Sunday Forum; Law And Order: Justice For All
The panel discussion law and order justice for all. This is Michael Wynn wasn't speaking from the George Sherman you know union at Boston University. I distinguished panel tonight includes Attorney General Robert H Quinn thirty seventh attorney general of Massachusetts a lawyer for the people who sat in the Massachusetts House of Representatives. One is a majority whip from 1963 to 65 second is majority leader from 1965 to 67 and as House speaker from one thousand sixty seven to nine hundred sixty nine. My second panelist adjudged Joseph S. Mitchell Jr. since August 1966 he was assistant judge of the Superior Court of Suffolk County. He was formerly a partner in the firm of Gatsby and Hanna the special counsel on intergovernmental relations to ex governor of all three cons. Damascus is commissioner of administration and finance and assistant United States attorney counsel for the division of corporation and finance Securities and Exchange Commission. It is a panelist attorney William P. Homans Jr. was a representative
from Cambridge in the Massachusetts state legislator or rather was from 1963 to 1964 in 1972 he received the Roosevelt Day dinner award given by Americans for Democratic Action for service to the poem minority groups in 1969 Abraham T album Memorial Award was given to him by the Civil Liberties Union of Massachusetts a moderator tonight is the honorable Francis J Lockett. Judge lock in has recently resigned as associate justice for the Masters's district court and was appointed dean of Suffolk University Law School aged gentleman I to give you now a moderator the honorable Francis J Lockett. Thank you. Thank you my Michael. My fellow distinguished members of the panel. Ladies and gentlemen we meet tonight to discuss the topic of law and justice for all as we meet our times are
very much like the Times Dickens described at the beginning of his book the best of times and the worst of times. It is the worst of times because never before as a society been so challenge in preserving auto while retaining its liberty. Indeed in the last few weeks challenge to preserve the very system itself. It is the best of times because to our generation of Americans more than any other has been given the opportunity of showing the world that liberty and author law and order are combative compatible concepts. From every quarter we hear and everywhere we read the crime in America is on the rise that we are in the vortex of a violent era. The president's Crime Commission a few years ago began a report which with its supporting documents runs over 2000 pages. It
opened with these on his word. There is much crime in America more than it ever is reported. Far more than ever is solved. Far too much for the health of the nation. And a quote. But crime is a broad generic term. The standing alone means very little. A gangland murder by a mad dog is a crime. So is the wily manipulation by a stock broker down on State Street doing in an unfaithful husband by an irate harassed housewife is a crime so is decidedly public deciding it by a skid row bar in the south in a dark park mugging on Boston Common by a 15 year old delinquent is a crime. So is the misapplication of fun by a sham of vice president.
These crimes can no more be lumped together for analysis than chicken pox and manic depressive illness or throat cancer and a fractured tibia. The alarm of the nation is to be secured by the kind of crime that takes the form of violence in the streets. Your kings robberies Lysol burglaries theft and looting. My children think that I am a rather d credit card. I don't think they're right. I can still run as fast as they are. I can play all the sports. I don't cough much harder than they are at the end and yet it's only 15 years. It is only 15 years since I received my Bachelor of law degrees on a stage very much like this one. But the galvanizing fact is that 50 percent of all the crimes of violence committed in this country last year were committed by youths not yet born. When I walked across that stage as a law student in
1958 and 75 percent of those crimes of violence are being committed in the inner cities of the nation ensured violence and disorder in America are ineluctably related to two very specific sociological concepts. The increasing urbanization of our population and the increasing number restlessness and restiveness of our U. And so discussions of law and order must take account of this phenomenon. For the past several years the question was raised why is there so much crime. Why is there so much disorder. And everyone would say well of course it's the doing of the Warren court and the fuzzy headed young Fuddy fuzzy headed judges that the critics like to talk about. The critics cry the court has gone too far. It is over
emphasize liberty and created disorder. Well in my view this is superficial hokum it is demonstrably humbug. It is initiated by the forces of reaction poll parroted by the uninformed and can be exploded by a cursory resort to the facts. It is true that in the past decade and a half the Supreme Court has moved the cause of freedom forward in a series of great broad gauged humanitarian decision. It is how that American citizens who pay the same taxes give obedience to the same laws pledge allegiance to the same fly fighting the same was in die in the same battles might also go to the same school vote in the same election. I live in the same neighborhood sit on the same jury swim at the same beaches.
It is however those rights carved out by the people for themselves when they form this government. Those rights spelled out in the First Amendment to the Constitution belong not only to the inflowing but also to the indigent. Not only to the sophisticated but also to the guileless and secured all the citizens against lawless law enforcement. To say that the decisions of the Warren court and further court decisions have caused crime is demonstrably vacuous in my opinion. Together this evening we can go to the precinct stations of America downtown Boston in Roxbury in New York in Chicago in Los Angeles and we can stay there for a month or two or three and we won't find one
young delinquent who has held up a liquor store or a filling station or was mugged or yoked a citizen on the street or who has stolen a car who did it because of the Miranda decision. While the Escobedo decision of the Mallory decision by the Gideon decision by the map to station the celebrated criminal law decisions which are most often cited as examples of woolly headed judges what is more I suggest to you we won't find one who has ever heard of any of these decisions. We won't find one who gave even a fleeting a cursory thought to his constitutional right to criminal procedure before he went into the streets for his miscue. They all work on one premise and that one single premise
is they won't get caught. Furthermore the wreckage remains the same. We are still convicting in 1972 the same percentage of those we arrest as we did a decade ago. We are still convicting in 1968 the same percentages 972 the same percentage of those we indict as we did about a decade ago and that figure is something like 92 percent. We're still getting substantially the same percentage of confession as we did before Miranda and it could be though. GEORGE PIGGINS the celebrated author and United States attorney summed it up neatly a few weeks ago when he said that advocating the overturning of these decisions to stem the rising crime rate is like prescribing an aspirin for a tumor on the brain. Our system of criminal justice to which
we will be directing our attention tonight can deal. With individual instances of crime after an accusation has been made. But it is wholly irrelevant to the conditions in which crime is breeding at an ever accelerating rate. I'm talking of poverty ignorance and illiteracy discrimination the breakdown of the family unit the breakdown of moral structure the breakdown of our religious traditions and the collapse of self discipline with the consequent collapse of child discipline. These are the conditions of America's cities where a generation has grown up and stimulated and educated unmotivated and taught and in tragically too many cases unwanted. And so we can postulate that warring against poverty
in a very real sense is warring against crime. That money spent for schools for medical family counseling for psychiatric services is money spent against crime. Fighting against discrimination is fighting against crime. We should always remember that there is an Old Testament prophecy that the sins of the father of visited upon the third and fourth generation. And what is happening in America today is that we are still inheriting the legacy of hate and shame resulting from generations of political disenfranchisement educational denial and economic exploitation of our black population. The heritage is the laager of bitterness and frustration that is the rotting in our cities and pouring down our streets. Equal justice for all. Theme of tonight is not enough. We shall have no rest until we recognize that equal respect
