by Paul Butler
GOING TO COURT: A STYLE GUIDE
When I was a prosecutor we used to laugh at the way some defendants dressed for court. They made our jobs easy because they looked guilty. They wore baggy pants, white T-shirts, gold chains, or some other urban style that you might see teens wearing on the subway. That is not a good look if you are trying to avoid going to jail. Even “casual Friday” outfits like nice jeans or khaki pants and sneakers hurt your case.
When a black man has his fate in the hands of a judge or jury, he needs to wear a suit. The District of Columbia Public Defender Service, one of the best in the country, has a closet of jackets and ties for its clients who don’t own them. At a minimum, male defendants should wear a nice pair of slacks and a button-down shirt. And my public defender friends swear by polished shoes for their clients. Judges and jurors notice things like that.
If you have braids or locs, cut them off. They’ll grow back. You need prosecutors and judges to exercise whatever mercy their miserly hearts can muster. You do this by getting them to relate to you. People who become prosecutors and judges are conservative, socially if not always politically. Don’t distract them with hair that offends their parched standards of respectability. It’s hard enough getting them to see past your black skin.
SHOULD YOU SNITCH?
The prosecution might offer you a deal if you help them make a case against somebody else who they want to lock up more than they want to lock you up. The first thing you need to figure out is if you accept the offer, are you going to “get got” or is somebody in your family going to “get got.” If cooperating with the government puts you or your loved ones in jeopardy, do not do it. It’s a hard-knock world out there, and the truth is the prosecutor is more interested in winning his case than he is in protecting you. If he cared that much about you, he would not be prosecuting you in the first place. You are in the best position to assess the risks, and if you have any doubt about your safety, turn the offer down.
If you think that you can cooperate with the prosecution and be safe, then you need to make sure that the deal is worth it. Ask your lawyer exactly what difference it would make in your case’s outcome if you snitch compared to if you don’t snitch. Sometimes the most the prosecutor can do is recommend to the judge that you get a reduced sentence. Your defense attorney should indicate, based on her experience, how likely it is that the judge would follow the prosecutor’s recommendation.
Finally, you should help the prosecution only if you think it’s the right thing to do. Sometimes people cooperate because they think the person the prosecution is going after really did something wrong and deserves punishment. In general, however, the way the prosecutors use snitches can be a little bit lazy and a little bit sleazy. Prosecutors are not sure they have enough evidence to get a conviction, so they basically bribe someone to be a witness. If the deal is good enough, some people are tempted to lie. Studies show that one of the most common reasons for wrongful convictions, including in death penalty cases, is dishonest testimony by snitches. You don’t want to participate in this unsavory practice unless you can tell the truth. You never want to put another brother or sister in prison by lying about their guilt. But the irony is, as discussed next, sometimes you might want to lie about your own guilt, in order to go home sooner.
SHOULD YOU COP A PLEA? THE TRAGEDY OF KALIEF BROWDER
Kalief Browder was an innocent man. An innocent man who should have pled guilty. Then he might still be alive.
Kalief was sixteen years old when he was arrested for robbing a man of his backpack in the Bronx, New York.28 Kalief had been walking home from a party when NYPD officers stopped and frisked him. The victim, who was sitting in the police car, first said Kalief had robbed him that night, and then changed his mind and said it hadn’t been that night, but two weeks prior. Still Kalief was arrested, and bail was set at $3,000, which his family could not afford. And so he sat in Riker’s Island, the notorious New York City jail.
For almost three years. The trial kept being delayed. During two years of this time, Kalief was held in solitary confinement. Kalief always insisted on his innocence. At one point, after he had been locked up for more than two years, the prosecution offered him a deal: If he would plead guilty to two misdemeanors, the judge would sentence him to time served, and he could go home that day. Kalief said he could not plead guilty to a crime he had not committed. His specific words to the judge were “I’m alright.”29
But Kalief was not “alright.” Videos from the jail security cameras show him being brutally assaulted, once by a group of inmates and another time by a prison guard. After he had been incarcerated for more than one thousand days, the prosecution summarily dismissed the case.30 Kalief finally went home. But the two years in solitary confinement had changed him, as it changes virtually everyone who suffers it. Kalief had a hard time coping with life on the outside, just as he had not been able to cope on the inside. On the morning of June 6, 2015, Kalief tied bedsheets to his neck and jumped to his death from the second story of his mother’s home.
Read the tragedy of Kalief Browder as a cautionary tale. Sad and repulsive as it may seem, for some people, pleading guilty might be the best decision, even if they did not commit the crime. The presumption of innocence is just words on paper. Many people, including many judges and jurors, think if you have been arrested you are guilty. This makes going to trial risky, especially for African American men. Prosecutors exploit this bias when they plea-bargain by not really giving the defendant much of a break. They know that if you go to trial and lose, you will get a lot more time than if you had accepted the plea—even if the plea offer is not generous.
