Bassel Khalaf:
Welcome to WK Pod, home with the never ending podstable where we discuss legal issues. Some of our guests are attorneys, some are not. Do not take anything on this podcast as legal advice. If you have questions about a legal issue, get your own attorney. Peace!

Bassel Khalaf:
All right, this is the second episode of the never ending podstable. I'm Bassel Khalaf here with Taite Westendorf. We're the attorneys at Westendorf and Khalaf PLLC. The topic for today is:  Is the system racist? The system being in quotes because that encompasses a lot of things. I think a good place to start with that would be laws that we see on the reg when we're in court. And, we have clients who have been charged with a specific crime. When you look at some of these crimes, they're vague. For instance, you got disturbing the peace. You've got, what are some of the other ones that come off the top of your head?

Taite Westendorf:
Disorderly conduct, obstruction of justice. Very, very vague laws.

Bassel Khalaf:
Yeah, and I guess the point would be officers can since they're so vague, officers can decide to charge people, not whenever they want. I mean, clearly the elements of the crime have to be met. But the officers can disproportionately charge one race over the other if they wanted to. And I think the data actually backs up the contention that that actually happens.

Taite Westendorf:
Yeah, if you look at data, I know that it was the the Daily Progress who had an article specifically a couple of years ago on disorderly conduct, and blacks are disproportionately charged with it. Same thing goes, there's a lot of documentation on possession of marijuana, black folks are way, way more likely to be charged with it. So they're disproportionately touched by it.

Bassel Khalaf:
We always like to give sort of example of, maybe an illustrative principle of what we're talking about. And I think when you give officers leeway to just decide when to charge a thing, or when to investigate a thing that could lead to a situation where you have disproportionate action towards one race or the other. For instance, let's say I'm an officer and I don't have to pull everybody over who has a busted tail light. I have the leeway to disregard one person over the other. As that officer, how often do you think I'm going to be in the rich neighborhood pulling over grandma and the Cadillac versus pulling over the minority person in the quote unquote high crime neighborhood. Both of them are committing the same offense. They both have busted tail lights. The thought from a lot of officers and honestly, I think most officers would be candid about agreeing with me, you're trying to get in the car, you're trying to pull the person over. No officer is going on their shift thinking I can't wait to issue tickets for busted tail lights. It's more of a situation where, okay, I'm going to do my job by pulling somebody over for a busted tail light. And once I've pulled that person over, I might uncover some other crime, I might smell the odor of marijuana in the car, which would get me a full search of the vehicle. But again, I think most officers aren't going to be pulling over the white grandma. We're in Virginia Beach so I'd say the Hilltop neighborhood might be the you know, whatever stereotypical example of a neighborhood where grandma's probably not getting pulled over. But the scenarios where officers have full discretion to choose to charge or not charge or pull somebody over or not pull somebody over. It could just lead to these. you'd call them anomalous results. But again, going back to the topic of this podcast, is the system racist? You'd almost say or is it leading to a racist result or to a racially tinged set of data.

Taite Westendorf:
Well, it is very complicated. I mean, you just touched on it. A lot of it can start with socio-economics. Virginia Beach, a city that I live in and a city that I love. But the reality is we have about 20% black population, and we have largely a segregated housing arrangement between whites and blacks. You've got large pockets of black folks who live in places like, just to throw out some examples Atlantis apartments, Pecan Gardens. East Hastings Arch is just one street that we see all the time. Level green, Green Run area. So these places tend to be patrolled much more heavily by police officers. And that's where we often will hear, well, of course we're going to patrol the high crime areas. These quote unquote high crime areas also happened to be where plenty of good law abiding citizens live. And just by virtue of being in those neighborhoods, they're exposed way more to the police than your average white person. So they are getting pulled over for the more trivial things such as a busted tail light, or you know, the license plate light is out, or we've got something hanging from the rearview mirror where an officer is just fishing and trying to come up with something.

Bassel Khalaf:
So yeah, some of these crimes, disorderly conduct, disturbing the peace, it becomes. I mean, there are vaguely worded statutes. You know, is the person being obstreperous and you'd have to look on your phone to Google what obstreperous means. But, you know, essentially, you've got First Amendment rights. So you can say a lot of things, but there is a criminal element to saying a thing that could result in in violence. I'm not sure which one it is. It's not disturbing the peace. It's, yeah, well, disorderly conduct. One of those says, if you do something to provoke violence, then you're charged with the crime, which could be any number of things.