equal opportunity equal acceptance of the patrimony of every American. It has been demonstrated that every effort to improve are in a city his money against crime. We must right the wrongs cure the illnesses stem the moral decline the temperament of their neighbors. It is a task for church and state. Dr Albert Schweitzer just before he died articulated the real challenge of our generation. In his primitive jungle hospital in Africa he declared we were living in the most dangerous period in history and not just modern history but all of human history. Why. Because he suggested that here too for the forces of nature have exercised a control over man. But now man has learned to control the elemental forces of
nature before tragically enough he has learned to control himself. In a free society control and author ought to return to the theme of tonight's panel law and order must be obtained with the tools of freedom. Our Frank freedom is the end product of a myriad of episodes a gradual growth of habits and attitudes. Though it was born on a revolutionary battlefield it has had its growth and evolution in our courtrooms. No one avenge his mark to victory. You know one of the and it's declining it's Viggo or it's weakness is often marked by a pattern of events so small as to be nearly invisible in the total mosaic of democracy. But this is certain when we discuss law
Renate we have to keep these thoughts in mind. We must meet the problems of disorder in their manifold manifestations not by surrendering any of our civil rights or our civil liberty. It would be a cruel paradox. You have to restore order. We have breached freedom for then like the heroes of Shakespeare's tragedies. We should have been our own undoing. Accordingly the quest to restore order while preserving liberty in cash is the great down domestic adventure in our day. And the issue to which our panelists will now direct their attention. And now to begin this evening's presentation. It's a great pleasure to introduce to you a very distinguished private practitioner who has compiled a glorious record in the field of civil liberties. He is
at been introduced to you by the chairman of the evening. And I was simply called to the microphone Mr. William home and I think in the days when I was running for office safe to say when people say you know if there are only a few people here and apologized to me and I say we're you know quoting the Bible when two or three are gathered together that's sufficient. Someone who feels as strongly as I do about the subject that we're discussing tonight perhaps has an unfair advantage because those of us who have watched what is going on in the last six weeks and at the same time for the last five years have watched the erosion of the balance between law enforcement and the rights of individuals who are before the law have been concerned
about what is now being exposed for all to see. You heard about Watergate and I would suggest it was Watergate and the madness associated with that show. After all we've heard about law and order the law enforcers more than occasionally now is the law of violators and this is something that the rest of us have suspected but haven't been so sure of until it's been that we have been sure of it but now we're learning it in the public media for the public. The city council and the Ellsberg case said if defense counsel talk to the presiding judge at a trial about a job after it was over they would all be in jail and defense counsel also said if they had burglarized or they'd cost someone different burglarized the prosecutor's evidence they'd find themselves in jail. And those of us who were found ourselves on the defense side have found more often
than not that the law enforcers become the law of violators and this I think is tragic. And very devastating matter for all of us to consider. When I go around to parties and I talk to people people can't believe that the things that happen and I want to get I think exposes it in an overall in a rather rarefied way but it exposes it nevertheless. But to come back from what's happening in Watergate from National Law Enforcement to more mundane matters. Let's see what's happening in lower levels. One can't blame judges one can't blame legislatures for what's happened in this country in the last eight or 10 years since 1965 since really what happened in the south and what's happened in our cities to the north persons have at
last realized that they are entitled to rights that others have taken for granted over the years and that's resulted in a reaction on but from the law and from what the people I call the law enforcers the person and so in the guise of law enforcement violate others rights. Let's take a couple of specific examples. Item 1 in this commonwealth we have a Jersey jury system which presumes impartiality among jury of jurors regardless of the external pressures to which juries have been subjected. And that's fine this is fine in a calm time with no war no racial problems strong feelings about welfare no strong feelings about student demonstrations no strong feelings even about long hair and that kind of calm time. The system we have in this Commonwealth may be all right
but in this present time jurors may have to decide for themselves that peaceful demonstrators are welfare recipients persons with long hair and so forth are somehow not worthy of the same consideration as other persons cannot have their opinions probed under our law in Massachusetts. It's really ironic that for the first time when a Massachusetts court has said over and over and over again. Over and over and over again really for a century and a half that the subject of racial bias is in something on which jurors won't have an opinion and we can be sure that we'll have a fair trial in Massachusetts regardless of that subject. And at long last in January of this year in a case called Ham against South Carolina Mr. Justice Rehnquist on a very liberal member of the court perhaps the most conservative member of the entire United States Supreme Court and perhaps the
most conservative person who ever came to the court wrote the majority of the opinion opinion for the United States Supreme Court saying that in a case in which there was a black defendant the jury should be asked at the request of the defendant and his counsel whether or not. The jurors could have might have some prejudice as a result of the fact that a black defendant was on trial possibly for a crime alleged crime against a white person. This is very ironic because our court has said over and over again and those of us who say our court here in this country in this state is worse than a court in Mississippi you have some basis for saying so on the basis of what we've read over and over again on this particular subject. And Mr. Justice Rehnquist to change that for us and the last I think three weeks or four weeks. There have been three decisions by the United States Supreme Court little short tiny decision saying Massachusetts you've got to
change your ways in the in the manner of jury selection. So that compared with other states at least on this subject Massachusetts has had a law and order mentality as exemplified by its highest court for a century and a half. In Massachusetts there is no reason to feel that persons who were put to trial in a criminal case before a jury even after they hand a station which are court grudgingly now follows. There is no reason to believe that defendants in this court more than defendants in courts in other states are not tried. And I made a law a show of prejudice whether it's against demonstrators racially whatever the cause because of the absence of any meaningful inquiry from juries or individual jurors as to individual actors.
Let's take another item in Massachusetts. I suspect that law enforcers suspect I believe that law enforcers in this Commonwealth when they are suspected of violating violating the law are given privileged treatment. If you or I. I sold a police officer accused of assaulting a police officer you were. You and I are arrested immediately and taken to jail. When the shoe is on the other foot. Every aspect of what we know is as due process as it is observed so many defendants I have seen immediately after the arrest. Sometimes the broken bones and most important in jail when the issue is to head home has not yet been settled. There's a writer in New York called Portia Feeney who was also a lawyer who says and I'm paraphrasing a book that he wrote called police power. You know it's bad enough for someone to be beaten by the police.
