Andrew Fleischman, White Male Supremacy, and Ruminations on Criminal Justice from a Former Public Defender and Former Prosecutor
EDIT, June 23, 2020: I might as well discuss the specific allegations Mr. Fleischman has made about my record as a prosecutor, because he has misrepresented reality. I wasn’t going to address his allegations, because they are so ludicrous, but I suspect some people read this article looking for that. Mr. Fleischman seems to understand that laypeople will accept a falsehood spun as truth if there is some whisper of the law in it, and he uses this to manipulate the truth, so I’d just like to ensure the record is clear.
He admonished me for prosecuting a case involving an older child who raped another much younger child. He specifically claimed that it was problematic for me to argue that a child doesn’t need to be Mirandized before speaking with a worker from the Department of Child and Family Services. Except Mr. Fleischman neglected to explain that this is actually the law. DCFS workers do not have to Mirandize because they are not law enforcement. But even more important is that Mr. Fleischman conveniently neglected to mention that the child had already been Mirandized by law enforcement in the presence of his mother, and questioned by them appropriately, in the presence of his mother, long before any DCFS worker showed up. So yes, the child had been Mirandized. I will not apologize for prosecuting that extremely violent case using appropriate case law.
Mr. Fleischman also accused me of improperly prosecuting a battery. Again, Mr. Fleischman left out facts. That case involved a battery of other children. The verdict was overturned on appeal, which does happen sometimes, in this case because the appellate court found the evidence was insufficient, which is generally a matter left to the trial court. The trial court did find the evidence sufficient and found the defendant guilty, but this is how our judicial system works, and I accept that. But again, I will not apologize for prosecuting a case where other children were harmed.
Mr. Fleischman also made some other allegations about me but I can’t be sure what he’s referring to as they’re so inflammatory and editorialized that it’s impossible to pick out any facts to actually address.
Since the publication of this post on December 18, 2019, Mr. Fleischman has also lied about interactions I have had with other people on Twitter, claiming that I’m tweeting about them when in fact I am not, or that I am tweeting about them from behind a block, when I am not. He strikes me as the kind of individual who likes to stir up drama by lying and twisting the truth, which is really not behavior suitable for a member of the bar. Then again, what can you expect of a man who openly admits to being a libertarian who votes for Republicans in the State of Georgia. Perhaps he should take up a position writing for a supermarket tabloid instead.
Below you will find my blog post as it was originally published on December 18, 2019. Since its original publication, the response to this post has been very positive. I am heartened to know that I’m able to contribute to the ongoing discourse about the state of the criminal justice system in our country, and I will continue to do so. Thanks for reading.
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I’ve put off writing this for a while now because it’s hard to write about. It involves work I did as part of a calling. Work that I truly felt in my soul. I’m not a scholar of critical race theory or of systemic criminal injustice. I’m just a brown woman who grew up in Louisiana and practiced law in the Southern American criminal justice system. During that time, I learned a lot about some very delicate, fraught, and deeply American issues. I apologize in advance if I haven’t treated these issues with the delicacy and nuance they deserve, and I hope you, dear reader, will forgive me if that’s the case.
Last week I published a tweet declaiming as cultural appropriation the Golden Turmeric Latte sold and consumed by white people in the West. Cultural appropriation is a subject that has been discussed by many people, and I’m not even the first to discuss the Golden Turmeric Latte as being a problematic example of it.
But for some reason, this tweet really angered a lot of people, including a white male criminal defense attorney from Georgia named Andrew Fleischman. Mr. Fleischman was so incensed by my tweet that he scoured the internet for information about my past work as a prosecutor, and he published an editorialized and inflammatory thread about me for his followers. Due to the abuse I received as a result of his thread, I had to lock my account, and then decided to deactivate it altogether. I have since reactivated and unlocked my account so I can share this post.
This post is partly a response to his allegations, but it’s mostly a broader rumination on my experiences as a public defender in Louisiana who later became a prosecutor (and then a software developer — but that’s a story for another day), and on the silencing of women of color by white men.