Taite Westendorf:
Yeah, that's from the disorderly conduct statute, which is 18.2-415. And the language it uses is that the only thing that is covered by that statute that's prohibited are acts that have a direct tendency to cause acts of violence. And that's the General Assembly mirroring language that's from US Supreme Court case law to try to make it survive a constitutional challenge. The problem is, when you're out on the street, that shit is so flimsy that somebody can be arrested for nearly anything. You tell a cop, hey, fuck off, I think you're a racist. That's constitutionally protected speech. But a police officer on the street, not being a constitutional scholar very well might take that statement as something that has a direct tendency to cause acts of violence. Or maybe they would perceive it as a quote unquote, obstruction of justice, or a disturbing the peace because it's obstreperous. And so it's really dangerous when you have these incredibly vague laws, because it gives police officers, the legal jargon is unfettered discretion, to arrest people who are doing stuff that they don't like.

Bassel Khalaf:
So yeah, it's almost an end around of your First Amendment rights. And then those types of laws would require years of data for us to sift through it and say, Look, you know, black slash minority people end up being disproportionately charged, compared to what the population in a given city is. But that's what we're saying. So that becomes an issue. Honestly, if somebody asked me, well, what's the remedy? How do you fix that? I don't know what the answer is. Racism is such a charged issue in general, and at the moment, we're still in the midst of the George Floyd aftermath slash fallout. And, you know, people really need to look inward. And there has to be this idea that maybe we all have, you know, some degree of racism inherent to us, maybe we all have some genetic disposition to it. And unless you're going to look at yourself and say, I might be part of the problem. To me, that's going to be you probably being part of the problem.

Taite Westendorf:
Something, a word that we're hearing a lot now are institutionalized, or the word systemic racism. And so when talking about the criminal justice system, I do think it makes sense to take a step back and reflect on what that means. I think when you're talking about institutionalized or systemic, it's not stuff that's explicitly racist. It's sort of baked into our system in different places. And when it's all combined, together, we end up with a racist result that maybe wasn't what we intended. And so for instance, what I'm talking about here is people who live in these quote unquote high crime areas, case law has said have a lesser degree of Fourth Amendment protections. And so who lives in these quote unquote high crime neighborhoods? Disproportionately it's black folks. So they end up being disproportionately stopped, disproportionately searched, disproportionately arrested. Alright. So then when they get to the court, because they're more likely to have an arrest record, that's more likely to be considered as a sentencing enhancement for future crimes. So they end up serving more time in prison than white people do. And studies have shown that. And so it really is almost the snowball effect of different factors that weigh against minority communities and the end result is we get a racist result, even when people were well intended. I mean, I can't say that I've ever been in front of any judge in Virginia Beach, where I thought that person is a racist. They are looking at my client as a black person, and they have a different standard of beyond a reasonable doubt. But just because they're well intended, there are all these factors baked into the system that give us a shitty result.

Bassel Khalaf:
You remember the Brock Turner case, he went to Stanford and was charged with rape. And I think the basics of the facts were he's drunk stumbling through an alley, and there's a girl sort of passed out in the alley or near the alley and commits a sexual assault. And, you know, the judge's position on it seemed to be well, he's got a lot going for him. He had some swimming scholarship and XYZ and I might be getting some of the facts wrong. But the general gist of it is that and then the question always has to be, you know, if I'm up, if I'm an African American person hearing this news report about Brock Turner, and I'm hearing that he got a slap on the wrist out of that. Does that bother me? And I think the answer has to be yes. And honestly, it did bother a lot of people. So this maybe is an outlier situation, maybe that's not the best illustration. But, you get enough of those outliers stacking up on each other. And then you couple it with the fact that we're in such an information age. It has us interconnected, and you get to hear nationwide anything that's happening in one community is basically happening in your community. And it just becomes this aggregate of a problem.

Taite Westendorf:
Yeah, I think that brings up another part of the systemic problem. When we're talking about systemic problems, another is minority representation in prosecutor's offices and on the bench. You look at the Brock Turner situation, for example, that was a white male judge sentencing a white male. At least subconsciously, I don't think it's unnatural for a person to see somebody of the same race, same gender, probably went to a similar school, and to identify with that person. Like maybe this guy could have been me when I was coming up. And if we have all white judges, they're less likely to identify with the struggles of a black person. That's just human nature. And so same thing when there's prosecutors making prosecutorial decisions. And overwhelmingly, they're white, they're probably less likely to identify with a black defendant. Not to say that they're explicitly racist at all. It's just part of our human nature. We look at people that seem similar to us have, have similar backgrounds, look the same. And we identify with that person. That kid could have been me 20-30 years ago. And it's one of those reasons why it's very important to have some diversity in those offices and at the higher levels of the judiciary as well.