It's a good deal worse to be punished for being beaten. But until very recently and perhaps until right now an individual the strongest defense that police have and against an individual who is beaten up by them broken bones whatever the cause is to bring a charge of assault and battery against the individual and usually they'll get a conviction. But let's take an example in Cambridge. You've heard of the larky case. The police officer in question was not arrested well fine. That would be fine if that happened. If if a individual in self was accused of beating up a police officer had the same right to have his case considered before being arrested but the police officer was not arrested which is unlike the situation involving others who are accused of assaulting police officers. There was an inquest report out came the inquest report saying that there was probable cause
to believe that there was criminal responsibility upon the part of the policeman involved. Insofar as Lars larky death was concerned the case was then taken before a grand jury and more than 20 witnesses testified before the grand jury and no indictment was returned. Now this might be an indication of the temper of the times which is disturbing. On the other hand it might be an indication of the way our adequate and grand jury system operates. In which a district attorney may or may not depending on what he's looking for get an indictment from the 23 allegedly independent independent persons on the grand jury. And I would suggest you know that this is one matter. For those of us who are concerned with a law in order to look into whether or not grand juries are in fact as they were intended to be under our Constitution both and I think it's and United States independent of the prosecutor whether there are 23 citizens sitting there for a week
or two weeks or a month or whatever who are totally subject to the will of the prosecutor who the prosecutor can say afterwards Well I was only doing my job. These individuals returned the indictment because that's not the way it works. Which brings us to the subject of grand juries. Thank goodness. By comparison our federal government has led the way in this area and hopefully Massachusetts will continue to be far behind. Listen to a federal court talking about grand juries. This is in the Weinberg case the case in Tucson involving people or a summit before the grand jury in Tucson and who several of whom are still in jail. The grand jury does not need to have probable cause to investigate not like the Congressional committees we know who have been told that they do. Rather its function is to determine if probable cause exists and if probable cause is not required to investigate it follows that probable cause is not required to make a
preliminary showing necessary to call a witness whose testimony may shed light on criminal activity. Well I was a lovely sentiments. And they are very legal sentiments and they're the kinds of sentiments that lawyers love to indulge in writing lawyers and judges. Listen to what the grand jury was doing here is a prosecutor before the grand jury and here are some of the questions that result in people being found guilty of contempt being held during the term of the grand jury and then being held after a no grand jury after that grand jury expired and no grand jury was convened. Tell the grand jury Mr witness every place you went after you return to your apartment from Cuba every study you visited with him and by what means or transportation and whom you visited during the time of your travels after you left your apartment and and over and over Michigan in May of 70 and then to go on. I want you descrive to describe for the jury every occasion during the year 1970 whom you haven't been in contact with. Attended meetings that were conducted by or been any place
where any and any individual spoke community be associated with or affiliated with the students for a democratic society the weatherman Communist Party or any other organization advocating the overthrow of the United States. Describing for the grand jury when the incidents occurred. Who was present and what was said by all members present there and what you did at the time during those meetings. GROSS associations or conventions. That's Mr Guy Goodwin. And thankfully as I suggested earlier Massachusetts is far behind the federal government. In this area and one hopes will continue to be so. The topic this evening is law and order justice for all. Thankfully those of us who are in this Commonwealth have seen some improvement particularly in the terms of particularly in terms of the kinds of judges that have been appointed particularly in terms of the kinds of concepts the judges whom have been most who have been watched recently appointed appear to have
insofar as their separation from the executive and the legislature. But at present I'm not sure that law and order mean justice for all. Thank you very much Bill. Obviously it was one of the home and theme is to indicate to what degree the law enforcement officials of our country are really moving into lawless areas themselves. Something which of course would be the most corrosive aspect of the administration of justice that one could envision. We are now going to hear from the person who bears the heavy responsibility of being the chief law enforcement official of the Commonwealth the chief law enforcement officer of the Commonwealth whose performance in that capacity has evolved.
Fortunately widespread praise from many of the civil libertarian officials of our commonwealth person whom I know conceives the office of the attorney general to be the function of doing justice for all and not simply securing convictions. Great pleasure to present to you the general of the Commonwealth Mr. Robert clean. Thank you thank you Your Honor my distinguished co panelists and ladies and gentlemen of the English Speaking Union. It's a pleasure to be with you and to be challenged by such fine intellects as those with whom I share the podium here and not in any sense of treating this to Homans remarks with levity but only in the sense of a lawyer listening to the well articulated multi phrased question put to the man in his
quotation from one of the records on a federal grand jury work I'm reminded of the joke running around Washington right now. You remember years ago the standard question from congressional committees used to be are you now what have you ever been a member of the Communist Party. Currently it is I you know I have you ever been a member of the Committee to Re-elect the President. If so they cannot consider for employment law and order. What does it mean to ideal words seldom met in experience in the ideal. And let's first take them apart. Law no one ever challenge the concept of law or the rule of law. We all admit I
think that there must be a rule of law to which all of us must out here which will apply equally to all and this will assure justice for all law than is presumed just and when we hear instances as those previously re cited by Mr. Homans we know that the presumption is not always met in fact but that does not militate against the concept of the rule of law nor suggest that the alternative and ought to be undertaken. And Order order itself some order is contemplated when we consider the rule of law. To me order connotes the spatial and chronological aspects
of justice. If justice is assuring that each individual receives his own is left to his own may have his due then in the society each individual must contain himself with in his own physical location or way to his own turn in line whether we're talking about a cafeteria or a trial of justice. And again the presumption in order as we consider it in its legal aspects is that there will be a complete impartiality in determining the application of law and in applying this order within our structure. But Law and Order. L A W apostrophe in apostrophe or R D.
That has been the shibboleth which connotes the absence of both of the words that comprise law and order. Law and Order has different meanings in different times and from different viewpoints. I suggest that the meaning appear to my eyes by the caricature of the Alabama sheriff with a club in hand and dogs at a leash flanked on both sides by hoses from other members of his establishment is a meaning that has been repudiated by America repudiated equally with the violence that has traditionally not been protected.
The violence of those who are not within our structure are not within the establishment. Those who are assumed to maintain the law and the author Felix Frankfurter once said that the law itself is not fixed immutable always the same but it is constantly changing reflecting the different attitudes and view of a changing society. And this is what the jurist and the legislator and the administrator must take into consideration. I think we have seen in the time I've been able to observe and participate in government in the Commonwealth of Massachusetts that there has been a response to the changing society. There has been
official repudiation of that caricature I mentioned although giving him a location of the state of Alabama acknowledging that his location is ubiquitous in America and in the criminal justice system. But having it exists does not automatically include having the concept approved. And when we do approve it then we have eliminated law from our society and order from the application of our law. We've seen many many instances that have been called to our attention both by Judge Larkin and by Mr. Homans already where this attitude has been repudiated and our ideal of law and order has been at least sought or aimed at
legislation on the national level and the passage of the Civil Rights Act represents a significant milestone in the history of these United States. It was the former president of the NAACP who himself claimed Lyndon Johnson the president who spearheaded that legislation to be the greatest president. While black Americans since Abraham Lincoln because of his accomplishments Court opinions we've heard some of them re cited here and we've heard them reciting applied on both the civil libertarian side and what I'll call the restrictive side. But court opinions have pointed the direction toward delineating more and more rights for individuals and restrictions for those who are charged with the job of
assuring rights or individuals by confining or restraining the particular application of rights by other individuals. This applies not merely to the opinions of the Warren court a great many very effective opinions which have enhanced the right of me of a citizen and all law enforcement people as well as of those who are not within law enforcement agencies but also in legislation relating to blockbusting to job seniority to educational opportunities and in legal procedures themselves that most sensitive areas. I think because they are not of the substance of the law like the decisions that we've discussed and then not of the obvious political action of legislators but they rest a lot on our traditions and
our acceptance is of what should be proper to implement the legislation and carry forward on the legal decision in legal procedures themselves we have seen progress made. The ham case is something that in legal procedure will have to be articulated more carefully. The establishment of defenders committees so that there is a group of attorneys paid to defend people charged with crimes equally as there exists a group of attorneys paid to prosecute individuals who are charged with crimes. And this with public funds to assure justice for all pre-paid legal insurance now continues to be only a concept but a concept on the very serious study which I predict will become an accepted fact in our legal life in the United States
and will apply in the civil area exactly. The same guarantees that have been applied in the criminal administration of justice and I've often said as I studied my own office of attorney general that that office itself gives ample illustration of how the law does change to new demands of a new society and how it does reflect our greater sensitivity toward the objective of securing justice for all and making sure this objective is sought over and above any traditions or any customary sense of order or any feeling that the rule of law will for ever be as the rule in measurement. Twelve inches long no more no less. In 1962 Edward McCormack was
attorney general of the Commonwealth and he advanced through legislation the establishment of a division of civil rights and civil liberties. This I think was the hallmark and the beginning of emphasizing the role of the attorney general in Massachusetts as a lawyer for the people he had before he had been the chief law enforcement officer. He remained that and he had been also the lawyer for government. He continued in that part of his work too. But having a division of civil rights and liberties began a new role for the attorney general and a new role for government. Now government could no longer be passive and sit back to decide in courts of law on claims of injustice or deprivation of rights for individuals or minority groups. Now government itself has to take an activist role in asserting rights of
individuals wherever infringed upon by other agencies of government. A citizen's aid bureau was established by fee up by one of my predecessors that bureau exists to assure that the application of government opportunities whether it be public housing or welfare. A right to vote. Should be processed notwithstanding any bureaucracy and that simple little bureau works to assure that all individuals have their rights. All individuals are able to have government serving them and not dependent as supporters of government without any benefits. The Consumer Protection Division is one of the largest divisions now in the department of the attorney general. And it brings economic justice for all or attempts to bring economic justice for all.
