Thursday, September 2, 2010

Who Really Is Exhibiting Racism in Alabama Judicial Flap?

Kenya Lavender Marshall

The investigation and sanctioning of three white attorneys in the 1990s indicate the Alabama State Bar has been practicing racial politics in its handling of the recent Kenya Lavender Marshall case.

Marshall, who is black, had her law license suspended, and that caused her to be removed as the Democratic Party nominee for a Jefferson County judgeship. That led the Alabama Democratic Executive Committee (ADEC) to replace Marshall with Elisabeth French, who is black, instead of Nicole Gordon Still, who is white and was runnerup to Marshall in the primary election.

James Laster, president of the Jefferson County chapter of the Alabama New South Coalition, reacted by saying Still was a victim of racism and calling for French to step aside as a way of showing she does not support biased and racially charged decision-making. The Birmingham chapter of the Southern Christian Leadership Conference (SCLC) seconded that sentiment yesterday.

A Legal Schnauzer investigation, however, indicates the New South Coalition and the SCLC are looking in the wrong place for racism. Our research on a case from the 1990s indicates it was the Alabama State Bar, not ADEC, that probably was acting with race-based motives.

Marshall was charged with misappropriating about $30,000 in client funds. Perhaps the best known Alabama case involving similar allegations started with a bar complaint in 1994 against three Birmingham lawyers--Robert "Coach" Hayes, Robert Roden and Huell Carter.

How does the State Bar's handling of the Marshall case compare to that in the Hayes case, where all three accused lawyers were white? Marshall's punishment was much more severe. And her investigation was handled in a much more expeditious fashion. That strongly suggests that the Alabama State Bar went after Marshall with racist and poltical motives in mind.

The Hayes case has a personal angle to it for us here at Legal Schnauzer. It started when Richard Poff, then a law clerk at the firm of Hayes Roden and Carter, filed a bar complaint claiming the partners were improperly billing personal expenses to clients. The charges generated a criminal case, multiple lawsuits, and heavy local and even national publicity.

When our legal troubles heated up in late 2003 and early 2004, we already had been cheated by Jesse P. Evans III and Michael Odom, the first two attorneys I hired to defend me against a groundless lawsuit filed by our criminally inclined neighbor, Mike McGarity. Thinking Richard Poff seemed like a noble whistleblower, I contacted him, and he accepted my case.

That did not prove to be such a good idea. Poff turned out to be just as bad as Evans and Odom. He took $4,500 of our money up front and essentially did no work on our case. We later would discover that Poff went through an ugly divorce and bankruptcy, partly driven (according to court records) by gambling debts.

What can we learn from the Hayes episode? First, we can examine two appellate rulings on lawsuits that grew from the case--Poff v. Hayes and Hayes, et al v. Alabama State Bar. These cases strongly suggest that Kenya Lavender Marshall was a victim of what is known in the law as "disparate treatment."

The Alabama State Bar operates in a secretive fashion, so it's hard to get a grip on the facts in the Hayes and Marshall cases. Certainly the two cases are not identical, so making comparisons can be tricky. But several facts jump off the page at us, indicating that the Alabama State Bar treated a black woman very differently than it treated three white men.

Consider these major components of the two cases:

* Lawyers and Crimes--No criminal charges have been brought against Kenya Lavender Marshall. Criminal charges were brought against all three lawyers in the Hayes case, and all three wound up pleading guilty to various misdemeanors. Here is how a related appellate ruling summarizes the outcome of the criminal cases against Robert "Coach" Hayes, Robert Roden, and Huell Carter:

On February 14, 1997, following three weeks of trial in the criminal cases against the attorneys, Roden and Hayes pleaded guilty to four misdemeanor charges;  one involved the offense of obtaining a signature by deception;  another involved making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act;  another involved misapplication of property;  and another involved falsifying business records.   Carter pleaded guilty to two misdemeanor charges;  one involved the offense of obtaining a signature by deception, and the other involved making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act.

If you are keeping score, that's a total of 10 guilty pleas to criminal charges in the Hayes case. We have no guilty pleas, and no criminal charges, in the Marshall case.

