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by California ChangeLawyers
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More of This The white federal judge who changed the course of civil rights law
When Richard Gergel was elevated to the federal judiciary by President Barack Obama in 2010, he found himself assigned to the Charleston, S.C., courtroom of an illustrious predecessor, J. Waties Waring, who had changed the course of American constitutional law.
Few — including Gergel — knew much about him.
The paradox was not lost on Gergel, a lifelong South Carolinian well-versed in local history. But soon, using his knowledge of court procedures and F.B.I. records and the South Carolina Freedom of Information Act, he was on a crusade.
Now, despite judicial duties that included the 2017 trial of Dylann Roof, the young white supremacist sentenced to death for massacring nine African-American worshipers at a Charleston church, Gergel has written a book about a largely forgotten racial atrocity that turned a Confederate soldier’s son into an improbable giant of civil rights jurisprudence. (Gergel would not comment on the Roof trial.)
The book, published Jan. 22 by the Sarah Crichton Books imprint of Farrar, Straus & Giroux, “Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring,” reinvestigates an unpunished crime that, in Gergel’s telling, ignited the modern civil rights movement, including Truman’s desegregation of the military and the Supreme Court’s historic ruling overturning school segregation.
“I stumbled across the story and stumbled across Truman’s role,” said Gergel, 64, on a recent visit to New York. “It was a case that not only woke up Waties Waring, it woke up Truman.”
“There was no one like him,” he said of Waring. “In the South in the 1940s there was a sense that something had to change but no one could figure out how to break the Gordian knot of Jim Crow.”
What turned a Southern gradualist into a revolutionary? “I started digging,” the judge said. Beyond the book, his quest ended in a 2015 renaming of the Charleston federal courthouse as the J. Waties Waring Judicial Center.
The backdrop of the Woodard case was indeed harrowing. On Feb. 12, 1946, Army sergeant Isaac Woodard, 26, discharged with a chest of medals after three years of fighting in the Pacific in a segregated unit, boarded a Greyhound bus from Camp Gordon, in Augusta, Ga., en route to home in Winnsboro, S.C.
There were conflicting accounts of what happened on that bus. Joyous soldiers, black and white, may have been sharing a celebratory bottle of whiskey. Woodard and the driver argued about restroom breaks and Greyhound’s rules requiring a driver to accommodate passengers’s needs.
When the bus stopped in Batesburg, a small town about 30 miles from Columbia, the state capital, the driver summoned the town’s two police officers, Chief Lynwood Shull and his deputy, Elliot Long, and Woodard was ordered off the bus.
Shull admitted using his blackjack on the sergeant. When Woodard wrested it away, Long, gun drawn, ordered him to drop it. Then, by the Gergel book’s account, Shull rained blows on Woodard so ferociously the blackjack broke. Woodard was left sightless, both eyes gouged out, and thrown in jail, igniting a racial fuse that would burn its way across America to Waring, the White House and eventually the Supreme Court.
“It’s more than just an incident, it’s a huge historical moment,” said Patricia Sullivan, a professor of history at the University of South Carolina and author of “Lift Every Voice: The NAACP and the Making of the Civil Rights Movement.”
As a law student at Duke University in the 1970s, Gergel had read of Waring. But passing mention of Woodard escaped him and he didn’t think much of Waring again until, as an intellectual property and personal injury lawyer and outside counsel to the city of Columbia, he was named to the federal bench.
“In my installation talk, I spoke about Judge Waring,” Gergel recalled. “I saw blank looks.”
He plunged into research, using his inside knowledge of court dockets and evidentiary records. “I understood what I was looking at,” he said. “I knew what to ask for.”
Waring, he found, was an eighth-generation Charlestonian born in 1880, with ancestry going back to slaveholders and colonists who arrived in the 1600s. He served as an assistant United States Attorney in Charleston, and with the support of the racially demagogic South Carolina Democratic Senator Ellison “Cotton Ed” Smith, was named by President Franklin D. Roosevelt as one of three judges on the district court in 1942.
His first years on the bench were undistinguished. But in 1944, Waring settled a case in favor of a black teacher paid less than white counterparts, astonishing her NAACP lawyer, Thurgood Marshall, later the first African-American Supreme Court justice. In a second equal-pay case, Waring ruled for the black plaintiff, under the prevailing separate-but-equal doctrine.
Woodard, meanwhile, was convicted of drunk and disorderly conduct and settled his $50 fine with his last $44 cash. Doctors pronounced him irretrievably blind, and the government disclaimed responsibility as he had been discharged from the military five hours before his injury.