Bassel Khalaf:
Yeah, I guess the the whole point of this podcast episode would be is the system racist? So you kind of have to talk about what is the system, and it's largely what is government sanctioned through the various branches of government. And it's a stretch for anybody to say that American history doesn't have a foundation of racism. We're a country built on the backs of slaves. I'm half Native American. I've got relatives who live on the reservation in Cherokee, North Carolina. I'm an enrolled tribal member of the Eastern Band of Cherokee Indians. I can't say that I'm involved in all the Native American causes. But, you know, I know anybody who reads a history book knows that or should know that. There was forcible assimilation of Native Americans that people were systematically murdered in furtherance of, there's no comfortable way to put it, I'd say in furtherance of white supremacy and manifest destiny and this idea that one group is superior to the other. And then recently is the last half century. You've got Jim Crow, you've got segregation. You've got all these DOJ statistics. There was that FBI cointelpro situation where they were putting government agents into what they considered subversive groups. And it wasn't just minority, Black Panther type situations, but also feminist causes stuff like that. But in the end, it becomes, you know, propping up what's comfortable to the system. And that's always been, you know, this sort of white, I would even have to say, Christian identity of America. And maybe the power lies there because there's a group that disproportionately votes a certain way or has the money to campaign or lobby a certain way. So we talked about the system, that full context needs to be realized before sort of final analysis is given. But as attorneys, we're in court, and we get clients who have been charged with a crime. Whatever the crime is, it's not the first time that crime has been addressed by the courts. And the way it works is when a higher court, an appellate court decides a principle of law that is for the most part binding on the lower courts. So, you know, Taite and I have discussed this at length, and what are the different principles of case law, of precedence that might further a quote unquote, racist system. One of the big things that we've come across is the high crime neighborhood thing is always going to be an issue. Why is the constitution one thing on the nice side of the tracks and not the same on the not as nice side of the tracks? There's one case in particular that we hate. It's called Hill versus Commonwealth. We were recently on a radio show a couple weeks ago, and we brought this up, I did the talking on that. So Taite, what do you think about Hill? Do you love it?

Taite Westendorf:
Alright, so just to take a step back, when we're talking about the Fourth Amendment, the Fourth Amendment is essentially your right to be left the hell alone. And that's a pretty fundamental part of being a free people. That you can go about your day without worrying about the cops shaking you down on the street or stopping your car for no reason. So the Fourth Amendment is important to all of us as far as living in a free country. In Hill versus Commonwealth, the basic facts of that case are, this was out of Portsmouth, as I recall, the guy Hill, he's a black guy. He's just sitting in his parked vehicle which is a nice car, I think it's a BMW. And the police see him and they become suspicious. By their own acknowledgement, this guy has not done anything wrong. He's just sitting in a car, broad daylight in the middle of the day, minding his own business.  But they're suspicious. I think you can read between the lines on what aroused their suspicion: black guy, nice car. So they approach the vehicle. As the police officers are approaching the vehicle, their testimony is he starts digging between the seats, we can't see what's happening. We can't see his hands. And at that point, we think maybe he's going for a weapon. So out of concern for officer safety, we open the vehicle door, yank him out, throw him down, and ultimately they find bad illegal stuff in his car. So that ends up being the question at trial for a motion to suppress. Did the police do something wrong? Was it cool for them to yank this guy out of his car? And the trial court ultimately said it was okay. It went up to the Court of Appeals of Virginia. Court of Appeals of Virginia said, you know, officer safety. And then it went up to the Supreme Court of Virginia. And it was a divided court. I think it ended up being a 4-3 or 5-2 decision. But the majority of the Supreme Court of Virginia justices said that it was okay. That it was a legitimate officer safety concern. That case is just a giant kick in the nuts to the Fourth Amendment. It really is a complete outrage. The standard is not that complicated. The police cannot detain you unless they have reasonable suspicion that you're involved in criminal activity. They skipped that step and went straight to officer safety. There was no criminal activity, so they skipped a step in the analysis. And the end result is that all of us are less protected in Virginia now than we were before that case.