In a world in a tradition that has been used to let the buyer beware and the seller take the advantage. Now the seller too must take care that he not infringe upon the rights of an individual buyer simply because he has all the manufacturing going for him or he has all the advertising going for him or he has all the money on his side. Our environmental protection division attempts to assert the newly developed attitudes in our society that no longer can we treat the world around us the non-human world around us as anyone's preserve to despoil. This great commonwealth of Massachusetts became so economically because we could fish limitlessly because we could use all the running rivers and streams throughout the Commonwealth to generate power cheaply and to get rid of the refuse and waste not any effort
at all. We are now insisting that this generation of power this use of streams and harbors for refuse cannot continue because it cannot absorb the manner in which we are wasting and we've come now to challenge researchers and mineral developers who would despoil the sea itself and live an even further short stock of fish and life that has been traditional for Massachusetts. Our drug abuse section is another one of the new sections added to the Department of the attorney general and in its short existence it has focused on the problem of drug abuse not merely as a criminal problem which we in this society had made it and it felt it was exclusively until about five years ago. But we've
emphasized it's medical educational and social logical aspects too. And we've pioneered to the end that there has been a record if occasion of a drug laws and a real emphasis on treatment and rehabilitation instead of on conviction and imprisonment merely. And we've moved it into the field of the great single except the drug in these United States of America the field of alcoholism alcohol. And we've finally had our legislature acknowledge that alcoholism should not be treated as a crime but rather treated as an illness. These are significant changes in this changing society. These are very direct approaches. To giving a yes to that question the law and order justice for all.
Yes not immediately not completely but in this imperfect world of ours. Concrete indications that the striving continues to go on in securing justice are all through law and order will be achieved. Thank you. Thank you very much General Quinn. I think that might be an appropriate thought in the evening to take note of the fact that General Quinn is not the only general we have with us this evening that we have in the audience the very distinguished consul general of the embassy and the consul here in Boston. Allister Maitland and that I'd like to just thank you very much for adding his grace to the evening. We've heard now from the individual practitioner in the in the person of Mr. Homans who brought the view of the criminal defense council to
this question lar not a justice for all. We've heard from our chief law enforcement officer of the Commonwealth Attorney General Quinn. And now I think it's appropriate that we hear from a very distinguished member of the Massachusetts area court a person who has one unique distinction as a trial judge in the Commonwealth who of course has to decide frequently at least in jury waive cases and in all cases by way of his instructions as to who will prevail in a particular criminal case be it the commonwealth all of the individual defendant. And for these reasons it's a great pleasure to call to the podium. Judge Joseph Mitchell associate judge of the Massachusetts Superior Court Judge Matsch. Thank you very much. It's a real pleasure to be here today. I know I have a hard act to follow in following Attorney General Quinn but I
do have a couple of contributions I think I might share with you. I think there are two major priorities if we are going to have law and order and justice for all. The first priority I think is to change and irrational incoherent system into a rational coherent system. Our present system of justice and I'm talking about criminal justice now is not rational and it's not coherent. We have primarily seven basic entities in the system. And you might add an eight if you add all of the other supporting services around the system. We have the police of course who originally make the arrests. We have the courts to handle the complaints and issue out whatever sentence might be appropriate. We
have corrections department that takes in the people at the court sentence. We have the probation department that handles those people that are placed on probation as a part of the disposition of the case. And of course we have the parole department that handles the people who are let out from the Corrections Department and we have the prosecutors who are paid by the state and the public defenders who are also paid by the state. Now this seems like a very nice system. The problem is that none of the pots off the system talk to each other. The prosecutors don't talk to the defense the courts don't talk to corrections and corrections don't talk to parole and parole doesn't talk to the courts and we have a system whereby there is little or no communication between the entities.
In order to bring about some rational system of of how the system will work now it is rather obvious that what one part of the system does affects the other part of the system. What the courts do affects what corrections does. Because if the courts send too many people to prison and there is not enough room in the presence of the Corrections Department has a problem. And if too many people are put on probation and there are not enough probation officers then probation has a problem. And if the police bring in too many people to the courts and the courts cannot process those people and some reasonable length of time then the courts have a problem. They have to either let them go or keep them in CASA rated for an ordinary and sometimes unconstitutional length of time. Now it seems obvious only obvious again that some
communication must be set up between the various aspects of the system. The most dramatic example of what I'm talking about is the fact that at present we have what is called the Department of Corrections corrections board that handles the juvenile defendants. Now over the past three years for various reasons the department a few service has phased out all of its so called reform schools. There was no question that these schools were our care. There was no question that they dispensed in many instances cruel and unusual punishment. And there is no question that maybe they should have been phased out. It was Invision that in their place there would be some medium security institutions whereby offenders youth offenders who needed
controls would be sent and could be kept on a so-called inpatient basis. Unfortunately this did not occur. The institutions were phased out but nothing was put in their place. And as a result the courts are now faced with the unhappy situation of either sentencing 14 15 and 16 year old boys to state prison for offenses that they commit or putting them in the hands of the service board who has to turn them out into the streets where their antisocial behavior will again predicate on society. Now this is not good for society and it certainly is not good for the system. Of course if you service board it come to the courts and talk. And if the courts had involved probation and if they had
all sat down together and worked at this problem we would not have had the situation that exists today. What I'm proposing is that some form of structured means be set up and immediately between the various segments of our justice system so that there will be communications on the various problems that affect them all. Now obviously Attorney General Quinn cannot find out where injustices are in the system and alleviate them remedy them remedy them. Unless he knows where those injustices exist and if there is no way of having these things brought to his attention he cannot take any action.
