CONVICTION BASED ON 'SOUNDING BLACK' ELEVATES STEREOTYPE TO EVIDENCE

The other day we ran a short story in the newspaper about the latest
development in the Charles Clifford case in Northern Kentucky.

Clifford was convicted of trafficking in crack cocaine. He was
sentenced to 20 years as a persistent felon after a trial standing for
the proposition that African Americans can be identified as "black" by
the sound of their voice over a wire.

The trial judge allowed testimony from a police officer concerning an
alleged Covington area drug transaction, in which Clifford's voice was
supposed to have "sounded as if it were a black male."

This awful procedure was upheld by the state Supreme Court, so
Clifford's attorneys appealed. After being turned down by a
three-judge panel of the U.S. Court of Appeals, attorney Brenda
Poppelwell yesterday asked for the entire 6th Circuit bench, not just
a partial panel, to hear her argument.

The heart of it is this:

"... This case involved a question of exceptional importance: whether
the identification of the race of defendant by the sound of his or her
voice is inherently unreliable and unconstitutionally prejudicial: (1)
where the defendant is the only black male present during the
transaction and (2) where the voice is identified as 'sounding black,'
implying the defendant who has black skin must also 'sound black' even
though the police officer never before heard the defendant's voice -
or has the jury."

Poppelwell insists, "To permit police officers ... to identify the
race of a person through a voice, when they have never heard the voice
of the defendant, is inherently prejudicial and would permit
court-sanctioned racial stereotyping which would deny defendants of
all races fundamental constitutional due process."

Now remember, if you have forgotten the details in earlier stories,
that no physical evidence was introduced.

No drugs. No money. No paraphernalia.

Also, Detective William Birkenhauer conceded that he didn't see
Clifford with drugs and that he exchanged drugs and money not with
Clifford but with an informant of his own named Gary Van over, who is
white.

Vanover testified that the crack cocaine in question belonged to him.
It was Vanover who got the drugs from his own bathroom, made the sale
and promised more.

He admitted all this, even though he knew it could cost him a longer
prison sentence. He said he didn't want Clifford to take the fall for
something he didn't do.

Whatever was said during the drug deal was transmitted to another
officer, Darrien Smith, a white man, in a remote location where it was
recorded. The tape was so poor that the trial court refused to admit
it. But Smith was allowed to testify that the voice he heard promising
more drugs "sounded black."

Charles Clifford was, of course, the only black male sitting there as
a defendant.

Judge Curtis Collier, writing for a three-man 6th Circuit panel, said
that "while we believe racial voice identification can create
constitutional concerns in some instances, we conclude its use in the
present case was not in error."

He argued that "no suggestive procedures were used to identify"
Clifford. He noted that Officer Smith "merely stated his opinion the
person he heard over the wire communication sounded black."

According to the judge, "The vast majority of courts that have
addressed the admissibility of racial voice identification evidence
have concluded it is admissible, which indicates those courts did not
believe it was inherently unreliable."

He argued, "We have no evidence that the prosecutor used the voice
identification to inflame the jury."

Clifford, I am sure, would say that the whole circumstance amounted to
exactly that.

For myself, I think Collier undercuts his own argument when he admits
there has been "limited research conducted on the issue of racial
voice identification."

Certainly, the one study he cites is limited.

It involved 421 Stanford students, members of a very special group of
extremely bright, highly educated individuals. One would assume them
to be more adept at information processing and analysis than the
general populace, from which jurors are selected. And they were asked
to identify the racial or ethnic background of only 20 individuals,
which is a very small test group.

Collier doesn't say whether English was, for any of those 20, a second
language, which might make the accent the students were attempting to
divine more pronounced, thus more easily identified.

As for me, a layman and a bystander, I continue to think the vigorous
dissent from the Kentucky Supreme Court ruling was right: This case
seems to argue that prejudice and inference may convict, where logic
and objectivity would not.

Beyond logic and objectivity, I just think it constitutes an awful
commentary about the way we sometimes pursue justice, only to reach
injustice, in our legal system.

The courts have done little to develop this issue of racial
identification by voice. It has received, as Collier observed, "little
attention in state courts, let alone the Supreme Court."

It should get much more, because it's full of potential for abuse and
injustice.

Whether that's what happened here, this long legal process could
determine.

The 6th Circuit judges argue that the prosecutor didn't use the racial
identification to inflame, and that the judge made no inappropriate
refer ences to the identification.

And they say Clifford's appeal "has not explained how the voice
identification was used inappropriately in this case."

Charles Clifford, the only black man at the defendant's table, could
tell them.