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Two Louisiana judges will begin hearing arguments tomorrow about whether a Black judge should be recused from more than 300 criminal cases after she criticized prosecutors for the disproportionate rate of incarceration among Black Louisianans. According to a motion filed by prosecutors, Iberia Parish Judge Lori Landry has accused the district attorney’s office of incarcerating Black people more harshly and at a higher rate than white people, and has suggested prosecutors have improper motivations and engage in “trickery.” In response, prosecutors in District Attorney Bo Duhé’s office have filed motions for the judge to be recused because she is “biased or prejudiced against (the DA’s office) such that she cannot be fair or impartial.”
Prosecutors have filed this motion in virtually every criminal case assigned to her. In the motion, prosecutors list over 30 instances they argue indicate that Landry is biased. But many do not indicate anything of the sort. In one example from 2017, prosecutors claim that Landry implied that members of the district attorney’s office “knew or should have known” that former Iberia Parish sheriff’s deputies were involved in misbehavior. In a 2018 example, Landry is accused of calling the district attorney’s pretrial diversion program “highway robbery.” These comments do not demonstrate bias so much as conclusions that prosecutors disagreed with.
The criminal system, and the criminal system in Louisiana, have always been biased against Black people, and prosecutors engage in what might be called “trickery” all the time. I have made a podcast documenting one particularly egregious case, out of New Orleans, that almost resulted in an innocent man’s execution. Until recently, split juries could convict people of felonies in Louisiana, the result of an explicitly racist attempt to silence Black jurors. Louisiana judges routinely allow prosecutors to engage in illegal jury discrimination. Louisiana is 33 percent Black, but a survey sampling half the prisoners serving life without parole for nonviolent offenses found that 91 percent were Black.
“A 2016 study found that in Louisiana, killers of white victims were 14 times more likely to be executed than killers of Black victims,” writes Radley Balko in an exhaustive compilation of studies showing evidence of discrimination in the criminal system. “Black men who killed white women were 30 times more likely to get the death penalty than Black men who killed Black men. Those convicted of killing white people were also less likely to have their sentences overturned on appeal, and Louisiana hasn’t executed a white person for killing a Black person since 1752.” The Supreme Court will not intervene: It allows the death penalty to be carried out even in the face of proof that it is meted out disproportionately based on the race of the accused and the race of the victim.
Other alleged conduct does not sound biased so much as inappropriate. The district attorney’s office claims Landry threatened to stick a pen in the eardrum of a prosecutor and a defense attorney. When the prosecutor asked why the eardrum, Landry, according to the motion, said, “Because, girl, it hurts, but it doesn’t kill you. It makes you suffer.” In this writer’s experience as a public defender, these kinds of comments, if Landry actually made them, are not welcome, but they are not uncommon in courtrooms. They are usually directed toward the defense. I have never seen them result in any kind of discipline.
Landry was elected to her position in 2002, and before that, she served for nine years as an assistant district attorney. Community members have rallied around her. Earlier this month before another hearing, nearly 100 people, many of them Black, stood on the steps of the Iberia Parish Courthouse to support Landry. “We know of the trickery and injustice that is happening in the [district] with this very targeted, bullying, and racist tactic to have Judge Landry removed from hearing all criminal cases in the [district] because she does not want to play jump rope or be friends with the DA Office,” Robby Carrier-Bethel posted on Facebook. “Judge Landry is honorable,” and has “brought compassion, Integrity and judicial fairness with her to the bench (something all of them should have).”
“This is a violation of the constitutional rights of the people who elected me,” Landry said during a hearing last month, when the prosecutors’ office began filing recusal motions in cases on her docket. Those words sound like hyperbole, but in many ways, they are not. Constituents have been sent the message over and over that sympathies toward the prosecution are the norm, while defense-oriented thinking, even when substantiated by evidence, is abnormal and evidence of “bias.”
Landry’s alleged bias against prosecutors has caused harm to the public, the prosecutors’ motion said, while giving as an example a case where someone the judge did not detain was later accused of another crime. It’s as if the word “public” does not include the thousands of people, including Black people, wantonly and needlessly detained pretrial by judges biased in favor of the prosecution. “All that the District Attorney’s Office wants is what it is entitled to—a judge who fairly and impartially applies the laws to the facts before her and who treats attorneys, staff, witnesses, victims, defendants, and the public with respect.” But “impartial,” to the prosecutors, appears to preclude any kind of awareness of systemic discrimination.
The truth is that people with biases are allowed to serve as judges and jurors in our system, but only if they have the biases considered correct, which means biases in favor of the prosecution. This explains the vast disparity between the percentage of judges who previously worked as prosecutors and those who previously were defense lawyers. When defense lawyers are nominated to the bench, they face far harsher scrutiny than those who sought to perpetuate mass incarceration as prosecutors.
Nowhere is this phenomenon starker than on capital juries, where jurors must be “death qualified,” meaning that jurors who oppose the death penalty are automatically excluded. Not only does this result in more punitive juries, who are more likely to convict in the first place, but it also makes meaningless the idea that juries can send meaningful messages to society about whether they approve of the death penalty. The Supreme Court has explicitly held that claims of cruel and unusual punishment under the Eighth Amendment must be evaluated according to society’s “evolving standards of decency.” But although the “Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts,” writes law professor Aliza Cover. “This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.”
Is Landry biased? Maybe. But we don’t see too many of these hearings based on accusations over bias favoring the prosecution. Maybe we should.
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