Friday, July 22, 2016

Texas Noir

It’s docket call in the 331st District Court, Judge David Crain presiding. Court is scheduled to begin at 9 a.m. and Judge Crain blesses us with his presence at ten minutes to 10. The sign on the front door says no drinks and no telephones allowed. The judge is carrying his coffee when he takes to the bench and he continues to sip until his cell phone begins to ring. Welcome to the Travis County criminal justice system. There are rules—but they may not apply to you.
It was interesting to watch a few weeks ago as one of the other district judges, Cliff Brown, negotiated a payment plan with a defendant. It lasted almost 10 minutes, like a session with a bank loan officer. “Can you,” the judge asked, “do $100 a month?” For some of the defendants $100 per month is a lot, they may have been stealing in the first place because they are poor. Two of the district judges have a reputation for actually throwing defendants into jail for missed payments. In that case the court doesn’t get their money either, by the way. A lot of what happens in the courtroom may depend on what the prosecutors heard while listening to the defendant’s personal telephone calls from jail, from the night before. You know, whether to go for the jugular or not. Much of the punishment can actually be financial and much of that happens before there’s even a verdict. It’s a system, more like a mechanical process than anything else, a machine that must be fed and in this county what it usually consumes are black people and Mexicans.
 Those ankle monitors that everyone seems to like, that the judge can order to show he or she has done something? Even if unnecessary—the person is not a real flight risk, or a threat—as one judge explained in chambers—the monitor costs the defendant $330 a month and he hasn’t been convicted of anything yet. The fees alone are murder and that’s before the judge levies a fine. It’s said, this is purely rumor, that the City of Austin also makes a killing on these folks, on the morning of docket call, by sending out parking wardens to ticket the cars of defendants on the streets near the Blackwell-Thurman Criminal Justice Center, because the courthouse doesn’t have any parking for them—and parking enforcement managers know the courts always run late. My personal favorite in the how-to-screw the poor and uneducated sweepstakes are the poor bastards who’ve been waiting and waiting and waiting for their case to be called and step outside the court, to make a call, and then go out on the grass to have that cigarette they’ve been craving—this is a smoking population—and that’s just when the judge calls their name. Bail revoked. Warrant issued.
Judge Crain doesn’t require the defendant to appear at all hearings—if they have a job or family commitments for example, as long as  their lawyer is present—you can say that much for him, more than anything else he looks bored on the bench. He’s been a judge a long time, he’s just part of the machine and at least he’s not wrapped too tight: that would be Judge Julie Kocurek of the 390th District Court who someone recently took a shot at but is now back on the bench with a bodyguard next to her—and a mouth on her. Judge Kocurek was first appointed by W when he was governor back, back in the day, she was a Republican then and it’s hard to imagine anyone dealing with the stress of being a crime victim less gracefully than Her Honor.
“I need to see him! I need to see him!” she told her courtroom recently, visibly distraught at her own docket call, in between revoking bail and issuing bench warrants for people who didn’t need to be there, either. She likes to see everyone in person—apparently like it’s a test. As a South Asian defendant—a Mr. Khan—approached Kocurek’s bench one recent morning, smiling because in his country of origin apparently people smile more than do white Texans like Judge Julie, God forbid—out of fear, for example, or in the presence of power, Kocurek let fly: “What are you smiling at? Do you think this is funny?”
Walking back to his seat Mr. Khan, obviously shamed, said by way of explanation to his attorney—you could hear him in the first row of seats—“I always smile!” He was smiling as he said it. Welcome to the Travis County Courthouse where your culture can influence your outcome.
“If it’s anything involving violence . . . .” a black defense attorney explained outside Kocurek's courtroom, noting Her Honor’s recent close encounter with a nine mil—which the police are ascribing to a black male “person of interest,” the daily newspaper called him, whom the judge had threatened with prison for a non-violent offense, not that that’s an excuse, more an explanation of what a brother may have been thinking if he squeezed the trigger on Her Honor. What it means for defendants, especially minority defendants appearing before this wounded woman, “she’s going to send you,” the black lawyer said, as in send to prison.
Before the next question could even be asked, however, he caught himself and added, “Of course she was like that before.” Gallows humor aside, there’s a sense even among the people who work in the Travis County Courthouse, in the liberal mecca, the capital of Texas, that it’s a dysfunctional environment and a particularly punitive one if you’re poor or a member of an ethnic minority, like Mr. Khan. And which would actually include most of the people seen in our felony courts, actually. That’s probably true of all courthouses in the country but we live in a city where it’s not supposed to be like that. River City is better than that, or so it’s said.
Of these eight felony courtrooms, five of the judges—Kocurek, Kennedy, Sage, Brown and last but not least Wil Flowers, who was the first black assistant D.A. and the first black district judge and is officially retired but still hears criminal cases as a substitute—are of the hanging variety. And like the system they administer, they prefer Negroes and Hispanics, too. So, there’s a problem with six of the judges, if you include David Crain who is mailing it in. Kocurek is racially-challenged or unbalanced, whatever the cause, Kennedy is on a mission, Cliff Brown is an Uncle Tom and Wil Flowers is what can charitably be called an old school Negro, who made his way in the courthouse by selling out his race, too, but on a more fundamental level than Judge Brown who is merely an opportunist. Jim Coronado, the only Latino on the criminal side, was just defeated in the Democratic primary by a white female defense lawyer who didn’t like how he handled a case. He outspent her five to one, had been a judge in this community forever and still got beat.
Karen Sage, the fifth of the prosecution-minded felony judges is a garden-variety white female prosecutor, most of the big-city D.A.’s in Texas are now women and it’s hard to see how they’re any different from the men, Sage is now on the bench doing the same thing she did in years past as an assistant D.A. under Ronnie Earle, sending the Black Man to prison. Even though Kennedy, Brown and Flowers as African-Americans would be presumed—wrongly—to have some kind of sympathy for the colored defendant population, it’s just not true. In the cases of Brown and Flowers they are often described as being harder on their own race than on whites. Judge Kennedy is hard on everybody. Judge Flowers was quoted a couple of years ago, speaking of race relations, he comes from the Golden Triangle, that all that’s necessary is for people to get to know each other better, which means his thinking about societal dynamics in Texas is plantation-age. To the degree “disproportional” prosecutions and punishments are the fault of the judges—they say they’re not responsible, the judges say that the courts are not the place to approach fairer outcomes for minorities in the criminal justice system. Instead it’s at the time of arrest. Some worst practices began under Judge Flowers and have continued under his successor. Another African-American defense attorney said he prefers now to practice in Dallas because the judges are not as hard on minorities. If he has to try a case in the Travis County Courthouse he prefers one of the white jurists, Judge Clemmer, the lone Republican, “because he’s fair.” Recently for example Judge Brown seated an all-white jury in a capital murder case for an African-American defendant. Even a white judge would have thought twice. Judge Brown could have called for another jury panel, it’s his courtroom, especially after one of the potential jurors went on at length, in front of all the other potential jurors, about why the defendant was guilty—before actually hearing the evidence. 
Back in the day Ronnie Earle, whose name will soon appear on a county building housing prosecutors, ran the courthouse and among his assistants at different times were Wil Flowers, Rosemary Lehmberg who is present D.A., and John Dietz who recently retired as presiding judge of the civil courts. Earle’s assistants in his later years in office, called his dark period, not because of his mood but because that's when he was sending so many niggers to prison, included Cliff Brown, Karen Sage, Brenda Kennedy and Gary Cobb who was just defeated in the race to succeed Lemberg as D.A., thanks be to a merciful Allah. Brown, Kennedy, Cobb and Flowers, African-Americans all, have been responsible for some of the worst outcomes for blacks in the courthouse in our age. Racial equity in prosecutions is at the top of the list of BlackLivesMatter and other protestors, and problems with the police seem to meld seamlessly in Austin into problems with the courts, which is what’s happening in other cities too. Chicago for instance is being seen now as not just an example of racist policing but of prejudice in the courts as well. 
“I had no idea I would be a judge,” Brenda Kennedy told Austin Lawyer a few months ago when she took over as presiding judge from Judge Kocurek. Unlike Flowers and Brown, Kennedy seems to be hard by temperament, not because she expects white patronage in return. “When I went to work at the DA’s office I had a knack and a desire for trial work. I got to try a lot of cases and do a lot of things. And I enjoyed that. But once you try just about everything there is to try, you start looking for what’s next. I was having a discussion with my boss at the time, former District Attorney Ronnie Earle, about what my next career move should be. He was the one who encouraged me to be a judge.” Judge Kennedy is probably the single most feared jurist in the criminal courts—although she has mellowed recently, “just a little,” according to her colleagues. And this is regardless of personal experience: Brenda Kennedy had a well-reported Driving-While-Black incident a few years ago, pulled over in the wrong neighborhood somewhere out in the county. While Judge Brown who is also black was the city’s police monitor he didn’t find any substantive reason to disagree with the police union for years—when the same issues that are headlines today, killer cops and bad stops—were worse then than now. He’s as pro-police on the bench as he was as police monitor and as prosecutor before that, for Ronnie Earle, assigned to Wil Flowers' court. Wil Flowers swore Cliff Brown in as a judge and they both believe in the same kind of justice. 
