By Verla Wiley
Nationwide (BlackNews.com) â€“ Like Michael Brown and Eric Garner, I am African American. The circumstances involving the deaths of these two young men are horrendous as are the unconscionable efforts made to avoid a proper hearing in each case. Unfortunately, Brown and Garner made the ultimate sacrifice in a system that is deeply flawed. Instead of utilizing the more open and transparent public preliminary hearing process, secret grand juries failed to indict the police officer responsible for the shooting death of 18 year old Michael Brown in Ferguson, Missouri, and the officer in Staten Island, New York, for the choke hold death of 43 year old Eric Garner. Since the deaths of these African American men and others, people across the country have been protesting against racial profiling, excessive police force and the failure of the criminal justice system to hold those responsible, accountable for their actions.
For the last 15 years, I have also been denied the right to a public trial by jury. Ive been forced to file three consecutive separate, but related civil rights complaints (1999-2014), because of the denial by the courts to rule in favor of my 7th Amendment right to a jury trial in any of cases.
In May 2005, I retired after thirty-nine years of service from the Broadcasting Board of Governors, (BBG) as an International Radio Broadcaster in the Africa Division of the Voice of America, the largest BBG network. I continued my service after retirement as a union volunteer vice president with the American Federation of Government Employees (AFGE Local 1812). I have now been associated with the BBG for over 45 years.
Like the police officers, the BBG is known for the harsh treatment of its people. For the last ten years, the BBG has ranked at or near the bottom in surveys conducted by the Office of Personnel Management (OPM), as one of the worst-managed agencies in the federal government.
On December 05, 2011, I filed a Pro Se, “Complaint and Demand for Jury Trial”, a personal civil rights lawsuit in the U.S. District Court. My complaint alleged discriminatory and retaliatory treatment, as well as constitutional violations of my First Amendment right to freedom of speech and assembly, Fourth Amendment right to be free of unreasonable searches, Fourteenth Amendment right to equal protection of the law, and Seventh Amendment right to a jury trial. At the center of the discriminatory treatment were several measures designed to restrict my access and nullify my rights, including my right to exercise my personal choice to work in the field of advocacy work.
Just as the Brown and Garner cases were diverted to a grand jury instead of a public jury trial, my civil rights lawsuit was redirected to an administrative process by Judge Robert Wilkins via the Federal Labor Relations Authority (FLRA). The case centers around a restrictive Black-Codes-like “Building Access” policy the BBG created especially to implement against me. “Black Codes” were laws passed by southern states in the 1860s after the Civil War, restricting African Americans freedoms. I am the only retiree, (African American), that the policy was rigidly enforced against; the policy did not apply to Caucasian union retirees, who were similarly situated.
The Complaint included a litany of discriminatory, retaliatory and harassing actions with the intent to restrict my movement around the building. In March 2006, the BBG terminated the agreement that allowed retired union officials unfettered access into the Cohen Building. I am the only retiree who could no longer use the retired identification badge to gain entry into the building… I was forced to daily sign in as a visitor and be photographed… be escorted at all times, even to the restroom and cafeteria… subjected to invasive body searches of a sexual nature… required to complete security forms designated only for prospective employees… followed around the Cohen Building by security guards… deemed a “security risk”… and placed under surveillance, inside and outside the Cohen Building. When these BBG actions did not discourage me from coming into the building, an unsigned memo titled “Building Access” dated August 24, 2004, outlining the above restrictions was given only to me.
A hearing was held on July 22, 2013, and I expected Judge Wilkins to set a trial date since the BBG did not address my allegations. Instead, the judge issued an ORDER for the parties to address several FLRA cases researched by the court to establish whether I could file an Unfair Labor Practice (ULP) charge as a non-employee. The judge ignored the Federal Service Labor-Management Relations Statutes (FSLMRS), which cover employees only. I told the court that I am not an employee of the union nor the BBG. The union could not file a ULP because I am not in the bargaining unit nor can I file as a union official on my own behalf. The court was the only avenue I had to address my personal lawsuit.
Judge Wilkins told me that the cases he researched allowed me to file a ULP charge as a non-employee. However, none of the cases he researched were filed with the FLRA by a non-employee representative, therefore, the case review exercise did nothing to disprove my position or strengthen the argument for dismissal of my case. One case Judge Wilkins used to dismiss my lawsuit, National Treasury Employees Union (NTEU) v. Social Security Administration (D.C. Circuit 1992), was invalidated by the AFGE Assistant General Counsel who helped litigate the case. The General Counsel pointed out that the case had nothing to do with discussing the rights of non-employees to enter onto agency premises, but instead involved the labor union, NTEU, the charging party in the ULP charge.