When I became a public defender in New Orleans fresh out of law school, I knew on a deeply cerebral level that systemic racism against Black people is a huge problem in our criminal justice system, especially in the South. But I didn’t feel it in my bones until my first jury trial as a junior public defender. I was representing a Black man on a charge of unauthorized use of a motor vehicle (basically joyriding). There was a very specific fact-pattern in his case that meant the judge needed to issue a special instruction for the jury to consider during deliberation, but she (a white woman) refused to issue this instruction. I made my objection for the record, and I proceeded with the trial.
During my closing argument, I alluded to the fact that my client was a Black man being subjected to the whims of an unjust criminal justice system. I didn’t say that in so many words, but the implication was definitely there. Up until this point, the jury, composed of white people, brown people, and Black people, had been following me and seemed receptive to my case.
But as soon as I mentioned my client’s Blackness, I saw a door shut in each of their minds. Apparently I had said something that so offended their reality that I had lost them as a jury. They convicted my client. His conviction was later overturned on appeal because the judge had failed to issue the jury instruction I had requested, but I’ll never forget that moment when I saw the light go out of the eyes of the jury.
It occurred to me in that moment that very few people were willing to openly discuss the systemic injustice perpetrated against Black Americans in the criminal justice system, and I was always going to be fighting an uphill battle in trying to bring that issue to light. I was always going to be meeting my clients during one of the worst periods of their lives, when society had so forsaken them that the best I could do was put a tiny bandage on a gaping wound.
I also noticed a lot of white saviorism in the New Orleans public defender’s office. At that time, the entire Louisiana public defender system was being revamped in the wake of Hurricane Katrina. The New Orleans office hired a cadre of white law school grads from elite schools on the East coast, and those hires definitely weren’t from Louisiana. They didn’t understand the unique cultural and racial dynamics of my home state, and it showed in their practice. Although a small number of those folks remain at the Orleans Public Defenders, most of them left to practice law far from Southern jurisdictions.
Ultimately I burned out as a public defender, probably from empathy fatigue and the fact that my caseload, like that of all Louisiana public defenders, was exceedingly high. I cared deeply for my clients, but I never felt I was making much of a difference. I was also probably too idealistic at that point in my career, and I fell into a long depression as a result of my burnout.
After spending some time in the fog of depression, I was offered a position as a prosecutor in a jurisdiction closer to where I grew up. I remembered how awful so many of the prosecutors I worked with as a public defender had been to me and my clients, and I knew that I could do better. I thought that this would give me a chance to pursue systemic change from the inside. I was also going to be working mostly with juveniles, and I felt I might have the chance to positively impact them in some way because juvenile work is largely rehabilitative rather than punitive.
But before I go into that, I’d like to talk a bit about the differences between criminal defense attorneys and prosecutors. Prosecutors have what is known as “prosecutorial discretion.” This means they have the power to decide which cases should be charged, and can recommend sentencing or rehabilitative measures to the judge. They can also refuse to charge cases in the interests of justice, or because cops are lying, or because detectives haven’t done enough investigation to make a case. I did all of these things during my time as a prosecutor. In fact, I made extensive use of our diversion program, which diverted juveniles from prosecution altogether, and steered them towards therapy and community service. The huge number of cases I diverted or refused to charge are cases no one will ever know about. But I used my discretion in that way, partly because I understood that Black Americans are disproportionately abused by our criminal justice system, and partly because I think the criminal justice system is no place for the vast majority of children.
Andrew Fleischman has never been a prosecutor, but I have been both a prosecutor and a defense attorney. I understand the unique duties that each have. Prosecutors are tasked with doing what is right rather than with seeking convictions. They are tasked with seeking justice for all involved: defendants, victims, and society at large. Defense attorneys, on the other hand, are tasked solely with doing what is best for the defendant.
This difference is necessary in the system of justice that we have chosen, which is adversarial (whether the adversarial nature of our system is actually a good thing is the subject of a post for another day, but for now it’s the system we have to work with). Prosecutors hold the cards, so they should be more equitable in their distribution of fairness to all involved, and defense attorneys must be more zealous and focused on representing the defendant for that very same reason.
The prosecutor’s duty involves some unique challenges because of the balancing act involved. It is much easier to have a duty to one party than it is to have a duty to three.
