A Nondiscriminatory Standard for Using a Discriminatory Word?

There is a difference between saying (or writing) a word and using that word; specifically, the former does not always entail the latter.

By setting forth on this blog posting the word "nigger" I am certainly writing it, but not necessarily "using" it to characterize or insult or demean anyone.  There are many, myself included, who truly consider the use of that particular word to be offensive; accordingly, in what may well be an overabundance of care and caution, terms such as "the word" or "that word" will be written in lieu of the aforescribed hexagrammaton for the remainder of this posting.

The jury has spoken.  Brandi Johnson has been awarded some punitive damages in her employment discrimination suit against her former employer, STRIVE East Harlem, and her former boss (and STRIVE founder) Rob Carmona.  Seems that Carmona, himself of the Black race, used (and not just said) the word in an excessively strident manner when asserting his position in the organizational hierarchy in his interactions with his former subordinate.  Carmona had claimed that the word has both derogatory and affectionate use in Black and Latino societies (English translation:  Black people are privileged to use that word, but white people are not).

The jury wasn't buying any of it.  Carmona and STRIVE were hit with punitive damages in addition to the compensatory damages.

My take on it all:

Firstly, neither Johnson nor Carmona are the cream of the crop.  It must be understood that STRIVE's intended target has never been the rightward reaches of the bell curve; to the contrary, STRIVE has used a "tough love" approach to get its clients to conform to the standards of the workplace and thereby obtain and maintain gainful employment.  Carmona himself managed to break free of the cycle, and, to his credit, now strives (pun absolutely intentional) to help others break free and become contributing and productive members of society.  Johnson, an employee of STRIVE (but apparently never a client) has a criminal record, which Judge Harold Baer found to be irrelevant to the case and therefore not for consumption by the jury panel.

Secondly, according to Johnson, "I was offended. I was hurt. I felt degraded. I felt disrespected. I was embarrassed."  Notwithstanding the tendencies of purported employment discrimination victims and other types of plaintiffs to overexaggerate their injuries, I basically credit Johnson's testimony at its full face value.  I myself have been the object of discriminatory bigotry, including but not limited to workplace venues, and can fully appreciate the damages such experiences can wreak.

Most notable, however, is that Johnson's attorney, Marjorie M. Sharpe, herself African-American, has publicly come out squarely and emphatically against the double standard which permits Black people to use that word while subjecting others who use it to loss of employment and steep jury verdicts.  Marjorie is squarely on target.  Too, too many in the African-American community have acquiesced in if not proactively championed the double standard, which, among other things, contributes in no small way to the violent culture of rap music.

And on a more personal level, I am far less likely to be convinced of the nefariousness of the word when those who insist that it is so ultraoffensive take license themselves to use it.

This case will likely set precedent, and not only in employment discrimination matters.

It is time for the Black community to take some affirmative action against their own double standard.

Trial By Jury

I was in court today, only this time it was to discharge my jury duty obligation. Since 1996, there have been no automatic exemptions from jury duty, which I think is a good thing. Everyone should be able to serve.

Inconveniences to my law practice and teaching notwithstanding (I don't go back to teaching for another 2 weeks anyway), I considered myself ready, willing and able to serve on a jury panel. I had been given a month's notice, and was able to arrange my law practice schedule accordingly.

This was the third time in my life I reported for jury duty (not counting some of the telephone standby years where I never actually had to show up). The first time, when I was in law school, all cases settled and they sent everyone home early. The second time, I knew one of the attorneys at voir dire, so we exchanged the pleasantries and I was sent back to the Central Jury room, where, about 2 hours later, everyone was sent home.

This time, the telephone message posted Friday evening (a few minutes before Shabbat) told me that a range of juror numbers in which mine fell was to show up today. I planned my schedule accordingly.

They now have an orientation video narrated by Ed Bradley from "60 Minutes," which showed a few clips from the old Perry Mason TV series I enjoyed when I was growing up. Bradley explains that these were overdramatizations of the real thing. But I liked them anyway. Much of the video consisted of various people, obscure and famous, telling us all how great the jury system is (which was the main purpose of this "orientation"). And then, the HDTV monitor in the Central Jury room shifted to the CNN News (the big story today, of course, was Bernie the Goniff Madoff). Interestingly, there were several commercials for law firms. I wonder what the implications of this would be if one of those law firms were actually involved in one of the cases heard by a jury that day.