* A Matter of Sanctions--Even though she was not hit with any criminal charges, Marshall received a four-year suspension of her law license. The Hayes case generated 10 guilty pleas to criminal charges, and how did the Alabama State Bar handle that? Hayes and Roden received two-year suspensions, and Carter was suspended for 247 days. Again, if you are keeping track, here is how the scoreboard reads:

     Kenya Lavender Marshall--0 guilty pleas equals four-year suspension

     Hayes, Roden and Carter--10 guilty pleas equal suspensions of two years or less

* Insight on Investigations--Marshall's case started when a client, Orlandera Johnson Jr., filed a bar complaint in January 2010. (By the way, Johnson's father, Orlandera Johnson Sr., was a longtime police officer in the City of Homewood. Johnson Sr. was killed in a car crash near Bessemer on January 5, 2010.) The Alabama State Bar announced a temporary suspension of Marshall's license on August 3. That means the investigation in Marshall's case took roughly eight months

What about the length of the investigation in the Hayes case? It started with a bar complaint in June 1994. That prompted a 13-month investigation that ended in July 1995. No action was taken for another 10 months. The bar finally filed formal disciplinary charges on May 15, 1996. Again, if you are keeping track, here is our scoreboard:

     Kenya Lavender Marshall--Total elapsed time from filing of bar complaint to discipline: Eight months.

     Hayes, Roden and Carter--Total elapsed time: Almost two years.

What conclusions can a reasonable person draw from this? Here is what we conclude:

* Kenya Lavender Marshall, a black female, had no criminal charges but received a suspension that is twice as long as three white male lawyers who had a combined 10 guilty pleas.

* Kenya Lavender Marshall, a black female, was punished in a time frame that was way less than half of that used in a case involving three white male lawyers.

* Why was Kenya Lavender Marshall, a black female, investigated and punished so quickly, compared to three white males charged in a similar case? Was it because she is black? Was it because she was running as a judge against a white candidate who had been appointed by Republican Governor Bob Riley, who is white? Was it because she soundly beat the white candidate, the one endorsed by the Jefferson County legal establishment, in a primary election? Was it because no Republican candidate qualified for the race, so Marshall had a clear path to being seated as a judge?

In our view, the answer to all four questions is yes. We don't see how a reasonable person could come to any other conclusion.

What to make of this? We thought it made sense to get Robert "Coach" Hayes' thoughts on the matter. After all, he knows what it's like to face charges similar to those leveled against Marshall. Since serving his two-year suspension, Hayes has been able to rebuild his legal career. He now is the chief partner in the Birmingham firm of Hayes Jackson Weaver and McKinney. When contacted at his office yesterday, Hayes said he did not want to comment on the Marshall case or the Alabama State Bar.

We have no qualms commenting about the Alabama State Bar. In our view, the evidence is overwhelming that it is a racist organization that is willing to be used as a political tool. Thanks to the veil of secrecy surrounding the Alabama State Bar, we don't know about the validity of the charges against Kenya Lavender Marshall. It's possible she deserved some form of punishment.

But the record is clear that she was treated much more severely than three white comparators. And the record is clear that her case was handled much more quickly than a case involving three white comparators. That indicates the Alabama State Bar was acting with racist and political motives.

The Alabama Democratic Executive Committee probably sensed that a black female candidate, who had been heavily favored by voters, was treated unfairly. The committee decided, we suspect, that the fair and right thing to do was to replace her with a black female candidate--one who was equally qualified to the white candidate. That, in our view, is not racism; it's a logical reaction to racism.

The New South Coalition and the SCLC are barking up the wrong tree when it comes to injustice. We suggest they train their sights on the Alabama State Bar.

After all, who is really practicing racism here?


Anonymous said...

Alabama Supreme Court, August 13, 2010, Richard Glynn Poff, Jr. v. Alabama State Bar (Appeal from No. 07-09(A) Affirmed. No opinion.

Looking forward to your insight on this one!

legalschnauzer said...

Anon: Thanks for letting me know about this. Has Poff been suspended or disbarred? I had heard a man from Mobile had filed a bar complaint against him, but I figured nothing would come of it. Maybe I was wrong about that. Will do some checking. Would welcome any information you might be able to share.

Redeye said...

Thank you.
The Alabama Democratic Executive Committee probably sensed that a black female candidate, who had been heavily favored by voters, was treated unfairly. The committee decided, we suspect, that the fair and right thing to do was to replace her with a black female candidate--one who was equally qualified to the white candidate. That, in our view, is not racism; it's a logical reaction to racism.

The New South Coalition and the SCLC are barking up the wrong tree when it comes to injustice. We suggest they train their sights on the Alabama State Bar.

Robby Scott Hill said...

The Alabama Lawyer magazine lists the public disciplinary actions of The State Bar. I wish somebody would put all of them on a website so they could be sorted by race, political affiliation, etc. I'm willing to bet money that a disproportionate number of Blacks & liberals/trial lawyers are disciplined with wealthy Whites who work at firms which represent corporations hardly ever getting punished.

If a military officer fails to adequately punish those under his command, he can be relieved of that command. Is The Alabama State Bar adequately punishing those who deserve to be punished or do they just occasionally grab some headlines with the Black dude The Governor's Office and/or The Machine doesn't like?

lawbabe said...