For example, I only rarely encountered juvenile defendants who had committed truly violent and dangerous offenses. Those cases were hard because I knew the juveniles were acting out largely as a byproduct of systemic racism, but I also knew that the community was at risk because of their behavior. I knew I was never going to solve behavioral problems caused by systemic racism overnight, but I did have the power to protect the community in the meantime. I often had to make that judgment call, and I don’t regret handling it the way I did. It’s a balancing act that every conscientious prosecutor must perform. Unfortunately too many prosecutors believe that their duty is to seek convictions rather than to seek justice, so I understand why prosecutors have a bad reputation.
I can count on one hand the number of juveniles who went to detention as a result of conviction after I initiated prosecution. Those were cases involving extreme violence against one or more victims, and even cases involving violent offenses didn’t generally result in detention if the juvenile had no prior offenses. The vast majority of cases involved me, the public defender, the judge, and social services working together to get juveniles into therapy and community service programs.
My work as a prosecutor also involved navigating some personal challenges. I was the only Indian-American prosecutor in my office, one of only three women of color prosecutors, and one of only five people of color prosecutors. Everyone else was white. It was abundantly clear to me that I was very low in the hierarchy at my office because of this, but also because I did mostly juvenile work, which is often not seen as “real” prosecution. So when my white male colleagues, using their prosecutorial discretion, made charging decisions (or in some cases even refused to charge wealthy white defendants) that I didn’t agree with, I didn’t always speak up. I was still very much living in my own internalized oppression in those days, and I knew that my criticisms wouldn’t be well-received by the white people around me. I own that failure to speak up, but I have compassion for myself because I was also subject to the oppression of white male supremacy.
My work as a prosecutor was largely informed by my experiences as a public defender, and I believe that being a public defender made me a far better prosecutor, because I didn’t have the tunnel vision that so many prosecutors have. The criminal justice system as we’ve built it needs both prosecutors and public defenders. The idea that prosecutors are bad simply because they are prosecutors is as ludicrous as the idea that public defenders are bad because they help bad people to go free. Public defenders work as checks against the State, and their work is incredibly valuable and important. I have immense respect for both the conscientious public defenders and conscientious prosecutors I know, because I’m intimately familiar with the work that each does.
Sometimes I don’t know if I’m the right person to talk about issues of systemic racism because I’m not white and I’m not Black, and the dynamic between the two is perhaps the most fraught in this country. But then I think I might be exactly the person who needs to talk about these issues because of that fact. I’ve had my own experiences being oppressed by white male supremacy, but I also don’t endure the specific kind of oppression Black Americans endure. I’m keenly aware of that as I write this.
The systemic racism experienced by Black Americans in the criminal justice system, especially in the South, is one of many horrible legacies of slavery. Slavery has also left a legacy of poverty and generational trauma that is endured by many Black Americans up to this very day. That generational trauma and poverty sometimes lead to violence, and the links between trauma, poverty, and intra-community violence have been well-established. During my work as a public defender and as a prosecutor, I was a daily witness to the resulting pain and suffering of Black Americans in this country.
Most violent crimes, regardless of the race of the parties involved, are intra-racial, except for hate crimes, which are mostly perpetrated by white people against people of other races. The vast majority of the victims of violence that I encountered in my work as a prosecutor were Black. While I was aware that systemic injustice in the criminal justice system disproportionately affects Black people, I also knew I couldn’t entirely solve those systemic issues on my own. The legacy of slavery is vast. It is the legacy of our country, and it’s one we haven’t truly reckoned with.
Although I did my best to even the scales of justice for the Black Americans whose cases ended up in my caseload, working within the confines of a broken system meant my efforts alone weren’t enough. One thing I could do, however, was protect the victims I encountered, and I tried my best to do that while balancing my additional duties to defendants and to society at large.
Are Black Americans disproportionately victims of police brutality and injustice in the criminal justice system as a whole? Absolutely. Are there Black Americans who are victims of crime who are just as deserving of protection as any other victims of crime? Absolutely. Both are simultaneously true.