If you walk the halls and talk to the lawyers today, only two judges on the criminal side, handling felony cases, get high ratings for fairness and hard work and neither of them, not to belabor the point, worked for Ronnie Earle. These two men are the least like their colleagues: Don Clemmer—the Republican who was appointed last year by Gov. Abbott and who invariably draws the same response from colleagues and from the bar, “He’s actually very good!” as if the fact that he’s a Republican means he couldn't work in a Democratic town. The other judge who is highly praised is David Wahlberg of the 167th District Court, who was a long-time defense attorney before running for the bench on a campaign platform of not being an ex-prosecutor like everyone else. Apparently it’s now the fashion, after Wahlberg’s success—he’s unopposed for reelection this year—two other defense lawyers just won Democratic primaries, campaigning on their experience from the defendant’s side of the courtroom. The system has been out of balance forever. Post Jim Crow the police chiefs, for example, have come and gone but the shadow of Ronnie Earle was a constant then and is still a constant now. This is the snapshot of today’s environment, the system you’re going through if you’re black or brown and you’ve been arrested by Austin police for a crime: A judge has been shot, or shot at, D.A. Rosemary Lehmberg’s legal troubles have made national news including the indictment of the Governor of Texas for alleged intimidation (one of the district judges said, by the way, his impression of the evidence in the case pointed to Perry’s guilt, but the Court of Criminal Appeals disagreed) leading to a warning from the judge who was shot, or shot at, to the governor to back off. The African-American sheriff who runs the jail and whose deputies arrested the district attorney, not that that’s important, is retiring because he cooperated with the feds on immigration enforcement, against the wishes of the community that elected him. A civil court judge was arrested for DWI on Barton Springs Road and prosecutors dropped the charge, something about the lab report on the blood-alcohol level. Most pertinent—more important than level of intoxication—she actually looked pretty hot in her mugshot, not that that’s important either—statistics from the state prisons indicate that of all the people being sent to Huntsville from “the liberal mecca,” Austin, Texas, about one-third are African-American in a town where the black population is lucky to scrape eight percent on a sunny day. The dreaded Republican-run Williamson County, our rustic and un-hip neighbors to the north, under departing D.A. Jana Duty has a better record, statistically, in obtaining justice for minorities than does liberal Travis County. How did that happen? Everyone is looking for a fall guy. It’s an Austin tradition, you don’t have to solve the problem but you do need to find someone to blame it on. 
Former Judge Charlie Baird was mocked a few years ago when he first began to question the nature of outcomes handed out in our courthouse, the very thing that everyone is wringing their hands over now. He formally raised the issue when he ran against Rosemary Lehmberg for D.A. four years ago. Baird’s approach in obtaining justice for minorities was noted favorably in the New Yorker a few months ago, in an article that praised both Judge Baird and Gov. Perry who, when he was on the side of the angels—which may not have been as often as we all would have liked—it was often about race, in this instance involving a black defendant in Lubbock who was wrongly identified as a rapist. The guy died in prison but his name was cleared, if that means anything. Today Judge Baird says that those who wring their hands trying to square the city’s liberal reputation with the fact of disproportionate prosecutions of minorities are chasing their own tails. It’s impossible to do.
“Austin is the liberal mecca in so many areas, ” he says, citing the environment, gay rights, the arts, “everything except criminal justice.” This issue of disproportionate prosecutions for minorities has a powerful new proponent: During a brief interview at a campaign event, Margaret Moore, the Democratic nominee for D.A. said that a review of racial disparities in prosecution is “at the top of my list.” She’s another one of Ronnie Earle’s former assistants, from back in the day, when Earle was still on a mission and before he was corrupted by power. Moore has been away from the courthouse for many years, which is a good thing, working in the AG’s office with the Republicans, which is also a good thing. As her top investigator—if elected—she’s promised to hire Mike Lummus, a former president of the Austin police union and, in a more general sense, a good guy. “Good guy” is a vague description, admittedly, but may be a big plus in the present policing environment. Because it’s a mess right now in the Blackwell-Thurman Criminal Justice Center. The reasons are race, class, bad practices and laziness.
If you ask the judges on the criminal side about the outcomes they’re producing, those who will discuss the issue at all report a disquiet about jailing so many minorities and sending so many to prison. But as one judge noted, “We’re not social activists.” The courts can only play the cards they’re dealt, he said, in terms of cases and defendants. This particular jurist pointed to arrest not trial as the place for correcting the system. “If I send them to prison,” said one of the hanging judges, “there’s no chance at rehabilitation. Let’s take that as a given from the start.” Which raises the obvious question: why are you doing it? The judges point especially to the police station as the source of the problem and also the location of the solution. Arrests are where the system must change first, to say nothing of the shootings of unarmed black men which the police in Austin, Texas, the liberal mecca, are also famous for. Which means unjustified traffic stops and searches of minority motorists have to end too, or come down to a community-agreed level. Despite the primacy of the police roleeveryone seems to have great hopes for the presumed new district attorney, Margaret Moore, who is walking on water as the newbie. It’s said that one of her first edicts after winning the Democratic primary was that she won’t accept campaign contributions from any assistant D.A.s, which may mean that heads will roll. The point of praising Margaret Moore now also seems to be to lock her in. The Nobel Prize Committee did something similar to Barack Obama not long after he was elected—premature praise—just after he was sworn in as president, giving him a peace prize he had not earned in order to make sure he stayed on the side of the angels. So, too, one hopes—Margaret Moore. If we praise her as a moderate with a conscience when she enters office, perhaps she’ll still be one when she leaves. Hopefully the heavy hubris and surfeit of self-satisfaction here along the banks of the mighty Colorado—in the Live Music Capital of the World—won’t corrupt her as it has Ronnie Earle’s other former assistants.
But we have insurance. There’s a different big man in town these days, who has replaced the D.A.'s Office at the center of the criminal justice system. A handsome stranger rode to our rescue. In fact, he’s been here almost a decade already and no matter how bad it is, it’s gotten better since his arrival. Or not gotten worse, which is the case elsewhere. Now it’s up to Police Chief Acevedo more than any one other individual, more than the D.A. or the district judges, who must solve the problem of disparate enforcement against minorities and try to stop disparate prosecutions at the courthouse. It’s a tall order. In an uncertain age he’s become the adult in the room, together with Marc Ott, the city manager. Ott and Acevedo had words recently—you might say—the chief walked away with a suspension, everyone was under a lot of stress, there’s more now, but these two men, one brown and one black, as corny as it may sound, have worked together in the past. They both received the instructions from the Justice Department, in 2008, about how to fix policing in this city—some of which has been done and a lot which has not.



There’s one historical incident and one fact of life that are important in understanding the dynamic of policing in the city. The cops are rude. Which is one of the few things both the chief and the union agree on. One possible reason is that the public also has a mouth on it, this is a pretty high-brow community and talking back to a police officer when stopped, for whatever reason, has a certain appeal, especially among racial minorities. The problem with all the rudeness is that it’s also where interactions go bad. It’s hard to believe that a lack of courtesy can lead to gunfire but that’s a theory in modern criminology. The “incident” happened a long time ago and may also have a role in creating the troublesome dynamic for the police here today.
The year was ’80, or thereabouts, and at that time there was a bus station downtown on Congress Avenue about where the office of the Texas Tribune is today, if memory serves. And at that time the city had a vice squad for those behaviors that were not permitted, even among consenting adults. One day two undercover vice cops made an arrest in the bus station, for a behavior that today would probably be considered the business of the person involved—it was something about a hand on a dick, in the bus station men’s room, a block from the Capitol, and at the time was a crime and called, colloquially, “weenie-wagging” but may have been more weenie-holding or an offer to hold, which was also illegal between men at that time in the state of Texas. What’s important here is that the arrested suspect turned out to be the chairman of the Texas Pardons and Paroles Board. Who had friends in the upper ranks of the police department.
And the next time we saw the two vice detectives—shortly thereafter—they were still on Congress Avenue but in uniform, doing parking enforcement, riding three-wheelers. The point here is there are a lot of VIPs in this town, Austin probably has more powerful and rich people per capita than anywhere else in the state, and when the police have done their jobs, on DWI arrests for example, there’s sometimes been blowback for the officer who made the collar. Every year, or every couple of years, a major official gets popped for drunk driving—it’s usually during legislative session, or it seems that way—D.A. Rosemary Lehmberg was the last but by no means the first, this is a hard-drinking town. 
One of the district judges with criminal jurisdiction mentioned recently that when Chief Acevedo is questioned about the department’s approach to law enforcement in the minority community, Acevedo invariably talks about his support from black organizations like the NAACP and Urban League. Indeed the NAACP protests police shootings but on its website has pictures of Chief Acevedo at NAACP events. How cool is that? Ideologically-speaking—speaking as a Black Nationalist, for example—the correct take would have to be that Chief Acevedo is a "pig," doctrinally-speaking of course. As chief in fact he’s the biggest pig at the "pig pen," as offensive as that term may be to some. Those may actually have been the first words out of my mouth when we met. But he’s actually a pretty good guy when you talk to him. It’s not that Art Acevedo is hard not to like—it’s that Art Acevedo is impossible not to like. And that’s the point: Chief Acevedo talks to everyone. He’s on speaking terms even with the people who want to get rid of him, which included me. The guy is everywhere, “engaging the community,” which is a trite phrase but is still a pretty accurate description of what he does. And he was doing it long before Dallas or Baton Rouge which gives him credibility that some others don’t have.
