Last Friday I participated in a panel discussion of race and the legal system at a legal conference in New Orleans.  Two of the Jena 6 attorneys, Jim Boren (representing Robert Bailey) and John Digiulio (representing Carwin Jones) were part of the panel, and they graciously brought me up to speed on legal developments. 

Not much has been accomplished in recent months, largely because District Attorney Reed Walters has been trying to decide whether to run for Judge or to stay on as DA.  Walters has many detractors in LaSalle Parish, but his defense of Jena’s honor last year has redounded to his glory (as he knew it would).  The community wagons have circled around Walters and he has apparently decided to stay on as DA.

As a result, the legal plight of the five remaining Jena defendants can now be addressed.

Walters’ first shot across the bow was an attempt to revoke the probation of Jesse Ray Beard.  Jesse Ray had been placed on juvenile probation for minor offenses prior to the Justin Barker incident.  Walters doesn’t want to step into the courtroom against the host of skilled attorneys now representing the Jena 6 defendants.  So he decided to send Jesse Ray to juvenile prison for a couple of years without having to mess with Mr. Beard’s legal team.

Jesse Ray’s attorneys (led by David Utter, an authority in juvenile law) responded by filing motions to recuse both DA Reed Walters and Judge JP Mauffray.  In non-legal terms, that means Jesse Ray is demanding, through his attorneys, that Walters and Mauffray have no further dealings with these cases because they have surrendered every vestige of objectivity.

I have posted the relevant portions of the motion to recuse Reed Walters below (minus footnotes and arcane legal discussions). 

The motion will give you a good feel for the arguments that will be made in the courtroom if any of the remaining defendants go to trial. 

Walters’ defenders, led by the redoubtable editors of the Jena Times, have done an excellent job of presenting their version of the facts.  With the assistance of the Christian Science Monitor and the editorial page of the New York Times, a carefully crafted myth has been spun for an audience (including many white progressives) desperate to believe that Jena was no big deal.

This tapestry of half-truth and outright fabrication will stand until it is rebutted in open court.  Mauffray, Walters and the good people of Jena are hoping to avoid a legal showdown.  They know their cherished mythology is indefensible, so they are waiting for America to forget about the Jena 6 so LaSalle Parish law can proceed without interference. 

That ain’t gonna happen.

The motion posted below has been denied by Judge Mauffray.  A motion to reconsider that decision, however, has been granted.  David Utter is driving to Jena as I write in an attempt to negotiate a hearing in which Mr. Beard’s attorneys can argue for a full recusal hearing.  Walters and Mauffray don’t want to see that happen because an independent judge would preside.  So long as the DA and the judge are playing on home court they will win every time. 

If you want to know how Jena 6 attorneys will argue in court, read on:

MOTION TO RECUSE THE DISTRICT ATTORNEY

             NOW INTO COURT, through undersigned counsel, comes JESSE RAY BEARD, a juvenile, who moves the Court as follows:

1.

           Jesse Ray Beard (Jesse Ray) has been charged with a delinquent act.

2.

The District Attorney prosecuting the case is J. Reed Walters (“Walters”).

3.

Walters has shown on numerous occasions that he is so prejudiced and harbors such personal bias against Jesse Ray and the other five African American youths now known as the Jena 6, that he is incapable of fairly and impartially performing his duties as the district attorney.

4.

            During the relevant time period, Walters also served as attorney for the LaSalle Parish School Board.  In this capacity, Walters provided counsel to the School Board of a nature which created an irreparable conflict of interest with his duties as the district attorney, thereby impairing his ability to perform his duties as the district attorney fairly and impartially.

5.

A district attorney must be recused when his bias, prejudice, or personal interest in a case impairs his ability to fairly and impartially perform his duties.

WHEREFORE, JESSE RAY BEARD PRAYS that after due proceedings, District Attorney J. Reed Walters be recused from this and all other matters involving Jesse Ray. 

 MEMORANDUM IN SUPPORT OF

MOTION TO RECUSE THE DISTRICT ATTORNEY

JESSE RAY BEARD, by and through counsel, respectfully moves this Court to recuse District Attorney J. Reed Walters and his office from prosecuting this case.[1]  Jesse Ray Beard (“Jesse Ray”) submits this motion to recuse pursuant to Louisiana Code of Criminal Procedure Article 680, Article I Section 2 of the Louisiana Constitution (Due Process), Article I Section 3 of the Louisiana Constitution (Right to Individual Dignity), and the 5th and the 14th Amendments to the United States Constitution.  See La. C. Cr. P. art. 680; La. const. art. I §2; La. const. art. I §3; U.S. const. amend. V; U.S. const. amend. XIV.