I tried my best as both a public defender and as a prosecutor to address the injustices of the criminal justice system. But I probably didn’t do enough in either position. I don’t know if I could have ever done enough. There are ways of engaging in racially sensitive prosecution, and I tried to do that. People of all races do horrible things to each other, and prosecutors must exist for those people to be held accountable. But so often, the underlying problems that have created our unjust criminal justice system go unresolved.
People working in the criminal justice system are largely dealing with a symptom of a deep problem rather than the problem itself. Throughout my time in the criminal justice system, I came to understand that the underlying problem is rooted in ideology. It’s rooted in how we see each other and how we treat each other. In how we deal with the human differences among us. The ideology is what’s broken, and injustice is a byproduct of that. We can write all the laws we want, but as long as those laws are rooted in white supremacy, and are enforced in a white supremacist society where some humans are seen as less valuable than other humans, those laws won’t be applied equally. And the criminal justice system will still be broken.
Ultimately I came to deeply understand that the entire criminal justice system is broken, and that it cannot be fixed unless we change how we see each other. That is a change that happens in the mind and in the heart, not in the legislature. I know that even as a prosecutor who tried to balance all interests I was still part of a system that disproportionately punishes Black Americans. In that system, both victims and defendants are victims.
I’ve realized that the best work I can do at this point in my life is to spend my energy changing ideology, and that’s exactly what I do, online and offline. That’s where I think real change can come from, so that’s what I’m doing now. But the way I now choose to go about helping to foster that change is not by trying to convince white people to change their minds. It’s by using my own voice and amplifying the voices of people of color. In doing that, there are white people observing who will learn from me, and white people who won’t. But I will be helping myself and other people of color to change the way we think about ourselves and that may actually be the fundamental ideological shift that needs to happen.
Sometimes using my voice means I talk about cultural appropriation via Golden Turmeric Lattes. Sometimes it means I talk about issues of deep systemic racism. Sometimes it means I talk about what it was like growing up brown in the South, surrounded by white people who think of me as less than them. Thankfully there is room for all these discussions.
But there are plenty of people who want to police those discussions, and Mr. Fleischman is just one of many. It’s not lost on me that he is a white man trying to tear a brown woman down. I’ve experienced this kind of thing many times before as both a lawyer and as a layperson. But neither Mr. Fleischman nor the hordes of other angry white men are going to silence me.
Someone I respect deeply reminded me that Mr. Fleischman’s attack is not personal. At one point in his tirade, Mr. Fleischman, who was speaking to a person he thought was me hiding behind a fake account but definitely was not me (I have no idea who it was), said that I, “have done more to hurt the least among us than almost anyone I know.” He also said that I “loved doing it.”
The hyperbole in this tweet made me think Mr. Fleischman might actually be unhinged, but it also made me realize that this is not even about me personally. Because Mr. Fleischman doesn’t know me, at all. If he did, he would know that I didn’t enjoy my work. I saw it as a duty, and a very depressing one at that. Even when I won a motion or a trial as a prosecutor, there was no celebration, because I knew that both defendant and victim had suffered greatly to end up with this outcome, and that broke my heart.
Mr. Fleischman’s enraged reaction to my Golden Turmeric Latte tweet is just an attempt to police how I, a brown woman, speak about issues of race, and whether I’m allowed to speak about them at all. But hey, we live in a white male supremacist world (and remember, it’s not just tiki torches we’re talking about — white male supremacy manifests in a variety of seemingly mundane ways), and there’s nothing that white male supremacists love more than to tear down a woman of color who speaks her mind. I can’t help but wonder if Mr. Fleischman would be as incensed about my tweet if it had come from a white male.
I will not be silenced, and especially not by white male lawyers who have said some pretty bigoted things on Twitter (as an example: “I was so excited for my first sociology class. I thought I could learn about other cultures! But nope. Just bitching about white men.”).
I speak up at great cost to my safety and that of my family, but I have so much more to lose if I don’t speak up, and if I don’t help to lift up the voices of those who have felt powerless for so long. There are many amazing people of color doing this work, and I have a lot to learn from them as well. But I sleep well at night knowing that my voice, no matter how insignificant or enraging it may seem to some, has its place in the choir.