalynn Recer of the Gulf Region Advocacy Center (GRACE) www.gracelaw.org explained it well in a recent post to the Harris County Criminal Lawyers Association Listserve. This post is shared with permission. Ms. Recer said,

“I think you are assuming the thing that is to be proven — that whether or not police shoot is determined by whether or not the person they encounter actually does have a propensity to violence.

Evidence is mounting that it is the fear of expected behaviors rather than observation of actual behavior that sets off these events. Anecdotally, many of the recent video-taped incidents did not involve objective evidence of violent tendencies or objectively reasonable threat assessments.

More systematic evidence comes from several recent medical studies regarding how implicit (unconscious and unintentional) bias (as distinguished from racial animosity or superiority) changes what we think that we see and how fear changes the brain and skews our reactions. These instantaneous responses to heightened situations are happening at a primal level. The presence or absence of conscious bias or racial animosities is irrelevant and a red herring in the search for answers and solutions. There is an emerging body of data finding little to no correlation between articulated beliefs about race/ethnicity and actual responses to stimuli.

In one fascinating study where real cops were interviewed about their views on race as well as other issues and given psychological testing then placed in real situations using virtual reality goggles and green screens, a cop with explicitly racist views was actually better at de-escalation and slower to pull his weapon on a belligerent homeless guy waiving a bat than a young officer who bragged about his black girlfriend and whose conscious belief system was very “post-racial”. The avowed Confederate redneck talked the subject down and disarmed him without use of violence while the hipster dude gave the subject less than a minute to follow commands before he shot him three times in the head and chest. Exact same stimuli on the screen and in the room.

According to the study, the factor that determined which of the cops (all races/ages/types were studied) shot and how quickly they shot had nothing to do with their beliefs about the subjects (again all kinds were used) they encountered, but was correlated very strongly with their beliefs about themselves, their confidence, their sense of their own masculinity, their comfort making decisions within fluid situations, their need for control, the significance they placed on “respect” and their degree of insecurity about their own abilities.

That’s what controlled outcomes once a cop believed he was in danger.

But whether or not the cop perceived he was in danger in the first place was determined by unconscious associations, not conscious beliefs, regarding the images in front of him –which were all keyed directly to race.

A lifetime of immersion in stories, images, beliefs and assumptions that associate danger and violence and a lack of control with black and brown men imprints at such a subconscious level that even people of color score higher negative associations including crime, violence and danger, with images of black and brown faces than white faces (with no other info other than the face) on computerized implicit bias tests that measure instantaneous reactions unmediated by intention or rationalization.

Back to the original thread — it seems to be true that once an officer believes themselves to be in danger, their ability to manage the situation without loss of life is about them and not the subject, so, yes, all of us should face a similar risk at that point.

HOWEVER, whether or not the cop perceives danger has everything to do with unconscious associations regarding race. This happens at such a primal level we aren’t even aware of it, but it is very real and it means that — all else being equal — a person of color faces far greater risk of being killed by someone who sincerely, but wrongly, mis-perceives them as an imminent threat.

The good news is that most of these studies also show a significant improvement in the accuracy of our perceptions with “priming” by thoughts and words regarding fairness and racial equality. The thing is that most folks do not consciously desire to harm those of another race. In fact, most white folks are desperate to prove how non-racist they are. So when there is a conscious discussion or even thought regarding our aspirations toward racial equality (even something like a picture of Martin Luther King Jr. on the screen for long enough to register consciously), those unconscious, implicit biases are measurably reduced for awhile. Apparently, though our conscious belief systems cannot override or correct our implicit biases, our intentional thoughts and aspirations can help bring our actual responses closer to the responses we would aspire to have — closer to the beliefs we articulate. Basically, thinking/talking consciously about how we want to act in the world helps to self-regulate even subconsciously. But it doesn’t last long.

So, one of the best things we can do for ourselves collectively is keep on talking about it — which also has applications in jury selection, BTW, as studies show getting jurors to affirm that they won’t take race into account (as stupid as that may sound) actually reduced their implicit bias and increased their accuracy in assessing facts. People want to be good. We just need lots of reminding to counter-act the racially-coded programming that bombards us from all directions…..

Thank you Danalynn Recer. That was very well said.

