January, 2021

Portraits of White Former Judges Removed from Courtroom for Trial

On a defense request to have the portraits of prior white judges removed from a courtroom for the trial of an African American defendant in an upcoming felony trial in Virginia, the presiding circuit judge, the Honorable David Bernhard, held: 

“At issue is not the narrow inquiry whether the portraits depict judges who have exhibited overt personal racial animus towards African Americans. Rather, the broader concern is whether in a justice system where criminal defendants are disproportionately of color and judges disproportionately white, it is appropriate for the symbols that ornament the hallowed courtrooms of justice to favor a particular race or color … in weighing the interests of honoring past colleagues against the right of a defendant to a fair trial, the Court is concerned the portraits may serve as unintended but implicit symbols that suggest the courtroom may be a place historically administered by whites for whites, and that others are thus of lesser standing in the dispensing of justice. The Defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interest of paying homage to the tradition of adorning courtrooms with portraits that honor past jurists. Consequently, the jury trial of the Defendant, and of any other defendant tried before the undersigned judge, shall henceforth proceed in a courtroom devoid of portraits in the furtherance of justice.”

The decision about portraits in courtrooms is an individual one left to the discretion of each judge; Judge Bernhard had previously removed the portraits of former judges from his own courtroom, but the upcoming trial, due to COVID-19 safety protocols, is scheduled to take place in a different, larger courtroom.

The specific defense motion, “Motion to Remove Portraiture Overwhelmingly Depicting White Jurists Hanging in Trial Courtroom,” was not opposed by the prosecution.

Judge Bernhard also stated, “The prevalence of portraits of white judges in the courtrooms of the Fairfax Circuit Court, which constitute some forty-five (45) out of forty-seven (47) individuals, while not emblematic of racism on the part of presiding judges, certainly highlights that until the more recent historical past, African Americans were not extended an encouraging hand to stand as judicial candidates,” and, “The display of portraits of judges in courtrooms of the Fairfax Courthouse is based on a non-racial principle, yet yields a racial result. The risk of fostering the perception of injustice or bias on the part of a jury, be it respecting a defendant or victim of color, weighs against permitting the showing of portraits during the jury trial … “

Sources: Derrick Bryson Taylor, “Virginia Judge Won’t Try Black Man in Courtroom Lined With White Portraits,” nytimes.com, January 1, 2021:
December 220 2020, Letter Opinion by Fairfax County Circuit Court Judge David Bernhard in Commonwealth of Virginia v. Terrance Shipp, Jr., No. FE-2020-8:

State Police Use of Encrypted Messaging App on State Phones

A recent article in the Detroit Free Press reported on information divulged in a pending federal lawsuit against Governor Whitmer, the State Police Director, and the State Police, suggests that an encryption messaging app, Signal, was used by top officials in the State Police. An Assistant Attorney General defending the State defendants in the suit had admitted in a filing in October 2020 that seven officials used the app on their state-issued cellphones; however, in an amended filing January 21, 2021, the Attorney General’s filing indicated that only five of the named officials actually used the app.

Signal is an app that allows a user to send encrypted messages, which once deleted are not recoverable and are not evident on state servers or on the cellphones. Because there is no permanent record, the data cannot be obtained and will not be disclosed through the Freedom of Information Act or legal discovery processes.

Lisa McGraw, the public affairs manager for the Michigan Press Association, was quoted in the article as saying, “Any attempt to avoid transparency by those the taxpayers employ is unacceptable – even more so for police employees in an era where accountability and transparency has never been more important in gaining the public trust.”

Sources: Paul Egan, “Top Michigan State Police officials using encryption messaging apps that can evade FOIA,” freep.com, January 22, 2021:

Predictive Law Enforcement in Florida County

A report in the Tampa Bay Times described a law enforcement program established by Pasco County Sheriff Chris Nocco as one created to “stop crime before it happened” through intelligence-led policing, but which actually created “a system to continuously monitor and harass Pasco County residents.”

Under the program, a list of potential law-breakers, called “prolific offenders” – compiled from past criminal histories, intelligence, and “arbitrary decisions by police analysts,” according to the reporters – is created. The program has thirty members, twenty of whom are analysts. Then, deputies go out and interrogate those listed, “often without probable cause, a search warrant, or evidence of a specific crime.” The deputies might arrive at any time of the day and make arrests where possible and then might write tickets for things like “missing mailbox numbers and overgrown grass,” which results in residents getting court-dates and potential fines. The article quoted a former deputy as saying the plan was, “Make their lives miserable until they move or sue.” When a person becomes a target, the officers will repeatedly visit to interrogate, often about the target’s friends; one person described in the article – a fifteen-year-old who had been arrested one year earlier for stealing motorized bikes from garages – was visited at home by deputies 21 times between September 2019 and January 2020, and deputies also visited the child’s mother at her workplace and stopped by houses of the juvenile’s friends.

Potential prolific offenders “are first identified using an algorithm the department invented that gives people scores based on their criminal records”; subsequently, points are added for arrests, even where charges are dropped or not filed, and points are added to the person’s score for any missed court-dates and each time the person’s name appears in police reports, even if the person is listed as a witness or victim. The manual used in the program notes that “[i]f the offender does not feel the pressure, if the offender is not arrested when they commit their next crime, or if the offender is left to feel their punishment is menial the strategy will have no impact.” Former deputies indicated there was steady pressure to keep the numbers of checks on prolific offenders high, and failure to do so could mean an officer would be removed from special units or reassigned to more distant districts.