When he begins a sentence, “As a person of color,” speaking of himself, it’s totally calculated on Chief Acevedo’s part, totally—but still a powerful message in this town which historically has been segregated even down to the city infrastructure, worse sewers and sidewalks on the eastside, to say nothing of worse treatment by the police. There’s an attitude here, especially in the Travis County Democratic Party and especially at the courthouse, that it’s a club, a closed shop, and people who are in are in: do as you’re told, keep your mouth shut and you’ll be rewarded. That’s how Wil Flowers broke in, for example, all anyone asked of him was that he send his people to prison and he did, that's how he became district judge. Chief Acevedo is now in the mix and he’s shown different judgment and has shown something approaching a moral center, for a cop. One of the frequent comments heard about Acevedo is that he’s looking for a bigger job somewhere else (he’s been a finalist both in Dallas and in San Antonio) and that he’s motivated by where he’s going next. But what ambitious person isn’t? Born in Cuba and raised in this country, a better description of Acevedo than "ambitious" is hungry. More important than where the chief is going next is where he’s coming from, California, where the job of police chief is much more political than we are accustomed to in Texas. Some sort of charm or media presence can be a prerequisite even for law enforcement in the Golden State. In Los Angeles, the longest serving mayor was a former L.A. police lieutenant, and black. A white former chief of LAPD became a long-serving California state senator and another black L.A. former chief just left office as one of the longest-serving L.A. council members and as an unsuccessful candidate for mayor. Other examples in California are even more analogous to what’s happening in Austin. The present D.A. of San Francisco is the former S.F. police chief. The longest-serving mayor in San Diego, of recent years, was the former San Diego chief of police. Chief Acevedo comes to us from a law enforcement culture where chiefs are political figures and if you watch him in public, giving talks to business organizations for example, meeting and greeting—there’s a lot of “engagement,” everything except kissing babies—which is how the chief became such a popular figure, while our prior chiefs have been more technocrats, when we were lucky, and old boys when we weren’t. In fact a high-ranking member of the union claims to have seen Chief Acevedo kiss babies. For a guy with a gun he has people skills that City Council members can only envy. The danger for him is they will become jealous first.
One of the judges who spoke to the chief directly about those bad minority arrest statistics, said that the Acevedo’s answers indicated he is very concerned with what the business community wants, as much as what the city council or the judges demand. Another judge who hangs defendants for a living suggested that if Acevedo is going to run for office—he was expected to run for sheriff, earlier this year, but his friend Sheriff Hamilton waited until the last moment not to run. Well, the idea is the chief is laying the groundwork for support from the business community, which will translate into contributions. That’s the theory and it may be correct. Acevedo’s been on the job almost a decade. He knows a lot of people and he knows a lot of secrets. He knows all the things that don't appear in your morning newspaper. He knows Austin. He would be a formidable opponent but he has a commitment to solve this problem first and judges who would talk said the police department under his leadership has improved, without a doubt—the question is, will it get where it needs to go in terms of some semblance of colorblind justice on Chief Acevedo’s watch? That is the question of the hour. Can he seal the deal in other words or will he split for greener pastures? Asked in a recent interview if he plans to run for office one day, the chief replied in a matter-of-fact way, “I never say never.”
He’s everywhere at once. If you look at his calendars for a few months you may learn as much about him as talking to him. There’s obviously quite a bit of cop-stuff in his daily life: A lot of time set aside for meetings with the assistant chiefs, “the fifth floor,” as it’s called inside the Department, which is said by some officials to be the location of many of the profiling problems, the old boys who ran the police department back in the day and some say still do. That’s what people at City Hall mean when they say, “the fifth floor,” and roll their eyes, believe what you will. Acevedo’s calendars also show an occasional meeting with the FBI assistant agent in charge and conference calls with Homeland Security, probably for all the big-city chiefs, threat assessments one presumes. He has to qualify with his weapon once a year but seems to spend more time than that on the range which may mean he’s expecting trouble or he's a cautious guy or both. This is important: If you look at his continuing education course transcript, available from the Texas Commission on Law Enforcement, he’s taken a lot of in-services, including on diversity—at last count more than Col. Steve McCraw across town, head of the state police who also has a profiling crisis. If bias in policing really is an education problem, it’s nice to see Acevedo has taken the same classes required of the troops. Chief Acevedo also seems to see in person the officers he’s going to suspend or fire, which is kind of ballsy, doing his own dirty work, but that may be a department custom, or a police thing. During the period in question, the three months last year covered by release of his daily appointments, he saw in his office the black community’s poster boy for Rogue White Cop in Austin, Texas—Officer Eric Copeland—who was first feted by the city and by Chief Acevedo as a hero, in 2012, when he chased down African-American motorist Ahmede Bradley and killed him in a struggle over a loud music complaint. Since then, Copeland began showing up in other high profile cases involving minorities and the chief said publicly he will be fired the next time there’s a justified complaint. There are media interviews during Acevedo’s day, obviously, and for the talking dogs of TV news he sometimes does it in Spanish. But that’s not what sticks out. Pick a day at random.
This one is a Thursday, last August, almost a year ago before so much blood started to run in the nation’s streets. For context, Austin P.D. was killing about one unarmed black man a year at the time, which is still the rate more or less today, give or take a dead Negro. (Not to worry, we’ve had ours for this year.) That Thursday the chief’s calendar reminded him that it was the day of a City Council work session, meaning he might be called in to answer questions. For an hour in the morning he met with the fifth floor. After that it was a half an hour in his office with a Google representative about the company’s self-driving car. Then another half hour, written in, with a note on stage management, as “Teddy bears from Austin Junior Forum—Chief Will Take Lead with Victim Services.” Next there was a "Back to School safety press conference"—two hours of birthday lunches for the troops—followed by a reception for the fired medical director of Austin-Travis County EMS. The day ended with a conference call, presumably threat-related but that's been redacted for public release. The same week, two days later, he came in on a Saturday to have a meeting with the mayor and the leader of the NAACP, which protests in front of the police station every time there’s a police shooting but seems to approve of Acevedo personally. Later that evening he did a ride along with an Alzheimer’s researcher, she was kind of a babe, in a scientific way—Google indicates—so it presumably wasn’t hard work.
People also report seeing Chief Acevedo at restaurants downtown during the day, when he lunches with his driver. He’s an outgoing guy. The troops say he knows them well. “He never forgets a face,” a sergeant working patrol mentioned recently, while waiting for paramedics to finish working on a guy who wasn’t going to get any better. You may think a lot of this is extraneous to his job leading the police department, catching crooks, keeping us safe—but suppose this is what he’s most needed for, to keep people talking in a community on edge. In a country on edge. Art Acevedo isn’t a hero, he’s a sign of the times. The job of police chief has been redefined and Acevedo was one of the first big-city lawmen to realize that. So, about this theory, though, that the chief’s weakness isn’t minority relations—that doesn’t mean he won’t take a fall, you feel me? It just won’t be about race or not directly. The idea is that whatever happens to him won’t happen on the Eastside but downtown, where he has a big blind spot. Ronnie Earle used to say he didn’t prosecute “sin” and Acevedo has said, basically, he doesn’t arrest it. But one of the judges mentioned the department’s heightened enforcement, for drugs and prostitution, for example, in the minority neighborhoods of northeast Austin—Rundberg Lane and environs—where blacks and browns have been pushed due to gentrification of old East Austin: arrests which are showing up in the criminal courts. Which the chief insists the community itself asked for, but the evidence on that is still out.
This judge, though, mentioned heightened enforcement downtown, also, which His Honor describes as enforcement that ends on the sidewalk. All those big hotels—all those conventions—all that sex, some of it paid for—and all those drugs—all that dirty money that could be seized, from white people especially during SXSW or ACL—everything happens just like out northeast, except the arrests. What is considered “sin” downtown is a crime in East Austin. People are doing the same thing in both places, but those on Rundberg Lane end up in front of Julie Kocurek when she needs to feed the machine.
“I re-started the vice squad!” Chief Acevedo insisted recently, rather defensively one must say. The vice squad was apparently disbanded by one of his predecessors, who sensed Austin’s drift in terms of consensual activity. Today the chief admits that the same behavior that people of color are getting busted for in northeast Austin does not normally result in arrests downtown. Gee. P.D.’s official explanation, the department’s rationale for disproportionate arrests, is that a lot of what happens in minority neighborhoods is happening in public, solicitations for example, “in the middle of the street,” in view of children—and that’s a fair explanation.
“Consenting adults,” chimes in the Department’s number 2, Assistant Chief Brian Manley—in a recent discussion of how this can be—because if you think about it, it’s completely discriminatory. The same behavior that puts blacks and browns in jail is tolerated in the big hotels among the affluent and mostly white. So, the theory is that could spell trouble for the chief because, clearly, it’s bad karma in a town where your karma is still believed to be your fate.