For this reason, almost everyone who is prosecuted for a crime ends up pleading guilty. Ninety-five percent, to be exact. If you think that you get a raw deal because you are African American, you are correct. Virtually every study has demonstrated that white men get better plea offers than black men. But prosecutors have so much discretion it will be virtually impossible for your lawyer to prove you are getting treated worse because you are black, even though everyone knows it’s true.31
IF YOU GO TO TRIAL
I understand why Kalief did not want to plead guilty because I felt the same way. When I was arrested, the prosecutor offered me “diversion,” which meant that I could do community service and then the case would be dismissed. But to be approved for diversion, you have to admit you committed the crime. Since I had not committed the crime, I could not bring myself to do that, and so I went to trial. To make that decision, I used a kind of cost-benefit analysis that I would recommend to you.
You and your lawyer should make an informed decision based on the risk of conviction if you go to trial, and what the consequences of being found guilty would be. The main consequence is usually more jail time than if you pled guilty. Technically, it is unconstitutional to punish people for exercising their right to a jury trial, but this right is meaningless. If the vast majority of defendants did not plead guilty, American criminal justice would grind to a halt. There are far too many criminal cases for all of them to go to trial, which presumably would be the result if there were not a severe penalty attached to losing. Michele Alexander, who wrote The New Jim Crow, wrote an op-ed in the New York Times suggesting that if many more defendants started exercising their right to a jury trial, it would create a productive chaos in the criminal process system that would force lawmakers to deal with mass incarceration.32
As a prosecutor, I bluffed about the strength of the government’s case all the time. Your lawyer should be able to assess the strength of your defense compared to other cases she has tried. She will tell you that you never know what a jury is going to do, and she is right. But if you have confidence in her skills as a trial attorney, and she thinks you have a decent case, you should seriously consider going to trial.
Like Kalief, I am an African American man, but otherwise I had a lot of advantages that he did not. I retained the best lawyer in the city, a former public defen
der named Michele Roberts. We hired a former police officer as our investigator, and as far as we could tell, the prosecution didn’t have a strong case. We thought my chances of being acquitted were very good. My jury was predominately African American. We would make sure they knew that I was a well-educated lawyer. It is the kind of thing that should not matter to a jury, but any experienced trial attorney will tell you it actually does. You have to present yourself as the kind of black man who does not belong in jail.
At my trial, we also had character witnesses testify who were high-status members of the community. Your attorney should try to do the same for you. A minister, teacher, or neighborhood elder who knows you well can help the jury see you as a human being and not the black thug the prosecutor is doing his damnest to invoke.
If I lost my case, the consequences of conviction would have been personally devastating. I would have lost my job as a prosecutor, and it would have been difficult to find another job as an attorney. On the other hand, even if I were convicted, it was very unlikely that I would have been sentenced to prison for a first-time misdemeanor.
I was innocent as well, but that was not the most important thing. Innocent people get convicted in criminal court every day. And, every day, guilty people get set free.
The truth is that most defendants who go to trial lose. In recent years state prosecutors have won 85 percent of their felony cases and almost 90 percent of their misdemeanor cases.33 Federal prosecutors lose only one out of every ten cases.
The numbers change some depending on the jurisdiction. The conviction rate has averaged approximately 84 percent in Texas, 82 percent in California, 72 percent in New York, 67 percent in North Carolina, and 59 percent in Florida.34
If you decide to go to trial, the next big decision is whether you should take the stand. It’s your call, but listen carefully to your attorney’s advice. If you have serious prior convictions, she will probably advise you to take the Fifth. Even if you don’t, she will be concerned that the prosecutor’s cross-examination will make you look guilty. As a prosecutor, I was really good at this. If the defendant was an African American male, and pretty much all of them were, I would get up in his face, or at least as close to him as the judge would let me, and try to set him off.
I would ask the defendant a series of detailed questions about his testimony designed to throw him off and make it look like he was lying. I was good at this because I did it every day. The defendant, on the other hand, did not have much experience in criminal trials and he was already stressed out because his freedom was on the line. Just know that an effective trial lawyer can make even an innocent person look guilty.
So I guess it was poetic justice when, during my own trial, the prosecutor tried the same tactic with me. The damn thing is it almost worked. He got me so worked up during his cross-examination that I became surly and aggressive when I answered his questions. I fell directly into the trap he had laid for me. During a break, my lawyer told me to lose the attitude. For the remainder of the cross, I was cool and collected, or at least that is what I tried to convey to the jury.
