No Prosecution Clinic for Now

We consider this delay of the clinic a partial victory.  Part of the delay is due to the fact that the faculty has more access to accurate information since we provided them with all of the information gleaned from our public disclosure requests.  More information led to their having more concerns.

This further demonstrates that this so-called process has been quite opaque. Students feel like this is a victory for lots of reasons, including that we won’t be funding an already well-funded state agency. Some of us just don’t like the idea of helping put more people in jail, especially since our public disclosure documents showed that the clinic did not have as its goals any discussion of racial justice or racial disparities until after a student outcry, something that was misrepresented multiple times by the administration prior to our public disclosures.

Another reason we consider this a victory is that we made more information more available to people who need it to make these decisions; after that, the faculty listserve ignited with really important discussions. The administration realized that this wasn’t going to skate through anymore and so they pulled the plug on the vote the night before it was to happen. So there’s victory there, even if the struggle continues.

And simultaneously we recognize that future prosecutors want this clinic, and for various reasons, including the very important point for them that it could lead to their later employment. However, there has to be a way without a clinic that gets them the training and work opportunities that all students deserve. I would hope that even students in favor of the clinic could see that $12,000 per month to a prosecutor is not the best use of clinic funds where clinics that met unmet legal needs struggle to get by.

So is the clinic dead?  Hopefully.  The clinic has been shelved at least temporarily while a committee considers the Criminal Justice Track we proposed. Originally we suggested a Prosecution Track, but it has since expanded to include more future lawyers in the training and this is a good move.

Nevertheless, we are concerned with this process because the main proponent of the clinic is on this committee, and in fact chairs the committee. This has its dangers and benefits, but whatever the case, we are watching the committee closely and pushing for more student involvement therein.

This delay wasn’t just because we held a silent demo during their meeting or even because we lobbied professors; faculty themselves took the information from the public disclosure requests and serious questions were raised in their hearts and minds.

We know there are other solutions to training future lawyers that don’t involve us funding prosecution. Now the administration and students are working to find the best win-win for the students.  And for our greater community in King County.

Finally, we don’t want to demonize prosecutors.  They have lots of power to determine whether the ridiculous rates of racial disparities continue, so angering them is not our goal.  We hope that current and future prosecutors will do all they can to change the criminal punishment system into a criminal justice system. We hope that they might understand that $36,000 per quarter is not something UW Law can pay for given the other needs in our school and our broader community.

Please follow our blog and share it widely.  Contact the faculty members on the committee and let them know that this track is a much better idea than the clinic.  The faculty members include:

– Prof. Maranville (chair)
– Prof. Ambrose
– Prof. Knudsen
– Prof. McCormack
– Prof. Spitzer
– Prof. Bailey

Community members from UW and the broader King County community joined together for a silent candle light vigil; the faculty walked passed us on their way into the meeting.

Community members from UW and the broader King County community joined together for a silent candle light vigil; the faculty walked passed us on their way into the meeting.

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FOIA Request Reveals Clinic Failed to Address Race Concerns Before Student Outcry

Although Dean Testy and other members of UW Law’s administration currently emphasize the potential for a prosecution clinic to effectively address racial disparities in the law, emails revealed by a recent FOIA request filed with KCPAO show that issues surrounding prosecutorial discretion and racial disparities in the criminal justice system were not considerations involved in the development of the clinic.

The emails detail that the clinic was initially developed between KCPAO and Seattle University School of Law during September 2012. The proposed clinic at SU Law was to be led by a Senior Deputy Prosecuting Attorney who would develop curriculum and serve as a full-time visiting professor.

After SU decided not to proceed with the clinic in February 2013, UW Law took steps to establish a similar class. By March 22, 2013, UW Law had issued a draft Memoradum of Understanding (MOU) laying out specifics for the implementation of a prosecution clinic. While the MOU stated clear goals of providing students with opportunities to develop trial advocacy and professional skills, it did not mention racial or social justice in any section.

It wasn’t until April 3, 2013 that issues of prosecutorial discretion were brought up to KCPAO by UW Law over email.  It took UW Law until June 7, 2013 to develop a proposal of integrating racial justice into the clinic’s curriculum.

So although UW Law’s administration repeatedly told student leaders in meetings held after the clinic’s announcement on April 2, 2013 that racial justice had always been an element of the clinic’s proposed curriculum, we now know that racial justice was not a part of the formal plan for the clinic as communicated to KCPAO.

The emails also indicate that UW Law’s belated attempt to address racial justice caught KCPAO off guard. One instructor candidate from KCPAO expressed dismay at UW Law’s June 7th proposal to include racial justice issues in the clinic’s curriculum, stating that the proposed materials were “more political than clinical.” So while UW Law has told student leaders that the clinic’s instructors will have a “demonstrated commitment to addressing problems of racial disparity,” instructor candidates have expressed an aversion to materials addressing racial justice.

This unsettling revelation about development of the clinic’s goals and curriculum is just the latest example of UW Law blundering on issues of race. UW Law has struggled to teach issues of race in a classroom setting. There are no common standards or goals for addressing race in core curriculum. The sole academic class dedicated to exploring issues of race, Race and the Law, was founded solely 5 years ago and does not have consistent quality in instruction. And unlike other major programs within the University of Washington, UW Law does not have a diversity plan.

Creating a prosecution clinic that can thoughtfully address racial justice issues is a challenge for institutions with a proven commitment to those issues. For an institution that does not have a commitment to racial justice, creating such a clinic may be impossible.  UW Law has mislead student leaders by insisting that racial justice has been a major consideration from the clinic’s inception, casting doubt on UW Law’s ability to deliver an inclusive, innovative curriculum for a prosecution clinic.

