Obama Prejudices Justice by Injecting Himself Into Local Legal Controversies
By Ken K. Gourdin
President Barack Obama has a bad habit of injecting himself into local law enforcement matters in a way that is harmful to the proper functioning of the criminal justice system—not to mention being harmful to the cause of justice itself.
As a lawyer by training (not to mention being sworn to “preserve, protect, and defend”1 the Constitution of the United States, as well as to “take care that the laws be faithfully executed”2) the president should know better.
Yes, the president, like everyone else who lives in the United States, has a First Amendment right to speak freely on most any subject. But just because someone can do (or say) something doesn’t mean that person should do or say it.
First, Cambridge, Mass. Police arrested Harvard Professor Henry Louis Gates, Jr., for disorderly conduct after Gates became irritated and unruly at having to justify his presence on the premises when police contacted him as he was trying to get back into his house after having locked himself out. (It seems reasonable to me, if the police don’t know that it’s my residence into which I’m trying to gain reentry, and if I don’t have a key, that I should have to prove that I am who I say I am and that I have a legitimate right to be there. People who cannot prove those two facts are legitimately arrested for burglary, trespassing, breaking and entering, and similar offenses all the time.)
If people—whether those people be white, black, brown, The Purple People Eater, and so on—who cannot prove who they are and that they have a right to be on the premises often are legitimately arrested for offenses such as burglary under circumstances similar to those in which the police encountered Gates, then it would seem to me that police had a perfect right to question him. And if his conduct in response to that encounter met the requirements under Massachusetts law for disorderly conduct, they had a perfect right to arrest him for that offense.
What did President Obama (who, if he’s not a friend of Gates, is acquainted with him on some level) say regarding this incident? He said that Cambridge Police “acted stupidly” in arresting Gates. In fact, he said they “acted stupidly” even though he also admitted “not having been there and not seeing all the facts.”3
Suppose the Cambridge police officers involved in this incident had been fired for their allegedly- “stupid” conduct. Suppose they exhausted all administrative remedies in an attempt to get their jobs back, leaving them no other option than to sue. (Or suppose Gates has sued them for that allegedly-“stupid” conduct.) President Obama’s statement regarding the incident received wide coverage.)
Although I’m not an attorney, if I had defended these officers, you could bet dollars to doughnuts I would have asked every prospective juror during voir dire (jury selection) if he happened to hear what President Obama had to say about the Gates incident. If the answer to that question were, “Yes,” I would immediately move to disqualify that potential juror. How likely do you think it would be that I could find a fair, impartial jury among people who had heard what President Obama had to say? (“He’s a Harvard-trained lawyer and the President of the United States, to boot! If he says the police acted stupidly, who am I to argue?”)
And if one or more people had been selected to serve on the jury, had rendered a verdict which was unfavorable to my clients, and it was later learned that the juror (or jurors) agreed with President Obama, what do you think the likelihood is that I would appeal that jury verdict? I’d say, 100 PERCENT, even though I’m not a Harvard-trained lawyer (hell, I’m not even a lawyer, period—yet!) and I’ll never be President of the United States. (Even alumni of the lowly S.J. Quinney College of Law at the University of Utah are smart enough to say, “Duh!” when asked whether they would appeal such a verdict.)
Second, there’s the Trayvon Martin case. When asked about the case, the president said, “If I had a son, he would look like Trayvon.”4 Again, although I’m not an attorney, if I had defended George Zimmerman, you could bet (dollars to doughnuts) I would ask all potential jurors if they had heard what President Obama had to say about the Zimmerman-Martin incident. If the answer to that question were, “Yes,” I would immediately move to disqualify that potential juror. Again, how likely do you think it would be that I could find a fair, impartial jury among people who had heard what President Obama had to say? (“He’s a Harvard-trained lawyer and the President of the United States, to boot! If he says the police acted stupidly, who am I to argue?”)
True, President Obama isn’t on record as saying that the Sanford, Fla. Police “acted stupidly” with respect to the Martin-Zimmerman incident. There’s a reason why it took them so long after the incident occurred to file charges against Zimmerman; and there’s a reason why the case was prosecuted by a special prosecutor appointed by Florida Governor Rick Scott rather than by the local state’s attorney (that is, the local prosecutor normally responsible for prosecuting crimes in that county): It was never a strong case.
