Richard Courtemanche April 5, 2018

Assistant General Counsel

The Florida Bar
651 E Jefferson St
Tallahassee, FL 32399
VIA Email: rcourtemanche@floridabar.org

Re: Public Records Request (PRR): W004857-040418 of 4/4/2018.

Request Description: Names of Florida Bar members who donated money to the
fundraising effort to move the “Johnny Reb” Confederate soldier statue or monument.

Dear Mr. Courtemanche:

Thank you for your cooperation in responding to my PRR. The records you provided are
attached, along with your correspondence, my original PRR September 23, 2016, and show:

Attorney’s Name: Florida Bar Number:

Landis Vernon Curry, Jr. 94198

Robert Allen Stermer 827967
Young J. Simmons 74208
Craig William Turner 794910
Daniel Kirkland McCall 333638
Beth Carlson Lewis 161926
Gary Calvert Simons 105876
Collin William Lawrence McLeod 48140
George Jacob Albright, III 352853
Douglas H. Oswald 301851
Jeffrey David Askew 828963
W.E. Bishop, Jr. 91256
James Theodore Schatt 195782

Sincerely,

Neil J. Gillespie
8092 SW 115th Loop Tel. 352-854-7807
Ocala, FL 34481 Email: neilgillespie@mfi.net

Cc: Michael J. Higer, President Cc: Michelle Suskauer, President-elect

Email: mhiger@bergersingerman.com Email: michelle@dkrpa.com

Cc: Joshua E. Doyle, Executive Director

Email: jdoyle@floridabar.org
 Page 1 of 2

Neil Gillespie

From: "The Florida Bar Public Records" <floridabar@mycusthelp.net>

To: <neilgillespie@mfi.net>
Sent: Wednesday, April 04, 2018 4:01 PM
Subject: Mr. Neil Gillespie - General/Multiple Requests Records :: W004857-040418

Attachments:
Gillespie_Response20180404_14480559_0213.pdf

--- Please respond above this line ---

April 04, 2018

Mr. Neil Gillespie

8092 SW 115th Loop
Ocala FL 34481

Public Records Request: W004857-040418 of 4/4/2018

Record Type: General/Multiple Requests Records
Request Description: Names of Florida Bar members who donated money to the fundraising effort to
move the “Johnny Reb” Confederate soldier statue or monument

Thank you for your payment. The Florida Bar has searched its records and has located the documents
that meet the parameters of your request, which are attached to this message.

Please be advised that I cannot certify that the membership records are for the names provided - I can
only certify that the records match the names that were provided.

If you have any further questions, please feel free to contact me at your earliest convenience.

Sincerely,

Rick Courtemanche
Assistant General Counsel
rcourtemanche@flabar.org
850-561-5788

4/4/2018
 Page 2 of 2

Please note: Florida has very broad public records laws. Many written communications to or from The Florida
Bar regarding Bar business may be considered public records, which must be made available to anyone upon
request. Your e-mail communications may therefore be subject to public disclosure.

4/4/2018
 Page 1 of 2

Neil Gillespie

From: "The Florida Bar Public Records" <floridabar@mycusthelp.net>

To: <neilgillespie@mfi.net>
Cc: <cconnell@flabar.org>
Sent: Wednesday, April 04, 2018 2:45 PM
Subject: Mr. Neil Gillespie - General/Multiple Requests Records :: W004857-040418

--- Please respond above this line ---

April 04, 2018

Mr. Neil Gillespie

8092 SW 115th Loop
Ocala FL 34481

Public Records Request: W004857-040418 of 4/4/2018

Record Type: General/Multiple Requests Records
Request Description: Names of Florida Bar members who donated money to the fundraising effort to
move the “Johnny Reb” Confederate soldier statue or monument

The Florida Bar acknowledges receipt of your public record request dated April 04, 2018, and I am
responding in accordance with Rule 2.420, Florida Rules of Judicial Administration, and applicable
law. Please send all communication regarding this request to my attention.

As we previously indicated, Rule 2.420(m)(3), Florida Rules of Judicial Administration, and §119.07(4)
(d), Florida Statutes, authorize and establish fees applicable to the production of public records for
inspection or copying within the judicial branch. The Florida Bar has adopted a policy that anytime
spent in excess of 30 minutes constitutes "extensive labor" and will be charged.

Your estimated invoice is as follows: Attorney Labor: $58.0 x 1.75 hours = $101.50

Please contact the Bar's Records Coordinator, Celia Connell, at 850-561-5711, and she will process your
debit card.

If you do not reply within 30 days from the date of this letter, we will assume that you no longer wish to
receive the records, and your request will be closed.