Hearing transcripts indicate there was no intention of reviewing my case in a light favorable to me. When asked about my status by Judge Wilkins, BBG Counsel agreed with me and argued several times that under the Collective Bargaining Agreement and 5 U.S.C. 7116, Ms. Wiley had no rights, and that a ULP can only be pursued by a union or a current employee. Judge Wilkins continued to ask leading questions until the BBG reversed its position stating the Agency believes that Ms. Wiley does have standing to file its complaint, but the agency would respond that it is not a ULP.
The Brown grand jury hearing transcripts show that prosecutors asked police officer Darren Wilson leading questions designed to strengthen his self-defense claim. A prosecutor told Wilson, “You felt like your life was in jeopardy,” followed by, “And use of deadly force was justified at that point, in your opinion?” The transcripts also show that prosecutors did not ask for an indictment regarding Wilson. Instead, they acted as Wilsons defense attorney and challenged witnesses who contradicted the police officers testimony.
The evidence shows that my case is not an unfair labor practice nor union grievance issue. It is “personal animus” against an African American for advocacy work, and perpetuated in a way that effectively disguises that motive in a cloak of “internal security” that complicates the situation. I describe the situation as D.A.W.W.B. – Doing Advocacy Work While Black.” United States Attorney General Eric Holder recently gave a speech at Morgan State University about “racial inequality” and the recent public episodes of racial bigotry in which he said that it should not obscure the greater damage done by more systemic forms of prejudice and discrimination. The Attorney General warned that if we concentrate on that, “we are likely to miss the more hidden, and the more troubling reality behind the headlines. ”
The Constitution provides that no person shall be deprived of life, liberty, and pursuit of happiness, without due process of law. Judge Wilkins now joins a chorus of court judges who have used the 7th Amendment as a Sword of Damocles above my head. My pursuit of a jury trial began in Chief Judge Thomas Hogans court in April 1999. It has been an expensive, costly endeavor. The Complaint, including filings with the Court of Appeals and Supreme Court, lasted for almost ten years (1999-2008), before it was closed without a jury trial. The racial/sex discrimination case was re-opened in March 2014, to address a Transcript Redaction Notice.
In 2009, the discrimination and retaliation continued. I filed a Freedom of Information Act (FOIA) lawsuit in Judge Ellen Segal Huvelles courtroom. Documents confirm that the BBG considers me a “security risk.” I sought more documents to find out the underlying reason/s why, so that I can address the allegations. Judge Huvelle eventually granted summary judgment to the BBG, however, my lawyer, who is Caucasian, collected attorney fees, which is unusual when the client does not prevail. (2009-2010)
On September 16, 2013, Judge Wilkins granted summary judgment to the BBG and once again I was denied a jury trial (2011-2014). There were nine counts. Count 7 was dismissed with prejudice for lack of jurisdiction. The remaining 8 constitutional counts were dismissed without prejudice for failing to exhaust administrative remedies. Instead of recognizing the constitutional issues in my personal lawsuit, the court reduced the matter to that of an administrative practice which is completely violative of its judicial responsibility under Article III. Filing a ULP would have been untimely and irrelevant to my right to seek redress from the District Court for blatant and indefensible violations of my constitutionally-protected rights. On August 29, 2014, I filed a “Complaint of Judicial Misconduct” against Judge Wilkins, who, after three years serving as U.S. District Court Judge, was appointed on January 15, 2014, to the U.S. Court of Appeals for the District of Columbia Circuit. The July and September 2013 transcripts shows what I believe to be unethical behavior; that the court acted as judge, jury and co-counsel for the defense. I made a request to the Judicial Council of the District of Columbia Circuit to investigate my allegations as well as the relevance and authenticity of the cases Judge Wilkins used to dismiss my case on a technicality for failure to exhaust administrative remedies.