I think unconscious bias is even more pronounced when someone does not have interaction with certain people groups or interacts only with a small segment of a people group. For example, if a lawyer only interacts with African Americans who have been in trouble with the legal system, then that lawyer might develop some unconscious bias towards African Americans (biases that make the lawyer think African Americans have a propensity towards being involved with the legal system or a propensity towards violence).   He/she might think that African Americans are throw-away-able (“if he/she doesn’t get popped on this case, he/she will catch some time on the next case”). Such thinking might cause him/her to pressure someone into entering a plea on a questionable case (or might cause him/her not to work as hard on a case).

The problem with not interacting with a certain people group is that it limits the information we receive about that people group. We make assumptions about that group that are unwarranted because our opinions are ill-informed. I remember a story during a jury selection where a lawyer wanted to strike an older white woman who lived in Kingwood because he/she thought she wouldn’t be favorable to his/her minority client. But the client said, “No… I like her. She’s a house wife and probably sits around all day watching Fox News and distrusting the government.” Yeah, I know…. That reasoning doesn’t really make sense, but the lawyer went with his/her client’s desires and left her on the jury. Sure enough after the jury acquitted his/her client that juror was one of the main people in favor of acquittal and told the lawyers about how she listened to hip hop music and did not trust the police. The lawyers’ assumptions about her almost caused them to get rid of a good defense juror.

Likewise, other racially based assumptions we make about people are equally problematic. Much of the rhetoric in our current climate is troubling and is being fueled by unconscious bias. There are so many misconceptions. The following articles contradict some of the more notable misconceptions.

(White men have actually killed more police officer in 2016 (even including the two recent multiple homicides). http://www.mintpressnews.com/police-getting-shot-2016-white-men-pulling-trigger/216339/ White men commit the vast majority of violent crimes in America. http://www.politifact.com/punditfact/statements/2015/apr/02/sally-kohn/sally-kohn-white-men-69-percent-arrested-violent/ The numbers on Crime Rates in the Black Community are skewed. http://www.huffingtonpost.com/kim-farbota/black-crime-rates-your-st_b_8078586.html).

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Make no mistake about it, we must stand against oppression and be resolved to fight against it at every level. But until we recognize unconscious, account for it and stand against it; we will keep waking up for the dream of equality with sweats from a nightmare.

 

 

The Myth: Black Men in Prison vs College

I no longer wonder why myths about there being more black men in prison than in college got so much traction….

commentaryBlack_t580

Despite the statistics and credible studies, people believe it. In fact, they will fight you on the point. In 2003, according to Justice Department figures, 193,000 black college-age men were in prison, while 532,000 black college-age men were attending college. Ivory Toldson disputes the myth and says prior statistics were just wrong.

Yet folks are quick to believe it. Some are quick to believe it (and will fight you on the point) because they are racist and have a need to feel superior. But more often, I think the reason most people believe it is because of unconscious bias. Even some black people have an unconscious bias towards other black people. Consider this quote from Jessie Jackson:

“There is nothing more painful to me at this stage in my life, than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved.”‖ Quoted in Chicago Sun Times, Nov 29, 1993.

I think unconscious bias is even more pronounced when someone does not have interaction with certain people groups or interacts only with a small segment of a group. For example, if a lawyer only interacts with African Americans who have been in trouble with the legal system, then that lawyer might develop some unconscious bias towards African Americans (biases that make the lawyer think African Americans have a propensity towards being involved with the legal system or that they lack intelligence). He (or she) might think that African Americans are throw-away-able (“if he/she doesn’t get popped on this case, he/she will catch some time on the next case”). Such thinking might cause him to pressure someone into entering a plea on a questionable case or might cause him not to work as hard on a case.

The problem with not interacting with a certain people group is that it limits the information we receive about that people group. Based on a lack of information, we make assumptions about that group that are unwarranted because our opinions are ill-informed.

I remember a story during a jury selection where a lawyer wanted to strike an older white woman who lived in Kingwood because he thought she wouldn’t be favorable to his minority client. But the client said, “No, I like her. She’s a house wife and probably sits around all day watching Fox News and distrusting the government.” Yeah, I know, that reasoning doesn’t really make sense, but the lawyer went with his client’s desires and left the woman on the jury. Sure enough after the jury acquitted his client that juror was one of the most vocal in favor of acquittal and told the lawyers about how she listened to hip hop music and did not trust the police. The lawyer’s assumptions about her almost caused them to get rid of a good defense juror.

Likewise, other racially based assumptions we make about people are equally problematic.

It’s time to acknowledge the bias and assumptions and work to breakthrough the misconceptions. Starting with the belief there are more black men in prison than in college.

