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Harvard Law Professor Charles Ogletree on “The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America”

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The Cambridge Police Department is scheduled to release the results today of an independent review of the arrest of leading African American Harvard professor Henry Louis Gates, Jr. by a white police officer last year. The incident made national headlines and sparked a national debate on race relations that reached all the way to the White House. Harvard law professor Charles Ogletree acted as counsel to Professor Gates throughout the incident, which he documents along with other incidents of racial profiling in his new book, The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: Today, the Cambridge Police Department is scheduled to release the results of an independent review of the arrest of leading African American Harvard professor Henry Louis Gates, Jr. by a white police officer last year. The incident made national headlines and sparked a debate on race relations that reached all the way to the White House. The review panel was convened to provide lessons learned from the arrest and provide guidance for possible policy changes. The report’s findings are scheduled to be announced this afternoon.

Gates was arrested on July 16th, 2009, inside his own home after police responded to a report of a possible break-in and entering at his house in Cambridge. On the 911 call, the woman told the dispatcher she saw two men try to barge into a home, but said she had no idea if the two men were breaking in.

    LUCIA WHALEN: It’s 17 Ware Street. It’s a house. It’s a yellow house. Number 17. I don’t know if they live there and they just had a hard time with their key, but I did notice that they had to use their shoulder to try to barge in, and they got in. I don’t know if they had a key or not, ’cause I couldn’t see from my angle. But, you know, when I looked a little closely, that’s when I saw —-

    DISPATCHER: They were white, black or Hispanic? Are they still in the house?

    LUCIA WHALEN: They’re still in the house, I believe, yeah.

    DISPATCHER: Are they white, black or Hispanic?

    LUCIA WHALEN: Well, there were two larger men. One looked kind of Hispanic, but I’m not really sure.

JUAN GONZALEZ: It turns out Gates had forced his way into his own home, overcome a jammed front door. When the police arrived, Gates reportedly presented his proof of residence and said, “This is what happens to black men in America.” He was then handcuffed and taken into custody. Cambridge police dropped a disorderly conduct charge, but the arresting officer, Sergeant James Crowley, rejected Gates’s call for an apology.

AMY GOODMAN: A week later, President Obama held his fourth prime-time news conference at the White House. It was mainly focused on healthcare, but in the last question, the President was asked what Gates’s arrest had to say about race relations in America.

    PRESIDENT BARACK OBAMA: I don’t know, not having been there and not seeing all the facts, what role race played in that. But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and number three, what I think we know separate and apart from this incident is that there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately. And that’s just a fact.

AMY GOODMAN: A few days later, Henry Louis Gates appeared on CNN and said his arrest had sensitized him to the vulnerability of people of color to racial profiling.

    HENRY LOUIS GATES, JR.: But what it made me realize was how vulnerable all black men are, how vulnerable all people of color are, and all poor people, to capricious forces like a rogue policeman. And this man clearly was a rogue policeman.

AMY GOODMAN: The story continued to make front-page news as the Cambridge Police Department backed Sergeant Crowley’s refusal to apologize and criticized the President for saying they had “acted stupidly.” Obama eventually invited both Crowley and Gates to the White House for beers in what became known as the “beer summit.” At a news conference afterwards, Crowley said he was seeking to look “forward.”

    SGT. JAMES CROWLEY: This was a positive step in moving forward, as opposed to reliving the events of the past couple of weeks, in an effort to move not just the city of Cambridge or two individuals past this event, but the whole country to move beyond this. I think what you had today was two gentlemen agreed to disagree on a particular issue. I don’t think that we spent too much time dwelling on the past. We spent a lot of time discussing the future.

AMY GOODMAN: We’re going to get comment from Charles Ogletree -— more than comment. He was the counsel to Professor Gates throughout the incident. We’re going to take a break and come back. Stay with us.


AMY GOODMAN: Our guest for the hour is Charles Ogletree, professor at Harvard Law School, acted as counsel to Professor Gates throughout the incident. He also continues to be adviser on police behavior to both Harvard University and the City of Cambridge, and is special counsel to President Obama. Professor Ogletree has a new book out. It’s called The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America.

Your summation of the whole incident, what you’ve concluded, as two reports — the one coming out today, which you’ve seen, and a previous report — have come out?

