Conducted by Michaela Shelton (PO ’21) and Madison Yardumian (SC ’21), Staff Writers
Christopher Darden has practiced law for over 37 years. He worked for the Los Angeles County District Attorney’s Office where he prosecuted cases regarding gang violence and criminal activity perpetrated by law enforcement officials. Darden rose to particular prominence for his role as co-prosecutor during the O.J. Simpson case, infamously dubbed “The Trial of the Century.” Since the trial, Darden has taught law and written a New York Times bestselling autobiography, In Contempt. Today, Darden works as a criminal defense attorney in the L.A. area. On February 16th, Darden spoke with the CJLPP prior to his Ideas @ Pomona talk titled “Rising Above the Court of Public Opinion.”
CJLPP: How strongly do you think current events impact the administration of justice?
Darden: Current events impact the criminal justice system significantly. For example, how politicians take incidents involving violence and use them to support certain rules and consequences in the criminal justice system. We have, over the last twenty years, tried to move away from over incarceration and attempted to reduce the severity of sentencing because we realized that these systems disproportionately affect certain communities. We have attempted to move from incarceration to rehabilitation. Now, what we see is a new administration attempting to reverse all this progress. They want to take us back to incarceration, back to the Stone Ages, without any consideration of the larger consequences these policies have. Politicians will use a violent crime committed by an undocumented person as proof of how the law isn’t strict enough and sentences aren’t long enough. They use it as an example for how certain kinds of people—specifically, certain colors of people—should not be allowed in this country. So yes, national events are shaping the criminal justice system and they have a profound effect on the administration of justice.
CJLPP: Retrospectively, the O.J. Simpson decision was seen as retribution for specific acts of violence against African Americans that occurred right before the trial (Rodney King in particular). Do you believe that if the trial were to take place today that the verdict would be different?
Darden: I believe that a jury with the same racial composition in the city of L.A. would still give the same verdict today. In 1995, three years after the L.A. Riots, the racial divide in L.A. was just as apparent as it is today. The issues that confronted the jury in 1995 still exist today: issues with the police department, unjustified officer shootings, and friction between the black community and the LAPD [Los Angeles Police Department]. Just before the Simpson case, I was part of a unit that investigated officer-involved shootings. I was trying to reform the way that the L.A. County District Attorney’s Office investigated and prosecuted officers for shootings on duty because the prosecution of police officers was very rare and almost never resulted in convictions. We are confronting the same issues today that we were in 1995.
CJLPP: In your book, In Contempt, you say that the prosecution of the O.J. trial was destined to fail. In spite of this, you continued to persevere. What is it like to prosecute a trial you suspect you will lose?
Darden: Any good lawyer must evaluate his or her case against the possibility of winning or losing. But, in the end, all one can do is try. No prosecutor should prosecute a case unless he or she believes that an objective group of fact-finders, a jury, looking at the evidence would conclude that the defendant is guilty beyond a reasonable doubt. That is the kind of evaluation we must make as prosecutors. If you believe an objective fact-finder would find guilt beyond a reasonable doubt, you have to proceed. It isn’t right for prosecutors to consider the political consequences of how others outside the court will view a case, or what the political tone of a case might be. If the objective is justice, you have to apply the same standards to every case. When I looked at the case, I understood the political climate. I lived in the black community, I understood how some people viewed the case, and I knew that it was split on racial lines. But my objective, and every prosecutor’s objective, should be justice. So, I was going to make any attempt to achieve justice.
CJLPP: Your book also highlights how often justice is not served for poor victims of gang violence, and how prosecutors perpetuate this by encouraging victims to testify even when it is not in their best interest. How did you learn to cope with this flaw in the justice system?
Darden: I started prosecuting gangs in the 1980s. In the 1980s, you could just listen to NWA or Ice Cube rapping about AK-47s and car-jackings to know how “popular” these incidents of violence were. We didn’t have the same kinds of laws then as we do now regarding gangs. We especially weren’t prepared for car-jackings––as I recall we had to pass a car-jacking statute. Time and time again I saw situations where average citizens would make a statement to the police that implicated a suspect and were then later required to testify in the criminal trial. What I did not see was a mechanism for the protection of those witnesses. I encountered a situation once where a young woman called the police after a high-level gang member put a gun to her head. He told her that if she informed the police of his actions he was going to kill her. She did tell the police, and he was arrested. They brought the case to me for filing. The police and detectives both stated that if the case went to trial they did not believe the young woman would testify, but felt it was important to send a message to the gang member, to make him understand that we were watching. So, I filed the case, and we served her with a subpoena to testify. Hours later, on the same day, she was approached by gang members and executed in broad daylight. Should we have exposed her to that risk? Nobody thought about that at the time. No one paid enough attention to what the consequences would be. It is one of those experiences that follows me to this day.
CJLPP: This next question goes back to a topic you mentioned earlier about police relations with the black community. What are your views on the outcomes of cases involving excessive police force such as in the cases of Philando Castile, Eric Garner, and Michael Brown?
