Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Month: February 2017

The Vote for DNC Chair

Credit: David Paul Morris, Bloomberg

This weekend in Atlanta, the Democratic National Party will elect a National Committee Chair.  The progressive favorite is Keith Ellison, a veteran Congressman from Minnesota. Keith Ellison is the first Muslim ever elected to Congress. He is also the first African-American Congressman elected from Minnesota. Keith is running to succeed Donna Brazile who served as the Interim DNC Chairperson.

Who Votes for the DNC Chair?

According to VOX News, there are 447 potential voters for the DNC Chairperson. They include state party chairs and vice-chairs, 112 slots evenly divided by sex. State party officials, allocated by population and Democratic vote fill 208 slots.  California has 20 slots in this category. Our representatives include Hon. Barbara Lee, Rep. Maxine Waters,  NAACP State Chairwoman Alice Huffman and Christine Pelosi. 48 slots go to various national Democratic groups. The outgoing DNC chair gets to appoint up to 75 slots. 8 slots go to Democratics living abroad, but they each only get to cast half a vote. The DNC roster appears to include fair representation of women who will get to participate and vote in this important decision.

Contested DNC Chair races are rare. In 1985, Nancy Pelosi ran for DNC Chair.  Pelosi reportedly urged the Party to “move to the center” and become “the party of capitalism.” Nancy Pelosi stamped down younger leadership in November 2016 when she held onto her position as the leader of the Democrats in Congress. It will be interesting to see if her daughter Christine will vote for Keith Ellison. The chair (and eight other leadership officers) are elected by a majority vote. Another impressive candidate for DNC Chair is Jehmu Greene of Texas.

Who Is Keith Ellison?

Keith Ellison was raised in Detroit Michigan by two professional parents.  Keith and three of his brothers became lawyers. Another brother became a doctor.  Keith is a former trial lawyer who started his career as a civil rights lawyer.  He also worked for a time as the Executive Director of the nonprofit Legal Rights Center in Minneapolis.  He says his grandfather’s work with the NAACP in Louisiana influenced him in his youth. In his first week as a member of Congress, Ellison voted with the new Democratic majority as part of the 100-Hour Plan to raise the minimum wage, for federal funding of stem cell research, and to allow Medicare to negotiate pharmaceutical prices. He has a plan for his first 100 days as DNC Chair that focuses on organizing the massive opposition to the Trump administration.

Keith Ellison is probably the only candidate for DNC Chair that has an African-American Agenda as part of his platform.  This is especially relevant because the relationship between the party and the African-American community has become increasingly strained. In 2016, many Black leaders urged Blacks to “abandon” the Democratic Party. Hillary Clinton’s reluctant discourse with Black Lives Matter activists was not enough to give her the victory.

In 2014, PowerPac+ issued its Fannie Lou Hamer Report. The report showed that of $518 million spent in 2010 and 2012, the Democratic Party spent a measley 1.7% of its money on minority owned political consulting firms. One difference between Keith and former Labor Secretary Tom Perez, also running for DNC Chair, are their views on conflicts of interest within the party. Keith opposes conflicts by DNC members who also have contracts with the Committee. Perez is apparently not inclined to take on this issue.

Who Supports and Opposes Keith Ellison?

Keith Ellison is endorsed by Sen. Bernie Sanders, Sen. Elizabeth Warren, and Rep. John Lewis among others party leaders. Keith is opposed, not surprisingly, by Zionist Jewish leaders, including major Democratic donors like Haim Saban.

 

Credit: Wikipedia

Mr. Saban is Hillary Clinton’s biggest donor and reportedly has a net worth of $3.6 billion. He has also contributed between $5 million to $10 million to the Clinton Foundation. Mr. Saban is a leading member of the .01% of wealthy Americans. Saban says that his greatest concern is to protect Israel and he entered politics for that purpose. Regrettably, American politics has long been defined and divided by support for Israel (or not).  In my experience, there is a very thin line between folks who are “pro-Israel” and straight racist Zionists.

