"The game is rigged": Longtime defense attorney Robbin Shipp takes on the carceral state

"Justice While Black" author tells Salon why after 18 years she decided she could keep her peace no longer

Published October 16, 2014 2:45PM (EDT)

 Robbin Shipp
Robbin Shipp

As the arrest of Cornel West and others in Ferguson this week made clear, the national conversation that began this summer following the killing of teenager Michael Brown by officer Darren Wilson is not over, and is unlikely to be so any time soon. That's due in significant part to the tenacity and endurance of activists in Missouri and elsewhere who refuse to let the national media turn its fickle attention elsewhere. But it's due in larger part to the stubborn fact that the social maladies revealed in the Brown incident — police brutality, the rise of mass incarceration and the persistent scourge of institutional racism — are dysfunctions that, left unaddressed, will simply not go away.

In her new book, "Justice While Black: Helping African-American Families Navigate and Survive the Criminal Justice System," defense attorney and Georgia Commissioner of Labor candidate Robbin Shipp, along with co-author Nick Chiles, offer a searing and sobering artifact of just how destructive those social forces can be. A mix of how-to and social criticism, "Justice While Black," offers an insider's view of how the justice system functions to stack the deck against millions of African-Americans, and what individuals and their families can do to survive it all the same. Salon spoke with Shipp recently about her time as an attorney, institutional racism and what inspired her to step outside the justice system and write her first book. Our conversation is below and has been edited for clarity and length.

Before we talk about "Justice While Black," can you tell me a bit about how your professional background made you want to write this book?

I'm a licensed attorney in the state of Georgia, and I have been licensed since my completion of law school in '96. I graduated from the Walter F. George College of Law at Mercer University, and started practicing law immediately after graduation. At that point, I focused primarily on criminal defense; I tried my first case two months out of law school. So I was very quickly in the fray.

I've practiced now for a little over 18 years, and handled a lot of major felony cases; murder, armed robbery, aggravated assault, those types of cases. How have my views grown or changed over the years? As a new attorney, I was concerned about disparities relating to both charges and sentencing between African-Americans and other groups... But what I found I had to do, as a new attorney in order to grow in my profession, was divorce my social concerns from the practical, everyday practice of law in order to function as a criminal defense attorney.

And when you say "social concerns," I take it you mean your concerns about the judicial system as a whole?

Right. Exactly. Because I started practicing law in an area ... where the judges were all white, and an overwhelming number of defendants who appeared in front of these judges were African-American. As an attorney, you cannot stand in a courtroom and yell "racism!" every time someone is sentenced or charged ... disproportionately, because ... the resolutions are not going to be the best resolutions, because you are expressing an emotional reaction to charges.

I had to separate my concerns in regard to social disparities from the actual practice of law, to try to circumvent what may be biased — because judges are people, too — to particular racial groups or gender ... I had to circumvent those biases by emphasizing the human story in a lot of cases of my particular clients.

And that's something you found you had to do often? Simply reminding judges that your clients were actual human beings?

Absolutely. That became a hallmark of my practice. Particularly in a situation where someone is accepting a plea, I always looked for and established their human story, because everybody has a story in their lives. In my experience, there's usually a catalyst that brought someone to the point, if they in fact did commit a crime, there was oftentimes some kind of catalyst that brought someone to that point of committing a crime.

So when did you start feeling like you couldn't maintain the compartmentalization of your day-to-day work and your overarching beliefs any longer?

This book started in, I want to say, 2010, because at that point, 16 years practicing primarily criminal defense work, I saw this pattern — and the pattern was that young people would incriminate themselves with regard to a crime that they're alleged to have committed by giving voluntarily a statement to a police officer or agreeing to the search of their vehicle or their home where incriminating evidence is discovered. There seemed to be this disconnect from constitutional rights and practical, everyday life.

So I hoped to help young people understand that the Constitution really does mean something in our country and in our everyday practical life experiences; and in particular, that it applies [to them] and that [they] are allowed to assert its protections. Because so many people didn't seem to a) know their constitutional rights, and b) in that moment of adrenaline surge and panic that is associated with being stopped by police officers, they were willing to just give away the constitutional protections.

And from your anecdotal impression, how often do you think this was happening not just because people didn't know their rights but also because they assumed the game was rigged, anyway, and they'd be better off resisting as little as they could?

That's frequently a situation that criminal defense attorneys encounter. Because the truth of the matter is, the game is rigged. The prosecution has so much more resources aimed at obtaining convictions for people who are accused of crimes. And we all see it. The system itself is so overwhelmed that a careful analysis of the facts of every case is oftentimes challenging.

But what is critical at that juncture, where you're interacting with someone who's been charged with a crime, is to make them accept the possibility of a successful outcome — because every fact-scenario is different for every crime that is accused. People have to understand that it is the prosecution's responsibility, or duty, or burden, to establish guilt in a criminal case beyond a reasonable doubt. And oftentimes what you find are that the steps in the process of creating a case against someone have been skipped or the procedure was in some sort of way flawed.