Darden: When I see these acquittals, I am not surprised. One of the most difficult things to do as a prosecutor is to successfully prosecute a police officer for an on-duty shooting or for using excessive force. The public asks, why is it so difficult? First of all, the prosecution and police department are hand in hand. Most prosecutors consider themselves an extension of the police department and part of law enforcement. So, there is an inherent bias in terms of the agency required to prosecute and investigate the case. Often times prosecutors aren’t looking for a way to file like they would if you or I killed somebody or beat somebody without mercy. Typically, they’re looking for a way not to file, and they give the police officer the benefit of doubt because he is a fellow law enforcement officer. Then the next problem is the code of silence that continues to exist amongst police officers.
CJLPP: Can you define “code of silence”?
Darden: It is an unspoken practice among police officers that if one commits a crime in the presence of the other, the officer will not report that crime. As a result, police officers are free to violate the rights of individuals without any repercussions and without any concern that fellow officers are going to turn them in. Another problem is the jury process. When you pick a jury––for example, let’s say I pick a jury for the Eric Garner murder case––who is going to sit on that jury for a month? College students? They have class. A 30-year-old black male living in Baltimore? He has a family to support. He has to go to work. Who is going to sit on this jury panel? Retirees and older people, who tend to be conservative and tend to rely on the police department more than most other groups in society. So their view of a police defendant is somewhat shaded by their own experience and culture. This makes it very difficult. When I see these acquittals, I’m not surprised, but I know that a grave injustice has been done and at some point there is going to be a price to pay. Whether it’s in rioting, whether it’s in vigilantes who take justice into their own hands and ambush police officers, or whether it’s just a large segment of the population lacking confidence in the criminal justice system—there are repercussions. There is a penalty yet to be paid for these kinds of cases.
CJLPP: This next question is on the subject of violence against women. In light of recent events like the #MeToo movement, how important do you believe it is to speak out about violence against women and call out those who have been complicit?
Darden: This is an issue that I have thought a lot about because of the women who have had the courage to step forward and say something. Any unwanted touching or a non-consensual touching, whether it’s sexual in nature or not, is a problem. It’s a crime. It’s a crime that men in power have done to women. Now, I’ve always been an advocate against domestic violence. I never even spank my own kids because domestic violence includes not only relationship violence between men and women, but also child abuse, violence against children, and violence in the household. I think that every man in this country has a responsibility to support those who have been abused and to support those who have the courage to report abuse, because one of the issues inherent in being an abused woman is the inability to report the abuse.
In California, we changed the law to try and help protect women and make it easier to report abuse. We made it easier for police officers to arrest the abuser. When I began as a prosecutor in the early 80s, I can’t tell you how many times there was a domestic violence case on calendar, and a woman would show up in court and say I don’t want to prosecute, and we dismissed it. Our police officers would tell me that they responded to the location, saw it as a family matter and drove off, leaving the victim to be victimized even more. Again, I think we’re at a critical juncture where we need to reevaluate our policies. We need to re-educate the public about domestic abuse, and we need to move again to protect women who are abused and women who have the courage to report it.
CJLPP: What measures would you put in place to change the way the criminal justice system addresses women who are victims of violence?
Darden: In California we are a lot more active about these issues than many other states. First, when police officers respond to a domestic violence situation, if either party has a visible physical injury, the law permits the officer to take the other person to jail, which is something that didn’t happen in 1995 and does not happen in most communities today. Next, the abuse victim is granted a temporary restraining order which precludes the abuser from returning to the home or location while the case is pending. If a conviction occurs, domestic violence restraining orders are granted to victims for 10 years or more and can even be renewed. Even so, we need to provide more funding and allocate more money to shelters and other ways of moving abuse victims away from their abusers.
In California, the law is quite severe. Prosecutors don’t allow abuse victims to come in to court and say “I don’t want the case to be prosecuted.” It’s the state of California that brings these prosecutions. Prosecutors today will fight until the end to try and prosecute those cases. I don’t know if they do so everywhere, but I’m rather proud of how domestic violence cases are approached in California.
CJLPP: Finally, In Contempt mentions the difficulty you had in adjusting your conception of law from “a series of answers to a series of questions on a series of tests” to “a living breathing system of criminals and victims, actions and reactions.” Do you have any advice for future lawyers to help them transition from an academic comprehension of the law to pursuing it as a career?
Darden: I have a nephew who was attending law school in Northern California. After he completed his first year of law school, he spent the summer with me as my clerk. I now practice criminal defense, and he came with me to court every day to see what I do. At the end of the summer, he went back home and dropped out of law school. For him it was one thing to study law in a sterile, academic environment and quite another to practice law in court—to see the victims, to see the failings, to see the suffering. He was forced to realize that although we are taught that the system is designed to seek the truth, the truth does not always seem to be the objective or the result in criminal cases. Being a criminal law attorney is not for everybody. You’re not going to get rich doing it—only a handful of people do. If you want to go into law, you have to prepare yourself for the fact that what you learn in law school isn’t what happens when you actually practice law. They say our criminal system is the best in the world, but it can be awfully oppressive. If I was about to invest $250,000 in a legal education, I would spend a few days with an attorney to get a sense of what practicing law is really like because the theory doesn’t always match the reality.
CJLPP: Thank you so much for your time and expertise, Mr. Darden.