Saturday, October 31, 2015

Judge Yeakel's Senior Moment

            There was a time in the South when black people looked to the federal judiciary for succor. We were having problems at the county courthouse, you might say, registering to vote, serving on juries and the like, so we hired lawyers or lawyers volunteered their services and took our cases to the federal courts where we very often won. Today in the Texas capital the problem is different. We’re still having issues at the county courthouse, an exceptional number of prosecutions of minorities versus whites, for example, but today in front of the federal bench in Austin we lose. We’ve been losing for some time.
            Last week U.S. District Judge Lee Yeakel issued a stunning but expected decision. He quashed the indictment against former Austin police detective Charles Kleinert for manslaughter, in a case from two years ago when Kleinert chased down and shot dead, with a bullet to the back of the neck, an unarmed black man named Larry Jackson. Jackson was apparently attempting to run a scam on a bank when he met Kleinert, who was serving on a federal task force. A chase ensued. Kleinert said that when he caught up with Jackson he lost control of his gun while trying to club the suspect with his fist.
Federal law allowed the quashing of the county indictment if the judge didn’t see anything wrong and that’s what Judge Yeakel ruled, basically, that former Det. Kleinert was just doing his job. Apologists in the media, among them American-Statesman columnist Ken Herman, have cited case law that gives a federal judge power to make a similar decision. First, to deal with Herman’s contention requires only a look at Herman’s own background and his own biases. He’s Jewish, which is a wonderful thing, just as being black or Hispanic or Polish-American is. But if this were the case of a Muslim officer who “mistakenly” shot an unarmed Jewish suspect point blank from behind, and was the latest in a string of shootings of unarmed Jewish men by Muslim peace officers, one can assume Mr. Herman’s opinion would be different. Let’s hope that kind of violence never happens to Jews however because that would be yet another blow to equal protection in policing in Austin, Texas. In any case, to move on to the meat of Judge Yeakel’s thought process, things just got out of hand in normal police activity. A mistake was made and Larry Jackson died. There’s a lot you can say about the Kleinert ruling but the most important thing to say is that the judge is wrong. As is the American-Statesman. This is actually the latest in a string of bad rulings for minorities attempting to challenge the white power structure in the Texas capital, especially the power of the police.
Last year, in a much talked-about ruling in the courtroom of Sam Sparks, who is the other regularly-assigned federal judge in Austin, a jury awarded $1 million to a Hispanic gentleman who was beaten and Tasered by two white patrol officers after he called 911 to report suspicious activity. Sparks, who has been a fixture on the Austin legal scene since his appointment to the federal bench in 1991, and who is known for a folksy temperament, and a mean temper, said he did not believe there was reason for punitive damages. He cut the award to $50,000. Sparks was wrong too. Before explaining why, let me say that this will not be a partisan argument. Yeakel is presumably a Republican, yes, an ex-Marine who looks like an ex-Marine, who served as a state appellate justice before being appointed to the U.S. judiciary by W. Sparks is a Democrat, he likes to tell people, the only Democrat appointed to the federal bench, he says, by Bush senior. He was managing partner of a silk-stocking El Paso law firm before that. So it’s not about party affiliation. There’s another dynamic at work here entirely.
            It helps to build my argument by noting a little bit about the recent history of the federal judiciary in Austin. Forty years ago there was only one U.S. trial judge in town, named Jack Roberts, a toad-like little man who had been a LBJ crony back in the day. The prior federal trial judge, Homer Thornberry, was a former Travis County district attorney and local congressman before becoming judge, and had by that time moved on to the court of appeals in New Orleans; before leaving for the appellate bench, Sam Sparks was his clerk. Anyway, Jack Roberts lived an unexceptional life in the courthouse with one exception: his son, nicknamed “Little Jack” was hired as a political operative by the most feared and most-pursued state official of the era, Bob Bullock. The rumor was that Bullock, who didn’t miss many tricks, hired Little Jack in order to avoid the attentions of the FBI. No matter how big an individual FBI agent’s balls may have been, the likelihood that the Bureau was going to open an investigation that might reel in the son of the only federal judge in town was extremely limited. Nor was this mere cronyism. Little Jack turned out to be a very talented political operative in his own right, and this story is mentioned here only to illustrate that federal judges may be gods, as the saying goes, but they’re not saints. Their decisions can be parsed, their “calls" questioned, just like yours and mine. And not just by the Court of Appeals, which is usually concerned with how the law is applied. Determining the facts of the case is usually up to the trial judge and that’s where we’ve been losing in Austin. That’s where we lost in the Kleinert case: Judge Yeakel made a God-like determination about the facts, but more on that in a moment.
