I got to thinking….

Have you seen this amazing video from the Onion?  It is good on many levels.  At the risk of sounding like Carrie Bradshaw, after watching this, I got to thinking, could this ever really happen???? I am going to address the reverse of this… i.e. could a black man ask to get treated like a white man in court. because that is a very interesting idea. 

Had to remove the embed because it kept going on autoplay. check it out here.

So, let’s say, hypothetically (of course) You are representing a black man accused of a crime.  and let’s say that that crime isnt the best crime to be accused of if you are a black man.  in this hypothetical identity is not the issue. e.g. your client readily admits he is the person who did the conduct, but he has a defense.

For example, now, this may be a little retro, so forgive me (I believe it is not that retro because these stereotypes are totally still at play in today’s criminal courts) you are an older black man and you are accused of raping a younger (but still an adult) white woman.  The defense is consent.  Could you make a motion to request that you are allowed to have a hired actor who is a white male (is also specially trained on how to look innocent during a trial) sit in the place of your client? 

Sure the DA probably has the right to an in person identification of the defendant in court (see e.g. People v. Green (1979) 95 Cal.App.3d 991, 1003 [affirming trial court’s order that codefendants could not voluntarily absent themselves from the preliminary hearing to avoid an uuber suggestive in court identification situation because  “The People had a right to adduce evidence pertaining to the identity of the perpetrators of the crimes in the form of the in-court identification testimony of the eyewitness-victim in order to meet their evidentiary burden in the proceeding.”] Insert analogy to the right at trial here because I’m too lazy to see if there is law on that but let’s face it if the issue ever came up, given that they have the right at px, i’m sure they have the right at trial.)

So let’s say in this hypothetical for some unknown reason the DA agrees to a stipulation of identity.  I.e. that you will agree to tell the jury that it has been established beyond a reasonable doubt that the defendant is the person who the alleged victim had sex with so they do not need to decide that issue.  The only issue is consent.  Your client may or may not testify.

Could you make such a motion? does anyone out there have the balls or ovaries to make such a motion???

I mean, am I missing something here–and by something i mean a law or case– that would justify the denial of such a motion? Sure there is an obvious ethical issue with this (see e.g. the CA rules of professional responsibility, Rule 5-100 (b): “In presenting a matter to a tribunal, a member: (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law”).  So there’s that. But besides that, what would the prosecutor’s argument be??? “Your honor, it’s not fair! I was expecting to benefit from the fact that the defendant is Black and Black men in our system don’t usually get a real presumption of innocence?”  

And, do prosecutors today truly believe that a black man on trial enjoys the same presumption of innocence as a white man? or as a white woman? or as a WAIT FOR IT white child?  And if they don’t how does it even matter to them if they believe the person is factually guilty? Cause that shit matters to me!

just because i’m a bad ass bitch in court doesn’t mean you can’t hurt my feelings!!

There is nothing that makes me mad more than a prosecutor who accuses me of something.  Ironic, because prosecutors have made a career out of accusing people of shit because they love to do that so much (whether it is founded or unfounded).  But, I really truly get pissed when a prosecutor accuses me of something.

Case-in-chief.  A prosecutor (who shall remain nameless and whose jurisdiction and even federal or state status shall too) accused me of acting shady because WAIT FOR IT the court granted my request on a case and I did not make sure that the prosecutor–who was assigned to that department, physically in that department, physically at counsel table in front of the judge when this happened–knew what was going on.  You think I am making this up, I am not.  This person accused me of trying to pull one over on him/ her.

I am not sure if I was more upset that I was being accused of something I am not, shady, that I was being FALSELY accused of this, or that my tax dollars were paying for a person to do a job and when this person was literally asleep at the job he/she actually believed  it was appropriate to blame me.  But, the accusation actually made me cry.  and not just a few tears. Like I really cried about it. so, although i have had a relatively (white)privileged life and don’t know what it is like to have people in power assuming the worst of me … i do have a little glimpse into how it feels. and that shit hurts!

As defense attorneys we should never be shocked when a prosecutor accuses us, especially falsely, of something.  I just wish they would think twice before doing it to us, but more importantly, our clients.