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We Spoke to Defence Attorneys about Racial Profiling and Trayvon Martin

The acquittal of George Zimmerman has left millions in North America with an uneasy feeling about the state of criminal justice, and an uncertainty about who our courts are really working for. We spoke to some defence attorneys in Canada and the US...

Protesters at a sit-in for Trayvon Martin in Sanford. via Flickr.

The acquittal of George Zimmerman has left millions in North America with an uneasy feeling about the state of criminal justice, and an uncertainty about who our courts are really working for. Zimmerman was granted due process, and was found not guilty by a jury of his peers (the prosecution was unable to prove beyond a reasonable doubt that Zimmerman had not been acting in self-defence when he fatally shot the unarmed 17-year-old). Yet, Trayvon Martin’s death remains both a tragedy and an indication of the systemic problem that young black men are often unjustly perceived as threatening. From street stops to the courts, from police to neighborhood watch, profiling is a serious problem in the United States and Canada. In a democratic society, shouldn’t we grant due process to every person, no matter whether or not we like him or her? Speaking with defence attorneys on both sides of the border, I was able to glean some insight into this disconnect between justice and the justice system.

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Columnist Charles Blow wrote in the New York Times that America's “system of justice—both moral and legal—failed Trayvon Martin and his family.” He might have gone further; the system of justice in the United States has been failing youths of colour for a long time, locking them away in disproportionate numbers. In Canada, racial disparities also plague criminal justice. The Toronto Star has reported extensively over the past few years on the problem of racial profiling in Canada’s most populous city, calling being profiled a “rite of passage for many black men.” According to Star reports based on contact card data, black men are 3.2 times likelier to be stopped by the police and I.D.’d. The Toronto Police Department is now conducting a study to analyze how pervasive this disparity is. Ottawa police also began collecting data earlier this year in order to understand the problems posed by racial profiling. The study, conducted with Lesley Jacobs, a legal scholar and professor at York University, was spurred by a case brought before the Ontario Human Rights Commission by a young black man named Chad Aiken who recorded being pulled over and harassed by police while driving his mother’s Mercedes.

The Zimmerman verdict has brought these imbalances of justice into the public consciousness in a serious way. Those who would have never been part of any discussion about legal matters, are now starting to learn about racial disparities in criminal justice. Many bemoan the tragedy that Zimmerman could kill a young man and still walk free. Others argue that even when we don’t like the result, we have to trust the courts.

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One contingent on the left defends the Zimmerman verdict. This group includes Jonathan Turley, a law professor at George Washington University, who has also advocated that members of the Bush administration be tried for war crimes. He argues, in a column for USA Today, that Zimmerman was “overcharged”—meaning that the evidence against him was not strong enough to justify a conviction.

“Ultimately, it was the case and not the prosecutors that were weak,” he writes. Turley’s words represent an opinion shared by many legal practitioners which is an underpinning principle of democratic criminal justice: the notion that requiring a strict burden of proof beyond a reasonable doubt is just, even when the outcome may not seem fair. Former United States President Jimmy Carter notably shared this view recently in response to the Zimmerman verdict, on local television in Atlanta: “It’s not a moral question, it’s a legal question and the American law requires that the jury listens to the evidence presented.” Logically this works, but according to many, it's not an acceptable response.

“The verdict wouldn’t have been the same if the roles were switched,” says Toronto criminal defence attorney Loui Dallas, speculating that a black defendant would not have fared so well. “It’s easier to talk about the right to bear arms and the right to due process when you are middle class and established.”

Dallas, who is Macedonian, grew up at Markham Rd. and Eglinton Av. in Toronto, and remembers having himself been harassed by the police on one occasion as a teenager. After he described the incident to a teacher at his school, she told him “it's good the police stopped you, because that’s a bad area.”

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This would prove to be a formative experience for Dallas, motivating him to become a teacher in Scarborough and downtown Toronto, and then a lawyer later on. During his years as a teacher he witnessed the kids he taught being profiled based on their socioeconomic status. He tells a story about a kid whose house was robbed, which prompted another teacher to ask: “I wonder what he did to get his house broken into?”

Asked about police profiling in Toronto today, Dallas says that the cops are generally very good, but that there are nonetheless people who are marginalized. “I don’t think its risqué to say that some people are over-policed and some people are under-policed,” he says, “What I see is a lot more young black kids from Jane and Finch get stopped than white kids from Bayview and Eglinton.” Coming back to the Zimmerman verdict, Dallas says that the reasonable doubt created by the pathologist’s report is “the price you pay to live in a democracy.”

Ken Montgomery. Photo by Dan Epstein.

Ken Montgomery, a former prosecutor and current criminal defence attorney in Brooklyn, thinks that the notion that the Zimmerman verdict was just a failure to produce proof is intellectually dishonest. “Most in this system are guilty until found innocent,” says Montgomery. “That’s because most in the system are black or brown and they are not afforded the presumption of innocence that Zimmerman was. Trayvon in his death was not awarded that presumption.” Montgomery is representing the family of a 16-year old boy named Kimani Gray, who was shot and killed by undercover New York police officers earlier this year, in an upcoming civil trial.

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Montgomery repeats what many of us already know: mainstream American society has been taught to see a young black man as a threat. He describes the system of racial injustice in American courts as one instigated by people who treat youth of colour differently than white youth. During his years as a prosecutor in the Brooklyn District Attorney’s office, Montgomery was privy to many cases where these biases played out: “I had to listen to cases from cops who were stating what they saw as facts but who were obviously imputing race from names and addresses.”

Montgomery tells a story about transferring evidence at the courthouse in downtown Brooklyn when he heard a room full of police and his colleagues at the D.A.’s office clapping and cheering. “It turned out they were cheering for the Diallo verdict,” he says. Amadou Diallo was a 23 year black immigrant from Guinea who was shot and killed by New York police officers in 1999. The officers in question were acquitted of all charges.

“I cried,” says Montgomery, remembering that day. For Montgomery, the Zimmerman verdict is just another in a long line of lethal examples of the imbalance in American criminal justice.

Toronto attorney Nader Hasan admitted that, by trade, defence attorneys represent “unpopular clients.” Hasan has worked in the United States and Canada, and notes that the system in Florida may not be so different from Ontario and Canada at large, even despite the lack of the controversial “stand your ground” law. “I don’t think the real problem is the law that exists on the books. The problem is that society treats black defendants differently from white defendants.”

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For Hasan, the reality of racial profiling comes up for his clients every day. And to him, there is a systemic denial plaguing the halls of North America's justice systems that is allowing this unfair trend to continue: “Our ability as defence counsel to prove [racial profiling exists] is hampered by the government's failure to collect statistics on prosecutions that tracks the race or ethnicity of the accused.”

Dan Epstein is a writer, photographer and documentarian who covers criminal justice. His recent exhibition, "Defenders," was featured in Toronto's "Contact" photography festival. You can watch video clips from that show here.

More on Trayvon Martin and racial profiling:

The George Zimmerman Trial Reminded Me of Who I Am in America

How to Cash in on Trayvon Martin

Lots of People Protested for Trayvon Martin in Los Angeles