In about five years, the program had targeted almost 1,000 people, almost 10% of whom were under the age of 18, and in that time, deputies had performed over 12,500 visits to people. Information obtained about the target, and about those associated with the target, is collected and input into a database. The Sheriff’s Office said statistics show a decline in burglaries, auto thefts, and larcenies, and the crime-reduction is a direct benefit to county residents. Critics of the program noted that crime rates also declined in other counties, while violent crime increased only in Pasco County. David Kennedy, a criminologist at the John Jay College of Criminal Justice, was quoted as saying the Pasco County program was “[o]ne of the worst manifestations of the intersection of junk science and bad policing — and an absolute absence of common sense and humanity” that he had ever seen. Another expert, American University law professor Andrew Guthrie Ferguson, after reviewing the program’s manual said, “It feels like everything that’s wrong about policing in one document.”

There was no evidence of disparate racial-impact in the majority-white county; about 7.5% of those arrested in the program are under the age of 18.

Sources: Kathleen McGrory and Neil Bedi, with Connie Humburg, “Targeted,” tampabaytimes.com, September 3, 2020:

Psychedelics May Help With Race-based Mental Trauma

A recent study, the first of its kind, examined two primary questions: “(1) is psychedelic use in the natural environment associated with a reduction in mental health symptoms [including traumatic stress, depression, and anxiety] among BIPOC [black, indigenous, and people of color] who have experienced racial trauma, and (2) what factors contribute to reductions in mental health symptoms among those who experience benefit from naturalistic psychedelic use?” The researchers noted that while there are some trials assessing the benefits of psychedelics on mental health symptoms, and for treatment of PTSD for example, the trials are small and lack significant focus on BIPOC and racial trauma. For example, an examination of 18 prior studies revealed that the participants in those studies were identified as 82% non-Hispanic White, 5% Indigenous, 5% mixed-race, 3% Black, 2% Latinx, 2% Asian, and 10% other or unknown.

The researchers noted that factors contributing to racial trauma include such factors as overt and covert racism, well-meaning “colorblind sentiments,” micro-aggressions (defined as “prejudicial messages expressed via seemingly harmless actions”), and media-focus on police violence against BIPOC.

The researchers compiled and examined data collected from 313 compensated participants; about one half of the participants were from the United States, and the other half were from Canada. The participants self-described, and of the responses examined, 32% were from Black or those of African heritage, 29% were from East Asian, South Asian, and Asian American/Canadian, 18% were from Indigenous or Native American/Canadian, and 21% were from Native Hawaiian, Pacific Islander, or other responding participants. The participants were at least 18, were residents of either the U.S. or Canada, could read and write in English, and had consumed a “classic psychedelic” (e.g., psilocybin, mushrooms, LSD, ayahuasca, mescaline, DMT, etc.) that produced benefit the participants thought provided relief to ethnic discrimination.

Among the question-topics were: general ethnic discrimination, where the participants provided a frequency of discrimination experienced in healthcare, legal systems, community settings, etc.; psychological insight, where the participants answered questions about their emotions, memories, and relationships during the use of a psychedelic; mystic experience, where the questions sought answers on the participants’ sense of mystical-experiences after taking a psychedelic; challenging experience, where the respondents reported on feelings of fear, anxiety, insanity, or grief, for example; and depression, anxiety, and stress, where the participants reported on those symptoms experienced in the 30 days prior to ingesting the psychedelic and in the 30 days after ingestion.

The results showed that, overall, there was a decrease in reported traumatic stress after use of the psychedelic, particularly in depression and general anxiety. The researchers found some differences among the participants relating to the type of psychedelic used. For example, those participants reporting use of newer/novel psychedelics tended to be younger (18-34 years), had never married, had lower incomes, and used other illicit drugs. Those participants reporting use of “classic” psychedelics (e.g., peyote, LSD, psilocybin) tended to be older (35-64), were married, divorced, or separated, and had higher incomes. Black, Native American/Alaskan Native, and Asian people were more likely to use classic, rather than novel, psychedelics.

The researchers acknowledged that there were significant limitations in the study, including that the responses received relied on the respondents’ recall, only positive benefits associated with the use of psychedelics were reported, and, while the participants represented diverse groups, more focus on the specific ethnic groups was needed.

Sources:  Beth Ellwood, “Study suggests psychedelics may improve the mental health symptoms of individuals suffering from race-based trauma,” psypost.org, January 11, 2021:
Monnica T. Williams, Alan K. Davis, Yitong Xin, Nathan D. Sepeda, Pamela Colón Grigas, Sinead Sinnott & Angela M. Haeny, “People of color in North America report improvements in racial trauma and mental health symptoms following psychedelic experiences,” tandfonline.com, December 10, 2020:
PDF: https://www.tandfonline.com/doi/pdf/10.1080/09687637.2020.1854688?needAccess=true

by Neil Leithauser
Associate Editor