Jury of His Dears

What the appeals court really said was that Lipscomb had a right to be tried where he was loved

Right after the appeals court ordered a new trial in former Dallas City Council member Al Lipscomb's bribery case, the U.S. attorney in Dallas should have done a plea bargain requiring Lipscomb to run for mayor.

Lipscomb for mayor. At least then he could just bring it on. We could settle the core questions: Was Al Lipscomb a crook, a traitor to his race? Or is he one of the city's great political statesmen?

I visited him in his home in Southwest Oak Cliff last week after an appeals court in New Orleans overturned his conviction on bribery charges. He was as gracious and gallant as ever. Lipscomb was tried and sentenced to house arrest two years ago on 65 bribery counts. Prosecutors convinced a West Texas jury that he took cash from a businessman for help on key council votes. But in the case against Lipscomb there was also a plainly political argument.

The backbone of the case was that Lipscomb took Judas money. The government told an all-white jury in Amarillo that Lipscomb accepted $1,000 a month in cash from Floyd Richards, the white operator of Yellow Cab in Dallas, in exchange for reversing his position on the cab business.

During Lipscomb's first tour on the council between 1984 and 1993, he was a strong opponent of Yellow/Checker Cab Co., which he believed did a poor job serving the minority community. He was a champion of the small independent operators, reminding the council that many of them were "people of color."

But by the time Lipscomb came back on the council after a two-year hiatus in the early '90s, he was on Richards' payroll at $1,000 a month plus free cab rides and a cell phone. Once he began taking the money, Lipscomb took Richards' side on key votes and reversed field to oppose the interests of the independents. He championed Richards' cause on a variety of issues and browbeat city employees in public forums if he thought they were making things hard for Richards. Lipscomb pushed for a new ordinance that had the effect of legalizing activities of Richards' business that previously had been illegal.

But Lipscomb's main work for Yellow Cab was to push for age limits on cabs, inspections and insurance requirements that had the effect of forcing most of the small independent operators and "people of color" out of the taxicab owner-operator business in Dallas. At bottom the government's case said: "The way you know Lipscomb is taking bribes is when he starts sticking up for a white guy against people of color."

Last week when we spoke at his home, I asked Lipscomb about that. He referred me to testimony at his trial that showed that the overall quality of cab service in Dallas improved markedly during his tenure.

"This was a very unusual case," he said, "because the allegations and things I was supposed to have done, all it did was enhance transportation in the city of Dallas."

Mmmm. Heard that one at the trial. To me, that argument would be tantamount to Rosa Parks deciding to just go ahead and sit in the back of the bus in the interest of promoting a more rational system of interstate transit.

Among Lipscomb's supporters but also among many reporters there has been an assertion that the court tossed this verdict over the issue of Lipscomb's "constitutional right to a trial by a jury of his peers." The assumption is that U.S. District Judge Joe Kendall screwed up the case by arbitrarily sending it to Amarillo, a place with no African-Americans in the jury pool, even though neither side had asked the judge to do it.

But there are big problems with that idea, not the least of which is that the phrase "jury of his peers" appears nowhere in the Constitution or the Bill of Rights. It doesn't appear anywhere in the English bill of rights, either.

There is an ancient principle in common law, articulated in the Magna Carta signed by Edward I in 1297, that "No Freeman shall be taken, or imprisoned, or be deprived of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land."

In 1297, the modern mechanism of petit jury trials for criminal offenses didn't really exist yet. But the general principle that we have a right to be judged by our peers is a cherished bulwark of Anglo-American notions of law and liberty. It says to the king or to the government: "If you think I broke the law, then prove it to my townsmen."

The constitutional provisions that add up to the modern system of jury trials in America are stretched across the Constitution from Article III, Section 2 to the 5th, 6th and 14th amendments. Court decisions, especially Batson v. Kentucky in 1986, have made race and the racial composition of juries and jury pools an important element in judging whether a jury can be impartial.

The appeals court in the Lipscomb case, however, went to some length to establish that the change of venue issue in Lipscomb's trial was not constitutional. The Constitution only says you have a right to a trial in the same state where the crime occurred. When Kendall sent Lipscomb's trial to Amarillo, he was still within the Northern District of Texas.

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