            The next federal judge in Austin after Jack Roberts was named Jim Nowlin and he made what is probably the single most disastrous decision for the minority community in town. Nowlin was a Republican, a state legislator from San Antonio, appointed to the bench by Ronald Reagan. Thirty years ago, refusing to order single member districts in the Austin city council, in order to protect minority voting strength, a step that federal courts were taking in municipalities across the country, he allowed the continuance of the “gentleman’s agreement” that permitted the selection, by the city’s upper crust, of an “acceptable” Hispanic and African-American candidate to run for the two seats set aside for, respectively, those demographic groups. It led to tame representation, blacks and Hispanics elected at-large, for decades, who were more beholden to white voters in this majority white city than to the interest groups which minority candidates were elected to represent. The result has been, over the succeeding years, the almost-complete gentrification of East Austin, without complaint by minority officeholders, and the relentless, year after year, shooting of generally at least one unarmed black man by police officersoh, every twelve months or so. We’re due this year, by the way, so if you’re a black male and out and about on city streets you may want to avoid anyone in a uniform this holiday season, unless it’s Santa.
Lately, eschewing the prior effort to get the district attorney’s office to indict officers for these killings, attempts at justice have moved to the federal courts, to no avail. A couple of years ago, in a case also heard by Judge Yeakel, involving another unarmed black man shot by white police, these efforts also came to naught; it probably wasn't a good sign that Yeakel praised the police chief in the middle of the trial. That Judge Yeakel saw no intentional wrongdoing on the part of Det. Kleinert, who ignored department policy regarding unsafe chases, is probably true. Judge Yeakel just doesn’t see what the African-American community sees.
“The court carefully observed Kleinert’s demeanor when testifying,” the judge assures us in his most recent opinion, adding that he didn’t even have to hear testimony in the case but magnanimously did, “and has equally carefully considered his testimony and considers his testimony credible. Any variations between his in-court testimony, his affidavit, and his grand jury testimony are insignificant. To the extent variations exist, they are what the court would expect when a person is called to testify several times under different circumstances and questioned in different contexts. The court finds no attempt by Kleinert to materially alter earlier testimony or to mislead the court. The court finds no guile in his testimony. Kleinert’s testimony was straightforward, direct, consistent, and without evasion. The court finds no contradictions in Kleinert’s testimony about what occurred from the time Kleinert arrived at the bank until he phoned police dispatch to report that he had shot Jackson. Further, the court finds no evidence nor any suggestion that Kleinert ‘acted because of any personal interest, malice, actual criminal intent, or for any reason other than to do his duty as he saw it.'” Kleinert should not be tried, in other words, he should be given a medal. Race was not an issue and need not even be discussed, per Lee Yeakel. Judge Yeakel, in his omniscience, sees what only God—and federal judges—can see.
 That Judge Sparks also has skewed vision also seems likely. One of the officers, in the case for which Sparks found no evidence to warrant extraordinary damages, had killed an unarmed black suspect in a chase a year earlier, to outcry in the black community. The week before Judge Yeakel issued his ruling in the Det. Kleinert case, that same officer from the Sparks case was suspended for ninety days for provoking and Tasering yet another minority suspect. Federal judges, even though they may be gods, make mistakes too, it seems after all. Defense of Yeakel’s ruling in the Kleinert affair emphasizes the law that is used to quash the indictment. Certainly it exists, no one questions that. But what Yeakel and the American-Statesman argue is that we can take for granted that Kleinert, although he may lack judgment and doesn’t know how to handle a firearm, acted in good faith. In the minority community we’re not willing to concede that argument. That’s not the belief among blacks in Austin for whom this is just the latest case of cops acting “in good faith” and leaving dead black men in their wake. A black judge listening to Det. Kleinert’s testimony might have just as easily found Kleinert to be unreliable and any discrepancies disturbing. A different judge than Lee Yeakel might have concluded that to the degree Kleinert’s story was consistent, it’s because he’s had so much time to practice it.
Let’s suppose a different theory than Judge Yeakel proposes, one that explains why African-Americans might “like” Charles Kleinert for the role of a racist killer. Kleinert was an aging detective, with a colorless career, who saw an opportunity to be a hero. The officer involved in the chase and killing the year before Larry Jackson was the now-infamous Eric Copeland, who just got the 90-day suspension. In 2012 Copeland was feted as a hero for chasing down and killing Ahmede Bradley, over a loud music complaint. Descriptions of Kleinert’s pursuit point to the same dynamic at work in 2013, a cop ignoring the manual with an unarmed non-violent suspect. You don’t even have to say Kleinert’s a racist, although many of us would. It’s just coincidence, Judge Yeakel tells us, that it was once again a white cop and an unarmed black suspect.