“Evidence” used to label Keith Ellison as “anti-Semitic” is his support of Stokely Carmichael‘s right to speak at the University of Minnesota in 1990 and his support of the 1995 Million Man March. As someone who hosted Stokely Carmichael at Yale in 1975, and a businesswoman who closed her business on the historic day of the Million Man March to support my brothers, I find this “evidence” completely ridiculous.

Why Does It Matter?

The DNC Chair position is historically a bureaucratic one. The DNC will set the rules for and administer the election primary process. And it’s the DNC that will help determine whether Democrats can in fact make gains in the 2018 midterm elections. But, the Chair does lead on Democrats’ decisions, organization and spending priorities. The Chair can be a prominent voice in the national dialogue on issues that matter to Americans.  In addition, the Chair provides direction and hopefully, inspiration to Democrats locally and nationally.

This election really matters, however, because it will either define or expose the Democratic party.  Most of all, it will show whether we are really a grassroots party, or the party of capitalism. Whether we want progressive, younger members to lead us, or to continue to be dominated by those who have power, money, control and conflicts of interest in the party. Today, progressive activists everywhere proclaim our opposition to the “Muslim ban” issued by the Trump administration. There is a question whether we will also see a “Muslim ban” inside the Democratic party this weekend.

The Year of the Warrior

It is the Year of the Warrior.  Art Douglas Blacksher is my client.

Doug is a warrior for justice. He’s fighting to make sure that what  happened to him does not happen to someone else. This is his story.

Unfortunately, Doug’s story is not unique. In September 2013, over 150 Black contractors marched in San Francisco to protest the exclusion of Black contractors from the construction of the 49er’s Levi Stadium. They protested the fact that a pre-qualified list of approved contractors for Levi Stadium started out with no Black contractors. Through their advocacy, the builder, Turner Construction, opened up the process. As much as they did, it is still estimated that Black firms received only 1.6% of the contract dollars out of $1.5 billion spent on Levi Stadium.

Suing Clark Construction

The Golden State Warriors are moving from Oakland to San Francisco. That in itself is saddening. To make matters worse, the Warriors’ new stadium, the Chase Center, is being built by Clark Construction in partnership with Mortenson Construction. Doug is suing Clark Construction because he believes Clark intentionally destroyed his business. Clark’s history suggests that it does not support equal economic opportunity for Black contractors.

In November 2016, Doug attended a meeting for subcontractors convened by Clark. Doug describes the meeting as “a deja vu nightmare.” Why? Because Clark made the same promises to interested San Francisco minority businesses (MBEs) that it made to Oakland MBE subcontractors. Based on his experience, Doug believes that Clark has no intention of fulfilling its promises to MBE subcontractors.

Clark claims that it has a 50% participation goal for “small business enterprises.”  We want to know if Clark’s list of pre-qualified subcontractors includes any Black, women or minority-owned businesses. We also want to know what efforts Clark made to recruit MBEs for the Chase Arena project.

Chase Arena Artist’s Rendition Courtesy: Mercury News

The Warriors and Chase plan to spend $1 billion on the project.  On February 14, 2017, the San Francisco NAACP voted to support Doug’s quest to ensure that Black contractors in San Francisco “get a piece” of the Warriors’ action.

 

A Shameful History of Racism

In 2009, Nina Totenberg retold the moving story of a Black contractor working in Birmingham Alabama in 1962.  One of Birmingham’s largest contractors reluctantly allowed the Black contractor to bid to install windows on two public schools.  The Black contractor won the bid and installed the windows perfectly.  “The night before the final inspection on the first school, every window in the school was smashed. The police promised to guard the second school to prevent a repeat. But again, all the windows were smashed. Pinkerton agents brought in by the insurance company eventually concluded the police were complicit.”

Racism in the construction industry is legendary. First of all, the construction industry relies more heavily on social networks than many other industries. It is a “buddy-buddy” network, that was built to exclude Black contractors. Consequently, the construction industry was one of the first targets of anti-discrimination advocates after the civil rights laws were passed in 1964. But it was not until the 1970s that economic opportunity for Black contractors began to be legally enforced. The earliest cases attacked unions firmly committed to excluding Black workers from construction jobs.