As grounds, Jesse Ray states the following:

INTRODUCTION

            On August 31, 2006 African-American students arrived at school to find “two hangman’s nooses hanging from the tree that sits in the center of the Jena High School square tree . . . where most students assemble during recess and lunch breaks.”[2]  “Incident More Hype than Reality”, Jena Times, p. 1A (Sept. 13, 2006).  Disregarding the 4,863 recorded lynchings over the past 125 years, almost all in the Deep South and almost all hangings of African-Americans, officials reported to the local media that “most of the ‘racial tensions’ were more media hype than reality.”  “In reality, the nooses had nothing to do with racial bigotry, but rather an ignorant prank taken from the mini-series, ‘Lonesome Dove.'”  Id.  In spite of a recommendation by the school principal that the 3 noose hangers be expelled, the expulsion hearing committee of the LaSalle Parish School Board voted to suspend the students instead.  Id.  The attorney representing the school board (both in the noose-hangers’ cases and also with regard to the expulsions of six African-American students including Jesse Ray) was, and remains, District Attorney J. Reed Walters (Walters): the very person who refused to prosecute these white students but charged Jessie Ray with attempted murder for allegedly hitting a fellow student.[3]

On December 4, 2006, after 3 months of racial tension at the school, including but not limited to: 1) protests and a sit-in by African-American students; 2) a meeting of African-American parents and students in response to the nooses; 3) African-American parents’ efforts to discuss their opposition to the light punishment of the noose-hangers with the School Board; 4) numerous fights between African-American and white youth that spilled off school grounds; 5) at least one day of the entire school being placed on “lockdown;”[4]and 6) an arsonist’s fire that destroyed the main school building, Justin Barker (Justin), a white student, was injured in a battery, allegedly by six African-American students.[5]   Shortly after the incident, sheriff’s deputies arrested the young men, now known as the Jena 6, and charged them with aggravated second degree battery.  Even though Justin was well enough to attend a school function hours later, Mr. Walters increased the charges against the Jena 6 to attempted second degree murder, and conspiracy to commit attempted second degree murder, and transferred one of the young men – Mychal Bell – to adult court.[6] 

Since that fateful day when three white students placed hangman’s nooses on a tree in the center of the square at Jena High School, Mr. Walters has repeatedly demonstrated his bias and inability to fairly and impartially perform his duties as the prosecutor in the Jena 6 cases.  As will be shown at a hearing on this motion, his personal bias in this case and conflict of interests as prosecutor and school board attorney make him unfit to proceed as prosecutor herein.

Our nation’s ugly history of lynching African-Americans and the symbol of the noose as a deadly threat to African-Americans made the hanging of those nooses from the school yard tree an undeniable crime in the circumstances of this case.  Mr. Walter’s manifest unwillingness to prosecute this crime is the clearest sign of his bias and his inability to fairly and impartially prosecute Jesse Ray.  This impartiality is further highlighted when one compares the leniency with which Mr. Walters treated the white noose hangers juxtaposed against his treatment of the Jena 6.  Finally, Mr. Walters’ behavior in this and other cases involving Jesse Ray show a willingness to abuse his power as the chief law enforcement officer in LaSalle Parish to secure convictions, disregarding his primary duty to justice.    

•I.                   The Law of Recusal

District attorneys are given broad power and discretion in prosecuting cases.  However, the United States Constitution and the Louisiana Constitution require that prosecutors’ broad discretion and power is limited to ensure that prosecutors are always seeking justice and that every prosecution is conducted fairly and impartially.  If a prosecutor cannot conduct a prosecution fairly and impartially, he must be recused.

Louisiana Code of Criminal Procedure Article 680(1) (“Article 680”) limits prosecutors’ power by providing that a district attorney shall be recused when he “[h]as a personal interest in the cause or grand jury proceeding which is in conflict with the fair and impartial administration of justice.”  Article 680’s recusal provision is not only provided for but is required by constitutional guarantees of the fair and impartial administration of justice.  Plaquemines Parish Comm’n Council v. Perez, 379 So.2d 1373, 1377 (La. 1980).  Article 1 § 2 of the Louisiana Constitution provides that “no person shall be deprived of life, liberty, or property, except by due process of law.”  The Louisiana Supreme Court has defined the essence of due process as “protection from arbitrary and unreasonable action.”  Plaquemines, 379 So.2d at 1377.  Furthermore, due process itself requires impartiality.  See Id.  Additionally, Article I Section 3 of the Louisiana Constitution commands that: “No person shall be denied the equal protection of the laws.  No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations.”[7] 

The Louisiana Supreme Court has interpreted Article 680 (1) to require courts to recuse a district attorney “when the situation presented raises questions as to whether the district attorney’s ability to fairly and impartially perform his duties has been impaired.”  State v. King, 956 So.2d 562, 567 (La. 2007).  Recusal is required even where the district attorney is not aware of his partiality and despite his earnest assertions that he is impartial.  Id.  Furthermore, a defendant need not prove that a district attorney will benefit personally or economically from prosecuting the defendant.  The Louisiana Legislature and courts in Louisiana have made clear that a district attorney must be recused if he is involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially.  Id.; State v. Tate, 171 So. 108 (La. 1936).  In fact, when the Louisiana Legislature passed Article 680, it changed the grounds for recusal from requiring a showing of a “personal interest adverse to that of the prosecution” to any “personal interest in the cause which is in conflict with fair and impartial administration of justice.”  See, State v. Bailey, NO. 2007-KK-1922 (La. 2007) (writ denied) (dissent) (discussing change in language and requirements for recusal); See also La. C. Cr. P. art. 680.