If you do take the stand, it’s time for the performance of your life. You should practice your testimony in advance. Ask your attorney to go through the questions she is likely to ask you and the questions the prosecutor will probably ask on cross-examination. If the jury perceives you are lying, they will hold that against you. Borrow a trick that cops use and look at the jury, not your lawyer, when you answer her questions. Don’t use street slang. It’s okay to be nervous but you have to be calm and polite to everybody, even the prosecutor. During the prosecutor’s cross-examination, you just want to get in and get out. Don’t say any more than asked. If a question can be answered “yes” or “no,” that is the only answer you should give.
You have to make the judge or jury care about you. It helps if your partner, mother, and grandmother are sitting in the front row, as conservatively dressed and well mannered as possible.
You have positioned yourself so that whether you get convicted depends on how you come across to the twelve people in the jury box, but a “not guilty” verdict is not the only measure of success. All you need is at least one juror to take your side, and then there is a hung jury, which basically means you won. The prosecutor can bring the case again, but unless it’s a serious charge, they usually do not. And if your lawyer pokes enough holes in the government’s case, the jury foreperson might come back with those magic words: “Your Honor, we the jury find the defendant not guilty.” Good luck, brother.
IF YOU LOSE
Sorry, my dude. A lot of brothers have been in this situation. At the moment, more than 500,000 to be exact.35
SENTENCING
Have people show up. Your parents, relatives, and friends. Probably not young children, because the judge might feel like you are trying to manipulate her, or that you are a poor parent to expose them to your sentencing. See if you can get former teachers, employers, and faith leaders to write letters. You will probably get to make a statement. As always, practice in advance. Express regret and contrition.
SHOULD YOU APPEAL?
You’re probably going to lose. Your chances of winning on appeal are even less than your chances of winning at the trial level. The prosecution wins almost 90 percent of criminal appeals.36
CONCLUSION
If this chapter reads like a nightmare, it is because that’s exactly what the criminal system is for an African American man. You have no rights that a cop is bound to respect. You do not live in the same country as a white person. That has to change. Chokehold’s final chapter discusses the revolution brothers desperately need.
8
Woke: Unlocking the Chokehold
There just has to be a new system of reason and logic devised by us who are at the bottom, if we want to get some results in this struggle that is called “the Negro revolution.”
—Malcolm X
The United States is a country of gross racial inequality. The Chokehold means that African American men, like African American women and many other groups, are not full citizens. Their lives are not afforded the same dignity and respect as white lives.
Black men living in high-poverty neighborhoods are particularly at risk for violence—as harm doers and as victims, from the police and from each other.
None of this is new. African Americans have never been free. African Americans have never been safe. Liberal reforms, such as anti-discrimination laws, have not brought long-term change. Civil rights laws have helped stigmatize discrimination but have barely blunted its effect. Black people have always been on the bottom. Other groups—Irish, Italians, Jews, Chinese, Eastern Europeans—have come later and surpassed African Americans in opportunity and achievement.1
One might have thought that Barack Obama’s presidency would herald the pinnacle of African American success. Some progress was made. Obama appointed many African Americans to high office, including the first African American attorney general and many federal judges. The Justice Department investigated more police departments for misconduct than all of the previous administrations combined. Black unemployment decreased from 12.7 percent when Obama took office to 8.3 percent in September 2016.2
But black unemployment remained twice white unemployment, as it has been for decades. The percentage of African Americans who live below the poverty line actually went up, from 25.8 percent in 2009 to 26.2 percent in 2012.3 In 2013, according to the Wall Street Journal, the Small Business Administration granted less than 2 percent of its loans to African American businesses—the lowest amount in its history. During the George W. Bush administration, by contrast, 8 percent of SBA loans went to black-owned businesses.4 Black family net worth declined during Barack Obama’s presidency, to a thirty-year low, even as white families’ net worth increased during this same period.5
Obama’s presidency brought about nothing approaching the racial reconciliation he had campaigned on. Instead Obama’s second term was marked by viral vid
eos of police killing and beating up unarmed African Americans. From the ashes of Ferguson rose the most radical and intersectional civil rights movement in African American history. The movement for black lives has put the world on notice that the Chokehold is not sustainable. The United States has been here before, with black-led resistance to slavery and the old Jim Crow. What African Americans do, every century or so, is to save this country’s soul. For blacks this has been tiresome and unrewarding work. Racial subordination has simply been refashioned from slavery to convict leasing to segregation to mass incarceration. Now is the time to disrupt the wretched cycle once and for all. Let this be the last time blacks reinvent this country without crushing white supremacy.
ABOLITION: THE THIRD GIFT
The language of “reconstruction” can’t be employed without considering what preceded it—abolition. We abolished the institution of slavery. We abolished legalized segregation. If we want a third Reconstruction to take place, the abolition of prisons should be on the table.6
—Mychal Denzel Smith, author and activist
If I ruled the world, I’d free all my sons. I’d open every cell in Attica and send them to Africa.7