It would indeed be interesting to compare the state bar's disciplinary record for race in Alabama, but you would also need to factor in the type of offense committed. Some areas of practice, such as real estate transactions, are more likely to produce attorney error, and other areas are more likely to generate disgruntled client complaints in general, such as domestic relations. I am guessing that disproportionately fewer black lawyers practice in real estate, and more in criminal defense and domestic relations, but I could be wrong.

However, comparing the Roden/Hayes matter and the Marshall case is comparing apples and oranges. In Marshall's case the evidence was easily obtained--all they needed was her bank account. Looking at the payees on the checks, it was probably obvious that these were not her client's expenses being paid. Not much investigation involved there, compared to the deep level of investigation in the Roden/Hays matter. Also, the offenses were different-Marshall's involved use of client money, which is probably the worst thing and lawyer can do. The Roden/Hays case did not involve misuse of client funds but overbilling, among other things, according to your account (I followed it at the time but have forgotten many details). The level of investigation would have been more complicated and taken more time, as the lawyers may have produced work records to justify their billing, and the issue of proper billing necessarily involves opinion, not easily adduced facts.

Did Roden/Hays et al. take a deal with the bar or go to a full hearing? I don't remember. If they did, that would be another difference.

At this point, nobody cares why the state executive committee made the choice it did. It's how it APPEARS that is news. You have respected Democrats and Democratic organizations in Jefferson County supporting Still, and you have an override for French, by people who don't know these candidates well and are making race-based comments to support their decision. Rep. John Rogers' prediction that the party would be torn apart was accurate, but not for the reasons he thought. Good for the SCLC for calling them out on picking the "sistah" for the job. Bad for Democrats on November's ballot and in future races.

Robby Scott Hill said...

"When I hear 'yee-haw!', that scare the sh*t outta me. Cuz I know what come next. Y'all remember? Y'all's ancestors used to hang us for kicks? ...on the weekend, hot, couldn't get no p*ssy? 'Let's go down to the jail, get a couple of them Black ones and just string 'em up. ..yeehaww..' ..When I hear that, sh*t crawl all up and down my neck." -- Richard Pryor on racism

TR said...

I agree with lawbabe. The bar makes it abundantly clear that messing with client funds is the unforgivable sin. A healthy majority of disciplinary actions are for taking money from client accounts.

There may be an argument that enforcing the rules that way is racist, or there may have been a particular racist motivation here, but I haven't seen enough evidence to convince me yet.

Oddly enough, this whole mess may actually help other Jefferson County Democrats get a big turnout. Friends of mine are adamant about writing in for Judge Still, and I think they wouldn't even vote if they didn't have the chance to write her in. The world is a strange place.

MaxShelby said...

The SCLC and Calvin Woods are the epitome of crooks in christian clothing.
The only reason they are jumping in this fight is because they are trying to appease their "handout crew" the Big Mules and the sidesaddle rider of the Riley machine.
It's disgusting to watch on every level.

Robby Scott Hill said...

It's most interesting that Alabama Republicans (who require the "Oath of Party Loyalty" & require all local candidates to walk in lockstep with their State Executive Committee) can't stand it when The Democratic Party avails itself of state level decision making. There's not a snowball's chance in hell that Mike Hubbard or The Executive Committee of the Alabama Republican Party would allow local officials to interfere in what they thought best. If Justice Still & some Jefferson County Democrats think they were robbed, they certainly don't need to go looking to the GOP for greener pastures.

Robby Scott Hill said...

This blog is like the law professor I never had. It's got the exclusive, juicy content which the powers that be would prefer that you never got to hear. They need to be publicly embarrassed until they change their racist, oppressive ways.

Redeye said...

lawbabe and TR, we all have the presumption of innocence, meaning the accused are innocent until PROVEN guilty in a COURT of LAW, not the COURT of PUBLIC OPINION. Marshall has been accused not convicted.

IMHO this whole thing is about turning the winner into the loser and the loser into the winner by over turning the will of the VOTERS. Remember them?

lawbabe said...

MaxShelby, let's hear some actual facts about corruption in the SCLC and Rev'd Calvin Woods. No fair throwing in comments like that without something to back them up.

Redeye, you misunderstand the purpose of disciplinary action by the bar. It is not a criminal case. Yes, Marshall was charged with an ethical violation. She admitted the charge, in effect, which is similar but not identical to pleading guilty to a criminal offense.

With attorneys, a temporary setback ("loss" as you refer to it) is less a problem than a permanent stain on one's reputation. I think Nikki Still is a winner.