What’s going on downtown, you never hear much about it—you don’t read much about in on the police blotter, either. Have you noticed? Unless it’s Shia LeBouef being an ass on Sixth Street (he gets arrested everywhere) you never hear about it. You feel me? People may not have been arrested but that doesn’t mean P.D. doesn’t know what’s going on, up in the penthouse, especially if they do it on the balcony or roof—the police system of cameras downtown alone is worthy of the NSA. (If the chief offers you a tour of the room at P.D. where the monitors are, don’t take it—you don’t want to know.) It’s been effective, that’s a good argument, what has happened in Austin has happened year after year, only to people of color, shooting by shooting, not to white people and not all at once like in Dallas or Baton Rouge. But if the chief’s luck is going to change, if his karma is going south, it’ll be because something happened somewhere close to the river, that’s a good guess, between the Colorado and the Capitol, that’s the smart bet, you heard it here first. This town, the last ten years? Even the activities when people didn’t get arrested—especially the activities when people didn’t get arrested—shit can start in one of the big hotels, or end there, and in between there’s a body at a house out on the lake—Texas noir—that’s the Austin way, a body in a lake house, and we’re due. That would be a possible hit on the chief’s career, this is only speculation, because the karma is pretty bad. Or his numbers will catch up with him. That would be worse and is actually more likely. The City Council relies heavily for its numbers, for example, on former council member and LBJ School of Public Affairs Professor Bill Spelman who has repeatedly claimed, through the years, that policing problems in the minority community are not the result of any kind of prejudice on the part of the cops. Just two months ago he made a presentation at the invitation of the council’s Public Safety Committee in which Professor Spelman cited figures and his conclusion that frequent stops of blacks and browns are not the result of profiling. Who would agree with that assessment today? Only in a subsequent email did he make clear that his conclusion about police intentions was not drawn from the figures he presented, but was his own opinion, which is not the impression he gave in front of the Public Safety Committee. In any case it’s all about stats—numbers—figures. Liars can figure but it's rarer than figures lie.
Recently the Police Monitor, former Sheriff Margo Frasier, tried to present her stats to the Public Safety Commission, a different body than the council's Public Safety Committee which handles a lot of the nuts and bolts of public safety. Sheriff Frasier was shot down by the mayor’s representative, former Canadian police detective Kim Rossmo who is a criminology professor at Texas State. Rossmo was longtime chairman of the Commission, appointed by then-Council Member Spelman and—perhaps because he comes from a more homogenous racial environment like Canada—he has seemed to be a tad dubious over the years regarding minority complaints about police misconduct. Professor Spelman and Dr. Rossmo have been the intellectual forces behind policing in the city for a long time and until recently it’s been unclear how either man has contributed to any kind of solution. But Dr. Rossmo who is a smart guy has latched onto the root of a very important idea. The numbers need to be right. Bad stats are worse than no stats at all. Also, separately, P.D.’s data need to be made completely available to the Police Monitor which has not been happening—in violation of the best practices laid down for Ott and Chief Acevedo by the Department of Justice in 2008. This is not rocket science. But it does involve higher math. And for that the Police Monitor needs to have her own numbers-cruncher. Because that’s what Chief Acevedo has. His name is Alex Del Carmen and he's said to be Texas’s premier expert on racial profiling.
Dr. Del Carmen started the ball rolling earlier this year by dinging our department on identifying Latinos as whites. It’s a very common problem or tactic among Texas police forces and blocks any effort to break out stats on arrests of Hispanics. This is what the state police and Col. McCraw were very publicly busted for by a local TV station earlier this year. District Attorney Rosemary Lehmberg has also been describing Latinos as whites in her in-house statistical analysis, which they very well may be, but nonetheless giving no indication of how many Latinos she has prosecuted—which is a hefty number, based upon what you see in the courts. It’s all about the numbers. Austin’s are bad no matter how you crunch them if this is supposed to be a progressive city and not a segregated one. What everyone has been relying upon are communitywide stats, however, showing for instance how many blacks have been sent to prison from Travis County, versus the percentage of blacks in the local population. That’s kind of the sledgehammer approach. New techniques may point more towards individual police officers.
“For instance,” Dr. Del Carmen explained in a recent email, “if you have an officer that searched 1,000 African-Americans in a year but found contraband in only 3 searches, that would obviously constitute a problem.” Let’s see, what else—recently, Travis County was the only major metropolitan area in the state to decline to participate in a study of personal bond. Increased use of personal bonds would cut back on the cash bonds (read, bail bondsmen, who kick back a part of their bond fees to judges through campaign contributions) required so often now, which defendants must also pay for. Apparently, the study would have been conducted directly, with the investigators collecting and running their own numbersnot relying on Travis County’s Probation Department to do it for them. Whoever has control of the numbers controls the system. It’s all about metrics, who has the best figures—they don’t even have to be true if they look good—that’s what Mark Twain famously meant. You know how the cop takes your license and runs your name through the Big Computer during a traffic stop? The day will come when you can run the cop who has stopped you on your phone and see his record of arrests while he’s looking at yours. The union might not like it of course. Data is power.
One last note: Those two vice cops at the bus station? One of them was Mike Lummus, who will presumably become chief of the D.A.’s investigators. After the bus station bust—and after he got off parking enforcement—Lummus became president of the police union and in recent years has been chief in a nearby community: presumably he realizes there are bad cops and bad arrests. He’s a good guy, for a cop, as is Acevedo. Margaret Moore is a good person as is Rosemary Lehmberg, who just had some bad luck. Rosemary's defenders say that she never really wanted the job, we can leave it at that, except it's probably safe to say Gov. Perry's interventions did not help. City Manager Marc Ott took a lot of grief for suspending the chief of police but some of the success Ott has actually had in City Hall has been on race and on the police department. Suddenly it’s looking like the most important issue for the city, if it wasn’t already. The hanging judges are still a problem, many of the racial disparities in this community have actually been created by blacks ourselves, by Toms in black robes, but Judges Clemmer and Wahlberg are good guys, so everybody says. So, it’s a pretty good crew and maybe they’ll have some luck before Austin has its day from hell and the blood starts to flow.


Friday, July 8, 2016

Black Power Revisited the L.P.



Mother once received a letter from William Faulkner. Or so she said. The letter was supposedly from the Nobel-prizewinner himself—the writer who Flannery O’Connor no mere scribbler herself called “the Dixie Limited.” Faulkner was the master of Southern Gothic among whose haunting characters are the bear of “The Bear” and my personal favorite Joe Christmas, the mulatto killer of Light in August. Mother said she threw Faulkner’s letter away. Her papers are now at Emory University, my siblings did it without consulting me, not that that’s a problem, and maybe one day an archivist will come across Faulkner’s note. Probably not. 
The chances that Mother did receive a communication from the great man are better than even and even though accuracy was not always the hallmark of her storytelling. My mother was fortunate to live and work in another time when there were only a couple of degrees of separation between most people. For African-Americans, for example, you were either still slaving for a white man, or white woman, or you weren’t. My mother was a black female journalist in an age when that particular description was unheard of, not that it’s common even today. The world was also a smaller place back then. Blacks involved in the arts, letters or politics knew each other because there weren’t many to know, if they were making a living doing it. And you knew white people because they were running things. In our own culture there was a studied informality especially among the intelligentsia that included and includes many athletes and performers, originally due in part to Communist influence—but mostly because these were Negroes for whom, coming up from slavery, informality was a way of life, even among the glitterati. Brother and Sister served the same role as Comrade. Mother wasn’t a Red but she knew a few and everyone, whatever their politics, had pretty much the same goal and the same subject of their work. There was cooperation achieving common aims. The civil rights movement has been an ensemble work from the beginning. 
What mother experienced in the ‘50s alone, to say nothing of the ‘60s and ‘70s when she was writing for Hearst Newspapers in San Francisco was remarkable because she never talked much about it. She spoke in glowing terms of herself—but could be short on details about anyone else. Writing an article about a fiery young black Baptist pastor—she never told me she stayed with the M.L. Kings at their home in Montgomery, an anecdote that has arisen since her death and may not be true. It sounds like an exaggeration and is something that archiving her papers will prove one way or another, one supposes. Once, and this is an event in the historical record, Mother was short of money and in New York City and she drove, in a Mercury Comet—with me in the back seat—to a club where Duke Ellington was playing and said she was going in to get “Duke” to cash a personal check. She came back out with money, what can you say? It was a smaller community being black in America then. 
So, the backstory on the Faulkner letter is this: My mother was editor of a small newspaper in L.A., back in the day and she had a fondness for writing provocative editorials about race relations in a time and in a place—yes, even the Golden State of California—where diversity was not as popular a word as it is today.
After publishing fiery prose she usually licked stamps and mailed copies out to social and political leaders who, not being subscribers to the Tribune, otherwise might not see her work. One piece made its way to Oxford, Mississippi, home of the Dixie Limited. My mother recounted for me Faulkner’s response in a single sentence, either that was all she retained or all he had said, it’s still etched in my memory half a century later: and, once again, it’s my belief that the chances are better than 50-50 this is a factual anecdote, not because Mother was unfailingly accurate in her reportage but because of what she reported Faulkner said. 
“I am all for the emancipation of the Negro,” she quoted the great man, “but if they come marching down my street I’ll be waiting on my porch with my shotgun.” If that wasn’t William Faulkner it deserved to be. 
