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.

What the court found was that Lipscomb had an overwhelming right, both from the Constitution and from ancient common law, to be tried in his own community, unless the court found powerful evidence that no impartial jury could be seated in his community. The court said Kendall had merely cited pretrial publicity in a general way without specifically showing what had been published and how it would have affected the jury pool.

The court also found merit in Lipscomb's appeals lawyer's argument that normally you move a trial because the local press coverage has turned the jury pool into an ugly lynch mob. You don't move it because the crowd is bowing and sweeping the ground with palm leaves for him.

And this is why the whole Lipscomb issue is so fundamentally political. The appeals court obviously believed that Lipscomb, like any American, had an overwhelming right to be tried in his own community, by his "peers." Doesn't mean he had a constitutional right to have black people in the jury pool. Not really. Not necessarily. Doesn't mean the jurors had to be people from his church. But he did have a right to be tried in his community--Dallas.

If Lipscomb happens to be very popular in this community; if his peers do not believe he is a traitor to his race; if Dallas, in its own weird way, loves Al Lipscomb for straddling the fence on racial issues, then that is Al Lipscomb's good fortune and the government's tough luck. That's part of what he brings to court and they don't.

His popularity, in other words, may be a thread in the fabric that makes Dallas the community it is. Neither the government nor the court can move the trial simply because they don't approve of the way the community thinks, any more than the government or the court can order the community to stop thinking that way.

I asked Lipscomb about the rich white friends who have supported him over the years under the table and on the table. I asked the question because other white people had asked me earlier in the week why Lipscomb should be pilloried, why his sins should be trotted out again every time his name comes up, when the white people who may have corrupted him go unmentioned. I asked him if he believed his white supporters had corrupted him.

He was silent for a long while after I finished my question. At the beginning of a rambling answer, he recalled for me a speech he said a white council member had made in the council chamber in the 1980s.

"Craig Holcomb said, 'Al Lipscomb not only helped the black community, he helped us [whites] also, because we were not members of the Citizens Charter Association [the old downtown oligarchy], either.'"

(Holcomb did remember saying it when I called him but couldn't recall the occasion.)

His entire response, too long to quote here, was intriguing. I asked him if he was telling me that what he did as an activist was never done for black people exclusively, that white people benefited as well from the democratization of city politics that he helped bring about, and therefore there was nothing untoward about his white support.

"Indeed, indeed," he said.

Charming. Persuasive. And I don't buy it.

It doesn't add up to a thousand dollars a month in unreported cash, free cab rides, a cell phone and a 180-degree turn on the taxicab issues. Not for me.

But who am I? Maybe Dallas does buy it. And if Dallas does buy it, if the community believes that Al Lipscomb's behavior was that of a statesman, leader and peacemaker, not a traitor or a crook, then Lipscomb deserved to have that support going for him at his trial.

That's why the ultimate question here, in terms of the community, is political, and the best way to settle it now would be to have him run for mayor. At least then we could all vote on it.

Before I left his home, we toured the Lipscomb den, walls encrusted and emblazoned with plaques, testimonials and historic photographs taken at key moments in his career. Our visit was interrupted several times by callers asking for help with landlords, asking for advice on backed-up storm sewers, asking him how he felt about issues before the city council. With every caller he was charming and persuasive, whether he told them anything useful or not.

I sure as hell wouldn't run against him.

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