4/4/2018
 Page 2 of 2

Sincerely,

Rick Courtemanche
Assistant General Counsel
rcourtemanche@flabar.org
850-561-5788

Please note: Florida has very broad public records laws. Many written communications to or from The Florida
Bar regarding Bar business may be considered public records, which must be made available to anyone upon
request. Your e-mail communications may therefore be subject to public disclosure.

4/4/2018
VIA UPS No. 1Z64589FP293808993 September 23, 2016
Email: jharkness@flabar.org

John F. Harkness, Jr., Executive Director

The Florida Bar, 651 East Jefferson Street
Tallahassee, FL 32399-2300

Dear Mr. Harkness:

This is a request for records pursuant to the Rules Regulating The Florida Bar (RRTFB), Rule 1,
Rule 1-14.1(d), and Bylaw 2-4.3, for the names of Florida Bar members who donated money to
the fundraising effort to move the “Johnny Reb” Confederate soldier statue or monument
reported in the Ocala Star-Banner on November 18, 2009. (copy enclosed).

On Tuesday, the County Commission appeared to reach a consensus to relocate the statue
of the Confederate infantryman, known commonly as "Johnny Reb."

That came after Ocala lawyer Lanny Curry proposed a public-private partnership to
relocate the 101-year-old monument and volunteered to help raise the estimated $25,000
needed to move it from its present location, a nook on the building's south side fronting
Northwest First Street.

To further the project, commissioners agreed to set up an account with the court clerk's
office to accept tax-exempt donations and accepted Commissioner Charlie Stone's offer
to serve as a liaison to work with Curry and other parties interested in finding Johnny
Reb a new home.

Ocala lawyer Lanny Curry was one of the organizers. It took me a long time to find his Florida
Bar profile, which is apparently under the name “Landis Vernon Curry, Jr.”, or to make the
connection to “Landis V Curry, J” who donated $4,200 on February 10, 2010, according to
records provided by Gregory C. Harrell, General Counsel to Clerk David Ellspermann.

Mr. Harrell provided records of the donations on January 5, 2015, see enclosed. As of that time,
$207,497 had been deposited into the Civil War statue or monument account, which is 10 times
the estimated $25,000 needed to move it, according to the Ocala Star-Banner.

There are three potential ethical issues for donors who are members of The Florida Bar.

First, the Confederate soldier statue is not a memorial, it is a repudiation of the outcome of the
American Civil War, and a rejection of the post-war U.S. Constitution, Thirteenth Amendment
(1865), Fourteenth Amendment (1868), and Fifteenth Amendment (1870) in effect when the
statue was erected in 1908. I believe this is prejudicial to the administration of justice on account
of race, and calls into question the sincerity of loyalty oaths, or oaths of office, by certain
members of The Bar to “support and defend the Constitution of the United States [2016].”

Second, the records Mr. Harrell provided show $207,497 had been deposited into the open Civil
War monument account, which is 10 times the estimated $25,000 needed to move it. Mr. Harrell
John F. Harkness, Jr., Executive Director September 23, 2016
The Florida Bar Page - 2

refused to elaborate on the excess funds, and said I was free to speculate. Is excess money in an
open account a slush fund? What ethical duty does a Florida lawyer have toward a slush fund?

Third, currently the monument stands on public property, the Ocala-Marion County Veterans
Memorial Park. I believe language on the statue, a repudiation of the outcome of the American
Civil War, and a rejection of the post-war U.S. Constitution, Thirteenth Amendment (1865),
Fourteenth Amendment (1868), and Fifteenth Amendment (1870) in effect when the statue was
erected in 1908, makes its current location on public property unlawful, even treasonous.

A number of the names on the donor list are members of The Florida Bar, including Robert A.
Stermer who donated $50 on February 10, 2010. Bob Stermer has represented my family. I asked
him about the $50 donation, he could not recall much, other than someone asked him to donate.
Stermer was born and raised in California, and in my view, is not part of the Lost Cause of the
Confederacy movement. But for “Landis V Curry, J” who donated $4,200 on February 10, 2010,
and more on other dates, that might raise questions. I believe Lanny Curry knows about the
inscription on the monument and its repudiation of the outcome of the American Civil War, and
its rejection of the post-war U.S. Constitution, the Thirteenth Amendment (1865), the Fourteenth
Amendment (1868), and Fifteenth Amendment (1870) in effect when the statue was first erected.

The American Bar Association and the NAACP Legal Defense and Educational Fund issued a
joint statement in July 2015 addressing the "troubling and destabilizing loss of public confidence
in the American criminal justice system."

The enclosed statement notes the “"recent spate of killings of unarmed African American men
and women at the hands of white law enforcement officers." While the ABA and the Fund
believe that "the overwhelming percentage" of police, prosecutors and judges are not racist,
"explicit bias remains a real factor in our country—and criminal justice system—and implicit or
unconscious bias affects even those who may believe themselves to be fair," the statement says.”