 

A Suffocating Decision…

“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.” Justice Sonya Sotomayor, United States Supreme Court, Dissenting in Utah v. Strieff

Today in Utah v. Strieff, the United States Supreme Court proclaimed that an illegal stop can be legitimized by the discovery of a traffic warrant. Such a decision ignores the countless people killed by random police encounters and has profound implications on civil liberties. At a time when the often played song of “needless deaths linked to needless police encounters” is heard in every ear in America, the Supreme Court just turned up the volume.

In Utah v. Strieff, Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieffhad an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. The State of Utah never contested that the detention was unconstitutional.

The Supreme Court’s decision in Utah v. Strieff forgives unlawful detentions if police can produce a valid warrant or reason for the arrest that resulted from the illegal detention. That means police officers can stop citizens for no valid reason, search the citizens and if they find something illegal in the possession of those citizens and the citizens have a warrant (or other valid reason for the officer to make an arrest); offices can use that information against the citizens. Although such knowledge of an arrest warrant would not have been known to the police but for their engaging in the unconstitutional activity, the Supreme Court is willing to look past this police misconduct with the presence of a warrant. Such a decision undermines the exclusionary rule which has long safe guarded civil liberties and discouraged police misconduct.

The exclusionary rule is a constitutional principle in our country which holds that evidence collected or analyzed in violation of a person’s constitutional rights is normally inadmissible for a criminal prosecution in a court of law. The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. It is also designed to provide a remedy and strong disincentive, which is short of criminal prosecution, to prosecutors and police who illegally gather evidence in violation of the United States Constitution. Weakening the exclusionary rule dilutes one of the few barriers to police illegally detaining people to conduct unwarranted investigations. In recent years, unwarranted police investigations have had deadly consequences.

police E Davis post

Eric Garner was detained and killed by police officers in New York who arguably had no valid reason for his arrest. John Crawford was shot by police officers in a Walmart Store in Ohio after picking up a BB gun from a store shelf. Ezell Ford was shot in the back during an investigative stop in Los Angeles. Darrin Manning’s unprovoked “stop and frisk” encounter with Philadelphia police officers left him hospitalized with a ruptured testicle. Dante Parker died in Victorville, CA after being tased by police officers when they detained him because he was riding a bicycle and officers had reports of a suspect fleeing a robbery on a bicycle. An elderly man in Ohio was left in need of facial reconstructive surgery after police entered his home without a warrant to sort out a dispute about a trailer. Paul Castaway, a Native American man, was killed by police in Denver while holding a knife to his own neck. Neykeyia Parker was violently dragged out of her car and aggressively arrested in front of her young child for “trespassing” at her own apartment complex in Houston. And there are many more stories of police encounters which resulted in injury and/or death.

Since December 24, 2015, nearly 1000 people have been killed by the police in the United States. And although police advocates claim the frequent use of force is necessary to protect officers from a highly dangerous job, the statistics don’t seem to back this up. A report the Bureau of Labor Statistics released in 2014 show that being a police officer is not even among the country’s 10 most dangerous professions. Indeed, those statistics show that loggers, roofers, pilots and farmers are all more likely to be killed on the job than police. In 2015, only 123 officers were killed in the line of duty nationwide.

Yet, the Supreme Court ignores the danger to citizens by encouraging unwarranted police/citizen encounters. The unconstitutional conduct of the police in Utah v. Strieff was purposeful and deliberate. Officers set out to violate Strieff’s constitutional rights. And as Justice Kagan noted in dissent,

The majority’s misapplication of Brown’s three-part inquiry creates unfortunate incentives for the police—indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Utah v. Strieff, 579 U.S. ____ (2016).

Thanks to the short sightedness of the majority of the justice on the Supreme Court, we will continue to hear the same old songs of police brutality.

For an index and links to the briefs and other important documents in the Utah v Strieff case, please see this link.

 

Is Justice Blind But Not Color-Blind?

Most of us would never imagine the possibility of people who could not culturally relate to us making decisions about our lives. The white men in Mississippi accused of killing Emmett Till in 1955 went to trial with a jury comprised of all white men in Mississippi. And despite evidence and some acknowledgment of their guilt, those men were acquitted of Till’s murder by that “Jury of their peers.” In the 1950s Southerners would never let their fates be decided by someone who could not understand them or their way of life.  Yet, this same freedom hasn’t been afforded Black criminal defendants in jury selection in America who faced trials by all white juries.