Bassel Khalaf:
Yeah. We always like to talk about reform. So all right, there's a problem. So what's the solution? One of the things I've always thought is a very obvious sort of thing that should be addressed is, if I'm an officer, and I stop a vehicle, and I tell the person, your car smells like weed, that gets me a search of the car. I get to go in the car and search at least wherever the smell is localized to. And sometimes officers find things sometimes they don't. We've had plenty of cases where I stopped the vehicle, I smelled the odor of marijuana, I searched that vehicle, I didn't find the marijuana, but I found a gun and this guy's a felon, so felons can't have guns. So I charged him with felon in possession of a gun. But you wonder how many times has that officer pulled somebody over and said I smell marijuana, gone through their vehicle, not found the marijuana and not found anything else and said, Okay, well, I didn't find anything be on your way. There's no documentation of that. There's no record of that. So you know, an easy proposal that I'm gonna propose right now would be an officer, whoever smells marijuana, he's about to conduct a search as officers should do. He's going to be very careful and meticulous about the situation. He should call dispatch and say, dispatch, I'm about to conduct a search on this vehicle. Here's the license plate, here's the occupant. I'm searching because I smell marijuana. And then he searches and if he doesn't find anything fine. But there needs to be documentation. Because if that officer does that to 100 people, and they're all black. And you know, 25% of the time he actually finds marijuana, then we have to think: Is this person just overstepping his bounds? Is he violating constitutional rights? Is he conducting searches where he otherwise shouldn't be justified in doing so. And that, to me is an obvious solution, because now officers are going to be a little more cautious, they're going to be a little more precise in what they're doing, what they're saying how they're justifying, searching citizens. Otherwise, again, you just have a police force that can search anyone at any time. And we have to assume they're telling the truth when they say they smell marijuana, as defense attorneys. You know, I've had plenty of clients say, Well, my car didn't smell like weed, I don't smoke weed. And I say, That's sucks because I can't go back in time and sniff your car, and I can't put the judge in my DeLorean and have him do the same. So honestly, we're just gonna either acknowledge your car smelled like weed, or we're gonna say the officer was lying, which is a tall order in a lot of jurisdictions. So that that's one thing that I think could be addressed. Again, just trying to stay on the focal point of is the system racist? Taite and I were public defenders collectively for about a decade and a half, a little more than that. And just looking at the statistics, minorities disproportionately end up with public defenders. And the reason would be because there's a socio-economic situation in the country where blacks and minorities typically don't have as much money. Public Defenders represent indigent clients. Those are people who can't afford an attorney. So the the system appoints an attorney for them. And a lot of times these public defenders are overworked, underpaid, under resourced. And Taite and I had already talked about this a bit. So I guess I'll throw it to you to explain why this might be a racist thing that the public defenders don't have the same resources as say the prosecutors and when you look at the scales of justice, they should be considered as equals.

Taite Westendorf:
Just elaborate a little bit on a point Bassel was just making. So disproportionate is a key word. Like in Virginia Beach, for instance, again, about 20% black population. The public defender's office, I think the statistics show it's about 50% of our clientele. So disproportionately minority communities are being served by the public defender's office. So part of ensuring that we don't have racist results, that we have equality in the courtroom is to make sure that there's an even playing field between the public defenders and the prosecutors. And the reality is that we don't have anything remotely close to parity in the courtroom. And I'll give you a few very specific examples. A starting prosecutor in Virginia Beach gets about $20,000 more than a starting public defender. The prosecutor's office in Virginia Beach has given over $6 million in supplemental funding on top of what they get from the state, the public defender's office gets zero , goose egg, nothing 6.3 million to nothing. That tells you where your city's priorities lie. Their priorities lie in prosecuting people and putting them in jail, rather than ensuring that their constitutional rights are being protected. And to make sure that innocent people aren't being thrown behind bars. I know that nobody who serves the city would want to put it in those terms. But the proof is in the pudding. Look at the funding. If we're going to even begin to claim that we're aspiring to have a more fair, more equal system that treats all of its citizens equally. I think that's one of the things we have to look at right from the jump is treating public defenders with more respect, giving them some resources so that they can be competitive in the courtroom with the prosecutors. I mean, the reality is my first year in the public defender's office, I was helping to handle murder trials. I didn't have any business being in that courtroom, and I'm going up against prosecutors, veteran seasoned prosecutors with 15 years plus experience. The problem when you don't have even close to salary parity, public defenders leave. That's why we left. It's not that we didn't like the job. It's not that it's not a super worthy cause. We have families to feed. Economic incentives are a thing that people respond to. That's capitalism. And when you have an opportunity to better provide for your family elsewhere, you leave and that's what public defenders do. And because there's a high rate of turnover, they're less experienced. And so consistently, you have less experienced attorneys going up against more experienced attorneys in the courtroom, and that's a big problem.