I would propose that either the courts or the attorney general's office or maybe even some a Bar Association should initiate a study of our our system to the end of setting up formal communications between the various entities so that we will all be pulling in the same direction rather than in the diverse directions in which we are presently going. Now the second major priority that I see is that we must eliminate racism in our justice system. If we're going to have law and order and justice at the same time. And when I say racism I'm not just talking about overt discrimination but I'm talking about any act either conscious or unconscious conscious that would
discriminate against a given group of people because of their race color religion on national origin. Now this racism shows up and many many many ways it starts off and selective arrests by the police. The result of this policy shockingly enough is that 95 percent of black males in America will have been arrested some time during their adult life. And the amount of white males is probably less than 5 percent. Now this is this is a shocking inequity. We move from selective arrests and we move into the court system where we have in many instances selective
prosecution. Now somebody determines what the laws are going to be enforced. I personally don't know who this person is or persons where they reside or how they make these decisions but it is rather obvious that some laws are being enforced that mostly affect black and Puerto Rican and Chicanos and minority groups and other laws that often cannot carry equal penalties are not enforced. The obvious example that comes to my mind is that the drug laws that affect black people in a disproportionate disproportionate way are enforced and people are sent to state prison because of it and the laws against the Daltry that affect the great white middle class are not enforced and people are not sent to state prison for
committing that felony. I would suggest that if the same energies were given to the enforcement of the laws of adultery as against drugs that you would have equal prosecutions. Now I take these two examples because they are both victimless crimes they're crimes in which the person himself is threatened and not society as a whole. Yet on one hand they are enforced and they are enforced against blacks and Puerto Ricans and other minorities and not on the other hand afore enforced against the white majority. Now we take a step further. When the black defendant comes before the court he is often enough sentenced to prison. To a length of time that is much greater than the white person coming before the court convicted of a similar offense back in
the late 50s the probation department here in Suffolk County did a study on this and came out with the fact that the white offender the black offender got twice the amount of time for the same offense as the white or white offender. Now to me this is shocking discrimination and I doubt if a study a similar study were done today that these figures would change appreciably. We again take this black or Puerto Rican defendant into prison. And again he is selectively punished because all of the gods are usually white and none of them can speak Spanish. When it comes to parole again he will stay in jail much longer than his white component because one of the requirements usually of parole is that he have a job and recently talking to one of the superintendents of our correctional institutions here in
Massachusetts he was he was saying that it's not too difficult to find white parolees or prospective parolees jobs but it's almost impossible to find black parolees jobs and then he gets out if he does get out and he is paroled. He has a white parole officer that is usually not too sympathetic with the fact that he has to supervise a black in the first place and who is very timid and reluctant to go into the black community to see what if anything his black client is doing. This is also so as far as the probation department is concerned the black probation probation or does not get the type and kind of supervision as the white probation because it is understandable that the white. Probation officers are
reluctant to go into the black ghetto because of their safety they think to supervise their particular clients. Now this racism reminds me of a story that I heard recently of a young white man who was apprehended and accused of violation of some federal criminal statute and he was brought to the federal district court down here in Boston. And it so happens that we have a black magistrate United State's magistrate and he's very black. And it happened that when this young man was brought before him he had helping him a black clerk. And he's very black. And also when the room was a black court officer who was very black and this young man
looked up and he said I don't know I got here but I sure am in trouble. Now he was fortunate because all of those black people came through a white system and they knew there they are white. How to treat white people and what white people are all about and where they were coming from and where they were going. Unfortunately the black person who comes into the system. He can look around and say yes I'm in trouble. He's usually arrested by a white police officer and he's put in a jail that is has quite keepers. He is taken into court where he is before a white judge and a white clerk and white deputy sheriffs who are guarding him. He's tried before a white jury. He is taken to a prison that is administered almost completely by whites.
Yes white guards if he's put on probation he has white probation officers. If he's put on parole he has quite parole offices and the whole system. If we give just a little bit of racism to the system does not look good as far as justice for this person is. And. What amazes me is the ignorance. And I would say the bald ignorance that is brought to the judgment of black people. Any good lawyer if he is going to study a case will look up the law and study the facts before he makes a judgement. But the people the white people in this system including the judges who are making judgments on black people and Puerto Rican people have generally never taken a course in black history or black culture or
black sociology or black economics. They have never had any social contact with black people. They know nothing about their ethics. They know nothing about their morals. They know nothing about their religion. They are making ignorant judgments. And these are the worst kind of judgments that can be made. Another aspect of racism that I think we should I dress ourselves too is the whole jury system. Mr. Homans has alluded to it and I would point out again that in this jury system whites I mean blacks and Puerto Ricans are disproportionately represented on juries. There are two counties in Massachusetts in which Puerto Rican has never ever sat on a grand or petition jury. While over 5 percent of the people who
come before the courts and come before these these juries are Puerto Rico. Now these facts not hidden facts and known by the district attorneys offices in all those counties they're known by the judges who sit there and known by defense counsel. And nothing is done about it. Now to me I think this is symptomatic of a direct kind of racism where a condition that all admit is an unhealthy condition exists and yet nothing nobody does anything about it. I've been told recently when I pointed out that since 1880 when the probation department was started in the Superior Court in the state there has never ever been a black woman probation officer. And I also point out the fact that over 20 percent of the probation is a black and I also pointed out the fact that the white women who are the probation
officers are extremely skilled Greenly reluctant to go into the ghetto to give some sort of supervision to rape their probations. And I was told that this was not a discriminatory practice. It just happened that they don't have any now. I think that we have to face facts and we have to face the facts that the system does discriminate against the blacks in the Puerto Ricans and of course the poor. And I think that we have to donate a certain part of our resources and rectifying these injustices. We have to realize that the economic and the social system produces a lot of the maladies that we see within our criminal justice system. We must all also realize
that if the law doesn't respect the people the people will not respect the law so that we must make laws that respect the people who are going to be subject to those laws. And we must see that they are fairly and equally and justly made to work. I thank you very much. Thank you from an old problem. Certainly the central theme of his initial point of the need for coordination between the various constituent parts of the criminal justice system is something that cannot be stressed too much. I think
that unless we have a unified cohesive almost purely a logical approach to the various constituent elements obviously we're not going to have a good system because if the police do their job and the judge in the court does not affectively do his job off the place and the judge perform adequately and the corrections department does not do its job. Finally right down the line if if every step in the process works fine except the last one. And we're not going to have the ideal system of justice. The second aspect of the pervasive impact of racism either direct or tacit throughout the system is certainly a sobering one and I think that digressing for a moment I thought what we might do for a few moments we might have a little bit of panel discussion up here on some of the points that have been touched on. And then we would be
very pleased to turn the meeting over to the floor to have you pose any questions that might have occurred to you during the course of the evening or on any other questions that you might have on any other topic tonight. Unlike a court of law I'm sure that Judge Mitchell will not rule any question out as irrelevant. Tonight anything goes. KING On the question of racism and the fact that you have to admit you'll feel that. Something of an affirmative nature ought to be done I wonder if he would care to comment on Judge wise Nancy's opinion on the police civil service examination a decision which has certainly engendered a great deal of controversy. And I would wonder if Judge Michel if you feel that that approach approach which I think assumes that a great deal of making up has to be done
for the black community and in effect I think in that case the judge weighs and he said either throw out the results of the test scores or devise a new test. Some rather dramatic thinking in the area is a kind of approach which you would agree with in that particular case and whether the philosophic premise of that decision might have a more pervasive impact in other contexts. Yes I of course agree with Judge wise and approach in that particular case because the black community has been deprived so long that obviously they have not had the opportunity that their white counterparts have hat educationally as we all know blacks have been deprived and are continually being deprived in the ghetto and. Of course economically they have been held down so that in some way there must be some compensation. And
I think that what Judge wise and ski was saying is that we must identify potential and develop this potential and that if we do that job well we will get people equally as good as those who have had a headstart in training. This is not a unique approach at all. It has been carried on in higher education for the last eight or 10 years with bottling remarkable results where young men and women who have not had the educational secondary opportunities that their white counterparts of hat have been brought into some of the best universities in this country and of all their their scores were much lower than their white counterparts. By the time that they left the university they had achieved at a equal
level. Another good example might be found in the Philadelphia plan that has been litigated all the way up to the 3rd Circuit in which. The plan which the court's OK said that there would be over a period of time a compensation bringing in a certain amount of blacks because blacks have been kept out of the labor unions. Labor unions resisted this but as I say this was a plan that was put forth by the Nixon administration and it was upheld by the courts saying that yes you must compensate by bringing in a great amount of blacks. So all of that of the equities of the past can be rectified. Otherwise they would not be rectified. Why don't we just have it as a modus operandi as we go through this that if any other member of the panel would
like to comment on anything we've touched on just feel free to write in on that in general. Putting aside as you are a reticence I would like to see if your words come into your honor. I intend not at all to disparage judges and ski and his history of considerate decisions but the fact in the Castro case which I think is the case that we have on the discussion about the relativity of police civil service exams to police work itself the facts are that. The judge's original opinion was appealed to the United States Circuit Court of Appeals in the Circuit Court of Appeals wrote a very clear and definitive opinion supporting the general tenor of the judge's first opinion and stating that that court would not recognize any sort of inclusion of blacks in Spanish speaking on a police list that represented mere tokenism.
