More Thoughts About Joining A Protest

Should judges attend Black Lives Matters protests? there are many judges who might privately hold sympathetic views but a lot more are likely to be reticent about public expressions of support. From the Baltimore Sun:

Quietly in Maryland, institutional pushback has surfaced against the national resurgence of the Black Lives Matter movement and calls for justice reform in the wake of George Floyd’s killing by police in Minnesota. Eye opening to me, a veteran Baltimore City public defender and a former candidate for Baltimore Circuit Court judge who’s all too familiar with institutional racism and police misconduct, were a couple of recent actions to come out of our court system.

For starters, the Maryland Judicial Ethics Committee published an opinion at the end of July telling judges not to attend Black Lives Matters events. The committee is made up of nine judges, a lawyer and three lay people. On its face, the opinion might seem sensible. “The Maryland Code of Judicial Conduct repeatedly uses “independence, integrity and impartiality” as bench marks for our judges to act in a neutral way. Unfortunately, too many judges wear their biases on their robes. Whether it’s a disdain for public defenders because of our typically poor, Black clientele or a buddy-buddy relationship with state’s attorneys, it comes across both ways in my experiences.Ethics panel: Maryland judges should not attend Black Lives Matter events »

It seems as if the ethics committee endorsed the false notion of Black Lives Matters existing as a radical, fringe movement wishing harm upon police officers. Black Lives Matters, in reality, seeks to remind us of the value of a Black life. It recognizes the mistreatment of Black people by law enforcement, but that doesn’t necessarily equate with anti-police. The opinion expresses concerns that judges might appear in photos where protesters carry signs reading “Defund the Police” or “I Can’t Breathe.” The horror!

Seems like judges have to quarantine for good. No more Spike Lee or Ava DuVernay movies. And forget about having family or friends participate in such controversy. Is it really that radical to oppose murder? Is it overtly one-sided to rebuke racism? Even the late conservative Supreme Court Justice Antonin Scalia once wrote an opinion in favor of judges expressing their legal philosophies during contested elections. Justice Scalia essentially said that every judge comes to the job with preconceptions and none have a blank slate. Let’s hope judges don’t hold potential jurors to these same uncompromising standards whenever jury trials resume.

If the Black Lives Matters ban has merit for you, juxtapose it with the ethics committee’s previous two opinions. In May, the panel took up the question of whether judges could take part in swearing in ceremonies of state’s attorneys who will practice before the court. The answer is that this long-established practice, typically involving judges who were former state’s attorneys, can continue. It is kosher for a judge to give a public speech and words of wisdom to new prosecutors in the very courtrooms where they will dispense justice. While there is no comparable ceremony for public defenders or private criminal defense attorneys, this implies a bias.

More troubling, in April, the committee decided that judges are not required to recuse themselves from proceedings where they have received a campaign contribution from an attorney involved in the matter. They can assess it case by case. Yeah, right. In my experience, those lawyers who donate to judges’ campaigns not only appear before the very judges they support, but they get their cases called quickly and are usually warmly greeted by the judge. Prosecutors (and defense attorneys) not only give money to the sitting judges’ campaign, they help run it — and they still practice before the judges. Lawyers and judges even pose in campaign pictures together. Seems hypocritical when compared to the Black Lives Matter ban.

Meanwhile, in a recent federal court hearing regarding the consent decree requiring the Baltimore Police Department to correct unconstitutional practices, the judge in charge of the process declared that defunding police is not an option. Wow. The judge is concerned that with less money the police department will not be able to pay for reforms that are a part of the 2017 agreement between the city and the federal government. Namely, the decree calls for increased hiring. Then why not restructure or redo it? The decree is premised on an outdated model that feeds the beast of failed policing (still demonstrated regularly by Baltimore police) instead of investing in mental health experts, domestic violence specialists, diversion tactics and more community-based policing.Federal judge overseeing Baltimore Police consent decree says ‘defunding the police’ is not an option »

Finally, the Maryland Court of Special Appeals, in a July ruling, acquiesced to the infamous Law Enforcement Officers’ Bill of Rights by saying that 15 internal affairs complaints against Baltimore police officers should be tossed out because of a technical mishap on the part of the department. The department didn’t officially charge the complaints in the right amount of time. The court blamed the police department for not following its own practices in charging as required by the bill of rights. But the court ignores whether the bill of rights is correctly interpreted by the police department in the first place and, of course, never questions why the department polices itself. It’s almost as if the department sandbagged the 15 complaints by delay, knowing that they’d be dismissed in court.

We should all pay attention to Black Lives Matters and truly invest in institutional reform in the justice system. It’s clear the opposition such efforts will face.

Todd Oppenheim is a Baltimore City public defender and former candidate for candidate for city circuit court judge. The opinions in this article are his own. Twitter: @Opp4Justice.

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