Creative Lawyering in Tulia, Texas

On July 23, 1999, 46 individuals were arrested in Tulia, Texas, for allegedly selling various amounts of cocaine to an undercover narcotics agent named Tom Coleman over a several month-long sting operation. Coleman was a member of a local drug task force that, like hundreds like it around the country, was created to take advantage of money given to states by the federal government as part of the National War on Drugs. In order to determine how to distribute the money among the task forces, Texas developed a rating system that evaluates the success of the various outfits primarily based on the number of arrests made. The more arrests a task force makes, therefore, the more it is hailed as successful, and the more it is rewarded with additional funds to make even more arrests. [1]

Transcendental Nonsense and Legal Magic in Tulia

One consequence of this statistics-driven model for drug enforcement is that the most important aspect of the drug war becomes the arrest itself. It becomes more justifiable to trick drug addicts into making a small sale of cocaine than it is to expend resources in an attempt to catch an actual drug dealer, or to fund a drug rehabilitation clinic in the county. Felix Cohen would say that this is an example of transcendental nonsense, because it attempts to solve a problem of law enforcement without reference to any empirical facts external to the system of law enforcement. Rather than asking about the function or consequences of those arrests, their affects on society and the families involved, or whether they further the social and ethical objectives of the drug war, this model of law enforcement justifies future arrests merely by pointing to past arrests.

• This is not what Felix Cohen would say. It's a perfectly good thing to say--although a little dogmatic unless the model doesn't actually take any account of whether arrests ripen into convictions--but it's not about Felix Cohen's point, and you'd have done better to leave him out of it.

This nonsensical method of law enforcement, detached from social actualities and ignorant of the consequences of its actions, is reinforced by a judicial system that operates in much the same way. In Tulia, the arrested individuals took turns appearing in court, denying every allegation, and were convicted on the basis of Coleman’s testimony alone

• Not quite true: there was cocaine admitted in the cases, just with no fingerprints that could trace it to the custody of the accused persons.

and sentenced to between 10 and 360 years in prison, until the others had no choice but to take plea bargains for less time. On a case by case basis, this hardly seemed objectionable: Yes, the officer was white and the defendant black, but surely this doesn’t prove racism. No, the officer had no corroborating evidence, but surely his word is credible until proven otherwise. The only role left for the judge, then, was to mechanically provide the appropriate rule and leave the rest to members of the all-white jury, the individuals best able to determine the truth.

In Jerome Frank’s view, to trust that such a system is capable of discovering truth is to ignore the subjectivity and uncertainty that is necessarily inherent in trial court decisions.

• Certainly not. Frank would say that any real system of appellate review of criminal convictions (which Texas doesn't have) would have detected the insufficiency of the evidence sustaining those convictions and reversed them outright. Frank's concern isn't with the impossibility of determining the sufficiency of evidence to convict. You're stopping short of precision in the analysis.

To believe that a conviction in such a setting signifies anything more than “that the trial judge or jury believed the testimony of some witness rather than that of others” [2] is to succumb to legal magic.

• This isn't a clear sentence. If you mean that there wasn't enough to sustain the convictions, you are right. But the problem isn't therefore with the system of law enforcement that attempts to arrest drug dealers, it's with the inadequate functioning of other parts of the legal system: the willingness of prosecutors to bring inadequately prepared cases, the failure of the trial court to require sufficient evidence, and the absence in the Texas judicial system of real appellate supervision of criminal adjudication. Obviously Coleman, like the Vermont rogue narc, Paul Lawrence, who created a similar avalanche of wrongful convictions in St. Albans, Vermont in the 1970s, can reasonably be blamed for the whole affray, but it would be more useful to ask about all the other institutions that failed, and it would be overtly incorrect to blame the one institution you do hold responsible, namely the institution of the narcotics sweep task forces, which have not been shown in any way to have failed solely because there was an itinerant rogue cop running a con game against small police forces.

The problems of nonsense and magic inherent in the law enforcement and judicial systems of Tulia, as seen through the realist lenses of Cohen and Frank, are interrelated in that they suggest a disconnect between the theories of these institutions and the actual facts and social realities confronting them. This disconnect is what enables law enforcement to focus on statistics and arrests without any investigation into their functional or ethical utility, and it is what enables forty-six, mostly black defendants to be unflinchingly sentenced to long jail terms, one at a time, on the word of a lone officer without any corroborating evidence.

• I don't think you've shown that at all. What you've shown is a picture in which racism enabled the convictions by biasing local officials and jurors, and in which the savagery and incompetence of Texas justice, already a story and a byword through the civilized world, performs a star turn, as expected. For comparison, the cases in which Paul Lawrence framed people in Vermont did not result in equivalently savage sentences, and although the numbers are much higher (Lawrence arrested 600 people over 6 years, and most--but not all--of his arrests were frames), defense lawyers had the state defender general pay for private detectives to investigate Lawrence early in the avalanche, and only the personal negligence of the State Attorney General (who shelved the resulting report during the heat of a political campaign for reelection) prevented his earlier discovery. When he moved from St. Albans to the larger Burlington force he was almost immediately apprehended.

• The pathologically lying policeman is a problem to all justice systems, but not--as the comparatively infrequent occurrence of these episodes shows--a particularly intractable one in the US context. The problem of Texas, on the other hand, is apparently insoluble.

Transformation of the Tulia Narrative

The story of Tulia, however, does not end with convictions, but rather with dismissals, pardons, and ultimately the discontinuation of funding for local drug task forces, effectively ending their reign of terror over the Texas countryside. It is a story of how the disconnect from reality was ultimately bridged by a number of lawyers and journalists dedicated to adjusting the story to reflect social realities. The narrative of Tulia became transformed into a counter narrative about the arrest of twelve percent of Tulia’s black population by a single white police officer with a terrible record in law enforcement, a propensity to use racial slurs, and a wholly inconsistent account of events.[3] By viewing the defendants as members of a targeted community, rather than just a number of mostly black individuals, the counter-narrative was able to bring to light the withheld evidence, the inadequate representation, and the prejudice and subjectivity inherent in a previously unquestioned set of convictions.

Constructive Skepticism

The final question, then, is how did the Tulia defendants get out from under the trap of nonsense and magic? The divergent approaches offered by Cohen and Frank are functionalism and constructive skepticism, respectively. The former seeks to understand the various forces that make up a judicial decision, such that one gains the power to reasonably predict outcomes. The lawyers in this case, however, did not attempt to determine the set of variables that led to the convictions, and did not aspire to alter the social forces so as to achieve a better outcome. In that sense, the efforts were consistent with constructive skepticism, according to which any attempt at legal engineering will, because of the sheer complexity of the enterprise, be fruitless and engender false hope. Instead, as described above, creative lawyering went after Tulia’s addiction to legal magic by presenting an alternative narrative that attacked the concepts of mechanical jurisprudence and fact-objectivity that underpinned the convictions, and in so doing, brought down the whole show.

[2] Frank, Courts on Trial. p. 61

[3] Vanita Gupta, Critical Race Lawyering in Tulia, Texas, 73 FDMLR 2055, 2059-2061

-- By VishalA? - 14 Feb 2008

• I think the Cohen and Frank elements of this essay were misplaced, and did much more harm than good. I think, for reasons outlined in comments above, that there are some significant lapses in legal analysis. I think, once corrected for these problems, the essay would read very differently.