The reason to remember the Dixie Limited today is not just great prose, even if he was dismissive of the Negro, and even if the characters in his books preyed upon black people just as flesh and blood whites did and do. The reason to remember William Faulkner today is because he understood the fundamental quality of the struggle over race in this country: it has largely been about violence, committing it, being victim of it or writing about it, as was the case with Faulkner and Mother.
          Civil rights have changed in recent years, for the better, we’ve made great progress—today we see the “mountaintop” that MLK talked about even if we have not yet reached the peak. For that reason now seems like as good a time as any to review what we as a people have gotten right and what we’ve gotten wrong. “The Movement” for equality in America has been fought on several fronts and violence as a tactic and as a longterm strategy seems to have worked pretty well. On the most basic level it has involved doing to white people what they do to us, a strategy that was accepted from the start by most everyone in “black leadership,” the Talented Tenth as DuBois called it, or whoever they were. One day in my relative youth my then-sister-in-law the novelist Pearl Cleage, who came from militant stock, explained the Black Liberation tri-color flag to me. “Black is for the people, green is for the land,” she told me in complete earnest, “and red is for the blood that must be shed to get there.” Mother shed blood in print. One of my siblings even described the rat-a-tat-tat of our mother’s Smith-Corona as sounding like gunfire, well into the night. As for rhetoric, or words—Faulkner had that right too. And there, we haven’t done too badly either. You knew racists were doomed when Motown got involved, when black music became widely popular, social themes you could dance to. With the exception of James Brown, songs about black pride, and solidarity marches never called to me personally, but they were effective. Music, painting, movies, TV, daily interactions with the white man, or white woman, the decentralization and wide reach of the civil rights movement is its genius. There has been a rebellion going on and everyone is involved but no one is in control. It's all coming together, often led by performers or athletes, as blacks everywhere seem to know what to do without being told. And we keep notes notes. We have the clippings because of people like Mother.
Once many years ago during my undergraduate years at UCLA: Mother had talked about her great editorials for so long but did not have copies—she sent me to a Cal State campus that had the Tribune on microfilm. The prose was ordinary, to tell the truth, but this was a business more than an art, you have to know what Mother used to say about the Black Press—newspapers that included her own: “Everything you see in a black newspaper has been paid for,” she told me. ”Everything you don’t see has also been paid for.” This was business, the repression and the rebellion.
           Mother’s magazine work, though limited, was outstanding. There’s a piece she wrote about crossing the South by bus back in the day, being in West Texas and being forced to drink from a blacks-only water fountain, in the Greyhound bus terminal in Big Spring. That was in The Nation and was a great story, from the front so to speak. That same road trip from Dixie to L.A. forms part of my childhood memory and if you had asked me as a kid what Jim Crow was like—as it was explained to me by Mother at the time, on the road in the Comet until it died and then by Greyhound—it was like a tax that was added to your daily life and you paid and you paid and you paid and if you stopped paying they killed you, or sent you to prison. Does that sound extreme? Not in our social circle. Mother praised Yassar Arafat, in her later years. “I am not Jesus Christ,” she used to say, describing her own personal foreign policy, “if someone strikes me I’m not going to turn the other cheek.” There are so many stories, so many anecdotes—because she lived in interesting times. But that doesn’t mean the stories are all true. The most important anecdote, her moment as a reporter in the Bay Area that will define her career, that needs to be confirmed, thumbs up or thumbs down, factual or not, is whether my mother ratted out Angela Davis to the FBI. Like in the examples above, the chances here are better than 50-50. Mother was covering cops for the Hearst paper, then the Examiner, now the Chronicle, and her boss was publisher Randy Hearst whose daughter Patty—nom de guerre Tania—was principal femme fatale of the Symbionese Liberation Army, the SLA, as in “slay.” Just like the incestuous inbred Dixie we had escaped, the Bay Area was also home to some freaky shit, the other pole politically but just as dangerous.
Everyone it seemed—it’s important to note—had conflicts of interest those days, including my mother. No one was pure in service of whatever ideology they believed in. Everyone knew someone who was on the run, from the police or from the draft board, it was a time when, if the cops found marijuana in your backpack you could still go to prison, especially if there was a hand grenade with the weed. The moral question of the day, in the Bay Area, was whether to call the FBI tipline.
           Mother claimed that she saw Tania one day on the street, near the newspaper offices, while young Patty was being sought for bank robbery—we won’t go there, although it’s possible Mother did see her boss's daughter. At this point it was relatively late in her reporting career, covering cops for Randy Hearst and trying to keep an eye out for Tania. Mother had to hump it, frankly, it was a hard job to do. And dangerous. The Panthers respected her but the Bay Area’s institutions were all under siege including the Black Pathers and a lot of civic interchange ended up on the police blotter, her beat. A la the Red Brigades or Bader-Meinhof it was overachieving kids, all races, all colors who had a plan to bring down society and were knocking over Wells Fargo in the meantime. Today the goal of terror is to kill a lot of people but back in the day it was to kill certain people and Mother saw it all covering the San Francisco police. There was the gunfight—some call it a massacre—at the Marin County Courthouse, across the Bay, where Judge Haley got killed, which was the bloodiest, somehow, even though the body count was comparatively low. The Marin massacre changed her life.
 Because it was after Marin that University of California Professor Angela Davis did a runner.
Mother had good sources, apparently better than the FBI’s—she found out that Dr. Davis was hiding in New York. That is the backstory, that is another anecdote from my childhood. Mother ran the info in the newspaper and the FBI picked up Dr. Davis, on a charge of having provided the weapons used in the courthouse. That’s the story that my family accepts as factual today, more or less. It’s part of my memory, kind of—borderline, out there in the haze: in the periphery of what was important to me at age fourteen, going to school in the Oakland hills, not in the Badlands of downtown, there were so many shootings and so many shoot-outs in the Bay Area it was hard to know which ones to pay attention to. The SLA killed the Oakland school superintendent, by the way, just before we enrolled. A brother with a PhD, he answered his door one night and they shot him with cyanide-tipped bullets. It was all over the top, and bloody. Anyway, Mother wrote the story, Angela Davis got picked up and even if she beat the charges which she did—it’s still a legitimate question: Did Mother sell out The Movement? The answer is in a box at Emory.
My belief is that what Mother saw in San Francisco frightened her first and then changed her forever. She got us out, actually, relocated the family back to Los Angeles while she continued to commute during the week to work in San Francisco. There, she shared an apartment with my sister Michelle, may she rest in peace, who was writing about movies. She claimed to have discovered Bruce Lee. It was too much for her, too, in the end. Michelle went mad in San Francisco, that’s my belief—that era, that time—she already had the predisposition if one can say that, medically, and the Bay Area being in revolt didn’t help. To be young, artsy and black in a city with no moral foundations, values were gone or in transition, there were no barriers to behavior in an era of no restraint—drove her crazy, literally. 
         

              One Friday, when Mother was home in Southern California with her family on her day off, she got a call from the City Desk in San Francisco. The Symbionese Liberation Army was cornered in a “bad part" of Los Angeles, which meant a black neighborhood. Like my own family the SLA, which viewed itself as a family too, with Field Marshal Cinque at its head, had made the move to the Southland, for the climate, you might say. 9,000 rounds were fired that day or so the Chronicle reported. The FBI and LAPD poured bullets into the house and a fire broke out and everybody inside wasn't shot died from the fire and smoke. 
It was a brutal day in a brutal time and what the City Desk most wanted to know, when Mother came home to call in her notes, as the authorities identified the bodies—this is my memory and it may not be totally accurate but it’s close—what the City Desk wanted to know first and foremost, was Tania among the dead? Which she was not.
That was pretty much it, emotionally, physically and mentally for her, Mother not Tania although Tania took it hard too when they busted her ass a short while later. My mother could handle the civil rights movement because she grew up in it, the Panthers who always called her Mrs. Lomax, not by her given name—and certainly not “Sister,” or not more than once. But once you added the SLA and the Weathermen and everyone else who had a gun or a grievance, it was just too much. She started to shut down. After that Mother  was pretty much PTSD, she hung up her notebook and tried to make sense of what she had seen, retired at age fifty-five. She barely left the house for the next four decades.
But that did give her time to write.
Mother’s primary long work, the writing she was best known for but never published is a novel called The Ten Most-Wanted White Men, the account of a young brother who decides to kill the ten most prominent white bigots in America, which is hard work, too. One of the targets, Mother told me while writing, was meant to be Alabama Gov. George “Segregation Forever” Wallace. She used real names, that was the beauty of the work. This was before Gov. Wallace repented and found God.
This was Mother’s revolution and, in some sense, mine. It's been bloody. The bottom line in anecdotes from The Movement, and in our black lives, these last decades, roughly the span of my lifetime because Mother did not live to see the mountaintop—or maybe she just did, not close up but distant and in a fog. The single message that has been repeated time and time again for the last 400 years of our co-existence with white people: Resist any way you can.
             Luckily, “The Movement” has always been an amorphous thing and collectively has been open-minded about what constitutes resistance. There’s been no fixed orthodoxy—no Little Black Book—although someone should write one now just to make it sound as if, for historical purposes, for dramatic uses, black people were more organized than we really were. No master plan ever existed—a vacuum that left open the way for creativity taking the competition down. Violence aside, my favorite part of these decades of struggle, not that it’s over but we can finally see an end, has been the rhetoric—the words, longform like with Faulkner, Southern Gothic is a perfect title for the genre because it really was some freaky shit, having seen it up close, and shorter works like Mother’s, some of which appeared in the Black Press, paid for or not. As for the slogans, “Black Pride” never called to me because it was a given.