Outrage built as news of the assault spread through what was then called the Negro press, attuned to anger over the 900,000 black veterans who had fought for democracy abroad and were now demanding it at home. Orson Welles denounced the beating on his national radio show. Joe Louis, Nat King Cole, Cab Calloway, Woody Guthrie and other stars staged a benefit in Harlem where Woodard spoke.
In various archives, including NAACP files, Gergel found overlooked material on the reaction of Truman, who told an aide: “Enough is enough. Dammit, I’m going to do something immediately.” Truman directed the Justice Department and F.B.I. to pursue a criminal civil rights case against Shull. The case fell to Waring, who was skeptical of any federal role in enforcing racial justice and ready to dismiss the charges. But prosecutors were pressed to proceed and the trial began in November 1946.
Woodard testified that Shull had driven the handle end of the blackjack into each eye. Shull countered that Woodard had attacked him without provocation and that in self-defense he had struck Woodard a single blow. Medical records never introduced in court but later tracked down by Gergel and shown to a pathologist confirmed Woodard’s account.
The trial took one day. The all-white jury came back in 28 minutes to pronounce Shull not guilty. Waring, deeply troubled by a bungled prosecution, called the sham trial his “baptism of fire.” Later, asked what changed him, Waring told reporters, “While on the bench, I developed a passion for justice.”
The following year, Waring ruled that the Democratic Party had to open its whites-only primary to black voters. He sent a white farmer to prison for a year for forcing an indebted sharecropper to work without pay, a form of enslavement commonly winked at by Southern courts. He issued orders enforcing black voting rights and with more blacks appearing on juries, desegregated the jury box.
And in 1951, driven to search for a strategy to overturn Plessy v. Ferguson, the 1896 Supreme Court ruling legalizing segregation as long as the races were treated equally, Waring persuaded Marshall, still representing the NAACP, to present “a frontal attack” on segregation in a lawsuit brought on behalf of Henry Briggs, a black gas station attendant in Summerton, S.C., claiming that white children got bus transportation to school while black children did not. Waring was outvoted on a three-judge panel, but his forceful dissent attacking the policy as a violation of the 14th Amendment guaranteeing equal protection of the law, strategically propelled the case into the Supreme Court where it was consolidated with similar cases and decided in 1954 as “Brown v. Board of Education” overturning school segregation.
Read the story on NY Times >
Even More of This The California court case that could unravel police secrecy
When Jerry Coleman heard about a domestic violence prosecution winding its way through San Francisco’s criminal courts, he knew he’d finally found his test case.
In November 2012, San Francisco police officers arrested 20-year-old Daryl Lee Johnson, accusing him of hitting his girlfriend and grabbing her phone during an argument so she couldn’t call police, according to court records. (In California “injuring a wireless communications device” is a misdemeanor.)
Because Johnson’s girlfriend refused to testify, the only witnesses were two San Francisco police officers. Both officers had long records of misconduct. In the past two years, courts had held 24 hearings on material tucked away in the officers’ files. In each, a judge had ruled records must be turned over. All together, there were 505 pages of records in the two officers’ files that courts determined could be favorable for a defendant.
“We knew there was dirt, and we knew it was relevant, we just didn’t know what it was,” said Coleman, who then worked as a supervisor in the San Francisco District Attorney’s Office.
It may come as a surprise to learn that California, despite its liberal reputation, goes farther than nearly any other state at shielding records of police misconduct. Although other states make police records confidential, California is the only state that clearly bars prosecutors from reviewing entire police personnel files.
Johnson was ultimately convicted of vandalism and sentenced to the 10 days he had served, but his case led to a lawsuit that could determine whether prosecutors have access—and how much—to records of law enforcement misconduct. That lawsuit, along with legislative efforts to crack open the records, may transform California from one of the least into one of the nation’s most open states for police records.
Read the story on the Marshall Project >
Less of This Meet the private for-profit company that secretly writes police policy
Gabriel Gomez Maciel was driving to church in Spokane, Washington, in 2014, when a minivan T-boned his pickup truck. The minivan driver apologized to Gomez, called police, and told the responding officer that he was at fault. But when the officer arrived, she detained Gomez while she contacted U.S. Border Patrol to ask about his immigration status.
According to a lawsuit filed by the Northwest Immigrant Rights Project and the American Civil Liberties Union of Washington, the officer kept Gomez there for nearly 90 minutes before Border Patrol agents arrived. Gomez had committed no crime and had no criminal history, and the officer didn’t ask him any questions about his immigration status, according to the suit. Still, he was taken into Border Patrol custody and jailed for a month.
