by Ed Kroll, OCDLA President
From the April-May 2016 issue of The Oregon Defense Attorney.
“We should have attacked them harder!” “We should have respected her privacy!”
Those are the two most common refrains I heard recently, once an ill-advised, offensive Facebook post of a Washington County deputy district attorney became public.
The post, which made the rounds on social and news media, appeared to rather blatant racial profiling, telling readers that when looking for a terrorist, a young Muslim male would fit the bill; that when looking for a gang shooter, a young black male is the likely culprit; and when seeking out a child molester or mass shooter, look no further than a white fellow. These statements were followed by the phrase, “It’s just common sense.”
As a person and a criminal defense lawyer, I don’t understand how anyone could read those words and believe them to be innocuous or meant to foster discussion. It would be one thing to make a post with objective statistics arguing the point, but to paint with such a broad brush and call it common sense seems to lack...common sense.
The question then became, how do we respond, both as an organization and as people? Without question, the posting was offensive. At best, it was an ill-advised piece of political commentary that completely missed the point. At worst, it was a chilling statement from a person whose job is to decide who to charge, when to charge, and what to charge.
On behalf of OCDLA and Washington County defenders where I practice, I wrote to elected DA Bob Hermann the day that this post came to light. If anyone wishes to read that letter, I am happy to share it. The letter was reported in part by various media outlets, and asked DA Hermann to condemn these types of sentiments in the strongest possible language in the strongest possible way.
The story broke in the media the next day, and everything entered the public sphere – the original post, the strangely written explanation, everything. The prosecutor’s Facebook was apparently inundated with messages, both for and against, and I have no doubt that many private messages were sent as well. From what I can tell, the prosecutor no longer has a Facebook profile.
As author of the original letter, and because I’ve somehow managed to become President, it rather seemed it was my job to respond. I ran the media gauntlet, and several heavily edited interview clips headlined Tuesday’s evening news.
At that point, I received a lot of feedback from members, ranging from praise to dismay to everything in between.
Some asked why I was not more forceful? Why did I not call out for systemic change (or failing that, the prosecutor’s head)? Some asked why the prosecutor’s private, off-hours Facebook post was not left that way – private – and why I felt the need to comment on it.
It reminded me a bit of Goldilocks stumbling into the Three Bears’ house, but instead of eating porridge and falling asleep, she instead discovered the Bears’ op-ed responses: “This response is too weak!” “This response is too strong!”
I don’t know what the Just Right Response is. I doubt I’ll ever know. But here are my thoughts.
We, as an organization, have a duty and an obligation to speak for those accused of crimes. Great and small crimes, black and white skin, and everything in between. We speak for those who have neither the voice nor the wherewithal to defend themselves. This is what we do.
We are rightfully outraged when the prosecution refuses to listen to reason and jumps to conclusions.
We rightfully mourn when a person is sentenced to an unduly harsh sentence.
We are rightfully puzzled when the prosecutors tell the public, “Trust us, we know best,” when it comes to grand jury testimony, and then a prosecutor makes a statement calling racial profiling “just common sense.”
I could take the rest of this column to stand on the soapbox and toss out some red meat. I doubt there are any among us who were not turned off by the prosecutor’s comments. But I don’t need to preach to the choir. We all believe in our mission or we wouldn’t be here.
It would have been easy, both in the letter to DA Hermann and to the media, to call for blood. To demand retribution, in terms of the prosecutor’s job. I won’t lie – part of me wanted to. The sentiments expressed in the original post – explanation and apology aside – were terrifying. Calling racial profiling “just common sense” is mind-boggling.
But what would calling for the prosecutor’s head have done? I think it would have made us as bad as them. It would have been the same as when they judge our clients guilty and they refuse to listen to our mitigation. We’re better than that. I hesitate to say “We’re better than them,” but...hey, extrapolate all you want.
In the end, I tried to condemn the statements and the sentiments, but not the person behind them. I’ve worked with the prosecutor in the past and always found them to be fair. Washington County colleagues have echoed these sentiments, almost uniformly.
In edited / removed parts of the media interviews, I spoke at length about how powerful the prosecution is in the justice system. No one else has the power they do. That’s where the narrative lies - not with one prosecutor but with them all. Getting rid of a single prosecutor would do nothing. Calling publicly for one person’s firing - well, “That response is too strong.” Also, practically, the termination of one prosecutor would do nothing for our mission.
That brings me to the second point – why not just let it lie? Why did we/I comment? Why wasn’t the prosecutor’s privacy respected? Well, “That response is too weak.”
Frankly, I don’t know what action or response, if any, DA Hermann planned to give. Whatever it would or would not have been, it was preempted by the media attention. In unaired parts of the interviews, I expressed hope that other elected DA’s would issue statements, or even a joint statement, condemning the posted sentiments. That was probably pie in the sky – I can’t imagine ODAA actually issuing a statement that agrees, even in small part, with our views.
But the fact remains that these issues had to come to light and be talked about. Privacy aside, any prosecutor, at all times, represents the State. They are oh-so-fond of telling juries that they speak for the people.
So, that’s how we use this. We don’t call for the prosecutor’s firing. They are a person. They are someone’s parent, someone’s child, someone’s loved one. But we attack the idea in any and all ways.
Talk to your jurors about this in voir dire. Whether in Washington County or not, ask your jurors if they read about the story. See what they think. See how they view the power of the prosecution. Would they approve of sentiments like this?
Take control of the narrative, and box in your opposing prosecutor and make them condemn the statements, on the record. Don’t let it be forgotten that systemic racism is present in the justice system. Don’t just let this event fall by the wayside.
But we also don’t need the original uttering prosecutor tarred and feathered in the town square. We’re better than that.
I know I’m not pretty enough to be Goldilocks, and I can only hope I’m smart enough to lead our organization for the next few months, but to me – this answer is just right.
Epilogue: This event further illustrates the need for contested prosecutorial elections, if for no other reason than to encourage public debate about justice topics including racial profiling, police shooting, diversion, sentencing discretion, specialty courts, juvenile shackling, the death penalty, drug residue cases, and grand jury recording. In that vein, a special shout out to three OCDLA members who risen to the challenge: Tim Beaubien in Harney County, Clayton Tullos in Lane County and Jon Springer in Wheeler County.
OCDLA Board President Ed Kroll practices law in Hillsboro.