Then the decree that was rendered by the judge was one that was prepared not by the judge but prepared by a mutual and unanimous agreement of the Civil Service Commission. The Department of the attorney general the veterans groups involved and represented the Boston Police Department and the police groups involved and represented it for me represented itself a singular example of what cooperative understanding working together can do. My remarks unfortunately have to be conditioned by the fact that this matter is now appealed by the Massachusetts Patrolmen's Association and I can only regret that we did not have them included in the case in the first place because I think we could have achieved their agreement with the consent decree that you have referred to. Mr Moderator as the decision.
Thank you very much. When I want if I might ask you keying in on what George Mitchell indicated would be perhaps a very salutary step for the system institutionalizing perhaps on a once a month basis the various constituent elements of the judicial system of the administration of justice police courts corrections department probation paroled prosecutor public defenders I wonder whether or not your office the Office of the attorney general might not be an appropriate vehicle or appropriate forum or appropriate catalyst for bringing about that kind of institutionalized coordination I would like to ask you your thoughts on the topic generally and perhaps if you it may not in some small measure be doing something along that line right now through your governance committee on law enforcement.
Answering your last remark first. Yes we do Your Honor in the committee on law enforcement's attempt to pull together the various disciplines in volved and in the justice process as well as those individuals who are either the victims or the beneficiaries of a justice process however you want to look at it. But generally the single greatest point of consternation for me since I became attorney general and before when I was a defendant lawyer representing individuals charged with crime has been the fact that those in the various law enforcement disciplines do not work together or separate themselves and compartmentalized themselves far beyond the institutions of the various disciplines to which they have become members. My my favorite example is the two police officers in the same cruiser. I won't be confiding in one another of the. The tips that they have and the and the crimes that they were attempting to detect in this is extremely regrettable. When I became attorney general I
called together the district attorneys and I expressed my desire to cooperate with them in every way and my statement that if I had information of some problem in their respective jurisdictions this would be the first ones I'd let you know. Now that was easy for this attorney general because our membership of the separately elected district attorneys was seven to two Democratic. But the first instance I got to challenge me to my word related to the the district of one of our Republican DA's and my chief of criminal division said Shall we call him and I said Of course we'll call him either I mean what I say or I don't. We called him and we managed to resolve the issue on a cooperative basis. Right now we're living in a Greater Boston attempting to get to the bottom of a series of. Tragic homicides of young girls because there was suggested common elements either in the lifestyle of these girls or in the manner in which they all died. I felt that as attorney general I should call together the various
law enforcement agencies investigating their deaths. And I feel that by calling these various agencies together we were able to make far greater headway in getting to the bottom of the various deaths than we would have been able to make at each one of the agencies competent as they were been doing their job separately it to me represented a great example of cooperative effort. I'm not the investigator I haven't done anything beneficial in the specific investigations except to make sure that the expertise of the officer in Brockton was applied to the work needed by the officer in Cambridge in that Cambridge office as work had its reflection in the investigation undertaken by the officer in Lynn. This I think is extremely important. I have seen another instance of this. Fact of cooperation in the establishment of various police training programs for the drug problem the state police the big city police like those in
Boston do have their experts in the drug scene but too many of the smaller town police departments simply could not cope with the drug problem and this is why we established our training programs as a as a byproduct of the training programs themselves we found. Suddenly police officers knew they had a terrible problem to combat and they were sharing the tips their ideas their legal points on searching and seizing to the degree that they had formed intelligence units and mutually mutual sharing units before we had tried to structure it. More and more of this spirit of cooperation I think is absolutely necessary and not merely among the various disciplines but within each one of the disciplines parole probation corrections police. If we're ever going to hope for success and I mean to include courts to your honor. Thank you very much. You know I think Bill Homans has a comment on that point.
You know I was you were talking out before you started talking on the question of pulling together and I thought of the Hitchhiker's cases as an example of your office represented by JOHN IRWIN quoting the law enforcement agencies the various Just attorneys offices in the state police and the City Police together. That's one example of the law enforcement field. There's another example it seems to me of spotting a court and also in the law enforcement field because it involves corrections and involves the office of a particular district attorney. It happens that Walpole State Prison is in the jurisdiction of the district attorney in Norfolk County. As to George Burke. And it happens that it is very popular to attack the administration of the corrections department is represented by a commission a bone and some of those in authority and Walpole. And it happens that late in March. Some of though some of us or and Walpole observed a bloodied cell. We
observe bloody clothing. We have observed the clothing stay in the cell. We had it on good authority we know from people who have preserved it. Three corrections officers and a federal marshal and had beaten the bejesus out of out of a present one Whitey Hurst. We sent telegrams to the district attorney's office asking him to preserve the evidence which would be done in any good police investigation. For a 36 hour period the bloody sheets and the bloody pillowcase and the blood on the walls from what had happened to that presenter who wasn't a particularly amiable character himself and so far as the crimes he was accused of an Id been convicted of were concerned but nevertheless he had the same rights as anyone else. But we hear over and over again from that particular district attorney's office how the institution is being mal administered and how the prisoners are breaking the law.
But there comes an occasion when there was probable cause or at least possible cause to give the devil his due to think that some crime might have been possibly committed against this particular prisoner and those of us who were there that weekend. So all those shades on picked up so that anyone could pick up pick them up and so far as I know has picked them up to conceal whatever evidence was concerned in the crime. No photographs taken of the wall where they were. There's blood on the wall. No response so far as I'm aware and I hope I'm wrong given to those who are concerned about what happened. But over and over again in the media particularly in the Boston Herald American instances given of maladministration of the corrections department it seemed to me was one instance where the various disciplines corrections department was pulling in one way they just attorney's office in Norfolk County is pulling another way in and
others who might have had reason to go in and then pull them together and make sure that the law it was inforced equally against the enforcers just as it is against the violators as it is against the alleged criminals was enforced but it so far as I'm aware it was not what was said about pulling together brought that to mind. My mind. Thank you very much Mr. Holm and I think at this point why don't we turn to you in the audience. And if there are some question some comments some reactions our speech is that anyone would like to make. We'd be very pleased to try to react to them. Seeing the consul general Maitland here questioning with the British background I guess of the English Speaking Union.