"The American criminal justice is unquestionably at a moment of crisis," the statement says.

Provide records for the names of Bar members on the donation list for the “Johnny Reb”
Confederate soldier statue. Thank you.

Sincerely,

Neil J. Gillespie
8092 SW 115th Loop Telephone: 352-854-7807
Ocala, Florida 34481 Email: neilgillespie@mfi.net Enclosures

See enclosed, Current and Historical Civil Rights Issues - Marion County, Florida. Also see
enclosed an article from the Florida History Network, “May 8, 1923 - Dark stories come to light
about peonage, forced labor, whippings and death abetted by the state's justice system.”
 http://www.ocala.com/article/20091118/ARTICLES/911181013/1402/NEWS?template=printpicart

This copy is for your personal, noncommercial use only. You can order presentation-ready copies for
distribution to your colleagues, clients or customers here or use the "Reprints" tool that appears above
any article. Order a reprint of this article now.

County prepares to move Confederate

monument
County administrator to create list of possible sites for statue.

By Bill Thompson
Staff writer
Published: Wednesday, November 18, 2009 at 6:30 a.m.

The Confederate monument that stood guard in

front of the Marion County Courthouse for
nearly a century, only to be stuck in a corner
two years ago as the facility was expanded, is
likely moving.

The question remains: Where?

On Tuesday, the County Commission appeared FILE

to reach a consensus to relocate the statue of The Confederate statue at the Marion
courthouse.
the Confederate infantryman, known commonly
as "Johnny Reb."

That came after Ocala lawyer Lanny Curry proposed a public-private partnership to
relocate the 101-year-old monument and volunteered to help raise the estimated
$25,000 needed to move it from its present location, a nook on the building's south
side fronting Northwest First Street.

To further the project, commissioners agreed to set up an account with the court
clerk's office to accept tax-exempt donations and accepted Commissioner Charlie
Stone's offer to serve as a liaison to work with Curry and other parties interested in
finding Johnny Reb a new home.

County Administrator Lee Niblock said he would prepare at least three new
locations for the board to consider at its next meeting, scheduled for Dec. 1.

Niblock indicated that the Ocala-Marion County Veterans Memorial Park, a site
favored by many, is one option. Leaving the monument where it is will be offered as
another, he added. As for where else it might go, Niblock was mum, only saying the
spot would reflect the statue's "historical significance."

Johnny Reb was removed in 2007 from the front of the courthouse in downtown
Ocala in preparation for a $41-million expansion.

Other than spending a four-year stint in storage in the late 1980s when the
courthouse was last renovated, the two-story-tall, 15-ton statue has been a fixture at
the facility's entrance since being dedicated in April 1908.

The current courthouse project is expected to be completed in January.

Former county administrator Pat Howard had designated Johnny Reb's current
location as permanent and Niblock was inclined to concur unless the County
Commission directed otherwise. Curry, a U.S. Navy veteran and member of the Sons
of Confederate Veterans, appealed to the board to find a "suitable location" for the
monument.
 http://www.ocala.com/article/20091118/ARTICLES/911181013/1402/NEWS?template=printpicart

Relating that his great-grandfather, Lawton Curry, was a Confederate soldier in the
Florida cavalry who had been wounded in battle, Curry said it was not "in a place of
honor and not in a proper location."

His preference is the veterans' park, at Fort King Street and Southeast 25th Avenue,
about two miles from where Johnny Reb is now situated.

Curry also said he was trying to fulfill a commitment to the late Tommy Needham, a
former county commissioner and impetus for the park.

"I promised him that I would not let the issue go away," Curry told the commission.

Curry said he felt strongly about the need to sustain the memory of the efforts of
those who fought in the Civil War.

While the monument has periodically ignited controversy as civil rights groups
complained it is an affront to blacks, the commission's reluctance to overrule
Howard's decision was primarily rooted in the cost of moving it.

Relocating the statue requires a specialized moving company that can dismantle its
three fitted parts and reassemble it.

Stone suggested the board could perhaps convince some company to offer in-kind
services to move it.

Once the cost issue is resolved, the monument should be placed in a more
prominent position, Stone offered.

"It's just not in a location where people can see it on an ongoing basis," he said.

In other action, the board learned that Marion County had received almost $2.5
million in federal stimulus funding to make the courthouse and some county offices
more energy efficient.

Roughly $727,000 of that amount will be used to install new cooling units to replace
the 50-year-old units at the courthouse's heating and air conditioning system. An
additional $303,000 will be spent to replace the facility's windows and lighting.

Another $450,000 will go for installing solar heating panels at the Marion County
Jail.

Other improvements include updating traffic signals, installing waterless urinals,

improving lighting and air conditioning at three county firehouses and replacing
windows.

"It's a huge accomplishment that will save the citizens a ton of money,"
Commissioner Stan McClain observed.