CHARLES OGLETREE: Well, the real summation is that the hero in all of this is Lucia Whalen, the woman who called 911, when there was a report of it. She’s the hero because of three things. The first thing, if you listen closely, she never presumed the guilt of Professor Gates. She said that “I see two gentlemen on the porch. They might have left their key. They might work there or live there.” That doesn’t sound like a burglary. She reports that they brought two suitcases. I’ve been a lawyer for over thirty years. I don’t ever remember a client in any criminal case bringing suitcases full of clothing to a burglary. Now, taking them from a burglary — I mean, it could be clearer, right? She never, ever, ever, ever, ever said — ever said — that the people who were barging in the door were black and wearing backpacks. But that’s in Sergeant Crowley’s report.

And the other thing, that I think you’ve covered, that people need to read in this book, is that Professor Gates provided his Harvard ID, that has his photograph on it. It says, “Henry Louis Gates, Jr., Officer – Harvard University.” He provided his driver’s license, that has his photograph on it, his address, and that he’s a valid driver. What more can a citizen do? And what I worry about is that people focus on Henry Louis Gates, Jr., the esteemed Harvard University professor, and not focus on the fact: what would they feel like when someone comes to their house, suspects them of a burglary, and they produce ID in their own house?

But here’s the point. Sergeant Crowley could have arrested him. Arrest him, if you think he’s committed a burglary. We’ll settle it later. He could have searched the house if he thought burglars were there. He didn’t do that. This whole thing took six minutes, from start to finish, and Gates did everything he could to prove that he was who he said he was. And the officer still was defiant. And that’s why Gates says, “Call the Harvard University Police. They know me.”

You can’t ask for a citizen doing more than he did. And don’t judge him by the fact that he is a successful African American in this nice house and nice neighborhood, who loves the police. Professor Gates loves police. He says, everybody else, these criminals — get the criminals out of my neighborhood, out of my restaurant, away from my car. He loves the police. But he couldn’t imagine this would happen to him.

And that’s why I’m talking about class, and not just crime. He did say, “Do you know who I am?” Right? Well, obviously, the officer didn’t. That’s why he locked him up, right? But the reality is that he thought he had achieved a status in his own community, that police would at least call — call the Harvard University Police. “There’s a guy here who says he’s Henry Louis Gates, Jr. Do you know him?” “Yes, Sergeant, we know him. He’s a neighbor. He’s a friend. He’s a professor. He’s a good guy.” None of that happened.

JUAN GONZALEZ: And your reproduction of the transcripts —-


JUAN GONZALEZ: —- of the radio transmissions indicates that Crowley did acknowledge in those transmissions that he was claiming that he was Henry Louis Gates.

CHARLES OGLETREE: Make that point clear. He was claiming that he was Henry Louis Gates. He said, “I know, here I am. Look at the picture. It’s me!” And his wallet opens up so you can see it. And that’s why I wrote the book The Presumption of Guilt. Everyone said, “Wait a minute, there’s no presumption of guilt in our legal system!” I said, “That’s exactly right.” The title, The Presumption of Guilt, is to remind us we presume guilty of some people without knowing the facts. We do it based on race, on class, on clothing, on where you drive, where you walk, where you shop, where you eat. And that’s why The Presumption of Guilt is the title, to remind people, let’s not make judgments about people. Let’s judge them by, as I said before, the content of their character, not skin color. That’s the problem.

AMY GOODMAN: So, then President Obama says the police “acted stupidly,” and all hell broke loose.

CHARLES OGLETREE: Right, and I say in the book, this exchange “blackened” President Obama. And I’ll tell you what I mean by that. You just repeated what the world heard and didn’t hear all of it. The clip said it. He said the Cambridge police “acted stupidly” when you arrest a man in his own house. But all they heard was the President take the side of his friend, Henry Louis Gates, Jr., and that “blackened” him. He became the Black President, not the President. And people were saying he took the side of his buddy, two Harvard guys, over a hard-working and honest police office, James Crowley, the number one.

But he said something else that people forgot. He said, “There is a historic problem in this country of black and Hispanic men being the subjects of racial profiling, and as a state senator in Illinois, I supported legislation to address that.” So the President did two things. African Americans applauded that, said, “Hey, did you just hear our president say that there’s a racial profiling problem in America? Wow!” You know what? The President probably has not been as candid, either before or since then, about an issue of race.

