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Thursday, July 05, 2012

Inappropriate Judicial Sanction Order Following Lawyer's Selective Prosecution Argument?

I read a fairly remarkable sanction order this week from the Southern District of Texas. In U.S. v. Ray Marchan, the court publicly admonished defense counsel for arguing selective prosecution to the jury on the basis of race, because the court found the argument baseless. Moreover, the court warned other attorneys of serious sanctions they may face if they improperly argue racial discrimination. News reports on this order can be found here, here, and here. I also reviewed court filings through PACER. I am troubled by the overall tone and message of this order.

Some detailed background may be helpful. Ray Marchan was prosecuted in federal court for bribery offenses involving a Texas state judge. During summation at trial, defense counsel suggested selective prosecution because his client is Mexican-American and a similarly-situated person who is white was not prosecuted:

“On the record, this [non-prosecuted] man is a better lawyer than most of us. He went to the FBI without a lawyer, by himself, admits he gave money to [Judge] Limas, and they still don’t charge him with a crime? [The FBI agent] is God now? He can tell when it’s a bribe and when it’s a loan? Or is it the color of his skin? My client is Mexican. [The non-prosecuted] person is white. What is it?”

According to the prosecutor’s subsequent brief, defense counsel during this argument “motioned to the color of his own skin and then pointed directly at [the FBI agent].”

The court prevented counsel from continuing with this argument, and directed counsel to identify his evidence that the grand jury was racially motivated. Counsel started to explain that his claim did not involve the grand jury, but the court repeated its direction. Counsel said he had no evidence of racial bias in the grand jury. The court next asked counsel for his evidence that the prosecution team, by name, was racially motivated. When counsel started to respond, “The only thing is the … ,” the court interrupted, “Tell me, do you have any evidence?” Counsel replied, “I do not, sir.” The court directed counsel to file a show-cause brief “telling me why you shouldn’t be sanctioned for that argument.”

Defense counsel’s brief did not retreat from the selective prosecution claim. Rather, counsel acknowledged that he should have raised this issue with the court and not the jury, and he apologized for this error. Counsel added that his argument, “although done in error, was done in the spirit of zealously representing his client and not with the intent of offending the Government or the Court.” The prosecutor’s brief responded, “Defense counsel’s brief dilutes the serious nature and far-reaching consequences of his comments. [Defense counsel], in no uncertain terms, accused the government—including members of the prosecution and the investigating agency—of being racists, and did so publicly in Federal Court … Defense counsel, with his accusations of racism, crossed the line from zealous advocate to inflammatory rabble rouser.” According to the court’s order, the prosecutor also argued, “lead counsel for the government and the judge presiding at this trial are Caucasian as well, and I think that was a stab at both.”

The court’s order found that defense counsel “baselessly” argued selective prosecution. The court reached this conclusion in part by counting the number of persons with Hispanic-sounding surnames on the grand jury, the petit jury, the investigation team, and the prosecution team, and inferring an absence of racial motivation from this fact. The court further identified three major concerns resulting from this assertion of the “race card”: (1) A baseless claim of racial bias “demeans the claims of those who have actually been the victims of real discrimination”; (2) A baseless claim of racial bias can divide a community and damage personal and professional reputation. “Unfortunately,” the court observed, “there are those who thrive by sowing racial disharmony”; and (3) to prevent loss of public confidence in the justice system, a lawyer has a “duty to preserve and protect the integrity of the judicial process that distributes justice.”

The court thus directed defense counsel to apologize to the prosecution in writing. Moreover, the court warned, “[i]n the event of a future transgression by any attorney, this Court will consider all of the many remedies and/or sanctions that the rules contemplate. Counsel should not assume that this Court will in the future allow each lawyer ‘one free bite.’” (emphasis in original)

I of course agree that attorneys, including criminal defense lawyers, should pursue responsible, evidence-based arguments. I also agree that a bad faith allegation of racial prejudice unfairly can harm individuals and the legitimacy of the justice system.

But the court’s extensive public sanction of defense counsel, and warning to other lawyers, also may reflect a troubling “colorblind” trend of people aggressively personalizing and shaming frank talk of race, absent clear proof of discriminatory motives. This concern really came to mind when I read a particular passage in the court’s order that preceded the court’s warning about future sanctions. Noting that “the Court is not easily offended,” the court continued:

“The undersigned, if asked to describe himself, would use words like: husband, father, Texan (not native, but got here as soon as he could), American (and proud to be) and Christian—not necessarily in that order. It would never occur to the undersigned to describe himself or any other individual by using racial terms.”

One could infer a lot of implicit privilege and assumptions from this passage. But here’s how I thought this passage fairly could read as a direction to lawyers: As legal professionals, we publicly and proudly may discuss marital and parental status, nationality, regional affinity, and religious identity. But tough talk of race, well, you had better not go there absent evidence proving good cause to raise that subject. Otherwise, you are the racial offender, and you will be sanctioned.

My question for readers: We often have to err somewhere when we draw lines—too much or too little in favor of something. Does this order err too much on the side of avoiding “baseless” allegations of racial prejudice, particularly in a criminal justice system so heavily afflicted by racial disparities?

Posted by Brooks Holland on July 5, 2012 at 06:36 PM in Criminal Law, Current Affairs | Permalink


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