Congress passed President Barack Obama's $787-billion spending program in

February.

Copyright © 2014 Ocala.com — All rights reserved. Restricted use only.

 Current and Historical Civil Rights Issues - Marion County, Florida

Clerk David Ellspermann used taxpayer funds to purchase Confederate flag(s) for display on
Marion County government property. Clerk David Ellspermann displays images of Confederate
currency on the Clerk’s public website. Clerk Ellspermann displays a neo-Confederate fairy tale
account of the American Civil War on the Clerk’s public website, see Marion County's 150 Year
Commemoration of the War Between the States 1861-1865. Fairy tale accounts of the American
Civil War, and slavery in the United States, undermine the civil rights of African-Americans.

An inscription on Johnny Reb, the Marion County Confederate Soldier Statue, states,
http://www.flpublicarchaeology.org/civilwar/monuments/ocala/front-nw-face.jpg.php

The South Reveres Her Washington, Jefferson, Madison,

Monroe, Andrew Jackson, And Others, Who Laid The
Foundations Of Our Grand Republic. She Honors Her Lee,
Stonewall Jackson, Stuart, Johnson, Forest, And Every
Brave Son Who Fought To Preserve Our Liberties,
Guaranteed By The Fathers, Under The Constitution.

There is no mention of Abraham Lincoln, et al., just the slave-owning U.S. presidents: One in
four U.S. presidents were slaveholders: 12 owned slaves at some point in their lives. Tellingly, 8
presidents owned slaves while living in the White House. Also noteworthy is Nathan Bedford
Forrest a Confederate lieutenant general during the American Civil War...who served as the first
Grand Wizard of the Ku Klux Klan...Forrest was accused of war crimes at the Battle of Fort
Pillow. The Constitution described on the Confederate statue means the original Constitution of
1789 that permitted slavery, not the U.S. Constitution and Thirteenth Amendment (1865),
Fourteenth Amendment (1868), and Fifteenth Amendment (1870) in place when the statue was
erected in 1908.

x The Gettysburg Address, and equality, is rejected by Marion County, Florida,

"Four score and seven years ago our fathers brought forth...a new nation, conceived in Liberty,
and dedicated to the proposition that all men are created equal... Now we are engaged in a great
civil war, testing whether that nation... can... endure...we here highly resolve...that this nation
shall have a new birth of freedom; and that this government of the people, by the people, for the
people, shall not perish from the earth." - Abraham Lincoln

The Military Order Of The Stars and Bars, Florida, Marion County, Marion Dragoons #164
Newsletter Winter 2013, page 8: “Lord, we give thanks to you for the blessing of being able to
honor our ancestors who gave their all to protect us, defend our honor and uphold the original
intent of our Constitution.” (Slavery in the United States)
Marion County Florida has a long history of lynching, described in Lethal Punishment: The End
of Lynching in Marion County, Florida by Margaret Vandiver. Chapter Five: “The First Time a
Charge Like This Has Ever Been Tried in the Courts” pp. 70-88. Excerpts below from page 70
and page 72 respectively:

"Between 1885 and 1930, nineteen black men were lynched

in Marion County, nine of them for sexual offenses. Marion
County lynchings were public affairs, often carried out before
hundreds of witnesses, but none of the perpetrators was
prosecuted."

"Marion County mobs sometimes left a placard or a sign

attached to the body of the victim; when Robert Larkin was
lynched in 1893, the mob left a placard reading, "Done by
300 of the best citizens of this county."

People Lynched in Marion County, Florida (partial list from Table 9)

1. Robert Larkin lynched July 12, 1893, black male

2. Nero Young lynched May 15, 1894, black male
3. William Jackson lynched December 1, 1894, black male
4. William Jones lynched December 15, 1894, black male
5. John Richards lynched February 17, 1915, black male
6. Joseph Nimrod lynched December 29, 1915, black male
7. Richard Anderson lynched January 28, 1916, black male
8. Elijah Jones lynched February 12, 1921, black male
9. Chandler Colding lynched January 11, 1926, black male

“John Richard’s offense was allegedly sending an insulting note to a white woman. Near the end
of the Civil War, several black Union soldiers in Marion County were burned to death for
supposedly trying to recruit other blacks into the Union army.”

Page 72, last paragraph, "White supremacy was deeply established in Marion County. In 1924,
the Ocala Banner gave front-page space to an announcement that the Ku Klux Klan would be
organizing a chapter in Marion County. Interested parties were instructed to send their name,
church and lodge affiliations, and their place of birth, "only 100 per cent Americans wanted."
The initiation fee was ten dollars and robes cost another five dollars."[fn 14, Ocala Banner, May
30, 1924, 1.]