And, as if his public comments regarding the Gates affair and the Zimmerman-Martin incident weren’t enough, President Obama also feted the rapper known as Common, whose lyrics have glorified cop killing, at the White House. 5 Given his comments about Cambridge Police following the Gates incident, as well as his perhaps-similar feelings about the Sanford Police (who initially refused to request charges in the Zimmerman-Martin incident), along with his choice of whom to invite to the White House, one might be justified in concluding that the president doesn’t hold law enforcement (and perhaps other components of the criminal justice system, such as prosecutor’s offices) in very high esteem.
And by the way, given the wide coverage President Obama’s comments on these cases received from a (until recently, amid several emerging controversies) heretofore largely-sycophantic media, even if I won a change of venue motion on the ground of pretrial publicity that has been unfavorable to my client(s), where could I ask that the cases be moved to ensure that my client(s) could get a fair trial, GUAM??!!!
If President Obama were a lowly trial lawyer (perish the thought!), if he were defending George Zimmerman or the Cambridge police officers involved in the Gates case, and if the President of the United States had said about either of those cases what President Obama said, he would be roundly, unanimously, and rightly excoriated by The Defense Bar.
Memo to President Obama:
Yes, you’re a smart guy—perhaps too smart for your own good, and yet (seemingly) still too dumb to recognize it sometimes. No, no one’s denying you your right to your own opinions. But even being the president of the United States (and even being really smart) doesn’t give you the right to prejudice potential jurors. Yes, it sucks, but people in power do need to watch what they say and who they say it to. You’re no different. Sometimes, the best response when asked about a high-profile criminal case really is a noncommittal expression of faith in the criminal justice system.
And even if you think the jury got it wrong in the Trayvon Martin case (like you probably do), your best bet is still to invoke the First Amendment (“people of good will and in good conscience are entitled to differing opinions”) and, perhaps, to say that if you were accused of a crime (whether you’re guilty or not) you would want—and you would be constitutionally ENTITLED to—the kind of defense George Zimmerman got.
Or, perhaps, you might conclude that even though you’re entitled to your opinion, there are reasons (good and sound) why you might want to keep it to yourself, and say, instead, simply “No comment.” If your response to my objections is, “But you don’t understand! People expect me to speak for my race . . .” Let’s turn it around. Let’s suppose that I (a white guy) were to say that, “Blacks/African Americans feel a certain way about a certain issue . . .” I would quickly (and rightly) be accused of stereotyping: there is no more unanimity based on race about any given issue than there is unanimity based on any other single, immutable characteristic.
Similarly, no matter how powerful and influential you are, you cannot be expected (because you simply cannot—that is to say, you lack the ability) to speak for all African-Americans on any given issue (particularly on issues that are so publicly charged as the Gates and Zimmerman-Martin cases), just as I do (or anyone else does).
1 The United States Constitution, Art. II, § 1.
2 The United States Constitution, Art. II, § 3.
3 See, e.g., No author listed (July 23, 2009), “Obama: police who arrested professor ‘acted stupidly,’” http://www.edition.cnn.com/2009/US/07/22/harvard.gates.interview/, last accessed July 15, 2013. Although President Obama later backpedaled (see, e.g., Cindy Adams (July 25, 2009), “President Obama regrets ‘acted stupidly’ statement regarding police who arrested Gates,” http://www.examiner.com/article/president-obama-regrets-acted-stupidly-statement-regarding-police-who-arrested-gates, last accessed July 15, 2013), too often, most everyone sees the first comment (and forms an opinion based upon that comment) while never seeing the subsequent comment in which the president backpedaled.
4 See, e.g., Byron Tau (March 23, 2012), “Obama: ‘If I had a son, he’d look like Trayvon,” http://www.politico.com/politico44/2012/03/obama-i-had-a-son-hed-look-like-trayvon-118439.html, last accessed July 15, 2013. While the White House later attempted to distance itself from the controversy, again, most everyone sees the first comment (and forms an opinion based on that comment) while never becoming aware of subsequent developments.
5 See, e.g., Emily Esfahani Smith (May 9, 2011) “Obama to honor controversial rapper known for cop killing, misogynistic lyrics,” http://www.theblaze.com/stories/2011/05/09/obama-to-honor-controversial-rapper-known-for-cop-killing-misogynistic-lyrics/, last accessed July 15, 2013.