Friday, June 3, 2016

Dysfunctional Courthouse Part One

In most Southern counties the troubled side of the courthouse power structure is the administrative end, the county commissioners themselves or Commissioner’s Court as it’s called here in Texas. It’s the nature of the beast. Road crews, jail contracts, nepotistic hiring and sweetheart deals: there are a lot of places to slice off a percentage or two—or where a boisterous campaign picnic can lead to a drunk driving arrest later in the evening. But as in so much else, our city is unique. An FBI agent may swoop in and arrest a commissioner tomorrow, we won’t know until it happens but in Travis County the commissioners are well-behaved and professional while the courts and prosecutors have produced soap opera-level drama in recent years. Some officials have even lined up for a perp walk—including a surprising number actually appearing in handcuffs. It tells you everything you need to know that if you begin to Google, “Travis County assistant district attorney,” before you’re finished typing, two of the four top hits are “Travis County assistant district attorney arrested” and “Travis County assistant district attorney DWI.” Is this any way to run a courthouse?
            A former prosecutor recently described the nature of truth in the courthouse. You never can believe the defendant, he said, for obvious reasons. Guilty or innocent the accused wants to be acquitted. Fair enough. But you can’t entirely believe the police either, the former prosecutor said, because promotion is based upon arrests and convictions and the tendency is for the arresting officer to embellish details or make the crime seem cut and dried, in order to fit the charge. “The truth,” the former ADA said, “is somewhere between the two extremes.” But what if it’s the prosecutor himself who’s lying? And what if it’s not about a minor detail or something incidental to the charge, just in order to make a jury more willing to send a guilty defendant away—not a “white lie,” as it’s called. What if instead it’s a so-called big lie, something so fundamentally false and misleading that it threatens the public trust and points to a rottenness at the core of the justice system itself? In the long run, who knows—the question itself is almost metaphysical. But this is Austin and in this city we do “deep and meaningful”—it’s our calling card. And, in the short run, the answer to that question jumps to the top of the list of problems in the Travis County Courthouse.
            One man knows more about this courthouse than any other. He’s 84 years old and practiced here for 50 years and almost invariably won. His name is Roy Minton and for most of his career he was the go-to defense attorney for politicians in corruption trials and other defendants in major cases in Texas. These days Minton may not remember what he had for breakfast, he says, but he does remember the big cases and the atmosphere of the courts. He kept State Comptroller-cum-Lieutenant Governor Bob Bullock out of jail for crimes Bullock later admitted to committing, beating the longtime power in the courthouse, District Attorney Ronnie Earle. Minton’s successes in the courthouse are actually legendary and don’t need to be recounted here to give him credibility—but it’s fun to do so, nonetheless. He won the bribery case Earle brought against Attorney General Jim Mattox—and beat the U.S. Attorney in trial against Texas House Speaker Billy Clayton, also on bribery charges. To understand the courthouse today, Minton says, “You have to look back 40 years.” And you have to focus on the D.A.’s office because in this courthouse the prosecutor is the central figure, not any mere judge.
Four decades ago this year Ronnie Earle had just taken office and began choosing his first team which included then-assistant D.A. Rosemary Lehmberg who is our present D.A., our probable next one Margaret Moore, John Dietz (who just retired as presiding judge of the civil district courts and wrote the decision finding Texas school finance illegal that was recently overruled by the Supreme Court) and Will Flowers, the county’s first black assistant D.A. and eventual first black district judge, who retired not long ago with a reputation for being just as hard on minorities as the racially-challenged white jurist he replaced. For context, yes, it was a long time ago: Ann Richards was the Precinct 3 county commissioner. There were only two district judges handling criminal cases in the era Minton refers to, one being former D.A. Tom Blackwell who was surprisingly sympathetic to a defendant’s fate, and the redder-necked Mace Thurman whom Judge Flowers succeeded—Blackwell and Thurman being the two men for whom the present criminal courts building is named. But any explanation about how the courts work, then or now, inevitably leads back to Ronnie Earle who would serve in office for 32 years and become one of the most important prosecutors in the country, feted by the national press and called, correctly, the last Democrat in Texas to hold statewide authority. There were actually two Ronnie Earles. The first one was a hero to the powerless. The second one can best be described as betraying minorities in this city. He didn’t make up the big lie but he told it often enough.
            If you pass by the Travis County Courthouse today, only two blocks from the State Capitol, on the northwest side you’ll see ground being broken for the county’s new Ronald Earle Building which will house prosecutors, so it’s the former Ronnie Earle who is most remembered, hero to the powerless. He was indeed a remarkable public servant. The Texas District and County Attorney’s Association which is the professional group for the state’s prosecutors and also does much of the training for D.A.’s offices in the Lone Star State, instructs prosecutors today that there are three keys to success in office: law, procedure and perception. Earle had the perception part down. In his early years there were two other major prosecutors in this state, Henry Wade in Dallas, who had convicted Jack Ruby and would have tried Lee Harvey Oswald, and who was the “Wade” part of the Roe vs. Wade abortion decision. In Houston there was Johnnie Holmes who would eventually send more than two hundred defendants to death row. In this company, Earle looked like Marcus Aurelius and Solomon rolled into one. But even earlier, he had shown a metaphysical side. When he was Travis County’s state representative before going to the courthouse he used to accompany his wife Twila to her philosophy classes as a Plan II major at UT. As D.A. he is once said to have inhaled at a party thrown by an American-Statesman reporter. Who could ask for anything more from the chief prosecutor of the People’s Republic of Austin? You would go to Earle’s office to talk about a case and end up in a discussion of transcendental meditation and the alignment of the stars. But Ronnie Earle was still a very practical politician and due to an obscure clause of the state constitution, overridden with great fanfare during the last legislative session, the Travis County district attorney had exceptional, Texas-wide authority in pursuing public integrity cases across the State of Texas.
While Earle’s predecessors had performed their duties in Travis County as their major interest, with a minor in public corruption, so to speak, Earle reversed the paradigm. His main concern was public corruption in state government while he ran his ordinary prosecutor’s work out of a not very well-supervised back room. Earle actually lost most of his big public corruption cases that went to court, pled out a few others as misdemeanors—but just the threat of indictment or a grand jury investigation was enough to give him enormous influence, especially after Texas turned Republican. Maintaining that power base required him to do what whites have often done throughout history in the South: use black people. The lie—big, or “white” as you choose—or big and white, as you might also say, kept him in power. Earle was in constant conflict sustaining his Public Integrity Unit, first with Democrats, then with Republicans, fighting for his funding at the State Capitol and even for the very existence of the unit. And he wasn’t going to fight a two-front war, the second front being against the police. “Ronnie never challenged APD,” said a former Travis County assistant D.A. who became a defense counsel. That unwillingness to confront the police had one very practical effect, that was seen in the APD shootings of unarmed black men that has plagued this city through decades, not merely years.
            Earle never asked for an indictment. This information comes to us from a retired local jurist. “Both Ronnie and Rosemary told me that they never made a recommendation,” this former judge explains. “No matter how extreme the circumstances of the shooting.” There is a note of dissention, actually. An official who worked with Earle on police shootings said not that the then-D.A. made no recommendation, but that Earle set too high a bar for grand jurors ever to meet: “Ronnie would only allow the grand jury to consider murder,” as charge against officers involved in inappropriate killings, which had the same effect, it didn't happen.
            It takes a moment for this comment to settle in and then the light goes off. Through recent decades, and beyond, in all those dubious shootings by local police of unarmed black men, as the D.A. promised “to take it to the grand jury,” what hasn’t been said is that when the case got there, in the grand jury room, what happened which would be nothing. The evidence was presented but no recommendation for an indictment was made, as opposed to the cases of burglary, rape and murder. That this trick has been used elsewhere is also clear. The New York Times reported last year that in two of the most controversial police killings of recent years nationwide, Eric Garner in suburban New York, and 12-year-old Tamar Rice in Cleveland, pro-police prosecutors presented evidence and unlike in other crimes made no recommendation to the grand jurors, which both declined to indict. The Times also accused prosecutors of document dumping, loading down grand jurors with documents related to police shootings but not giving them any idea how to sort through conflicting narratives, which jurors are offered in other cases. It’s often been said that a good prosecutor can get a grand jury to indict a ham sandwich but what’s missing is the other side of that dynamic: not who prosecutors indict, but who they fail to indict, which is a power in its own right. In this context, no recommendation to the grand jury becomes the recommendation. And whether this is a good thing or not, it’s not an Austin-only phenomenon. The pro-police bias by prosecutors nationwide has become so pronounced—or been so pronounced all along—that by a governor’s executive order in New York, county prosecutors are now prohibited from handling police shootings. Which brings us back to Texas.