Bassel Khalaf:
Yeah, just shout out to Colin Stolle, who's the Virginia Beach head prosecutor, head  Commonwealth's attorney, he has gone on record to say that he supports some form of I don't want to say parity, but at least supplementing the public defenders. And that's a great thing. I mean, I think any prosecutor who's going to tell you that, you know, their employees should receive a supplement and the public defender's shouldn't.They're trying to stack the cards. And that's exactly the problem that needs to be alleviated and addressed. You know, especially in the current climate, we're in 2020, what are we in June? So yeah, kudos to him. And I'm glad that that's his official position. I'm hoping that this gets some traction, because Westendorf and Khalaf has made a little mini campaign to try to bring council members together and have a social media presence. We've been on the radio about this issue. But just to sort of make it a thing where the public knows that public defenders do not receive the same resources. We always have to sort of couch our criticism of the system, or at least contextualize it by saying, there are some amazing attorneys in the public defender's office. There's some people who I would, you know, if I was charged with a crime, I probably have them represent me over having some other you know, parallel universe version of myself represent me. But there's good people over there. But when you have 120, 130, 140, 150 cases in your filing cabinet, you can only do so much here. You're one person. The Public Defenders have two investigators who are very good at what they do. April and Angela, they're very thorough, they're great professionals. But the prosecutors have a police force of close to 1000 officers at any given time, anywhere in the city. They can, you know, use their contacts to say go look at a thing and within you know, 10 minutes that thing's gonna be investigated. And plus whoever's asking the questions has a badge on them and a gun and the air of authority that's inherent in police.

Taite Westendorf:
Yeah, no, and we're not naive, in the sense that it's always going to be an uphill battle against the government. The government is always going to have more resources than you do. It doesn't matter really who you are. I mean, you can be, you know, I was just watching on Netflix the show Trial by Media. Richard Scrushy, this fabulously wealthy founder and CEO of a health company with unlimited resources. The government kept going after him until they got him. It's always an uphill battle to go against the government. So there's never going to be total parity. It's not like you're gonna have an army of 1000 investigators that can rival the police force. But let's at least take some steps in the right direction to try to equal things out. I'm glad that Bassel brought up the fact and I do think it's important to have this be part of the discussion. There's a lot of awesome public defenders. The truth is everything I learned, the way I learned how to be an attorney, everything I know is a product of me having worked in the public defender's office for 11 years. It was an incredible opportunity. And I learned an incredible amount and was surrounded by many amazing attorneys while I was there. But again, the reality is that it's very, very difficult to make a career as a public defender. And because it's difficult to make a career as a public defender, the really good ones, the ones that should be the mentors, teaching the younger attorneys,  handling the heaviest cases, they leave.

Bassel Khalaf:
Yeah, there's definitely a lot of things that need to be addressed. I don't aspire to have the question is the system racist definitively answered, but we're pushing over 30 minutes at this point, I think attention spans don't really last much longer than that. Unless you have some people who are more charismatic than us addressing the issue. So I think the final answer, is the system racist? I would say, at least a smidge.

Taite Westendorf:
It's obviously a very, very complicated question. But I don't think any serious person could look at our system and just say, Oh, nope, everybody's treated equally. We're good to go here. I don't think you would find even the most cold hearted cynic law and order type who could say that with a straight face.

Bassel Khalaf:
Anyway, I guess we'll leave it at that. No final, final thoughts?

Taite Westendorf:
I'll let you do that. You want your Jerry Springer final thoughts? Be good to one another, is that what he says?

Bassel Khalaf:
The system's kind of racist. Stop being racist. Judges need to step up when they see something. Honestly, I guess judges, they can't really get political with things like, you know, pay disparity between public defenders and Commonwealth, or prosecutors and all that type of stuff. But as long as they're at least aware of it.

Taite Westendorf:
I think most of the judges don't have a clue.

Bassel Khalaf:
Yeah, me, too. They become insulated in their little insular world and I don't know, hey, I almost can't blame them.

Taite Westendorf:
Don't have a clue about the salary disparities to make clear. I wasn't trying to make some blanket statement about their cluelessness.

Bassel Khalaf:
Oh sorry. Anyway, yeah, we'll leave that alone. We love our judges, especially in Virginia Beach. They are definitely the best among us, and the smartest human beings you could ever hope to meet. So, all right, till next time, peace.