There are times when the race of a criminal defendant matters, and can be used as an effective argument in his defense. Unfortunately, race can also come off as a ham-handed and offensive cudgel that backfires badly because of a public defender’s ideological blindness, as was the case when a San Bernardino County public defender engaged a prosecutor in plea negotiations on behalf of his Hispanic client.
According to the deputy district attorney’s declaration, when the deputy public defender failed to obtain a better offer, he “exclaimed ‘I really don’t care.’ [The deputy district attorney] proceeded to ask him what he meant by that statement and [he] stated, ‘read between the lines …, I am a white man, what do I care? It’s not my people we are incarcerating.’ [¶]
In response, [the deputy district attorney] stated ‘what do you mean exactly? Are you asking me to give Mr. Sanchez a better deal because he is brown and I am brown?’ to which [the deputy public defender] immediately responded ‘Yes! Exactly! Because you are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'” The deputy district attorney then “immediately stood up and stated ‘it did not matter what the Defendant’s race is, whether they are brown, White, Asian, or Black, a crime has been committed and I am seeking what is fair and just.’ [The deputy district attorney] proceeded to state, ‘I am done with this conversation, I will not allow you to upset me. I am completely done.'”
As the deputy district attorney left the conference room and entered the courtroom, she was “emotionally distraught from [the deputy public defender’s] race/ethnicity-based commentary.” The deputy public defender “was agitated” and “continued to follow” the deputy district attorney, asking her “multiple times” if she “‘was going to take it out on his client'” because she was “mad” at him. The deputy district attorney “responded ‘yes, yes, yes’ to him so that he would leave [her] alone.”
Notably, the problem here wasn’t that the unnamed public defender’s racial argument was offensive to the defendant, the putative target of the RJA’s protections, but the prosecutrix. The PD sought to use race for the benefit of his client, to press an argument that would appeal to someone who shared his ideological perspective that racial disparities matters more than conduct.
One problem is that arguments are about persuading the person whose position one is trying to change. The PD used an argument that appealed to him but was obviously inappropriate for the prosecutor. Not only did the racial tactic not help the defense, but it backfired all over the PD to the extent that the prosecutor raised the RJA and the trial court disqualified both the PD and the PD’s office from the representation of the defendant.
The RJA, “effective January 1, 2021, added section 745 to the Penal Code. The Legislature enacted the [RJA] with the express intent ‘to eliminate racial bias from California’s criminal justice system’ and ‘to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.'” As written, the RJA includes a mandatory provision providing that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” It also includes permissive provisions providing a procedural mechanism for a criminal defendant to seek relief for a violation of the statute. Where a violation of the RJA has occurred, any resulting conviction or sentence may be rendered legally invalid, requiring retrial of an entire case after declaration of a mistrial, empaneling of a new jury, or vacatur of a judgment.
While the goal of ensuring that “race plays no role at all in seeking or obtaining convictions or in sentencing” might be a worthy one on its surface, it can also be a double-edged sword. The statute presumes that race will only be used in a negative way, to further racial discrimination and to harm black and Hispanic defendants. That’s not necessarily true, and there are times when race comes into play in a salutary role, Which is which matters.
In upholding the disqualification of the individual PD, the majority noted that his statement, that “I am a white man, what do I care?”, could be read in different ways, one of which being as an “unintentional or unconscious” expression of the PD’s implicit bias. Allowing the PD to be the person determining whether his own conduct harmed the defendant, or allowing the defendant to waive the conflict and disqualification of PD, ignored the problem of implicit bias, since by definition the PD wouldn’t be capable of recognizing his own unconscious bias.
The PD explained that his statement was “sarcasm.”
The deputy public defender’s declaration provides the following description of what happened next: “I used sarcasm to make a point about the systemic and pervasive racism that permeates every aspect of our justice system. I sarcastically said, I’m just a white guy why should I care. You are just sending another poor young Hispanic man to prison. I discussed Mr. Sanchez’s race with [the deputy district attorney] because I recognize the history of racial bias, implicit bias, and systemic racial injustice in the criminal justice system. I felt like Mr. Sanchez and victim Jane Doe, both Hispanic individuals, had no voice in our justice system. [The deputy district attorney] responded by threatening Mr. Sanchez with life in prison if he did not take the fourteen-year offer.”
It would appear that the PD suffered from quite explicit racial bias, but not in the way the majority saw it. He was blinded by his simplistic racial ideology from the ability to present a zealous defense based on the facts, most notably that the “victim” recanted and stated that sex was consensual and there was neither a rape nor kidnapping.
Unconscious bias is unconscious therefore by definition a person who harbors it is incapable of recognizing it.
Thank you for sharing, Carlyle.
That PD’s office needs to implement a staffing change in order to provide effective assistance to its clients.
“blinded by his simplistic racial ideology from the ability to present a zealous defense based on the facts”
Your Honor, I’m Stan Goodman and I’ll be representing the defendant’s demographic.
[Ed. Note: Saul’s cousin, Stan?]
Better Call Stan the Man….the Good Man!
The PD claims that the DA is lying, and that what he said was substantially less inflammatory than what she reported. Unless there is evidence of what was said, it’s only HSSS; which is an awfully flimsy basis for disqualifying an attorney from representing a client who wants to retain his services.
It’s a San Berdoo thing. You wouldn’t understand.
Isn’t this just a case of “saying the quiet part out loud”? I recall a personal injury case years ago that settled for more than it was worth because the plaintiff’s attorney kept repeating the “she makes a nice witness” line. The defense was evidently worried, but I don’t think their concern was about the witness’s poise, elocution or factual recall.