Pages 72-73 "The tradition of lynching was also deeply rooted in the county. The author of a
memoir of the community of Citra recalled the route taken by the local school bus in the 1920s: "it
went through Cabbage Hammock, by Mr. Wartman's fence, and then by 'The Hanging Tree,' where
it was not unusual to see pieces of frayed rope swaying from a stout limb, in the early morning
light." [fn15]. Lynching seems to have had broad support among whites in Marion County."

2
Page 73, second paragraph, "Until the middle of the 1920s, the local press took a uniformly
approving tone when reporting lynchings. When Elijah Jones was lynched for allegedly raping a
seventy-year-old white woman and attempting to assault an eleven-year-old white girl, the Ocala
Banner reported that three thousand people either participated in hanging Jones or viewed his
body after the lynching." Page 73 continued...

"The Ocala Evening Star wrote a long article on the lynching, defending it in strident terms.
According to the paper, Jones was a "bad nigger," a "filthy ruffian," a "rape fiend," and a
"degenerate young devil." Those who lynched him were not a mob but "representative citizens,
and they consider it their duty to rid their county of rapists and rattlesnakes as soon as possible."
The mob members "understood all about" a remark Jones was reported to have made, "that he
wanted white because he was tired of black. That is the inspiration of all the rape fiends, and the
only thing to meet it with is hot lead and hemp." The paper scornfully dismissed an inquiry from
the Associated Press concerning race troubles in Marion County, insisting that all was quiet and
that everyone was going about their business as usual." [fn16, Ocala Banner, February 18,
1921,5; Ocala Evening Star, February 14,1921,1.]

Page 71, "The Ku Klux Klan was active in Marion County, and in one case lynched the
suspected murderers of a white man, hanging the skeleton of one of their victims from a tree near
Ocala." [fn6]

Pages 71-72, "A striking aspect of lynching in Marion County is the frequency with which mobs
took their victims from the custody of law enforcement, apparently meeting little or no
resistance. Of the fifteen cases in which I have been able to determine the circumstances of the
suspect's capture by the mob, all but two involved suspects already in the custody of law
enforcement officers."

Lethal Punishment: Chapter Five, The End of Lynching in Marion County, Florida, online see,
https://www.scribd.com/document/284372795/The-End-of-Lynching-in-Marion-County-Florida

Below is the image of Clerk David R. Ellspermann, and his Confederate Currency Archives
found on the Marion County Clerk of Court public website at this URL,
http://www.marioncountyclerk.org/index.cfm?Pg=historicaldocuments

3
 http://www.floridahistorynetwork.com/may-8-1923---killings-of-work-camp-prisoners-detailed-in-hearing.html

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ABA addresses 'destabilizing loss of public confidence' in criminal

justice in joint statement
POSTED JUL 16, 2015 10:46 AM CDT
BY DEBRA CASSENS WEISS (HTTP://WWW.ABAJOURNAL.COM/AUTHORS/4/)

The ABA and the NAACP Legal Defense and Educational fund have
issued a joint statement addressing the “troubling and destabilizing loss of
public confidence in the American criminal justice system.”
The statement (https://www.americanbar.org/content/dam/aba/images/abanews
/aba-ldf_statement.pdf) (PDF) notes the “recent spate of killings of unarmed
African American men and women at the hands of white law enforcement
officers.” While the ABA and the Fund believe that “the overwhelming
percentage” of police, prosecutors and judges are not racist, “explicit bias
remains a real factor in our country—and criminal justice system—and
implicit or unconscious bias affects even those who may believe
themselves to be fair,” the statement says.
“The American criminal justice is unquestionably at a moment of crisis,” the
Image from Shutterstock statement says.
(http://www.shutterstock.com).
Doubts about fairness are reinforced by statistics showing that about
two-thirds of those incarcerated are persons of color and by U.S. Justice
Department findings in its investigation of Ferguson, Missouri’s police practices, according to the statement. The
Justice Department found differences in the rates at which blacks and whites were stopped, searched, cited,
arrested and subjected to the use of force in Ferguson.
“The time to act is now,” the statement says. Among the recommendations:
• Lawmakers should review laws criminalizing behaviors that pose little danger to society. The criminal justice
system is being used to address problems of mental health and poverty, while police are taking the place of
teachers in schools that have adopted zero-tolerance policies.
• Police departments should keep data on the racial identities of people who are stopped and frisked, arrested,
ticketed and issued warnings. They should also report incidents in which serious or deadly force is used, including
the race of the officers and civilians.
• Prosecutors should collect and disclose more data that will help the public better understand the extent to which
racial disparities arise from prosecutorial discretion.
• Prosecutors, defense lawyers and judges should adopt employee training on implicit bias.
• Prosecutors’ offices should “move quickly, aggressively, unequivocally—and yet deliberately—to address
misconduct that reflects explicit racial bias.”
• Prosecution offices and police agencies should make an effort to hire and retain lawyers and officers who live in
 http://www.abajournal.com/news/article/aba_addresses_destabilizing_loss_of_public_confidence_in_criminal_justice_i

and reflect the communities they serve.