Racism In Construction Persists

Yet, race discrimination in the industry nationwide still persists. Hence, in 1998, a Colorado Department of Transportation study found that more than 99% of contracts in the state’s highway construction industry went to firms owned by white men. (Congressional Record, May 22, 1998; S5413.)

The persistent problem of racism in trade unions nationally is described in a 2011 labor union report. Indeed, in January 2008, then Inquirer columnist Tom Ferrick reviewed trade unionists working on $500-million worth of public projects in Philadelphia in the preceding five years and concluded “these well paid union jobs … remain all-male, nearly all-white and the majority live in the suburbs.”

In 2012, it was reported that only one black-owned construction firm (Platt Construction) in Milwaukee, Wisconsin served as a prime contractor when the city awarded 125 prime contracts. One black-owned firm (Adkins Family Enterprises) served as a prime contractor in 2011, when Milwaukee awarded 100 prime contracts that year.

The Year of the Warrior

The National Association of Minority Contractors (NAMC) founded in Oakland in 1969 remains relevant today. NAMC continues to advocate for fair and equal opportunity in the construction industry.  Furthermore, we expect that NAMC will soon join the NAACP and the San Francisco Black Chamber of Commerce in supporting Doug Blacksher’s war against racism. Ultimately, we also hope that the Warriors themselves, including Stephen Curry, Draymond Green, Klay Thompson, Kevin Durant, and others, will not allow racism to put a stain on their house.

 

 

Hypocrisy in Alameda County

Credit: Alameda County Sheriff’s Dept.

Former Livermore Police Officer Daniel Black is on trial.  He is one of dozens of Bay Area police officers who allegedly abused their power to sexually exploit my former client, Jasmine.  Black admits that he had multiple sexual encounters with 19-year-old Jasmine.  He claims the sex was part of “a private relationship” with Jasmine.  Black’s alleged conduct took place in April 2016 while the Oakland Police Department was trying to cover up Jasmine’s sexual exploitation by OPD officers.

In September 2015 OPD Officer Brendan O’Brien committed suicide and left a note “naming names.”  O’Brien’s suicide exposed the commercial sex trafficking of young women by law enforcement throughout the Bay Area.  Daniel Black was not one of the men named in the note.  Apparently he was not aware of the ongoing OPD cover-up and investigation. He is accused of going to Richmond to get Jasmine in April 2016, and using food and alcohol to compensate her for having sex with him.

Felonies and Misdemeanors

Penal Code Section 266i (a)(2) provides that any person who “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute” is guilty of pandering. Dan Black’s sexual exploitation of 19-year-old Jasmine was “pandering” her under the law.  The fact that someone has previously engaged in prostitution is not a defense to the charge.  Penal Code Section 266 is a felony.

Dan Black is on trial for five (5) misdemeanors.  He is charged with engaging in prostitution, engaging in lewd conduct in public and giving alcohol to a minor (under age 21).  Misdemeanor charges carry far less severe punishment than felony charges.  Misdemeanor convictions can include unsupervised probation or no jail time.  Felonies usually include some type of prison or jail time and significant restrictions of your constitutional rights, including the right to vote.  Dan Black is not charged with any felonies.  He is not charged under California’s human trafficking law.  This is very strange.

Proposition 35 – Californians Against Sexual Exploitation Act

In 2012, California voters passed Proposition 35.  The law passed by a huge margin. 81.3% of voters said yes.  Prop. 35 is intended to fight commercial sex trafficking, particularly as it affects minors.  It changed the law to include more crimes in the definition of human trafficking, increase penalties for trafficking, provide more services for victims, change evidence rules in trafficking cases, require law enforcement training in human trafficking, and expand requirements for sex offenders.  As a result of the voters, Prop. 35 includes a violation of Penal Code Section 266.

Alameda County District Attorney Nancy O’Malley was a major supporter of Prop. 35.  Yet, none of the Bay Area police officers who sexually exploited Jasmine face charges under Prop. 35.  Not a single one.  This is the worst sex scandal to ever rock Bay area police departments.  This scandal cost Oakland 3 police chiefs in nine days.  These crimes will cost the City of Oakland and the County of Alameda millions of dollars.  Yet, none of the police officers charged in Alameda County are facing sex trafficking charges.  Not a single one.  It is as if Prop. 35 does not even exist.