One thing that I would like to mention to you one of the most striking differences I think between our American system of criminal justice and that of the British is I think a virtue of the British system. It is the fact that in our country probably one of the great retards against ensuring conviction is the fact that there is such a tremendous lag between the time a person is apprehended and tried until the time that his conviction may ultimately be put to rest. This can sometimes be up to four or five years tending appeals to the United States Supreme Court very corpus petition. The sort of open ended in this of the convention in Britain. The system is basically works this way as I understand it. Graphs Consul-General Maitland could correct me if I'm wrong on this
but a person will be arrested. He will be tried probably within two or three weeks and he will have his appeal heard by the appropriate appeals court probably two weeks thereafter. And on the very day that the case is heard the appeals court judges will render a decision probably an oral decision rather than waiting the number of weeks or months that is in our own system when we have the written decision. And so if we have that certainty of prosecution and perhaps up or down certainty of conviction is a salutary attribute of a criminal justice system. I would just leave with you this basic distinction between our two systems in America and in Britain the celerity with which criminal trials and appeals are
consummated. I didn't mean to ask a question and then make a comment but let me turn it back to the floor now for any questions that you may have. Yes yes certainly. Judge Mitchell You referred to racism as a problem in our justice administration system and I'm not prepared to argue with that except to suggest that it could be more inclusive and closer to the point if you were to change that to bigotry or prejudice. Would you not agree that in addition to the tilt against Justice full of blacks and Spanish surname people it also exists for those of any color or any racial background who might have educational economic and geographical disadvantages.
I think that it's a well-known fact that there is a different level of justice for the rich as opposed to the poor. There is a different level of justice for the person who is politically out of the mainstream to either the left or the right and to the those who are in the middle. There's a different level of justice for those who are of certain religious persuasions as opposed to those who are of more traditional levels of persuasion. So that our whole system of justice I think does differentiate between people who are different whether because of their ideas because of their economic condition or because of their religious convictions. I think that again we must re-educate ourselves out of making such
differentiations and that the poor person should have as much a right to the same quality of justice as the rich his or her richer brother. Yes please go. You know what it is stark the O.J. special when a poor white defendant standing in court because he doesn't have to look as a rule as he does in Norfolk County or Middlesex County where there are very few black jurors he didn't have to look at a jury of his so-called peers which probably as a rule in those two counties doesn't have a single black person on on them. And even in Suffolk County where you have a DA who not like the D.A. I saw Mr. Doyle today who conspicuously did not challenge to black jurors whom he could have challenging them in a murder case in which a black defendant was on trial. He doesn't if he's a poor white defendant have to run the risk of of a district attorney even in Suffolk County challenging off whatever black
jurors he's lucky enough to have on the jury. There's nothing more stark than to go into the first criminal session of Suffolk County or Middlesex County or for that matter in Norfolk County and see 30 to 40 percent black defendants surrounded by as Judge Mitchell pointed out earlier a white judge white prosecutor is usually a white defense lawyer and and except perhaps in Suffolk County where there's a percentage whatever it is of 16 percent blacks and so occasionally maybe lucky enough to have a black juror. Usually a white jury. This is this is a stark thing with which a black defendant over a Puerto Rican defendant or or someone of a minority race is confronted with in any city and more so in Boston and me. And then Frank sample in New York where if you watch the jury system in New York. You will see usually a proportionate number of blacks on the juries but still even in New York. All the more so in Boston. A black defendant is surrounded by a white system and it is quite discouraging for the
for the white lawyer who's who's involved. I might add that bill that the result of that is that right now in Massachusetts in our state prison system we have about 26 percent of the population black while of course we have less than 3 percent of our population in Massachusetts black almost 35 percent of the people in our jails and prisons are either black or Puerto Rican when again the total amount of the people of black are Puerto Rican persuasion is less than 4 percent. And nationwide the figures become even more staggering. I've heard estimates of between 60 and 80 percent of those persons males who are in prisons and jails throughout the United States. Black Mexican or Puerto Rican. And
I've also heard the figure of that 5 percent of all black males in the United States are in some jail or prison. How do you know when when you start adding this to the fact that another 5 percent are in other institutions and that the ratio of black males to black females after the age of 17 something like 80 to 100. In other words e-mails to every hundred females. And the fact that the second law just. Cause of death of black males between the age of 15 and 25 his home aside and the fact that black males have a life expectancy of 12 Mia's less than white males in this United States. We are coming to a situation of growing strangling genocide as far
as black people are concerned in this country. I do not quarrel with either point made by you or by Mr. Homans your honor. I only mean to suggest that if we can break the cycle of poverty lack of education. And ghetto dwelling of blacks and Spanish speaking then maybe this will break all of the distorted statistics that you've called to our attention and distorted in the sense of disproportion after Attorney General. It's about time we had fair juries today not a hundred years from now. You know this is one of the thing that bugs me about the system. Well I'm in favor of fair juries but I suggest that with 200 years of the job and only 100 years working to give equal opportunities to black people and if this is as far as we've come in a hundred years we'd better keep our shoulders to the wheel on the
economic level as well as on the level with the criminal justice system directly. I think any empirical study indicate that a black cuarón may give a more fair trial to a black defendant than a white. Thinking back to my days in the District of Columbia when I was briefly an assistant United States attorney down there and it seemed to be in the District of Columbia which was something like 80 percent black. That if you had a black defendant he much preferred his defense counsel seem to want to get his many white men on the jury as is possible on the basis that his black brother is or at least there was a feeling at that time that the black that his black brothers might have certain predilections or proclivities to treat him more harshly and would a white euro in that situation. What I'm saying is to restrict one to one correlation in terms
of fan it between having a white you're black you're black defending one of the mystic Homans or judgment you want to respond to that. I don't know of any studies done as far as as black jurors are concerned I know that some informal studies have been done as far as black judges concerned and there's no question in my mind that a black defendant will get a much fairer trial before a black judge and he would be for a white judge. That I'm sick of some that I suppose that I was supposed to assume is that the Black has some color and some deference to the ambience in the background and the mores of the brow he can take account of it. He has lived it lived it. He has been discriminated against. He's probably been in and in the army where it was segregated he's probably been Jim Crow on railroad cars. He's probably been not allowed to go into
restaurants he's probably been call boy with voice Why are you here. You know he's he's lived through all this and he certainly is usually sympathetic to those black judges I've met and I've met maybe 50 percent or more of the black judges of the two hundred and fifty seven black judges in United States. Yes ma'am you sure it's a list. Just say I didn't make a hypothesis I was just throwing out a minute. They are destroying our provocative damage your general reaction. You're OK you're getting a reaction. You're you're supposing that a Black sure you know that land could be compared to white Europe and say sorry you heard nothing would indicate that oblige your friend could not be your wife and you would never expect a more fair verdict from black you're white you're right. You can expect the black children to be cowed by the
system that was exposed to a white racist system where the black judge and I KNEW Green judge Michel Martin and read his release about the way the black judge without the black church has been through one system of education. He can afford to be hard to get to his white brother is the black brother. Sure there's a little bit put them you know for the whole season around him and he can't quite see it the way white you're out. Yes what is yours was circa 1958 or 1959. The feeling was that the blacks on the jury were generally civil service people all GSA 11 to 12 who had quote unquote made it within the system and saw that if a black housebreaker came in before them there was a kind of a feeling that they would really look with great rancor at this person who didn't do what they did who had shot a gone astray and perhaps in some
way like super Laski now out of wall ball with sort of wrecking the system for them by his digression. Whereas perhaps there was a more there was a feeling that a white euro might take account of the adversity that the black had suffered long years of deprivation and might have prosecuted a lot more lenient manner. I realize these are very abstract reaction but it was a very definite feeling of the defense by in the District of Columbia in those days if you had to go with a black euro or a white euro with a black offending get the white juries. I think there were some things that have to do with the experience of black people which white people for the most part of men exposed to which which makes it important blacks on juries trime black people if you get a guy behind a building. If he's a white man and he sees a cop coming he's probably going to go up and say hello to the cop. If you get a black man behind a building and he sees a cop is going to run. And then because of it's very natural for him to run because he's been exposed to