AMY GOODMAN: Well, let’s talk about President Obama after he came under fire, saying that the police had “acted stupidly,” backtracking from the comment.

    PRESIDENT BARACK OBAMA: Because this has been ratcheting up, and I obviously helped to contribute ratcheting it up, I want to make clear that in my choice of words, I think I unfortunately gave an impression that I was maligning the Cambridge Police Department, or Sgt. Crowley specifically. And I could have calibrated those words differently. And I told this to Sergeant Crowley.

AMY GOODMAN: What did you think of President Obama basically apologizing?

CHARLES OGLETREE: Well, what both of you know is that I’ve known President Obama since he was at Harvard Law School in 1988. I’ve know his wife, Michelle Obama, longer, since she was at Harvard Law School in 1985. And I cherish both of them and all the students I’ve had the chance to mentor.

AMY GOODMAN: Did you teach them?

CHARLES OGLETREE: Yes, yes. And that, to me, was a great experience. And the first time to have a president younger than I am is a great experience, as well. And here is what it says, is that President Obama is trying to fix the problem. He should never have stepped into this, number one. Right? That’s agreeable. Healthcare was on a roll in July. He was having this press conference, and fifty-nine minutes, great, everyone understood. And in July, remember we had sixty votes for healthcare in the Senate, and we had 258 Democrats in the House of Representatives. And we had a Democrat in the White House. So the idea is that healthcare was on the way. And it was completely off the table after this unfortunate comment at the press conference.

But then we had the beer summit. And I hope people will not only get the book, but look at the photograph of the beer summit. It looks great, right? You see two black guys, two white guys, Biden and Obama and Gates and Crowley, sitting there, having a beer. It looks like a great photograph, right? Look at it very carefully, because the one thing you notice is that Joe Biden’s beer mug is full. Why? Joe doesn’t drink. He doesn’t even drink non-alcoholic beer. So he’s having a great time. The President brought him into the discussion for the photo op, and then said, “Joe, get out of here.” Why? Because what might have Joe Biden said when the three — oh, I don’t even want to give you some ideas of the next crisis in America if Joe Biden had been free to talk. “Hey, Crowley” — I won’t repeat what he might have said. But the President handled that well and took it off of the agenda, and then got back to the business of the stimulus bill, healthcare and jobs and other issues for our country, which I think are very important.

JUAN GONZALEZ: Well, I’d like to — pursuing the rest of the expansion of the theme in your book, which obviously President Obama decided not to deal with any further, you talk about this historical issue of driving while black, walking while black in America. You talk about Robert Wilkins —-


JUAN GONZALEZ: —- and the twenty-year battle that he had with the State of Maryland over racial profiling. Could you talk about that?

CHARLES OGLETREE: Sure. That’s why this is not just about race, it’s also about class. I talk about my colleague, Professor Allen Counter, who was suspected of a robbery in Harvard Yard. And his students had to come out to verify who he was, other than having him suspected as a robber.

I talk about Robert Wilkins, who was one of my students in my clinic at Harvard. He worked at the same office I worked at, the DC Public Defender’s Service, coming from his grandfather’s funeral in Chicago, stopped on the Maryland highways, and they said, “We want to search your car.” And Robert, to his credit, said, “Have you read the latest Supreme Court case? You can’t do this without probable cause.” They said, “We don’t need it. If you don’t sign the consent form, we’ll search.” They searched the interior and the entire car. And Robert went to his office, said, “This is not right.” And he called the ACLU in Maryland and the NAACP, and they filed a lawsuit. It took years, but he won a judgment against them. The lawyers were paid. And Maryland said they would stop their racial profiling. And we thought it was over.

And then, years later, Robert finds out again that it’s happening, and he’s filed another claim. The good news is that President Obama has appointed him, nominated him to the federal court as a federal judge in Washington, DC, which is a great thing. But the reality is that he started the idea of driving while black, and Johnnie Cochran continued it, with the four men here in New Jersey who were pulled over, and they won a $12 million judgment. And Johnnie Cochran even had his own driving-while-black incident, driving a Rolls-Royce in Los Angeles. So it’s pretty —-

JUAN GONZALEZ: And the Wilkins -—

CHARLES OGLETREE: And it’s not just black. It’s black and brown. It’s across the board.