City officials said Gomez’s detention was permitted under Spokane Police Department policy, which said, “officers may detain foreign nationals solely for alleged undocumented presence in the U.S. if the U.S. Immigration and Customs Enforcement (ICE) is contacted and can respond to take custody within a reasonable time.” The ACLU argued that the policy violated the Fourth Amendment’s protections from unreasonable search and seizure and the Washington state constitution. Last year, Spokane reached a settlement with Gomez and agreed to change its policies.
But identical language remains in place at law enforcement agencies across the country.
The policy was written by Lexipol, a California-based company that says it provides policies for approximately 3,400 police, fire, and correctional agencies in 35 states. It has grown rapidly over the last 15 years and saturated California, where its clients include more than 90 percent of law enforcement agencies. It’s impossible to know just how far Lexipol’s reach has spread as the company declines to provide a list of clients, saying that it is proprietary information. But according to an analysis published last year in the Texas Law Review, “although there are other private, nonprofit, and government entities that draft police policies, Lexipol is now a dominant force in police policymaking across the country.”
As a result, a large portion of American police policy is now being drafted by a little-known private company with no public oversight.
Read the story on the Appeal
Less of This Too Activist lawyer jailed for trying to help when police confronted mentally ill man
On Sept. 5, 2015, Elisabeth Epps attended a pool party at a friend’s apartment complex in Aurora, Colorado, when she encountered a dazed-looking man who appeared to need help. “Where can I take you?” asked Epps, a prison abolitionist and bail activist, as she held the man, later identified as Cody Shelby, by the arm.
Moments later, at least three Aurora Police Department officers surrounded Epps and Shelby, who she believed was in the throes of a mental crisis. Epps said she feared police would arrest him and take him to jail instead of to his home or a hospital. So, she led Shelby away from the officers as they closed in on them and also advised him not to talk to them if he was uncomfortable.
“We’re not going to continue walking around,” one officer protested. “You said he’s not under arrest,” Epps replied. “What he needs right now is not men with guns.”
An officer told Epps that they just wanted to get Shelby help. But he failed to assuage Epps’s concerns about how the incident would be handled; she said she was worried that they lacked de-escalation and mental health training.
“You don’t make us feel safe,” Epps said to one of the officers, “those of us who have endured your brutality.”
A security officer with the apartment complex determined that she was causing a disturbance and then a police officer questioned if Epps, a Black woman, lived in the complex where the pool party was held. Epps replied that she was an invited guest. Epps proceeded to single out one of the officers as “not just a racist” but also “a classist and a sexist.”
Epps was then arrested and charged with trespassing, resisting arrest, and obstructing a peace officer in Aurora’s municipal court. Shelby, who is white, was not booked on suspicion of a crime. In November 2015, a jury convicted Epps solely on the obstruction charge. She received a 90-day jail sentence, which a public defender’s office helped her appeal through higher courts. The appeals process delayed Epps starting her jail sentence until this year. Just after Martin Luther King Jr. holiday weekend, she lost her battle to avoid being incarcerated. On Jan. 23, Aurora County Judge Shawn Day ordered Epps to serve 27 days of the sentence, despite dozens of support letters for Epps from co-workers, elected officials, and even a reserve police officer, who said that she should be given community service instead of jail.
On Feb. 7, the Arapahoe County Detention Center, a jail serving the Aurora area, released Epps 15 days into the sentence. The county’s alternative sentencing program allows incarcerated individuals to earn time off of their sentence for good behavior. “I’m blessed to have been able to spend 6 days of each of the past two weeks working for others liberation—and now my own,” Epps said in a statement.
Read the story on the Appeal >
Perspective The Brooklyn jail crisis is a civil rights issue
The following editorial was written by Linda Aristondo, an attorney in the New York tri-state area and an Encore public voices fellow with The OpEd Project.
Recent events in a Brooklyn federal jail revealed detainees held in subhuman and illegal conditions, without necessary medicine, heat, light and even water. But the Metropolitan Detention Center detainees were also lucky, because it is located in New York City, where public service attorneys are attentive, families are nearby to protest and draw media attention to the conditions and where a judge even paid a visit.
As others are pointing out, the substandard conditions in federal jails is not an isolated problem. “This is chronic,” Eric Young, president of the union that represents federal prison workers told NBC. Issues range from heat to broken elevators to mold. In 2013, lawyers sued the state of California and forced the relocation of inmates to other several jails because convicted inmates were knowingly being exposed to the fungus that causes Valley Fever. Many suffered, some died.
The way we’re treating detainees and prisoners is not only a humanitarian crisis, it is also a civil rights issue. The vast majority of inmates and detainees are people of color, nationwide. In 2016, blacks represented one third of the sentenced prison population (but 12 percent of the U.S. adult population); Hispanics represented nearly one quarter of inmates (and 16 percent of the adult population).