The proponent of recusal must prove by a preponderance of the evidence that the district attorney has a personal interest which conflicts with the fair and impartial administration of justice.  King, 956 So. 2d 562 at 566; State v. Snyder, 237 So.2d 392, 395 (La. 1970).  However, courts must apply an objective standard in making its recusal determination.  That is, the proponent of recusal needs only to produce evidence that would lead a reasonable person to question whether the district attorney can conduct the trial fairly and impartially.  King, 956 So. 2d at 570. 

What is more, if there is a “close” case, courts must err on the side of recusal to promote the fair and impartial administration of justice.  Id., at 570.  Furthermore, courts have found that district attorneys had personal interests in cases and ordered their recusal based on broad and varied factual situations.•II.                The Grounds for Recusal

Because of his bias and conflict, Mr. Walters fails to see what any fair and unbiased individual would see:  A “hangman’s noose” hung in a tree previously utilized by whites only is not, and can never be, a prank.[9]  This failure, shown in his actions both as counsel to the school board and as District Attorney, indicate a bias and conflict of interest that, while shared with influential parts of the white community, make it impossible to fairly and impartially prosecute Jessie Ray.  As legal counsel to the LaSalle Parish School Board, Mr. Walters was ultimately responsible for the legal opinion to his clients that ensured that the noose-hangers’ school term was only interrupted with suspension and weekend detentions, while guiding the system to a full academic year expulsion for the Jena 6.  After African-American students reacted in protest and outrage to the noose-hanging and racial unrest engulfed the school, Mr. Walters threatened the African-American students with ruining their lives with a “stroke of his pen” if they did not behave, while ignoring any responsibility the white students had in the unrest. 

As District Attorney, Mr. Walters refused to consider charging the three white students who admitted to hanging the nooses, even though he could have proceeded under not one, but  four possible statutes: i.e. terrorizing, institutional vandalism, violating Louisiana’s hate crime statute, and assault.  After refusing to prosecute the white noose-hangers, Mr. Walters then made good on his threat to African-Americans, in particular the Jena 6 and Jesse Ray, by overcharging the Jena 6, and arguing for high bonds (thus guaranteeing that they all spent time incarcerated before trial).  Based on the facts alleged herein, in addition to what will be adduced at a hearing on the matter, it is clear that Mr. Walters has a personal interest and bias in the cause which is in conflict with the fair and impartial administration of justice.

Pursuant to the standards set forth in Article 680 of the Louisiana Code of Criminal Procedure, State v. Tate, 171 So. 108, and other Louisiana case law, the office of the LaSalle Parish District Attorney, J. Reed Walters, must be recused from this case. 

•A.                            Mr. Walters in His Capacity as School Board Counsel: Slapping the Wrists of White Students and Hammering African-Americans.

More than any other image from African-American history, a hangman’s noose is a tangible, visual, silent and deliberate threat intended to instill fear and intimidation.  African-Americans suffered death at the hands of white vigilantes for all of their history in our nation, but nothing like the spectacle associated with public lynching.[10]  Lynching was a prominent component of the late 19^th and 20^th century American political landscape, and was utilized as a tool for the systematic intimidation of African-Americans.[11]  Between 1882 (when reliable statistics are first available) and 1968, the vast majority of the 4,863 recorded people lynched in the United States were southern, African-American men.[12]

“Lynch mobs” enforced extralegal and barbarous death sentences of hanging and mutilation on thousands of African-Americans in the southern United States.[13]  From the 1890’s through the early decades of the 20^th century, state and federal lawmakers effectively sanctioned the violence by allowing it to go unchecked and consistently turned a blind eye to the thousands of lynchings.[14]  “Lynchings were concentrated in a swath running through Georgia, Alabama, Mississippi and Louisiana.”[15]  It is inconceivable that an experienced Louisiana prosecutor would be unaware of this history.  Community institutions were also complicit in condoning lynching and in protecting perpetrators.  Some local newspapers refused to report lynchings in their communities, and others wrote stories advertising coming lynchings and guaranteeing huge crowds.  Local law enforcement, prosecutors, and even judges often abdicated their obligation to find and punish lynchers.  For example, police directed traffic at the 1931 lynching of Matthew Williams in Salisbury, Maryland.  The conspiracy of silence extended to the white townspeople as well.  Whites often closed ranks to protect their friends and neighbors while fear kept most African-Americans silent.  Some elderly African-Americans are still unwilling to talk openly about lynching today, even within their own families.[16]

            Mr. Walters’ bias became clear when he ignored this history[17] and either supported or failed to intervene when the LaSalle Parish School Board expulsion hearing committee overrode school Principal Scott Windham’s recommendation that the noose-hangers be expelled.  Instead, the students received suspensions.[18]  The obvious nature and significance of this history was highlighted when CNN recently aired “The Noose – An American Nightmare.”  The program also showed how important it is for unbiased prosecutors to quell potential violence by prosecuting such crimes before they lead to a spiral of violence.  Yet, bias can prevent a prosecutor from carrying out his most basic duties.