Last November, the Texas District and County Attorneys Association held a conference on how Lone Star prosecutors handle police shootings, from investigation to trial, and the finding was that declining to offer a recommendation to grand jurors in these cases—as opposed to every other kind of crime, where the D.A. has no reluctance to tell the grand jury what to do—is widespread in the state. This self-questioning by prosecutors in the state came partly in response to prior doubts about prosecutorial behavior, explored in the aftermath of the reforms mandated by the false Michael Moore conviction. In cases of cops’ use of deadly force, grand jurors, accustomed to being told what the D.A. wants in other cases, are said to interpret prosecutors’ silence in police shootings to mean it’s not a good case or the D.A. doesn’t want the indictment, which is actually correct because he or she usually does not. The exception in Austin came in 2013, the shooting of Larry Jackson by APD Det. Charles Kleinert.
Here, the context is just as important as the crime. The lone gunshot, after a chase and an alleged struggle, was close enough to the back of Jackson’s head to leave powder burns and came in the atmosphere that would soon produce protests in Ferguson, the closest thing to a race riot in America in decades. If you’re curious you can read part of the actual grand jury testimony which, usually secret, is now available at the federal courthouse in Austin where the state indictment of Kleinert was “removed” in a very smart legal move by the detective’s attorney, Randy Leavitt, who was trained on both ends of criminal law: first assistant to the Travis County misdemeanor prosecutor, he later practiced defense law with Roy Minton, before striking out on his own.
Kleinert cries at several points in his testimony to grand jurors. He says in testimony that if he had known how the day was going to turn out he would have called in sick, which makes sense, but the tendency to see Kleinert as the victim is misplaced. That would be Larry Jackson. Questioning of the detective in the secrecy of the grand jury room focused on three main themes: his commandeering of a private auto to chase Jackson for a non-violent crime; that Kleinert pulled his gun even though Jackson, by the detective’s own admission, had not threatened him in any way, and how Kleinert’s finger ended up inside the trigger guard where it shouldn’t have been unless he intended to pull that trigger, which he denied intending to do. It’s a pretty depressing account regardless: at the best, Detective Kleinert comes across as hapless—reckless, actually, which is what he was indicted for, btw, reckless homicide. What’s most interesting is the approach of prosecutors: taking part in the Kleinert questioning were District Attorney Rosemary Lehmberg, First Assistant John Neal and chief of major prosecutions Dayna Blazey. Indeed, at one time or another, six members of the D.A.’s office were said to have participated in the presentation of the case, which led to the indictment, with the notable exception of Gary Cobb, grand jury chief and eventual losing D.A. candidate—who hoped for and received the police union endorsement. Presumably at some point one of the six told the grand jury what the D.A. wanted in this case, an indictment, which seemed inescapable in the Jackson shooting, not due to the facts of the shooting which were nothing particularly new, but in an era of doubt about behavior prompted by new evidence, from cellphone cameras.
The indictment was thrown out by U.S. District Judge Leroy Yeakel in a controversial call that led to protests in Austin and which has been appealed by the District Attorney’s Office. Judge Yeakel agreed with the little used federal statute allowing local police like Kleinert who are involved in federal law enforcement efforts (Kleinert was on a FBI-run bank robbery task force when he encountered Larry Jackson) to avoid prosecution. In another slap at justice for the black community Yeakel, a former state appellate judge who was appointed to the federal bench by President Bush, and who has shown a definite law enforcement bent in previous rulings involving APD, tried to convince the public that dismissal of the Kleinert case was the only, obvious way to go. But it seems federal judges as well as prosecutors are not beyond crossing ethical lines for political reasons.
If you read another transcript from federal court, when Judge Yeakel first was approached about the removal, he tells a different story: “These cases,” Judge Yeakel said in that hearing, “criminal removal to federal court, are not commonplace. We don’t see them every day. I have been doing this 11 years and four months now, and this is the first one—not only the first one I’ve ever seen, it’s the first one I’ve ever heard about. It just doesn’t happen. It doesn’t happen around here.” In other words, the judge went from totally clueless o totally convinced in a relatively short time span. And black people lost again.


Tuesday, February 23, 2016

Justice Scalia's Almost Ambulance Ride to Alpine


The first mistake in the ruminations surrounding the death of Supreme Court Justice Antonin Scalia, at a West Texas dude ranch, is thinking that the closest hospital was two hours away in Alpine, the so-called “capital” of the Big Bend. The closest hospital was actually south not north, just across the Rio Grande in Ojinaga, a small Mexican government facility that serves the locals in a town where Texans sometimes go to buy medications, to see dentists and to have the occasional cheaper medical procedure. Mexicans also come north for healthcare.
The closest major medical center south of the border is in the city of Chihuahua, four hours away by car or by ambulance. Chihuahua is a big modern city and presumably an important American official would have received good care there but it’s a long trip to make in an emergency. Especially for pregnant women: Some Mexicanas living along the border who have at-risk pregnancies decide instead to cross the Rio Grande to the U.S. border station between “O.J.,” as Ojinaga is known locally, and the Texas city of Presidio. The first thing these ladies do when they get across the river is call 911. An ambulance from Presidio takes them to Alpine, to the Big Bend Regional Medical Center where the labor & delivery unit is well-regarded and where a neonatal intensive care-worthy infant can be bundled up and shipped to a bigger city hospital, usually in Odessa. Justice Scalia might not have liked it but that’s the reality of life on this part of the border. Traffic goes both ways. The border is not always a barrier. Texas women go south for abortions and Mexican women come north to have babies. A doctor in Alpine who has cared for some of these Mexican moms describes the events leading to the transfer this way: “You see them walking around the central square in O.J., to provoke labor, and then they walk to the bridge and call for the paramedics.” It may not be exactly like that—but close enough for purposes of discussion. When the mom-to-be gets in the ambulance the Border Patrol doesn’t come along for the ride. So it’s actually a way into the United States without papers and, God forbid, without having passed a security screening. Justice Scalia probably wouldn’t have approved of that either. At least he could've taken comfort in the fact that most of the women are Catholic, like himself, and opted not to have the abortions he disapproved of as a judge.
Everyone wonders about who can declare a death in Texas and the reality in rural Texas, especially this rural Texas, as has been noted elsewhere, is not like the rest of the state or the country. I spent a couple of years working as a R.N. in the Alpine hospital and I declared people dead, even though I’m neither a physician nor a judge. Never did it by telephone—as was done with the late Supreme Court justice—that seems problematic, but in person it’s a pretty easy call to make. Unlike Justice Scalia, the folks whose eyes I closed or my sister nurses closed were not sudden deaths. They were patients in the hospital who were on their last journey, for a few days at least, and who happened to reach their final destination on our shifts. Outside town, God knows: Some of the ranches in Brewster County for example, Presidio’s eastern neighbor and home to Alpine, are bigger than many cities. In the Big Bend you hear stories, perhaps apocryphal, of people who died years ago and family members put them on ice and are still collecting Social Security checks. Who would know if you’re dead if you didn’t come to town even when you were still capable of making the trip? About that missing justice of the peace who should have gone to Cibolo Creek Ranch to sign off on Scalia’s death certificate: In this part of the world, if you’re out there in the brush country—which is no country for old men, trust me, filmmakers are right—you feel like you’d have just as good a chance of running into the secretary general of the United Nations, or a prima ballerina from the Bolshoi, as you would of finding a county official. Not a cop, though. They’re everywhere: federal, state, county and local varieties. In that respect, homeland security, somehow you feel Judge Scalia would have approved.
I don’t own a car. Don’t actually have a driver’s license, either. I arrived on the train which stops in Alpine two or three times a week going one way or the other, and I got around town by bicycle. During two long years my only trips out of the Big Bend were to Austin or El Paso by rail, to shop, or by bus to Presidio on my way into Mexico, to go to the beach in Chiapas or to meet the harvest in Oaxaca. Rode my bike one time and never again, it nearly killed me, to the spring-fed pools in the state park at Balmorrhea because they were advertised as being "like Barton Springs in Austin" which turned out to be true, only better, and I bummed a ride with friends to Marfa a couple of times, a completely wasted trip from my point of view. Marfa is a hipster’s mirage—it's all shimmery on the horizon but when you arrive you find nothing there. What about nature, you may ask? What about flora and fauna? Isn’t that why people move to the Big Bend in the first place? In the morning, going to work at the hospital there were javelina in my yard, rooting around for fallen pecans, and in the light from my bicycle all you could see were their startled red eyes. Their vision is supposed to be pretty bad and a javelina is a dangerous animal and you have to be careful not to get between one of them and something to eat. Arriving at work there was invariably a herd of mule deer in the hospital parking lot, and 'coons around back. The locals say the deer like to stay in town during hunting season, which makes sense. Deer may be evolving, not just getting older as a species but getting better, you know?
My existence in the Big Bend sounds now much more picturesque in the telling than it actually was in the living. Being slow on the uptake, it took me two years to realize there wasn’t much for me there. As an urban and one likes to think urbane black man who likes Marvin Gaye, vegetarian food, and who likes to find the occasional good Christian white woman and rub her nude body with warm olive oil while her husband eats Blue Bell ice cream straight from a half-gallon tub—and, as a Negro who dislikes the police, whatever the uniform—it really was a desert for me, the High Chihuahua Desert in fact. People say that everyone who comes to live in the Big Bend is escaping something and that included me. Let me say from the start that I’m completely normal and well-adjusted. But I was coming from Seattle and I wanted somewhere that wasn’t Seattle where it rained everyday and the people were passive-aggressive and dark but not black. Alpine wasn’t Seattle because it didn’t rain every day and the people were not passive in any way. Even being in the area so long, as an essentially urban soul my view of the Big Bend was strictly defined not by nature or wide open spaces but by four towns: Alpine in Brewster County, Ft. Davis in Jeff Davis County, home to the McDonald Observatory where on a clear night and with the naked eye you can see satellites pass overhead; and Marfa and Presidio in Presidio County where Justice Scalia met his maker. On the outskirts of this roughly-defined square are also Ft. Stockton and Pecos, by the way, both oilfield towns, or former oilfield towns now that the boom has bust, and both of which reminded me of a line in an old Bette Davis movie, an observation which applies in West Texas as much as in Hollywood: “What a dump!”