Most of those in being held in jail are also poor, some may have violated parole, or perhaps they are facing multiple charges across several jurisdictions and bail is denied, but the most common reason is money. Their families do not have the funds to have them released pending trial. What this means is that poverty is the main reason people are in jail.
Remember that many of these people are simply being charged — they are presumed innocent; they have not yet had their day in court. In Brooklyn and elsewhere, they are being treated worse than criminals.
Whether someone is detained on charges or convicted and serving a prison sentence, everyone has legal and constitutional rights to lawyers. But when the Metropolitan Detention Center denied attorneys access to the building, they violated the 6th Amendment, which guarantees a defendant the right to a speedy and public trial, the right to be tried by an impartial jury, the right to be informed of the charges, the right to confront and call witnesses and the right to an attorney.
Read the story on the Hill
Speaking Of… The case for capping ALL prison sentences at 20 years
America puts more people in jail and prison than any other country in the world. Although the country has managed to slightly reduce its prison population in recent years, mass incarceration remains a fact of the US criminal justice system.
It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years. It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe.
In the 1980s and ’90s, American officials by and large believed the country was in the middle of a crime wave and an underincarceration crisis; they responded by increasing the length of prison sentences, enacting new mandatory minimums, and restricting the use of parole. Today, with crime rates lower, Americans more readily believe that the country has an overincarceration problem — one that disproportionately afflicts minority communities, as black and brown people are far more likely to be locked up than their white peers.
Given the impact that mass incarceration has had, there’s a strong case that the US should take steps to ensure that it doesn’t ever lock up so many people again.
Looking at the length of our prison sentences is one approach to reverse mass incarceration. Empirical research has consistently found that locking up people for very long periods of time does little to nothing to combat crime, and may actually lead to more crime as people spend more time in prison — missing big life opportunities for legitimate careers, and being incarcerated with others who have ties to the criminal world.
There’s also good reason to believe that 20 years is a good cutoff for a maximum.
Studies have found that people almost always age out of crime, particularly by their late 30s and 40s. If a person is locked up for a robbery or murder at 21, there’s a very good chance that he won’t commit that same crime when he gets out at 41.
Other countries show this can work. European nations tend to have shorter prison sentences than the US, and certainly fewer people in prison, along with roughly equal or lower violent crime rates. Norway in particular caps the great majority of prison sentences at 21 years — and its violent crime and reoffending rates are lower than the US’s. (The cap does have some exceptions, as I’ll explain later.)
A cap on prison sentences wouldn’t on its own end mass incarceration. But at least tens of thousands of people in prison would benefit now — if the change were applied retroactively — and untold numbers more would benefit in the future if it were adopted by states and the federal government.
Read the story on Vox
Sponsor/Host LGBTQ+ Asylum Seekers
Regrettably, LGBTQ+ individuals who are fleeing persecution, violence, and discrimination in their countries of origin present themselves at the United States border, only to be detained indefinitely in traumatizing, neglectful conditions for the duration of their asylum proceedings.
The Santa Fe Dreamers Project, in conjunction with Diversidad Sin Fronteras, Freedom for Immigrants, and other immigration and LGBTQ+ advocacy groups are actively seeking and training individuals willing to act as sponsors, hosts and members of Community Support Networks these asylum-seekers. Sponsors and hosts help by providing free housing and support to asylum seekers who identify as LGBTQ+.
Sign up here >
California Women Lawyers Scholarship
The scholarship is awarded to a law student committed to issues affecting women and children
Apply here >
Law School Admissions Conference at UCLA
La Raza Law Students Association & For People of Color, Inc.
This event will provide attendees with a comprehensive overview of the law school application process. Current law students and administrators will provide advice on how best to navigate the law school application process. Continental breakfast and lunch will be provided.
RSVP: Registration is required. This event is free and open to the public.
When: Saturday, March 2, 2019, from 8:30 am to 5:00 pm
Register here >
Work for Legal Services for Children
LSC seeks an attorney to represent children in immigration proceedings. Clients will be living in the community in the Bay Area or in the Federal Foster Care program in Solano county. Clients are primarily monolingual Spanish speakers. We welcome applicants at all levels and provide opportunities for training and leadership.
Apply here >
Work for California State Government
Governor Gavin Newsom has expressed a commitment to having his administration reflect the diversity of the great state of California. He has requested our help to ensure that the incoming administration has a broad, inclusive, and reflective pool of talent from which to draw.
The goal of this portal is to increase the number of people from underrepresented backgrounds applying for positions in the administration, and to increase their visibility during the application process.
Apply here >