            Principal Windham knew and was willing to act on what the expulsion hearing committee and Mr. Walters failed to recognize because of an overriding bias.  The nooses were an overt, racist threat to the African-American students who dared ask school officials if they could sit with white students at lunch under a tree that had long been associated as a gathering place exclusively for white students.  We cannot assume Mr. Walters is ignorant of this background.  Were Mr. Walters not biased, he would recognize that in the context described and considering the history of race, racism, and lynchings in the United States (especially in the South), nooses hanging from a tree are a threat to the entire African-American community.  They are a powerful, unequivocal statement to any African-American that he dare not upset the dominant social order.  Rather than acknowledge the noose-hanging as the assault and/or hate crime that it was, Mr. Walters’ bias allowed him to accept the dominant view, seemingly held by some white citizens in Jena, that the act was merely an “ignorant prank” and thus he supported his client’s (the school board’s) minor disciplining of the three perpetrators of this racist act.[19] 

His treatment of the noose-hangers is in stark contrast with the swift expulsions of the Jena 6.[20]  All six were arrested and locked in jails – four in the squalid LaSalle Parish Jail and two in juvenile detention – immediately after the Dec. 4, 2006 battery on Justin Barker.  By January 29, 2007, the LaSalle Parish School Board upheld the year-long expulsions of four of the students, with a fifth student apparently not appealing his expulsion.  Jena Times, p. 1A (Jan. 31, 2007).  As counsel to the school board, Mr. Walters ensured that the underlying facts of the incidents and possible racial bias were not explored as part of the process, admonishing the school board members that “[w]e’re not here to discuss the investigation or any other students, we’re here to make sure the expulsion process was conducted in accordance to Louisiana Statutes.”  Id., at p. 3A.  The vote to uphold the expulsions was seven-one, with the lone dissent coming from the Board’s sole African-American member.  Id. 

Having acted as counsel to the school board with the result he directed, Mr. Walters could not then turn around and prosecute the noose cases in an unbiased way.  Furthermore, he put himself in the untenable position, through his conflict of interest in representing the school board, of being seen as unfairly acting to expel the Jena 6 and not those who hung the nooses.  He cannot now deny his bias and his personal stake in prosecuting Jesse Ray.  Mr. Walters’ bias and his interest in validating his advice to the school board is a basis for this Court to recuse him.  Contrary to the trial judge’s decision in Bailey, a defendant moving for recusal is not required to prove that the district attorney would receive some personal benefit from prosecuting the defendant.  The proper standard, as announced in Tate, only requires that a defendant show that the district attorney is involved or is interested in an extrinsic matter which might consciously or unconsciously impair or destroy his power to fairly and impartially conduct the defendant’s prosecution.  Furthermore, even if the standard was as the Bailey court suggested (i.e., that a defendant must show that the district attorney received some personal benefit), the facts in this case would still require a court to recuse Mr. Walters.  The benefit that Mr. Walters receives from prosecuting Jesse Ray is a professional benefit.  By prosecuting Jesse Ray, Mr. Walters validates his advice to the school board to expel Jesse Ray and his co-defendants.  Concomitantly by not prosecuting the noose hangers he validates his advice to the school board not to expel the noose-hangers.  It would be professionally embarrassing to Mr. Walters to take any other course.  Clearly this “conflict” made it impossible for Mr. Walters to be objective in his duties as prosecutor.

In addition, a further conflict of interest for Mr. Walters arises out of the civil litigation filed by the Barkers against the Jena 6 defendants and the school board.  It is very likely that Mr. Walters will be a witness in that litigation since he was counsel for the school board at the time of the incident and remains its counsel today.  It would be highly improper for him to continue as the prosecutor of the individual Jena 6 defendants in such circumstances.  Criminal convictions of the Jena 6 would be advantageous to Walters’ client the school board because a civil jury would be more likely to allocate more of the blame and damages to the Jena 6 defendants if they have been convicted of a crime.  The school board could also argue that they cannot be expected to prevent criminal behavior.  Alternatively, if the remaining Jena 6 defendants are acquitted (or if Walters would drop the charges — as may well be mandated by the lack of credible evidence against at least some of the defendants), the school board would be left as the primary focus of blame in the civil case.  Finally, should there be a claim against the Jena 6 by the school board (or even a defense grounded in alleged untoward action of the Jena 6) Mr. Walters could be seen as using his position as District Attorney to augment and support the interests of his client, the school board.  Such a conflict of interest is simply inappropriate.

•B.                            Mr. Walters’ Bias Allows Him to Make Good on his Threat to African-Americans Students and to Abuse his Prosecutorial Power by Refusing to Charge the White Students and Improperly Charging the African-American Students.

Days after the nooses were hung, Mr. Walters was called to Jena High School by Detective Paul Smith[21] to address the students at a hastily called assembly.  In a recent “chronology” of events disseminated by the Jena Times, Mr. Smith claims the precipitating incident was a fight involving one of the Jena 6.  There is no way the fight stemmed from racial tension and the nooses, the Jena Times assures us, because according to them, from Sept. 9 (the day after Jena High was on “lockdown” after someone reported a gun on campus) to Nov. 30, 2006 (the night an arson’s fire burned the school’s main building down) “there were no such reports of any violence or destruction during this time period.”  “Disruptions at school were only those of typical disruptions, nothing related to any racial divide, thus, putting to rest any speculation that there was true racial tensions [sic] in town.”  See Appendix D, p.7  (“Chronological Order of Events Concerning the `Jena 6′”). 