that because if he stays in one place is in trouble as Judge Adler once said in a lovely case I tried before a judge out loud. Well he may not have committed a crime as don't want to say but it's 3:00 in the morning. Therefore he's being found guilty. And and this is the attitude that makes black people to give one example run and this is why it's valuable to have black jurors on the on the jury because they understand the kind of experience that produces that kind of reaction among people in this business. This has to do with the whole jury selection process not just black people and white people but the but the kinds of attitudes you want to find out in jurors in general. I think one of the differences with that. Person. Well after the war I would not base his reaction on racist kinds of things which might be OK
so why don't you just simply because he's black. He's been dishing to assume certain things make certain assumptions about what people generally think that there are certain ways to live life and therefore respond to his socialization and dishes like people rather than actually the facts of what it appeared. That was trying to say as well as you've said it. I may be wrong you're right but again I don't think they're indigenous. You know to the black problem because I think as Mr. Homans suggested at the outset that what he is finding is that many Massachusetts curers regardless of color and now beginning to demonstrate certain predilections of preconceptions or proclivities if you will in many context toit's too long here to welfare recipients to the hippie types right across the board and so I think almost take for granted
that in this racist society that might be more true. For whites blacks which is far different from what whites might receive somebody war hero or short hair and in very many instances that put aside. That's also true in terms of people who are poor versus those who are rich because clothes can make a difference you know. And it's difficult to judge unless one has a title or a job suggests certain. Things. Very hard to get off your shadow or to get off the habit of a lifetime. Yes yes. Talk about your life. Hopefully let's find a lot more. You're right we're
doing there. Well I'd move for a change of venue to Australia. Yes I would agree with your attorney general. Yes Pete you're speaking of the publicity problem. Yeah. I think that it's been shown in all of these very highly advertised and political ised cases that where the press dissemination is so wide and where the other media dissemination is so high that it is almost impossible to get a fair impartial jury. And unfortunately this is where the system sort of breaks down. I think the freedom of the press is more important than just convicting a few
of these kinds of transgressive. And I can recall one extremely political trial as well as a racial trial which surprised me is that at its verdict. But I think justice was done and that's the Angela Davis trial. So if it can happen in spite of all that traumatic the great problem in these areas is not simply to you know say we're soft mark brightness people I'm aware of the case. Can you get someone who hasn't heard about it or someone who doesn't have some thoughts on it. Obviously the answer to that is no. Given the highly publicized nature of the proceedings what you seek to do is to get a juror who recognizes that he has been surfeited with this information that he has certain prejudices if you will but to get a juror who has the integrity and the open mindedness to realize what his predilections are
and to be able to put those to one side. And when you get into that Yuri room I try to approach it with an open mind. If you come back to Massachusetts. In the end the Angela Davis case and Bobby Seale Erica Huggins case and the Panther 21 case in New York none of those results would have happened in Massachusetts because of the way we select jurors in Massachusetts as differentiated from the way that juries are selected and I would States I would venture to say that in Massachusetts also if they want to get case for example cases for example were tried in Massachusetts it would be far less due process for whoever turned out to be the defendants and those cases because of the system in Massachusetts which is so far behind the system in any other state in the United States including the state of Mississippi so far as jury selection is concerned. To my mind this is the most important issue and in the laws of ours doing justice between criminal defendants and the government is concerned right now.
How do you select jurors. And Massachusetts has this fetus or non fetuses the fetus may be about not asking questions of jurors not doing what Judge Larkin says and making them face up to their own predilections. I don't necessarily want to be tried by. A person knows not just to get somebody who's tall and black and got a big nose. All I want to be trite about is tried by a juror who who faces up to the fact that he may have those prejudices. And this is about all one can ask and deals with them openly instead of concealing them somewhere that's the essence of the judicial process of course. When I went on the bench when Judge Mitchell went on the bench obviously with a product of our entire backgrounds our entire lives. I've been an active Democrat coming from working our agenda sympathize with unions with the workers. Probably not much orientation towards management or Republicans
or things of that nature and so when that kind of a case comes before you which pits for example the Union against management of the worker against management or a case that has other overtones. Do you say that the judge doesn't bring a certain background to bear on these issues and so the answer is obviously no. What you try to do with the great judges and what we all strive for is to recognize those products of our background which may influence one way or another and in making that judgment try to take account of those and put them to work to realize what our prejudices may be. So go away. Yes. You're right because many people feel that you have glory of the jury
system is the fact that there is a kind of purposeful vagueness generality if you will about its result. That is to say they are not asked to add to delineate with abstract persuasion and why they reached a particular verdict despite the fact that a judge will instruct them on the lot of a particular case as to what they are supposed to do. Generally jurors will come out. You know you to convicting or equating a finding for this one of that one simply a kind of a gut reaction that they feel this one did the crime or didn't do the crime other decide is right or that one is wrong. There is what I call a purposeful generality to it many people feel this is the glory of the jury system. Others feel that it's just a rough sense of justice. But we also have to realize Yuri's have a very small part to play in our criminal justice system here in Massachusetts. Over 90 percent of the cases are disposed of on a
non jewelery basis either by a plea of guilty or by going jury waived or some other way. And throughout the United States well over 80 percent of criminal cases of disposed of this way. So the jury system doesn't have I mean the jury doesn't have to lodge a pot really to play in the entire criminal justice system today. And that is because the system just couldn't allow it to. And we just don't have enough prosecutors we don't have enough money. We haven't allocated enough money and we don't have enough personnel to to handle the great flow of criminal cases that are coming through. It's on every level tonight thinking if you're a betting general plane may want to comment on the Grande topic it was broached earlier in the evening. I question your honor if I may Bill Homans in your main remarks you had some criticisms of our grand jury system. I want to
ask Would you abolish the grand jury altogether or what would you substitute in its place in our present system of criminal justice. Certainly the way the system works now I would abolish it I would suggest that complaints or indictments of the case may be brought may be brought by a panel of judges to whom evidence was presented that there be some system at least if we must continue with the grand jury system that some system of exposure of the workings of the system to the public that the public get some idea of the extent to which prosecutors dominate the grand jury system and grand jurors poppets as distinguished from the original conception of the manner in which they are supposed to act or the perhaps the big grand jury schools to make grand jurors conscious of their responsibilities. I've never been present when it when a judge charged a grand jury as to what its
duties are but I can imagine what the process is and it's a discouraging thing to conceive of. Thank you. Yes yes. Oh that's right you know nothing more. Oh really. More money for more and more defenders actually. That's a two edged question because the people that have the roughest time getting good representation not so much the completely poor people but the people just a step above those who don't have enough money to hire defense counsel been eligible for public defenders and while the public defender system in Massachusetts as in all other states isn't the best at state it's the man who or the woman who hasn't got enough money to hire a good lawyer who has probably even more trouble than the person who is represented by the public defender
but in general I think it's a very simple answer. If you're going to have a system of justice and if you're going to have it work. He probably should be spending more money on it than for my place this point if you spent on highways for example. You should be spending more money on defense facilities you should be spending more money on having competent prosecutors. Then you should have it and be spending more money on having competent and intelligent police and correctional officers. May I add also Your Honor in a commentary on our club as we might refer to this legal profession that perhaps also we we ought to have more practitioners of the legal profession who will regard it as a profession incurring certain obligations not necessarily remunerative to them immediately. I think that the man who just spoke has indicated that in his legal career. I think that is a sentiment which we can also describe Janel I think that all of us value very much being on the panel tonight with Bill Holman. Those of you who are
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