How rampant a problem is that, the skipping of steps or the slip into sloppiness? How often does the system end up operating more like an incarceration assembly line than a real deliberative process to find out truth and deliver justice?

Well, as we allude to in the book, it is almost a factory. That's why it's incumbent upon an individual and that person's family to obtain the best representation that they can for young people.

I had a case where, when I got the case, the young man had been in jail for right out around two years, and he was charged with murder, as being the accomplice in an armed robbery of a known drug dealer ... My client was alleged to have been there with the individual who actually committed the murder, the shooting of the young woman that resulted in her death.

Initially, in investigating the case, the police [told my client] that he was not going to be charged. But when the district attorney assigned to the case got ahold of it ... he was arrested on a grand jury warrant and charged with murder. Bond was set, and it was an amount in excess of what the family could come up with. So when I was appointed to the case, my client had sat in jail for about two years.

When I got the case, he was adamant in his innocence; so I began my investigation, and there were inconsistencies in the case against him ... But still, the prosecution was insistent on going forward against my client, because they had the victim's sister making what they conveyed was a positive identification of my client as being one of the people present — not the shooter, but one of the people present. The sister, who was troubled herself, had some serious issues, mental health issues, she was kind of underground, difficult to track down, difficult to find ...

But my investigator and I, we were able to track down the sister's mother and went to interview her, and it was just happenstance that we asked if the sister was there ... so she came out from the back of the house and sat down with us, and we identified who we were, and we started talking about the incident, and ... we showed the alternative picture of what she had identified as my client, and she said, "Yeah. That's the guy who was present. That's the guy who was involved in the robbery."

This was a completely different person then, and it was apparent that this was a completely different person from my client. We disclosed this incorrect identification and filed the appropriate motions to the prosecutor, and he advised that he would look into it. This was some four months prior to the trial. Well, on the eve of jury selection, the Friday before we were scheduled to go into court and select a jury for murder charges, the prosecutor gave me a call and said, "We're dismissing the charges against your client." They had apparently brought in the victim/witness ... and she was shown my client's picture, and she reiterated what she had previously said to me — that he was not involved, he was not there that evening.

That's a situation where there was a breakdown in the system ... and that sort of thing happens all the time. What could have been prevented was my client sitting in jail for two years.

Your book is a guide, but it's also an analysis of the justice system as it exists today. Can you tell me a bit about the role the "War on Drugs" plays, as you see it?

We started this war on drugs back in the '80s, and the goal was to stamp out drugs in our communities. But what it ended up being was a war on street-level sales. That's really what it ended up being. The people who were actually importing the drugs, sometimes they were caught, and you'd hear about these huge busts; but the majority of folks who we saw going in and out of our justice system were street-level ... That's kind of the disappointment in the drug war. We never really reached those who were actually the ones who were making it convenient for people to acquire drugs, the ones who were actually importing it for mass sale.

Is this focus on small-timers, is it a result of law enforcement having to produce numbers, statistics, to prove they're doing their job? Or is it the result of laws that don't give prosecutors and others enough flexibility to determine punishment? Or is it both?

It's a combination of both. It is also that judges have demands placed on them to clear out their caseloads. Your defense attorneys — particularly if you're talking public defenders — have demands placed on them to clear out their caseloads to get ready for the next hundred that come in their way. Police officers have in some instances spoken (in other instances, unspoken) quotas that they have to fill as it relates to arrests. And caught in the middle of all that are young people, often in urban areas, who are in a sense the low-hanging fruit to feed this machine.

And you write in the book that it was, ultimately, the Trayvon Martin case — which was not explicitly about the "War on Drugs," but which was very much about the way our system treats young African-Americans — that sort of pushed you to a breaking point.

Yes. I had shelved the book to do some other things ... I was aware of the Trayvon Martin case, but in my lawyer brain, I thought, "This is a clear-cut case [that should lead to] some level of conviction." I purposefully did not watch the trial, because it's stuff that I live every day, so I knew how this was supposed to conclude: with a conviction on some level of George Zimmerman.

Flash-forward, I'm in Washington, D.C., celebrating the 100th anniversary of my sorority, and I woke up and saw this news flash: Zimmerman verdict is in, and he's not guilty. And as an attorney who has handles major felony defense work for a lot of years, you divorce yourself from your feelings, so I kind of walked around that evening in a bit of a stupor ... At this point [in my career], it's 18 years of pent-up emotions, of feeling as if black life in this country is not valued the same as others.

The Sunday morning following the Saturday verdict, I went to an ecumenical service. And the chaplain, she started to preach about the Zimmerman verdict, and how Trayvon Martin's life was not valued ... and the floodgates burst open, and I wept in a way that I had not wept since losing my father in 2008. I wept not just for Trayvon Martin, but I wept for the hundreds upon hundreds of young men whose lives I had had the privilege of touching in some way or another ... and all of the others that have come after Trayvon Martin.

After I finished crying, after that ecumenical service, and after I got back to Atlanta, I immediately called my co-author, Nick Chiles, and I said to him, "We gotta do the book."

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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