            As with most versions of events surrounding the Jena 6, Jena’s African-Americans recall things differently.  Indeed, even the Jena Times’ “Chronology”, which contains lengthy narratives editorializing on facts critical to the events and questions whether the nooses were “racial”, notes an impassioned speech by an African-American mother about the nooses at a school board meeting on Sept. 18, 2006 – nine days after the time of supposed racial “peace” noted above.  Id., at pp. 6-7.  It was Det. Smith, the lead detective in the Jena 6 case, not the school principal who called the assembly.  Id., at p. 8.  African-American students remember Mr. Walters harshly admonishing students to behave and obey school rules, saying, “I can be your best friend or your worst enemy.  I could take your lives away with the stroke of my pen.”[22]

Unfortunately, this is precisely what Mr. Walters proceeded to do to the Jena 6.  After Det. Smith’s investigation of the battery on Justin, which included a statement by one of the admitted noose-hangers implicating three of the Jena 6 in the attack, all six African-American students were arrested and incarcerated.  Bonds were set between $70,000 and $138,000, much too high for most to secure bail and release.  Although the Jena 6 were charged with second degree battery at the time of their arrest, Mr. Walters increased the charges to attempted second degree murder and conspiracy to commit attempted second degree murder. 

In an unusually public comment on a criminal case, especially one with an on-going investigation, Mr. Walters noted in the front page of the local paper that he “will do whatever is in my authority and power to bring justice to those charged with criminal actions and help restore the schools to a place where the teachers can teach and the children can learn free from the threat of criminals.”  See Jena Times 12/13/2007, p. 1A.  In fact, in the only conviction to date, Mr. Walters was found by a reviewing court to have exceeded his authority.  As noted earlier, this included overcharging 16 year old Mychal Bell in order to transfer the case to adult court and incarcerate him with grown men in a squalid jail for 10 months, only to drop the charges to aggravated second degree battery (a charge not transferable to adult court) after the selection of an all-white jury, and securing a conviction forthwith.  An appellate court determined Mr. Walters’ actions exceeded his authority, reversed Mychal’s conviction, and remanded the case back to juvenile court.[23]  See, e.g., Appendix C (State v. Bell opinion).

In contrast, Mr. Walters was unable to identify a crime committed by the three white students who admitted to hanging the nooses on schools grounds the day after African-American students asked to sit with white students at lunch under a tree long noted as a gathering place for whites.  On September 19, 2007, in a statement to the press, Mr. Walters claimed that he “researched state law and came to the conclusion that there is no state criminal statute prohibiting the conduct [of hanging nooses on school grounds].”  Jena Times, p. 2A (Sept. 19, 2007).  Undersigned counsel’s research found a number of possible criminal statutes applicable to the crimes committed by the white students.

First, Mr. Walters had grounds to initiate criminal proceedings against the individual(s) that hung the nooses on the grounds of Jena’s high school under Louisiana’s terrorizing or institutional vandalism statutes.  In light of the facts surrounding the noose hanging, Mr. Walters also could have prosecuted such individual(s) for violation of Louisiana’s hate crimes statute.  Louisiana’s hate crime statute provides:

It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple, forcible, or aggravated rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile; simple, second degree, or aggravated kidnapping; simple or aggravated arson; placing combustible materials; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.

La. Rev. Stat. ann. § 14:107.2(A).  In order to be guilty of violating Louisiana’s hate crime statute, a defendant must be guilty of one of the underlying offenses set forth in section 14:107.2(A).  Hanging a noose constitutes not one but two of the specified underlying offenses: terrorizing[24] and institutional vandalism.”[25]  Terrorizing was one of the goals of lynchings in the American South.  “Lynchings …had three intertwined functions.  [The] first goal, [was] to maintain social order over the black population through terrorism…”[26]   Those nooses hanging from a tree (perceived by many as a white only tree) represent that terrorism.

In addition, Mr. Walters could have prosecuted such individual(s) for assault[27] if he had simply overcome his bias and recognized that a hanging noose, in light of the facts herein and its historical meaning in Louisiana, conveys a substantially similar message as that of a burning cross, and then relied on precedent establishing that a burning cross causes the person to whom it is directed to be in reasonable apprehension of receiving violence to his or her person.  See, e.g., Virginia v. Black, 538 U.S. 343 (U.S. 2002) (Supreme Court held that a state may prohibit intimidating cross-burning without violating the First Amendment’s prohibition on regulating free speech because burning a cross falls under the “true threat” exception to free speech.); Florida v. T.B.D., 656 So.2d 479, 481 (Fl. 1995) (Supreme Court of Florida held that a statute prohibiting cross burnings on another’s property without written permission is constitutional, and holds that burning a cross is a threat. The Court stated that “an unauthorized cross-burning by intruders constitutes a direct affront to one’s privacy and security and has been inextricably linked in the state’s history, to sudden and precipitous violence – lynchings, shootings, whippings, mutilations, and home-burnings. The connection between a flaming cross in the yard and forthcoming violence is clear and direct.”).  Additionally, in T.B.D., the dissenting opinion noted that the state could have prosecuted the cross-burner for assault: “the issue in this case is not whether the state can prohibit the contemptible act of cross-burning.  Clearly, it can. . . . The defendant in T.B.D. could have been charged with any number of offenses other than the one at issue, including assault.”  Id. at 483. 