 

This post was authored by a UW Alum who reviewed the King County Prosecutor’s Office documents we unearthed via a public disclosure request.

Prosecutor Rejects Juror Because of Race

Here are some of the highlights from the recent King County Prosecutor’s Office case where it was found that they rejected a juror based on race:

— The KCPO showed its awareness of racial disparities by asking potential jurors if they had knowledge of racial disparities and if this knowledge would make them more lenient to black defendants.  So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.  Certainly this is not what UW Law administration means by using the clinic to familiarize us students with racial disparities.

— Among its various excuses, the KCPO also said it rejected the juror because he had been on a jury previously that failed to reach a verdict.  As it turned out, that was the other potential black juror.  KCPO had confused the two black potential jurors–a fact which they admitted in their briefs and then denied in their oral argument.

— KCPO then said that they rejected the juror because he raised his hand to indicate that he did not think past conduct would have a bearing on determining guilt or innocence; however, the KCPO did not strike 15 jurors who answered the same way.

—  KCPO said that they rejected the juror because he used the term “brother;” the Division I Court of Appeals wisely held that this “explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Yet these are the people UW Law has chosen to teach us about racial disparities.

On to the full story…

Last summer, the King County Prosecutor’s Office (KCPO) was called out for rejecting jurors because they were African American.  In under 10 pages, the Division I Court of Appeals considered the excuses proffered by the KCPO and found that:

“the proffered reasons for the strike are unsupported by the record, appear ‘pretextual’ because similar jurors were not excused from sitting, or appear to be mere “proxy” reasons for racially motivated excusal.”

To put it in legal terms, the KCPO lost a Batson case.*

This decision came just two months after UW Law administration decided to host a prosecution clinic with the KCPO.  When students and community members suggested it was not a good use of resources, the administration began to describe the clinic as one that would help sensitize students to issues of racial disparities.

But according to many of us students, UW Law has not shown an interest in racial justice. In fact, students at UW Law have been asking for a Critical Race Theorist and a Diversity Plan for years; we have neither.  Then, after just two months of emails between faculty and prosecutors, we have a Prosecution Clinic claiming to be concerned with racial justice.

We already had evidence that KCPO and UW Law are hostile toward or chronically disinterested in racial justice, and this case gives us another perspective on the culture at KCPO and less directly, the culture at UW Law, as the school insists on staying the course with its hurtful plan to team-teach a prosecution clinic with KCPO.

In the decision, State of Washington v. Misty Lou Cook and Pierre Daniel Spencer-Wade, we get to see a bit more into the culture of the prosecutor’s office which is teaming up with our own UW Law.

The KCPO said that they rejected this juror (Juror No. 34) not because of race but due to a variety of reasons, including that he used the term, “brother.”  The Division I Court of Appeals wrote that the term’s “use by the State in its purported race-neutral explanation conjures up racial overtones, particularly where both the defense counsel and the defendant are black.”

Another KCPO explanation: Juror No. 34 had set on a jury that had been unable to reach a verdict.  However, the record showed that it was Juror No. 5, the only other black juror.  In “its briefing, the State conceded that the prosecutor confused Juror No 34 with the other African-American juror, No. 5, but at oral argument the State retracted this concession.”  So in brief the KCPO actually admitted that it could not discern between the two black potential jurors.  And then they unadmitted in court.  We students believe this further indicates that KCPO cannot teach UW Law students about racial disparity because they have a culture more concerned with winning than with justice.

Another reason the King County Prosecutor claimed to have stricken No. 34 was that he “missed a simple corroboration question.”  In fact 15 other potential jurors answered similarly, and 5 of them were selected for the jury.  (And what’s more is that No. 34’s reply was correct and in line with the rules of evidence.)  Citing precedent, the court quoted: “if the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination…”

Interestingly, the Court of Appeals wrote that “it was the State who first raised the issue of Spencer-Wade’s race.  The prosecutor spoke of racial inequities suffered by African-Americans and inquired into any bias the jurors might have that would make them more lenient toward [the defendant] because of his race.” So it appears that KCPO is in fact aware that racial inequities exist, and it wants to ensure that such knowledge wouldn’t impact potential jurors’ decisions.

So, again, please write the decision makers and let them know that this clinic is an awful idea, for many reasons, including the culture at KCPO and UW Law’s reluctance to act on diversity issues students have pushed for years. See previous blog entries for ideas on what your letter could look like.  The decision makers can be contacted at:

Dean Testy <lawdean@uw.edu>, Prof. Maranville <maran@uw.edu>, UW President Michael Young <pres@uw.edu>, UW Provost <provost@uw.edu>, Board of Regents <regents@uw.edu>

Please tell them why UW Law needs a Critical Race Theorist and a Diversity Plan; tell them to cancel the prosecution clinic and to commit to clinics that address unmet legal needs. And if you like, Cc us at uwlawracialjustice@gmail.com  Please be kind and respectful; the administration has been both, and anyway, honey attracts more bees than vinegar.

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*In Batson v. Kentucky, the United States Supreme Court set forth a three-part analysis to determine whether a member of the venire was peremptorily challenged pursuant to discriminatory criteria. First, a defendant must establish a prima facie case of purposeful discrimination. Second, if the defendant establishes a prima facie case, then the burden shifts to the State to articulate a race-neutral explanation for challenging the juror. Third, the trial court considers the explanation of the State and determines whether the defendant has established purposeful discrimination.