&•The public should have access to evidence explaining why grand juries decline to indict and why prosecutors
decline to prosecute police officers involved in fatal shootings of unarmed civilians.
• Police officers should be trained how to defuse tense situations. Accountability could be promoted by greater
police use of body and vehicle cameras.
• Prosecutors, judges and defense counsel must pay more attention to the collateral consequences of convictions,
which can deprive defendants of opportunities for education, employment and housing.
An ABA press release is here (https://www.americanbar.org/news/abanews/aba-news-archives/2015/07/aba_naacp_legal_def.html).
“The American criminal justice system is clearly in need of reform on multiple levels,” ABA President William C.
Hubbard said in the press release. “As lawyers, we have a duty and responsibility to ensure the fair administration
of justice and to promote public trust in the system. The solutions are not quick or easy, but these proposals offer
a tangible and potentially significant framework to make sure the system provides justice for all.”
See also:
National Law Journal (http://www.nationallawjournal.com/id=1202732496363/OpEd-Charleston-Massacre-is-Pivotal-Point-
for-Profession#ixzz3gTTtlN1K):
“Op-Ed: Charleston Massacre is Pivotal Point for Profession”

Copyright 2016 American Bar Association. All rights reserved.

 JOINT STATEMENT ON ELIMINATING BIAS
IN THE CRIMINAL JUSTICE SYSTEM

July 2015

The American Bar Association and the NAACP Legal Defense and Educational Fund,
Inc., have long and proud traditions of fighting for civil rights, human rights and equal
justice. Although, over the years, we have celebrated much progress in these arenas, we
are now confronted by a troubling and destabilizing loss of public confidence in the
American criminal justice system. The growing skepticism about the integrity of the
criminal justice system is driven by real and perceived evidence of racial bias among some
representatives of that system. This crisis of confidence must be addressed, and the time to
act is now.

While we believe that the overwhelming percentage of law enforcement officers,

prosecutors and judges are not racist, explicit bias remains a real factor in our country –
and criminal justice system – and implicit or unconscious bias affects even those who may
believe themselves to be fair. Indeed, as Supreme Court Justice Anthony Kennedy once
observed (in the 2001 case of Board of Trustees v. Garrett), prejudice may arise from not
just overt “malice or hostile animus alone,” but also “insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against people
who appear to be different in respects from ourselves.”

One would have to have been outside of the United States and cut off from media to
be unaware of the recent spate of killings of unarmed African American men and women at
the hands of white law enforcement officers. Several of these killings, like those of Walter
Scott in South Carolina, 12-year-old Tamir Rice in Ohio and Eric Garner in New York, have
been captured by citizen video and viewed nationwide. More recently, the in-custody
death of Freddie Gray sparked days of unrest in Baltimore, which ended only when the
officers (who were of multiple races) were charged by the local prosecutor.

Given the history of implicit and explicit racial bias and discrimination in this
country, there has long been a strained relationship between the African-American
community and law enforcement. But with video cameras and extensive news coverage
bringing images and stories of violent encounters between (mostly white) law enforcement
officers and (almost exclusively African-American and Latino) unarmed individuals into
American homes, it is not surprising that the absence of criminal charges in many of these
cases has caused so many people to doubt the ability of the criminal justice system to treat
individuals fairly, impartially and without regard to their race.
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

That impression is reinforced by the statistics on race in our criminal justice system.
With approximately 5 percent of the world’s population, the United States has
approximately 25 percent of the world’s jail and prison population. Some two-thirds of
those incarcerated are persons of color. While crime rates may vary by neighborhood and
class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and
incarceration rates are unaffected by attitudes and biases regarding race.

And, to the extent that doubts remain, the U.S. Department of Justice’s recent
investigation of law enforcement practices in Ferguson, Missouri, should put them to rest.
In Ferguson, the Justice Department found that the dramatically different rates at which
African-American and white individuals in Ferguson were stopped, searched, cited,
arrested and subjected to the use of force could not be explained by chance or differences
in the rates at which African-American and white individuals violated the law. These
disparities can be explained at least in part by taking into account racial bias.

Given these realities, it is not only time for a careful look at what caused the current
crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial
bias – in all of its forms – from the criminal justice system.

As lawyers, we have a very special role to play. As the Preamble to the American
Bar Association Model Rules of Professional Conduct states,

As a public citizen, a lawyer should seek improvement of the law, access

to the legal system, the administration of justice and the quality of service
rendered by the legal profession. . . . In addition, a lawyer should further
the public’s understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their authority.

What must we do? The answer lies in making both macro and micro changes in our
criminal justice system.