Although he was unable to find a law to prosecute the noose-hangers, Mr. Walters’ creativity knew no bounds when it came to charging and prosecuting the Jena 6.  He charged the African-American youth with attempted murder, even though Justin walked out of the hospital and attended a school party hours after the incident.  He convinced the all-white Mychal Bell jury that a tennis shoe was a dangerous weapon in order to qualify for aggravated second degree battery.[28]  But he could not find a law to prosecute the white boys who hung nooses from a tree on public school grounds.  As will be made clear at a hearing on the matter, his failure to do so had little to do with the Louisiana criminal code’s shortcomings and everything to do with his personal bias and interest in the case. 

•C.                            Mr. Walters Has Abused His Authority in Other, Confidential Matters  

At a hearing on this motion, Jesse Ray will seek a public trial on matters that have heretofore been confidential, juvenile proceedings.  Under our state’s juvenile code he apparently is not free to discuss the proceedings or release documents related to those proceedings.  Jesse Ray will waive the confidentiality and protection it was supposed to provide and seek a full and open discussion of prosecutorial misconduct that occurred therein and in this proceeding that prove that Mr. Walters is unable to fairly and impartially perform his duties in this case. 

As will be shown at a hearing on this matter, it is clear that Mr. Walters’ behavior in this and other cases involving Jesse Ray is not about justice, but instead has been about securing convictions in a patently unfair and abusive manner.

Conclusion

Mr. Walters is incapable of fairly and impartially prosecuting Jesse Ray Beard.  His bias and conflict of interest in this matter is made clear by his disparate treatment of the students at both the school board level and as prosecutor.  In addition, his actions at the school board created a conflict of interest and made it impossible for him to fairly and impartially act as a prosecutor herein.  Finally, Mr. Walters’ actions in this and other cases abused his authority as a prosecutor and prove his bias and prejudice toward Jesse Ray.  Therefore, this Court should recuse Mr. Walters and his office from this prosecution.

I write this afternoon from Tulia, Texas, the panhandle community that gave a healthy bump to a number of journalists.  I met Adam Liptak of the New York Times in the Swisher County courthouse in Tulia in the course of the weeklong evidentiary hearing in 2003 that exposed undercover agent Tom Coleman as a racist idiot.  Liptak works the legal beat for the Times and has recently taken an interest in the uniquely American problem of mass incarceration.

Liptak’s “Inmate Count in U.S. Dwarfs Other Nations'” touches all the bases in three pages of tight prose.  Foreign criminologists, Liptak observes, stand aghast at the American proclivity for long prison sentences.   The war on drugs is the chief culprit: we locked up 40,000 people for drug crime in 1980, a number that has risen to a staggering 500,000.

Liptak observes that, unlike other developed nations, America elects its judges, prosecutors, sheriffs and police chiefs.  In other countries, criminal justice functionaries are trained professionals who are relatively immune from the popular appetite for tough on crime policies.

Liptak remains convinced that mass incarceration has made Americans safer.  This is an open question among criminologists, and Liptak’s own statistics demonstrate why.  In recent years the British crime rate rose while America’s rate was falling, a fact that many use as proof that our tough criminal justice system is working.  On the other hand, Canada’s crime rate has generally risen and fallen with America’s.  Both Canada and Great Britain incarcerate only a fraction of the people locked up in America.  Statistics, as always, can be used by folks who think mass incarceration enhances public safety and by those, like me, who believe mass incarceration makes us all less safe by undermining our most dysfunctional families and communities.

Liptak is right, democracy is the big culprit.  I am an ardent democrat, but some matters are best left to the experts: medical diagnosis is one of them, the criminal justice system is another.

The average person believes that locking up drug dealers lowers the demand for illegal drugs thereby enhancing public health and public safety.  It ain’t so, and every working cop knows it. 

Unfortunately, our leading criminal justice people (US Attorneys and the federal Attorney General) are appointed by politicians who are frequently (almost universally) guilty of tough-on-crime pandering of the crudest sort.   Mass incarceration is no answer to the drug plague, but few elected politicians have the guts to say so. 

This isn’t Mr. Liptak’s last word on a critically important subject.  He notes, in passing, that America’s fragile social safety net is part of the problem.  This piece of the puzzle deserves more careful attention than it generally receives.  Hopefully, the Times’ legal editor will have more to say on the subject down the road.

