On April 30, 2018, the Georgia Judicial Nominating Commission (JNC), (which I co-chair with the Honorable Pete Robinson), will convene to continue the process of selecting nominees to recommend to the governor as he fills judge vacancies on the Georgia Court of Appeals. Never in the history of Georgia will a single governor have a greater impact on Georgia's appellate courts—with as many as five appointments on the Georgia Court of Appeals, and two on the Georgia Supreme Court in just this year.

As noted in “Georgia Judicial Appointments Are at a Crossroads Concerning Diversity“—a letter authored by Advocacy For Action Inc. and PAC; retired Judge Thelma Wyatt Moore; Judge Bettianne Hart; Wayne Kendall; and Suzy Ockleberry last week in this paper—this is an important time for our state. Indeed, the upcoming JNC meeting will take place in the wake of recent events in a Gwinnett County trial in which I was involved that amply proves just how far we still have to go and how important diversity on our bench remains.

Since the new millennium, many women and minorities have stepped forward with their own personal stories. As often reported in this paper and more frequently illustrated by appearances at the Georgia Black Women Lawyers' forums as well as many others, I have taken them to heart, pushing harder and harder to change that culture.

But when I saw it with my own eyes in a Gwinnett County courtroom, I knew it was time to stand up and do more. With the benefit of a transcript, and a judicially-approved video in other parts, there it was for the world to see. And, something had to be done. Fortunately, I had a client willing to let me do just that.

First, in a crowded courtroom, a seasoned Georgia lawyer stood lamenting about excusing a young woman from jury duty who happened to be a cheerleader. Why?

On the record, he said: “I've got two young [male] lawyers out here that would be very sorely disappointed if she's not on this jury for two weeks.”* Then, without hesitation, they responded from the back on the record, “I'm married. I'll get that in the record.”* And the other followed, “I'm not.”*

Stand up or shut up: stunned, I stood up and said:

“I just wanted to note on the record my objection at the end of the colloquy about whether or not it's preferential for two young male associates to have the benefit of an attractive female. … [T]hat kind of demeaning conduct toward women only stops when we stop it, and so, knowing that this record will be closely scrutinized, I just wanted to note that objection on the record because I personally found it objectionable.”*

Then, the next day after opposing counsel launched a vicious attack on me because he had no defense to the indefensible, I said:

“It's a fundamental lack of respect. It's the reason why we on the JNC have worked so hard to put women on the bench, because I can assure you that a woman judge sitting there hearing that would have [acted] immediately. … And for the record, it is not who we are in Georgia anymore .”*

More personal attacks followed. Yet, there was never an apology or remorse; instead there was only embarrassingly cheerful embrace of what had been said and done.

But, amazingly, it did not end there. The same attorney began his questioning of another juror with this inquiry: ”It says here on the questionnaire that you're from India?”* He then started down that all too familiar racial/ethnic predicate with this: “Well, let me ask you a question. The corporate representative here … is an employee … who's from India”*—connecting a juror's race/ethnicity as somehow relevant to whether the juror could be fair or should be stricken for cause.

Then, that same counsel challenged a visually impaired juror (who had previously served as a juror)—mimicking her from the jury box and saying: “The problem is, Your Honor, if she's sitting right here, and as [opposing counsel] suggests, she's got her own personal monitor, then she said she has this magnifying device that she's going to have to hold up to that monitor to even read it on the monitor. And what are the rest of us going to do? Wait for her? We've got other—there's 962,000 people in Gwinnett County. We shouldn't have to hold, slow down the trial for one.”*

But, it got worse, when the first responder Georgia State Patrolman was called as a witness—the patrolman who used his dashcam to video the approach to the crash site, interviewed the witnesses, made the photographs used by all parties, and prepared/signed the police report, what did counsel say in a courtroom full of people from all backgrounds?

Here it is unvarnished: “So the only reason they want to bring him in is because he's African-American.”* The message was clear: His qualifications, involvement and observations, as well as the uniform he wore, were simply irrelevant.

Meanwhile, women, African-Americans and others in the courtroom would, at breaks, quietly and sometimes emotionally, thank me for standing up—openly appreciative that someone—anyone had done so. As difficult as it was for me, I realized just how much more difficult it was for them. I was embarrassed that others of our bar had not. It convinced me of just how far we have still to go.

At that moment, I knew (and indeed told others) that there would never be a verdict by this jury of nine women and three men. And so, motions for default, sanctions and mistrial promptly followed as if on cue.

After a different incident, here is what I said at the time: “So we're back to where we were in voir dire, which is that you attack the messenger. You can't win the case on the merits, so you try to get the judge to win it for you.”* I was the messenger, and a mistrial was on the way.

Women, minorities and the disabled already know what happens next after such demeaning, marginalizing and mocking behavior that occurred during this trial in Gwinnett County was called out on the record.

As a familiar refrain for the indefensible, those who suffer discrimination in whatever form know from their own painful experiences that the bad actors always try to change the subject, typically by attacking everyone else (including me in this case) and ignoring the abhorrent and unacceptable behavior involved.

Watch for them, because they will now come in force with righteous indignation and vitriol and viciously attack those who call them out, including anyone else who dares to say—”No, that is not who we Georgia attorneys are anymore.”

Unlike other times when such misconduct flew below the radar as undocumented vestiges of Georgia's past, this time it was captured in a transcript, with some parts even captured on a judicially-approved video.

For once, we have a written transcript so there can be no doubt about what happened with a choice of what is acceptable and what is not.

In the coming days, there will be two kinds of responses to such behavior. There will be those who choose to ignore it or, unbelievably, defend it. And, there will be those who will not—insisting that while that may have been the Georgia of the last millennium, it is not the Georgia of today.

Now, we will see who talks the talk and who walks the walk. At a minimum, it starts with more diversity on our bench. From there, it depends on each of us to step up and do our part.

J. Randolph Evans

Atlanta

*Denotes a quote from the transcript with names deleted and extraneous identifying information omitted.