At the macro level, Congress and state legislatures must look at the vast array of
laws that criminalize behaviors that pose little, if any, danger to society. We have over-
criminalized conduct throughout the United States and have come inappropriately to rely
on the criminal justice system to address problems of mental health and poverty. We have
adopted unnecessary zero-tolerance policies in schools that inappropriately require police
officers to take the place of teachers and principals and become behavioral judges. We
need fewer criminal laws, and fewer circumstances in which police, prosecutors and judges
are called upon to deal with social, as opposed to criminal, issues.

Overcriminalization is such a significant problem that virtually every careful

observer of criminal justice in America, conservative or liberal, recognizes it. This
consensus presents a unique opportunity to unflinchingly confront the need to improve our
justice system.

2 July 2015
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

Decriminalization is, however, not a short-term solution to the current crisis of

confidence. Every day, law enforcement officers, prosecutors and judges are making
discretionary decisions in a country where, literally, any person could be arrested for
something if government officials focused sufficient time and energy on him or her.

We must therefore take immediate action at the micro level to begin the process of
rebuilding trust and confidence in the criminal justice system and fulfilling the promise of
equal justice.

Prosecutors play an important and vital role within the criminal justice system and
should be leaders in this effort. We have begun what we anticipate will be a series of
conversations focused on identifying ways in which prosecutors can play a more powerful
role in addressing the problem of racial bias our justice system. Our organizations arranged
an off-the-record discussion that included prosecutors and other participants in the
criminal justice system committed to equal justice. We emerged from our discussion with a
commitment to advancing the reforms listed below. We regard these reforms as necessary
investments that are essential to strengthening public confidence in the rule of law and the
legitimacy of our justice system.

1. We need better data on the variety of interactions between law enforcement

and citizens. Earlier this year FBI Director James Comey – himself a former federal
prosecutor – acknowledged that gathering better and more reliable data about encounters
between the police and citizens is “the first step to understanding what is really going on in
our communities and our country.” Data related to violent encounters is particularly
important. As Director Comey remarked, “It’s ridiculous that I can’t know how many
people were shot by police.” Police departments should be encouraged to make and keep
reports on the racial identities of individuals stopped and frisked, arrested, ticketed or
warned for automobile and other infractions. Police departments should report incidents
in which serious or deadly force is used by officers and include the race of the officer(s) and
that of the civilian(s). This will certainly require investment of funds, but that investment
is key to a better future. We cannot understand what we cannot measure, and we cannot
change what we cannot understand.

2. Prosecutors should collect and publicly disclose more data about their work that
can enable the public to obtain a better understanding of the extent to which racial
disparities arise from the exercise of prosecutorial discretion. While this data collection
will also require investment of funds, it is essential to achieving the goal of eliminating
racial bias in the criminal justice system.

3. Prosecutors and police should seek assistance from organizations with expertise
in conducting objective analyses to identify and localize unexplained racial disparities.
These and similar organizations can provide evidence-based analyses and propose
protocols to address any identified racial disparities.

3 July 2015
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

4. Prosecutors’ offices, defense counsel and judges should seek expert assistance to
implement training on implicit bias for their employees. An understanding of the science of
implicit bias will pave the way for law enforcement officers, prosecutors and judges to
address it in their individual work. There should also be post-training evaluations to
determine the effectiveness of the training.

5. Prosecutors’ offices must move quickly, aggressively, unequivocally – and yet

deliberately – to address misconduct that reflects explicit racial bias. We must make clear
that such conduct is fundamentally incompatible with our shared values and that it has an
outsized impact on the public’s perception of the fairness of the system.

6. Prosecutors’ offices and law enforcement agencies should make efforts to hire and
retain lawyers and officers who live in and reflect the communities they serve. Prosecutors
and police should be encouraged to engage with the community by participating in
community forums, civic group meetings and neighborhood events. Prosecutors’ offices
should build relationships with African-American and minority communities to improve
their understanding about how and why these communities may view events differently
from prosecutors.

7. There should be a dialogue among all the stakeholders in each jurisdiction about
race and how it affects criminal justice decision-making. In 2004, the ABA Justice Kennedy
Commission recommended the formation of Racial Justice Task Forces – which would
consist of representatives of the judiciary, law enforcement and prosecutors, defenders and
defense counsel, probation and parole officers and community organizations – to examine
the racial impact that policing priorities and prosecutorial and judicial decisions might
produce and whether alternative approaches that do not produce racial disparities might
be implemented without compromising public safety. There is little cost associated with
the assembly of such task forces, and they can develop solutions that could be applicable to
a variety of jurisdictions provided that the various stakeholders are willing to do the hard
work of talking honestly and candidly about race.