For several weeks now I have been hinting that Friends of Justice is working on a new case that exposes drug war corruption.  The story features the plight of Alvin Clay, a Black Arkansas attorney who is built like a linebacker.  There is far more to the story than this brief column in the Arkansas Leader suggests, but it is a good beginning.  Alvin’s trial is scheduled for May 27th and we need your help.  Stay posted for the rest of the story.

Alan Bean

Tuesday, April 15, 2008

I have been working for almost two years to get this amazing story into print.  When the government uses a snitch parade to convict an innocent family you would think the media would snap to attention.  Journalists find the story compelling; but this has proven to be a tough story to get past an editorial board.  We like to think well of our government and its now-ancient drug war and the Colomb saga makes that impossible.

A little over a year ago, I brought Ann Colomb to Atlanta for a summit on the use and abuse of informants.  Moments after my presentation, a young man was standing in front of me with his hand extended.  “Hi, I’m Radley Balko,” he said, “and I’d really like to do this story.”

Reason magazine isn’t Time or Newsweek; it’s a modest publication with a strongly libertarian bent.  When I brought Radley Balko to the Lafayette area to begin his research, we had plenty of political conversations, especially when we had to sit in a restaurant for four hours waiting for somebody to pick up his lifeless rental car.  We didn’t agree on everything; but we shared a disdain for the war on drugs.

Perhaps you’re asking what could possibly be wrong with a war on drugs.  Read Mr. Balko’s article on the Colomb family and you will begin to understand.

Friends of Justice began advocating for Ann Colomb and her three sons in the fall of 2004.  Nancy and I were attending a conference in New Orleans and Ann and her daughter Jennifer drove three hours to hand us three massive binders full of discovery materials. 

“Don’t worry,” I told Ann after I had spent two full weeks digesting the pertinent facts, “there’s no way the federal government is going to take a case this weak to trial.” 

Nonetheless, I made several fact-finding trips to Church Point to figure out why the government would even consider paying convicted drug dealers to lie.  The payments were in time, not money; but when you’re locked up, minutes and hours mean far more than dollars and cents.

In the spring of 2006, Nancy and I were heading off on a vacation to Colorado when Ann called.  “Mr. Bean,” she said, her voice trembling, “I really think they are going to take us to trial.”

A couple of weeks later I was sitting in a federal courtroom in Lafayette watching a bizarre legal spectacle unfold.  Every day, after the trial recessed for the day, I drove to the library down the street from the courthouse and tapped out a summary of the day’s events.  Every media outlet between New Orleans and Houston (and a thousand people on my email list) received these dispatches and by the second week of trial a reporter from the local paper was in the courtroom and my dispatches were being featured in the paper’s blog.  

By the end of the trial, the entire community was debating the legitimacy of uncorroborated snitch testimony. 

When the jury convicted Ann Colomb and her three sons, a loud wail rose from the two dozen family members huddled at the back of the courtroom.  Never in my life have I witnessed such abject despair.  As the verdict was read, children lost fathers, wives lost husbands, and an extended family surrendered its matriarch.  That night I left off being a criminal justice reformer and became a pastor to a broken family.

When the family was released from captivity at the conclusion of a day-long hearing, we all waited in the heat for three hours while the prisoners were processed.  Nancy Bean took all the children to McDonald’s for ice cream when it looked like some of them where on the verge of passing out.  When the prison doors finally swung open, we all joined hands as one of the alleged drug kingpins led us in the Lord’s prayer. 

That’s when I decided that, whatever the cost, I was going to get this story to the world.  I have now made two dozen trips to Church Point and the Colombs have become a second family.

Federal Judge Tucker Melancon’s denunciation of uncorroborated snitch testimony is stunning. I never thought I would hear a man in his position speak so frankly. Melancon knew that the “evidence” used to convict the Colomb family was completely lacking in credibility, but I believe my running critique of the government’s case validated and bolstered his personal conviction.

This is a long and complex story and Radley Balko tells it well.  Please give his ten-page article the attention it deserves.

Alan Bean, Friends of Justice
 

New York Times columnist, David Brooks, gives us The View from Room 306, a piece inspired by a recent visit to the Lorraine Motel in Memphis.  Brooks describes two civil rights movements: one based on the dignity and non-violence Dr. King personified; and another characterised by resentment and mob violence.  Brooks suggests that King’s legacy has been betrayed by loud-mouthed demagogues who undermine the hard work of community-building and reinforcing a sense of personal responsibility.  According to Brooks, Barack Obama represents the resurgence of the dignified, scholarly, unifying spirit that died with MLK.

Eugene Robinson’s column, Two Black Americas, cuts beneath raw emotion and white aesthetics to the heart of the matter: for a significant minority of African Americans, social and economic conditions have actually deteriorated since 1968. 

How do we respond to the plight of the poorest 10%?  According to the conventional view, poor black people have only themselves to blame.  This is the perspective of Bill Cosby, Juan Williams, Shelby Steele, John McWhorter et al.  Radical black leaders, the thinking goes, have created a culture of complaint that encourages lazy, shiftless, dysfunctional and downright pathological people to blame their ills on white racism.  You know these folks could do better if they wanted to, the thinking goes, because most African Americans have adapted to the rigors of the American economy.