In this area of Texas there are four courthouses, three jails and by my count, four supermarkets—three of which are owned by the same people—and one McDonald’s, in Alpine. There’s one college, also in Alpine, and one hospital, the one Justice Scalia would have been taken to if he had been merely ill and not already past care. There’s one head shop, also in Alpine, owned and operated by a Jewish family from Mexico and which the local authorities have tried repeatedly to shut down. A nurse who was a co-worker of mine and who lasted a few years in Ft. Davis before finally getting a divorce and getting out—moving to Austin, which is where people from Alpine or Marfa go, not to El Paso or San Antonio which are closer, but to Austin—told me not long before my own departure that there are only three things to do in the Big Bend: have sex, get drunk or do drugs. I would add, shoot guns and hike in the national park. You can only do so much of any of this, whether screwing or hiking, it seems to me, and much of my time outside work was spent sitting on the steps of the Brewster County Courthouse—after hours—smoking a fat one and formulating theories about this alien area that was holding me captive. Being in the Big Bend was like being in jail, not that I would know, you just couldn’t see the bars. For me, not understanding the region very well, I admit that, despite my long stay, Ft. Davis was home of a bunch of rightwing nut-jobs and conspiracy-theory types who were so conservative they thought that former Governor Bush was a Communist, and who now think that Justice Scalia was poisoned because he knew President Obama is signing reparations checks for black people that Obama intends to hand out on his last day in office. But I digress.
To my mind, Marfa was split between pseudo-liberal artsy types who don’t realize they’ve bid up the cost of living and are forcing out the locals, who are the other half of the split and often Hispanic. It’s kind of like gentrification, but on a small-town, out-in-the-middle-of-nowhere way. Marfa aside, and the unreal facade the town presents, life in the region really does revolve around Alpine. As the center of the local universe Alpine is a good place to hear things because everyone passes through, either to buy groceries or booze or ammunition. Mostly you hear about Marfa: “Beyonce is in Marfa,” a young woman who was working as a waitress informed me one day at the Alpine coffee shop. Then she said that the U.S. Olympic men’s swim team was there too and she knew because she’d slept with one of the swimmers. She actually served the Big B, and her entourage, and found Mrs. Jay Z completely cool. “Mathew McConaughey is in Marfa!” was printed as a headline in the local newspaper. “Chelsea Clinton is in Marfa,” came from radio news. All of which was true, they were all there during my stay, but what no one could answer—this is crucial—what were they doing? Fuck all is my best guess, because there’s fuck all to do in the Big Bend. But who am I to judge? I liked Alpine well enough. One, it has a hospital, which meant a paycheck, and two, many of the people who came there, like me, were eventually headed somewhere else. Which is my life story. Wherever I am I'm headed somewhere else.
If you roll down the highway from the center of Alpine toward the hospital, a route Justice Scalia’s ambulance would have traveled, which is also the road to Ft. Davis, on the right is a satellite federal courthouse where a lone judge arraigns drug dealers and illegal immigrants. I was bored one day and went in to watch American justice at work but the marshals rushed me and said it was not a public hearing. They hustled me back outside without an actual laying on of hands which is good because this black man does not like to be touched by agents of the White Power Structure.
Around a corner near the golf course, behind a high fence, is some kind of government listening post that everyone pretends doesn’t exist. Again, Justice Scalia would presumably have approved if the surveillance issue ever came before him. Next along the highway after the federal courthouse is another large building with high walls and an electric gate, and no sign out front, the Big Bend’s U.S. Drug Enforcement Administration headquarters. It’s said that 1500 of Alpine’s 6,000 inhabitants are gun-carrying law enforcement, mostly Border Patrol, a figure that I personally don’t believe but suffice it to say that you wouldn’t want to try to rob either of the town’s two banks because you wouldn’t make it to the door. Someone in line behind you would almost certainly draw a piece. In my apartment complex living next door to me was this hot young black woman with tattoos. There are, like, no Negroes in this part of the world, I was totally misled by the Chamber of Commerce brochuresexcept at the college where a few brothers come to play balland this black chick had a wicked body that got my attention right away. Border Patrol! Stop, manos arriba: You would think, feeling the way I do about cops that I might actually want to screw one, especially a fed after my experience at the courthouse, but no thank you. Saw this chick’s Facebook page and she was from somewhere out east and I felt sorry for her—a fine sister, out in the middle of nowhere—until I read that she liked cowboys which there’s an abundance of in the Big Bend, not in absolute number but relatively-speaking.
Farther along the road toward Ft. David there’s a treatment facility for troubled youth, a boot camp that follows something called the “Positive Peer Culture Treatment Model,” the kind of place Hollywood A-listers have been known to place their children to get them out of L.A. and reacquainted with the real world. The names of parents who have sent their kids to the Big Bend facility would impress you. On the other end of the age spectrum there’s no nursing home in the region. There was one in Alpine but it shut down a few years ago after the state kept citing it for inadequacies. The hospital itself was owned by the county but it cost too much to run and the county fathers and mothers decided to privatize. Community Health Systems of Franklin, Tennessee came in and built a new hospital that is now considered “critical access” by the federal government which means the company gets an incentive to be there at all, which includes wide latitude in charging for services, beyond what Medicare normally allows. This is already an expensive area to live in, because everything has to be trucked in and there are no economies of scale for a small population, especially with no competition. The supermarket in Alpine is more expensive than in Austin and has less variety. A meal in Marfa or Alpine will cost you more than in Houston or Dallas. It says everything that needs to be said that the only place the elderly on fixed incomes can go to eat healthy food at a moderate price is the hospital cafeteria which is usually packed with non-patients. A friend of mine named Katie who owns a local tax service spends a lot of her time during the non-tax season driving around, on her own dime, to visit people who may not be able to get their prescriptions filled or enough to eat. It’s that kind of community.
If Justice Scalia had actually made it to the emergency room, and for purposes of argument let’s say it was his heart, which has been speculated upon—he had a bad heart, say some, no heart, say others—he would have been shipped out. Big Bend Regional Medical Center doesn’t do acute heart cases except to stabilize the patient, unless he or she refuses to be transferred which would not be a smart move if you just had cardiac arrest. Transfer here usually means an air ambulance which can be problematic for a couple of reasons. Air travel is safer mile for mile than the highway but that does not necessarily include air ambulances which have a checkered history everywhere. The Big Bend is a divided region economically, a lot of wealthy people who may have second homes outside towns like Alpine or Presidio, perhaps a ranch, and a lot of poor or struggling middle class who live there year round. In the past, one of the rich included a Folger’s brand coffee heir who was being shipped out of Alpine a few years ago, for some ailment or another, and the plane started to rise and then slammed into a mountain. Everyone died. The other risk is purely financial. The air ambulance ride—if you don’t have the right insurance—can cost $50,000 to go to Medical Center Hospital in Odessa where most of the transferred patients are sent. That’s what you owe before treatment even begins. I don’t know what kind of insurance a Supreme Court justice has, presumably it’s good, but if not it might make a conservative jurist think twice about Obamacare.
I was always amazed how few gunshot wounds were seen at the hospital. You would think that with Bubba on the loose, so to speak, we’d fill up every weekend starting Friday night once the alcohol kicked in. But while there’s an affection for firearms in the Big Bend there’s also respect. Justice Scalia would approve the distinction. The Republicans have a point, it seems to me, that weapons are kind of like sex, they’re here to stay and the best solution may be to teach people how to use them—just as sex education may not engender promiscuity, it’s a fact of life, like Democrats argue. There was a story in the L.A. Times back in the day, there’d been a gun battle in the ‘hood and the gangbangers had killed everyone on the sidewalk except who they’d been aiming at. An assistant police chief was quoted saying something that would be considered very non-P.C. today, that if the gangsters were taught how to use a gun the city could cut down drastically on its homicide rate. Rest assured that in the Big Bend if someone pulls a gun they’re probably going to hit what they’re aiming at and not six other people on the sidewalk. If only because there aren’t six other people on the sidewalk, an unexpected blessing of the low population density. Most places in the Trans Pecos there’s not even a sidewalk.
The area wasn’t for me. Had he survived,however this is exactly the kind of place Justice Scalia should have lived, not D.C. This is the place he was writing his judicial opinions for, a way of life that no longer exists in highly-urbanized America but is daily life here. The reach of government—except the Department of Homeland Security—is marginal. People don’t rely on a publicly-funded safety net, they rely on family and neighbors, and even more than in the rest of Texas, and this is saying a lot, people are packing. In the Big Bend there are guns, gross economic inequality and expensive private healthcare. For Judge Scalia, had he lived, this would have been paradise. In death for him it must be Heaven.