8. As surprising as it might seem, many people do not understand what prosecutors

do. Hence, prosecutors’ offices, with the help of local and state bar associations, should
seek out opportunities to explain their function and the kinds of decisions they are
routinely called upon to make. Local and state bar associations and other community
organizations should help to educate the public that the decision not to prosecute is often
as important as the decision to prosecute; that prosecutors today should not to be judged
solely by conviction rates but, instead, by the fairness and judgment reflected in their
decisions and by their success in making communities safer for all their members; and that
some of the most innovative alternatives to traditional prosecution and punishment – like
diversion and re-entry programs, drug and veteran courts and drug treatment – have been
instigated, developed and supported by prosecutors.

9. To ensure accountability, the public should have access to evidence explaining

why grand juries issued “no true bills” and why prosecutors declined to prosecute police

4 July 2015
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

officers involved in fatal shootings of unarmed civilians. The release of grand jury
evidence, as in Ferguson, is one way to promote the needed accountability.

10. Accountability can also be promoted by greater use of body and vehicle cameras
to create an actual record of police-citizen encounters. With the proliferation of powerful
firearms in our communities, law enforcement departments reasonably seek equipment
that enable them to protect themselves and their communities when called upon to
confront armed and dangerous individuals seeking to engage in criminal or terrorist acts.
However, while it is appropriate to arm our police and train them in the use of ever-more
powerful weapons, it is equally important to train our law enforcement officers in
techniques designed to de-escalate tense situations, make accurate judgments about when
use of force is essential and properly determine the appropriate amount of force required
in each situation.

11. We must recognize that not every lawyer has the judgment and personal
qualities to be a successful prosecutor, administer justice and be willing to acknowledge
the possibility of implicit bias. Prosecutors who routinely engage in conduct or make
decisions that call into question the fairness or integrity of their offices should be removed
from office if they cannot be trained to meet the high standards expected of public officers.
At the same time, the terms “prosecutorial misconduct” and “police misconduct” should be
used with greater care. Even the best prosecutors will make mistakes, much like the best
defense lawyers and judges do. There is good reason to limit the characterization of
“misconduct” to intentional acts that violate legal or ethical rules.

12. Prosecutors, judges and defense counsel must pay more attention to the
collateral consequences of convictions. In many jurisdictions, after an individual is
convicted of an offense and completes his or her sentence (by serving time, paying a fine or
completing probation or parole), the individual nevertheless faces a life sentence of
disqualification and deprivation of educational, employment, housing and other
opportunities. This runs counter to the interests we all share in rehabilitation of the
offender and positive re-integration into and engagement with the communities in which
they live. In many cases, prosecutions can be structured to limit some of the most
pernicious of these consequences, provided that the lawyers and the courts take the time
and care to examine alternative disposition options. Prosecutors, judges and defense
counsel should join together to urge legislatures and administrative agencies to reconsider
the laws and regulations that impose these collateral consequences and determine whether
they can be modified to provide more opportunities for former offenders without
compromising public safety.

The American criminal justice is unquestionably at a moment of crisis. But there

are many steps we, as members of the bar, can and should take quickly to begin to turn the
ship of justice around and ensure that the system delivers the blind justice that it promises.
If we commit ourselves to confronting and eliminating the racial biases that now exist, we
can restore the much-needed public confidence in our criminal justice system. As Supreme
Court Justice Thurgood Marshall once exhorted in accepting the Liberty Medal Award in

5 July 2015
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

1992, “America can do better.” Indeed, “America has no choice but to do better.”

Both the American Bar Association and the Legal Defense Fund will continue to
convene meetings with prosecutors and other law enforcement groups to support the
reforms we have identified. We also will work to support and advance a robust dialogue
among prosecutors and leaders in the profession about how best to eliminate racial bias
from our justice system.

William C. Hubbard,
President, American Bar Association

Sherrilyn Ifill
President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.

The following individuals participated in the discussion that led to this joint statement:

Sidney Butcher
Assistant State’s Attorney, Baltimore City State's Attorney's Office

John Chisholm
District Attorney, Milwaukee County

Kay Chopard Cohen

Executive Director, National District Attorneys Association

Angela Davis
Professor of Law, American University Washington College of Law

Mathias H. Heck
Prosecuting Attorney, Montgomery County, OH

Belinda Hill
First Assistant District Attorney, Harris County, TX

David F. Levi
Dean, Duke University School of Law

Myles Lynk
Professor of Law, Arizona State University College of Law

Wayne McKenzie
General Counsel, New York City Department of Probation

John Pfaff
Professor of Law, Fordham University

6 July 2015
 ABA-LDF Joint Statement on Eliminating
Bias in the Criminal Justice System

Matthew Frank Redle

County and Prosecuting Attorney, Sheridan, WY

Stephen A. Saltzburg
Professor of Law, George Washington University Law School

Cyrus Vance, Jr.

District Attorney of New York County

7 July 2015