They finally called us, so a Court Officer escorted us to the courtroom on the 5th floor (I walked the stairs, and beat most of the people taking the elevators). Looking at the judge's calendar outside the courtroom, I realized that this was a criminal case.

One of the jurors was an Assistant DA (who also seemed to know the defense attorney), so she was immediately excused. After some general discussion of the case by the Judge (criminal misdemeanor leaving the scene of an accident case, trial scheduled 2 - 5 PM, estimated trial time 5 days), His Honor asked if anyone would be unable to serve. Several people came forward (child care, self-employed tradesman, etc.), most of whom were excused.

Then the first 15 jurors on the list, myself included, were called up for individual voir dire. His Honor asked the usual questions, such as whether we were able to decide the case objectively; whether, if the evidence were sufficient, we could vote to convict without regard to the sentence to be imposed; whether we were willing to consider all of the evidence; whether we could attach no significance to the fact that the defendant doesn't testify if she so elects; et cetera.

Then came the question of whether we would be able to apply the law as instructed by the judge. So I raised my hand and said, in substance, the following:

"Your Honor, I have been admitted to the bar for more than 20 years. My practice does not entail criminal law, so I don't have too many preconceived notions as to what the law is here. However, Your Honor, in what I believe to be the unlikely event that Your Honor were to give a legal instruction that differed from my understanding of what the law is, then, Your Honor, I would have significant problems with that!"

One of the Court Officers seemed to suppress a grin, while His Honor took a second or two to compose himself. The Judge then asked me (and not without a tinge of anger) "Are you saying that you would not apply the law as I instruct you if you disagree with me?"

"Your Honor," I replied, "I stress that I consider such an eventuality quite unlikely. But if Your Honor's instruction as to the law in New York were, perchance, to differ from my understanding of it, then I at least would want to know the legal authority, and look up the legal citation, for such an instruction. On account of my training and experience."

I could almost detect little wisps of smoke emerging from His Honor's ears. He called the ADA and Defense Counsel to the bench, and, after about 10 seconds, glared at me and said, "You are excused!"

I can empathize with His Honor. He was damned if he did, and damned if he didn't. On one hand, he had asked, nay, put us all under oath, to be honest and candid. I was honest and candid. And judges are not infallible; indeed, on any given business day, a trial judge who misapplied the law is overturned by an appellate tribunal in the State of New York. If he were to chew me out, then none of the other prospective jurors would have been honest and candid.

[Also playing into the equation, I suspect, was the fact that I have been admitted to the bar about 9 years longer than His Honor (and, apparently, longer than either the ADA or the defense attorney). I have had 9 more years than His Honor has had to develop an understanding of the law.]

On the other hand, if he were to excuse me (which he did), then wouldn't such a precedent effectively serve to reinstate the automatic exclusion of attorneys from jury duty (remember, the other attorney in the jury pool had been excused, right before everyone's eyes, just a few minutes earlier)?

Note that if the Judge did not wish to make a wholesale practice of excusing attorneys, I did give His Honor an out. I stated and restated that I considered the odds of a conflict between His Honor's instructions and my understanding of the law to be rather long. His Honor could, with the agreement of counsel, gone ahead with me anyway. And, His Honor could have seated me, and instructed me to pass him a note if my understanding of the law differed from his instructions, so that he could apprise me of the legal authority for his instructions.

And, perhaps, there may have been the fear of a kingpin juror (though my personality is definitely not that of a kingpin juror).

And so, I am not subject to jury summons for another 6 years.

While it's good to get my schedule back, I'm a little bit disappointed. A major part of me does want the experience of serving on a jury panel.

We'll see what happens when I get called up the next time.


Ironic Postscript: En route back home from the courthouse, I stopped at a nursing rehab facility to visit a member of our congregation who incurred a nasty foot fracture. Other than his depressed mood, he's doing fine medically. And he is a retired physician (with a daughter who has been admitted to the bar a few years longer than I have been). It kind of made his day that there he was, doctor in the patient's bed, was being visited by a lawyer who sat in the jury box.