            There may not be justice from federal judges but there is, it seems, justice for federal judges. The key is you have to weigh what they do on the bench together with what they do to get on the bench. A case in point is Rob Junell. Junell was a Democrat, the powerful chairman of the Texas House Appropriations Committee when W came to power as governor. Junell was one of the last Democrats standing in state government at that time and he could have made W’s life hell as governor. Instead he rolled over, allowing outrageous cuts of social services for example, making the new Republican governor look good, supporting Bush’s claim to being a bipartisan leader and an attractive candidate as president—and the rest is history. Junell got his payoff when he was appointed by President Bush to the federal bench, sitting in Midland. And there is karma apparently, what goes around comes around, because Junell just finished a rough ride in West Texas. During the recent oil boom, Judge Junell’s area of the state became a kind of Meth Alley, and at one point Rob Junell had the busiest federal courtroom in the country. Literally, statistically. He just recently went to senior status, a kind of semi-retirement for federal judges, after something more than a decade on the bench. Looking tired and worn-out, he hung up his gavel. One can only wish the same future—soon—for Yeakel and Sparks. Not exhaustion, but senior status. Both of these men are beyond service to the entire community they are supposed to serve.
Both Sparks and Yeakel have made headlines in recent years trying to curb some of the craziness coming out of the Texas Legislature, regarding women’s rights among other issues, but as regards race they are products of their times, which have passed. Sparks is in his mid-70s and Yeakel is only five years younger. Presumably the recent disclosures about police misbehavior across the country—if these two judges were to accept the news, which they have not—would turn upside down their world views. Both grew up as white men in an era of white male privilege that was not even questioned. Professionally, for them the rock bottom foundation of jurisprudence in this country, the presumption that the police as a general rule do not treat minorities differently than whites, has been shown to be a lie. Both judges are in denial. They will go to senior status soon enough, one hopes, but still refusing to believe anything is wrong because to accept any other theory is to throw their entire lives as judges into doubt. It’s not that Earl Leroy Yeakel is an Okie (he’s from Oklahoma) or a hick, it’s that he is at an age where he is unlikely to start believing anything that would leave most of his life’s work on the bench in question. It’s not that he and Sparks are racist. It’s that they are old men, specifically old white men for whom the world has been turned upside down. It’s not that they don’t understand. They can’t understand.
            There may be justice coming for African-Americans and Hispanics in Austin, however. All these judges, Junell, Sparks, Jack Roberts, Jim Nowlin and Lee Yeakel serve or served in the sprawling and infamous judicial subdivision known as the Western District of Texas. Centered in San Antonio, the Western District covers Waco, Austin, Del Rio, and stretches to El Paso and Midland. Alpine and Pecos, too. The newest judge in the district, appointed by President Obama and confirmed just this year, is Robert Pitman who was U.S. Attorney for the district until his appointment to the bench. Pitman will serve half the time in San Antonio and half hearing cases at the new Homer Thornberry U.S. Courthouse in Austin, with Messrs. Yeakel and Sparks. Pitman is no pushover and he’s no bleeding heart. Like the president he served as a prosecutor, Pitman has eschewed the death penalty but made a clear distinction between civil liberties and civil rights, which means as U.S. attorney he wiretapped any phone he could get his hands on: but to fight crime he has preferred earphones to the needle, you might say, and that’s an improvement. And there are already indications, his lack of civil liberties credentials notwithstanding, that Robert Pitman may be the kind of judge that blacks and Hispanics will learn to appreciate in Austin.
            He’s gay. Pitman is said to have been the first openly-gay U.S. attorney in the country and is one of the first openly-gay sitting U.S. judges. That doesn’t imply he’s a “liberal,” whatever that means anymore, and that blacks and Hispanics can suddenly sleep easy in the Texas capital city. What it means is that he has a single qualification that Sparks and Yeakel do not. He knows what it’s like to be different in mainstream society and that the claims that everyone is treated equally in our society are often false. In fact, if he felt that way as a gay in Texas, he also has had the idea drummed into him as a student abroad. Pitman has a master’s degree from Oxford in human rights. None of that assures anything, although for blacks it’s somehow more reassuring than Yeakel’s service with the Corps in the Sixties, or Sparks’ time at a rich law firm in El Paso. Indeed there’s already one concrete indication that Judge Pitman, for the purposes of minorities in Austin, is a different man than the men he joins on the Austin federal bench.
            In 2012, after the Ahmede Bradley chase and killing, and after publication of data showing that the Austin cops were targeting minorities (see prior posting, “They Shoot Niggers, Don’t They?”) Austin city manager Marc Ott, who is black, asked the Justice Department to look at bias in his own police department. The federal government refused, but the decision was apparently made by the Civil Rights Division in Washington over the objections of the local U.S. attorney, Mr. Pitman. The context of the decision is important. This was before Ferguson. Attorney General Eric Holder had been slapped down at the beginning of the Obama presidency for his suggestion that Americans were unwilling to hold a real conversation about race—a contention by Holder that now seems like famous last words.
So, Pitman’s arrival in Austin, wearing black robes, seems like a good thing for minorities, although there are no assurances from case to case how the facts will be viewed and how the law will be applied. Still, if we have to take our chances in federal court it’s a better chance, it would seem, with Judge Pitman than with Judge Yeakel.

M.T.


(Mbeki.Townsend@gmail.com)

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