Does black America buy this analysis?  Yes and no.  Upwardly mobile blacks, in my experience, generally resent the black underclass for encouraging the association between blackness and crime, drug abuse, domestic collapse and violence.  On the other hand, the black middle class isn’t ready to give white America a pass.  Black resentment is alive and well, even in the suburbs.  Middle class blacks are especially critical of the white willingness to believe that racism has been largely relegated to this historical scrapheap.  

Eugene Robinson understands that the behavior of poor people is driven by hard economic reality.  Our society doesn’t have enough jobs or decent schools for everyone.  Those shut out of the Promised Land have a hard time making marriages work, making the rent (qualifying for a mortgage is completely out of the question), supporting children, or resisting the relentless allure of the underground economy. 

Asked to give a few shillings to the poor, Ebenezer Scrooge cried, “Are there no prisons?  Are there no workhouses?”  The workhouse has largely been abolished, but the prison is very much with us.  There we warehouse the addicted, the mentally ill, the mentally retarded and the functionally illiterate. 

Poor people aren’t incarcerated for these deficiencies, of course, any more than they are not incarcerated for being black, brown or poor.  They are incarcerated for failing to live within the law.  But the less money you make, and the less education you possess, the harder it becomes to think right and fly straight.

Yesterday I was in the backwoods of Arkansas listening to Roy Lee Russell tell me how he and a corrupt state trooper faked drug cases on dozens of small-town black folk.  The despair of poverty clung to the rapidly decomposing shacks and trailers like the early morning fog.  Undercover drug busts simply deepen the dysfunction they are ostensibly designed to eradicate, and the folks in law enforcement know it.  Futility leads to cynicism which leads to lax standards and insitutional corruption.

By the time he died in Memphis, Martin Luther King had shifted his attention from voting rights and Jim Crow to the Viet Nam war and the blight of poverty.  His popularity was rapidly waning; his critics multiplying by the day.  Progressive white America  was recoiling in horror from King’s new message.  As Frederick Haynes, pastor of Friendship West Baptist Church in Dallas, recently commented, “King didn’t die for having a dream”.

Barack Obama embraces the non-violent struggle Martin Luther King Jr. embodied.  Obama isn’t seething with resentment and he resists the temptation to blame all ills on white racism.  Personal responsibility and a commitment to family-building, he says, must be part of the solution.  But Obama agrees with Eugene Robinson on one critical point: we need more rungs on the economic ladder.

Tragically, most Americans would rather expand the prison than fix the ladder.  The mission of Friends of Justice is to reverse that trend.

 Alan Bean

This has not been a good morning for drug warriors. 

Charles Kiker, a founding member of Friends of Justice, sent Scott (Grits) Henson an article from the Amarillo Globe-News touting the need for renewed Byrne grant funding for narcotics task forces.  The basic idea is that Tom Coleman, the “bad apple” Friends of Justice brought to national attention, was an anomaly.  It wasn’t fair to disband the fifty regional narcotics task forces in the state of Texas, the article suggests, just because one nut-job messed up.

Mr. Henson knows more about the dissolution of Texas narcotics task forces than anyone in the state–more than anyone else, he helped make it happen.  In a lengthy and detailed blog post, Scott demolishes the opinions of the self-serving cops quoted in the story, while lamenting the he-said-she-said reporting style that currently passes for “journalistic balance”.

As Scott points out, most Texas task forces disbanded voluntarily after they were placed under the supervision of the Texas Department of Safety.  That’s because the shoddy techniques and lack of oversight that doomed the Tulia operation characterized the small town drug war across the great state of Texas.  Tom Coleman was (and likely remains) a bizarre animal–but the outrages he perpetrated on Tulia, Texas were shaped by a corrupt and chaotic drug war culture facilitated by bucket loads of federal cash.

Scott points to the case of Hearne, Texas, in which a confidential informant named Derrick Megress admitted to fabricating cases on two dozen friends after being threatened with incarceration and jail rape (I’m not making this up). 

Besides, Henson says, narcotics task forces lived off nickel-and-dime street-level dealers, rarely targeting “drug kingpins” or going after narcotics rings.  When you score the same number of points for busting a drug addict dealing for buy-money as you get for reeling in the big fish, you hit the knuckle head on the corner and leave his supplier in peace.

I am currently in Little Rock, Arkansas, researching a story that begins with a Tom Coleman-type cop hooking up with a Derrick Megress-style informant.  The resultant scandal never emerged because Friends of Justice wasn’t on the scene–but we’re here now and (much to the chagrin of the FBI and the Department of Justice) this story will be told in all its bizarre glory and all flesh shall gaze upon it in wonder.

Finally, this graceful opinion piece in the New York Times.  Tim Egan, pinch-hitting for Bob Herbert (the Times columnist who once devoted a dozen columns to the Tulia fiasco), celebrates Rick Steves, the mild-mannered world traveler and Lutheran layman who has recently emerged as an outspoken critic of drug war orthodoxy.  Apparently, most narcotics cops agree with Steves.  No surprise there; I’ve never met a police officer with more than a year’s experience who thinks law enforcement will ever make progress in our nation’s protracted drug war.

Alan Bean