JUAN GONZALEZ: But in the Wilkins case, they uncovered that 75 percent of the police stops on I-95 in Maryland were of African Americans, while they’re only 17 percent of the drivers on I-95?

CHARLES OGLETREE: Absolutely, and I put that all here, because people — there is the assumption, if you watch the news every night, you have this sort of built-in sense about, you know, all the criminals are black, and they’re all selling drugs and members of gangs, etc. And this dispels that myth, that — Maryland is one case, but you can look at stops on highways everywhere.

And the last chapter in my book is called “One Hundred Ways of Looking at a Black Man,” to show that everybody, from our Attorney General Eric Holder, right here in New York at Columbia, driving home to DC, driving to a meeting in DC, stopped because the police said they thought he had weapons. And he said they searched his car, found no weapons. He said it was the most humiliating experience he’s had in life. He remembered that. It’s happened to Bob Herbert, a reporter for the New York Times, trying to get a cab, and the immigrant cab driver locked her door, wouldn’t let him in, because, “Who was this black man trying to jump in my cab this weekend?” And it goes over and over again.

AMY GOODMAN: Lou Gossett.

CHARLES OGLETREE: Lou Gossett, Jr., right. You’re talking about the challenges of — you know, he won an Oscar, right? A great friend of mine just wrote his own book, right? An Actor and a Gentleman, a terrific book, about his plight of being an Oscar-winning actor, but couldn’t get a job unless they caricatured the job in ways that he found demeaning. And he talks about those problems.

JUAN GONZALEZ: You also have Thurgood Marshall listed, as well.

CHARLES OGLETREE: Thurgood Marshall and John Hope Franklin. Thurgood Marshall, civil rights lawyer in 1930, going down South, winning cases, but still being profiled as someone who shouldn’t be where he was. Derrick Bell, my former Harvard professor, also taught my daughter Rashida at NYU Law School, the challenges he had.

The most interesting one is not about police. It’s a friend of mine, Prince Chambliss, in Tennessee. And I put these in there because it’s not just profiling by police. But Prince Chambliss was cutting his grass in Memphis, in a very prominent neighborhood, and an elderly white woman drove by, saw him in his khakis and an old sports tee shirt cutting grass, and the elderly white woman said, “Hey, you, how much you charge to cut the grass?” And Prince turned around, without missing a beat, and said, “I don’t charge to cut the grass, but I get to sleep with the lady of the house.” That woman hit the gas and pulled off as quick as she could. Now, it’s in the book to see if she’s learned the lesson, because his point was, as Carl Rowan has said before, assumptions are made about people based on race, and this litany of cases is making us all think about what we need to do going forward.

AMY GOODMAN: Your comment on today’s report, that’s coming out on the Cambridge Police Department, and two weeks ago, the Center for — the New England Center for Investigative Reporting finding that race wasn’t a factor, that the most common factor linking people arrested in Cambridge for disorderly conduct is that they’re screaming or cursing at the police officer?

CHARLES OGLETREE: It’s very interesting. And the question is whether or not — here’s the clear thing. Professor Gates did not break the law in this house by saying this. He said, “Do you know who I am? Why are you doing this? I want your name, and I want your badge. I want to file a complaint.” He said all the things. What I teach my students to do, in twenty-five years, never, ever, ever, ever, ever tell a police officer, “I’m going to file a complaint. Give me your name and badge number.” I say, “Amy, look at their chests, and you’ll see their name on one side, you’ll see their badge number on the other side. Remember it, and file it later.” Never do that. Never reach down to pick up something in a car. Put your hands on the steering wheel. “But we’re lawyers!” I say, “That’s exactly right. You’re lawyers, but you’re going to be presumed guilty until you do something concrete.” And that’s why these reports, I think, miss the point, because Gates was not drinking, he was not on drugs. He’s fifty-eight years old, 150 pounds, permanently disabled with his right leg, with hip surgery, and one leg shorter than the other. And here he is with Crowley, you know, “Do you know who I am?” Looking up, “Do you know who I am?” Right? Little Gates, he’s no threat. He’s angry because he’s been mistreated.

AMY GOODMAN: We just have a minute, and I want to go to wholly different issue.


AMY GOODMAN: Or maybe in some ways related.

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