Prosecutorial Discretion and Overcharging Crimes

What makes this situation even more bizarre is that prosecutors routinely overcharge defendants.  The practice of overcharging has become one of the hallmarks of our criminal justice system – a way to ensure that the system can actually function.  The only way the Courts can handle the number of cases charged by prosecutors is by getting plea bargains.  If every criminal defendant insisted on going to trial and refused to “take a deal”, the system would totally collapse.

In his book Why Innocent People Plead Guilty, Jed S. Rakoff writes that “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”

There are no written regulations controlling the prosecutor’s exercise of his charging power in California or anywhere else in the United States.  There is no established or meaningful process for appealing the prosecutor’s exercise of his charging power. The result is that an estimated 95% of all criminal cases end with a plea bargain.

Credit: New York Review of Books

Jed Rakoff cites the case of Brian Banks from Long Beach, California.  Banks, who had been a high school football star with a scholarship to USC at the time of his arrest, served five years in prison for rape and kidnapping charges.  Brian did not actually commit the crime.

 

Brian Banks accepted a plea bargain under the advisement of his original lawyer.  He was freed in 2012 through the efforts of the Innocence Project.

Comparing Brian Banks’ case to Daniel Black’s case may seem like comparing apples to oranges.  But the real difference is that Brian Banks was charged and convicted of a crime he did not commit, while Dan Black is not charged at all with crimes he admits he committed.  Is this a case of “white privilege” or “badge privilege?”  Something is definitely wrong with this picture.  The artist in Alameda County is our District Attorney.

Calling Social Engineers

Calling Social Engineers

Charles H. Houston (1895-1950) said a lawyer is either a social engineer or a parasite on society.  On Monday, January 30, 2017, Mr. Trump fired a social engineer.

Credit: Wikipedia

Her name is Sally Yates.  She was the Acting Attorney General of the United States.  The statement that triggered Mr. Trump’s rage describes her constitutional role:

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.

 

In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right.  At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

America’s Private Prisons for Immigrants

This is not the first time that Sally Yates took a principled position on behalf of the American people.  In August 2016, Ms. Yates instructed Justice Department officials to either decline to renew the contracts for private prison operators when they expire or “substantially reduce” the contracts’ scope. The goal is to reduce and end the federal government’s use of privately operated prisons.  These prisons are used exclusively for non-citizen inmates.

Yates’ action follows the Office of Inspector General (OIG) report on federal private prisons.  The OIG found federal private prisons have higher rates of assaults and deaths under questionable circumstances, problems with contraband, low quality food and medical care.  These problems are reported in multiple exposes in Mother Jones and the Nation. These are the same prisons Mr. Trump will use to house immigrants targeted for deportation.

As a result of the Trump Executive Order on immigration issued on January 27, 2017, students, visitors and green-card-holding legal permanent United States residents from seven countries — and refugees from around the world — were stopped at airports in the United States and abroad.  Some refugees were blocked from entering the United States and sent back overseas.  Some refugees stopped at airports with no place to go would be detained.  That’s why Americans and lawyers descended upon major airports.  People who had committed no crime but had no place to go would be taken to federal private prisons.

Being A Social Engineer

It is a good time to be a civil rights lawyer.  Around the country, lawyers are organizing and galvanized to be social engineers.  It means that we, like Sally Yates, will uphold and defend the Constitution as a part of our regular day job.  Not just on holidays. The fight is clearly on.  Michael Moore warns that Mr. Trump has started a bloodless coup.

By changing the laws, firing lawyers and senior staff and giving legal authority to his advisors with the stroke of his pen, Mr. Trump is clearly taking control of the Executive branch.  With three Supreme Court nominations within his reach, he will soon control the United States Supreme Court.  Under a far right Supreme Court, our role as civil rights lawyers will likely be rendered obsolete in federal Courts.  Our role as social engineers may be the only way left to practice civil rights law in America. Thankfully, Charles Hamilton Houston, in his life’s work, has already given us the precedent to follow.