April 30, 2016, marked the thirtieth anniversary of the United States Supreme Court’s decision in Batson v. Kentucky. In Batson, the United States Supreme Court ruled that a prosecutor may not use peremptory challenges in a criminal case (the dismissal of jurors without stating a valid cause for doing so) to exclude jurors based solely on their race. The Court found that such a practice violated the Equal Protection Clause of the Fourteenth Amendment. It was thought that Batson gave lawyers a tool to insure that a minority defendant had a “jury of his peers.” But over time prosecutors in some jurisdictions have become adept at picking all white juries. Now, thirty years later, minority defendants in counties in Texas are routinely facing trials with all white juries. Leaving defendants feeling that although justice wears a blindfold, she isn’t colorblind. Such practices call into question both the necessity and effectiveness of Batson in Texas.

justice-blind-not-color-blind-image

The necessity of some remedy to insure diversity in juries is supported by empirical studies. Studies which were conducted show that in cases involving black defendants, prosecutors sought information on the race of venire members significantly more often than they did in the cases involving white defendants.[1] And prosecutors eliminated prospective Black jurors in those cases using peremptory challenges at a higher rate than white jurors. Furthermore, some prosecutors are trained to strike Black jurors during jury selection. Consider this video of a prosecutor training where the speaker urges attendees to strike black jurors. And earlier this year here in Texas, a Wharton County prosecutor testified that the sitting District Attorney instructed him to strike Black jurors during a trial. Prosecutors have a proclivity to strike Black jurors. Those individual jurors have a right to be involved in the judicial process. Discriminatory use of peremptory challenges violates these individual jurors’ rights. And undermines confidence in the justice system. Citizens feel that the justice system is racist and considers race in decision-making.

Furthermore, diversity in juries has an effect on the outcome of the trial. Statistics show that all white juries convict black defendants at a higher rate. Having just one black juror impacts the conviction rate. Consider this video. And prosecutors are aware of the impact diversity has on juries. But more troubling is that there is a greater risk of the conviction of the innocent. Many of the falsely accused citizens, who were exonerated by the innocence project, were convicted by all white juries.

Although Batson purports to provide protection to criminal defendants and black jurors, systemic violations persist. The effectiveness of the Batson to protect civil rights is dubious. In a study on the use of peremptory challenges by the Caddo Parrish District Attorney’s Office from 2003 to 2012, it was found that prosecutors struck black jurors at three times the rate of non-blacks. Prosecutors have learned to establish reasons for eliminating jurors and courts have been all too apt to acquiesce and accept reasons given by prosecutors. The Caddo Parrish Study revealed some of the reasons prosecutors offered for excluding blacks from juries: They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard…. To name a few. The reasons seemed neutral but were often things that had no bearing on the citizen’s fitness for being a juror. A pattern of similar sidestepping of Batson has been noted in multiple other Southern States. Studies from across the country reveal that prosecutors in multiple states are likewise striking black jurors in disproportionate numbers. In 2012, a state trial judge in North Carolina found that prosecutors in his state had created a “cheat sheet” of race-neutral reasons to offer when challenged. Among the choices were “air of defiance,” “arms folded” and monosyllabic responses. Given that prosecutors have become adept in sidestepping Batson, change is needed.

On November 2, 2015, the United States Supreme Court heard argument in the case of Foster v. Chatman involving alleged racially motivated peremptory challenges. Notes obtained 20 years later from prosecutors in that case show that, contrary to prosecutors’ claims, race was indeed central to their decisions to exclude certain jurors. Each Black potential juror’s name is highlighted in green and marked with a “B”. The first four names on a handwritten list of “Definite NOs” are those of the Black jurors who were struck. In a separate list, those jurors are ranked against one another, “in case it comes down to having to pick one of the black jurors.” This case may afford the US Supreme Court an opportunity to change the use of peremptory challenges. Just as Justice Thurgood Marshall called for the elimination of peremptory challenges, current Justice Stephen Breyer has also called for the elimination of peremptory challenges. While elimination of peremptory challenges seems like an extreme remedy, it might be necessary. There should be no harm in allowing all qualified jurors to serve on the jury despite on party’s bias towards those people. Perhaps history and the present have shown that prosecutors cannot be trusted to exercise peremptory challenges in a non-discriminatory manner. And maybe justice can pull the blindfold back over her eyes so that all may have confidence that her dispensation of justice has no respect of persons…. No respect of religion…. No respect of race….. and No respect of creed.

[1] Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012).