My experiences over the years as a civil rights and union activist taught me that the courts, attorneys and the BBG have used various techniques to prevent citizens from obtaining justice because they are African American or minorities who stand up for their rights, as well as advocates like myself who protect the rights of all people. My advocacy work not only caused the removal of abusive BBG managers throughout the years, but encounters with self-serving attorneys caused me to dismiss them for misrepresentation and misconduct; one attorney was eventually disbarred, another had to reimburse for missed deadlines and non-appearance at hearings, two others tried to force inadequate settlements; and yet another redirected the focus of my allegations on race and sex discrimination, and the case was dismissed.
With regard to my current 2011 Complaint, I subsequently filed an appeal on October 10, 2013. The Court of Appeals not only upheld the District Courts decision, but denied my requests for an Oral or En Banc hearing. In July 2014, the court issued the dismissal based on my submissions to the court, which is a violation of my First Amendment right to be heard. Several questions having direct relevance based on the errors of the District Court were presented to the appeals court who ignored the issues and did not honor its legal requirement to provide comprehensive and conclusive description about each question or error presented.
A review of my attempts for the last 15 years to obtain due process reveal that the Jim Crow laws of the past are still alive today within the halls of justice. The right to a public jury trial is recognized as a fundamental civil right under Article III of the United States Constitution. Yet, the manipulation of the justice system that works to ensure that justice for all is denied, serves to reduce the words “EQUAL JUSTICE UNDER THE LAW” that appear above the United States Supreme Court Building to mere rhetoric, and reinforces the belief concerning the exclusion of justice for people of color. The 15 years that I have waited for fair exercise of my 7th Amendment right to a jury trial, and unencumbered exercise to the fundamental right to life, liberty and pursuit of happiness, serves to erode the premise of those words etched along the highest court in the United States.
In an amicus brief filed by the Black Women Lawyers Association of Greater Chicago, Inc., (Grutter v. Bollinger) regarding the University of Michigan and racial preferences, they point out that “The Supreme Court itself had a major role in framing the issues and shaping the impact of race in this country through its decision in Dred Scott v. Sandford, and Plessy v. Ferguson, among others. As those cases demonstrates, not even this court was immune from discriminating against African Americans in this country. Therefore, it comes as no surprise that no segment of American society has been immune from the legacy of discrimination that began with the institution of slavery and continues today in other forms.”
Understanding our Black History is what helped me through these painful years. I have experienced what it feels like to be detained as the legacy of slavery and the Black Codes-like policy in its implementation restricted my movement in the Cohen Building of the Broadcasting Board of Governors where the union office is located. My Caucasian colleagues were never exposed to demeaning security searches conducted pursuant to a “policy” that opened the door to sexually harassing contact with my person. They did not have to continually consider the looming threat that I had to fear in terms of security following me around the building and the possibility of being taken out in a humiliating fashion for failing to obtain an escort. Fear of the possibility of being unceremoniously escorted out of the building still haunts me, and has caused me to reduce my trips to the Cohen Building. Instead, I often remain at home and participate in union meetings via telephone conference, and communicate with employees via email and telephone about any negative situation they may be facing.
The Cohen Building itself embodies a piece of American history dating back to the segregation era. There are many restrooms located in close proximity to each other. The larger restrooms once carried a sign on the door, “WHITE ONLY” and the smaller restrooms read, “COLORED ONLY.” The signs have been taken down. But I am being told in this day and age that I cannot go to either restroom without an escort.
My only infraction of the rules was that I tried to help somebody, and in doing so the situation escalated into a matter of “national security.” The evidence shows that the courts displayed dishonesty and improper motives when all of my lawsuits were dismissed without giving a jury the opportunity to hear my valid civil rights and constitutional claims.
Dorian Johnson was given the opportunity to be heard, but his eyewitness account was not believed in the Brown grand jury proceedings. Mr. Johnson was at the scene and saw his friend, Michael Brown, gunned down. He provided testimony rebutting police officer, Darren Wilsons claim that he was defending his life against a deranged aggressor. A review of Black History and the justice system in this country bears witness to the fact that the court system is more likely to believe the testimony of a white person more so than a black person. Wilson was allowed to give four hours of self-serving testimony at the grand jury proceedings to support his self-defense claims.
If the prosecuting attorneys had filed charges against the police officers in the Brown, Garner and other similar cases, a preliminary hearing would have occurred and steps would have been taken to protect the rights of all who were involved. What the public saw in these situations was the criminal justice system at its worst.
As the voices from the past speak out to us, we have to keep fighting, we have to keep marching, protecting and protesting, because who will save us, but us.
HANDS UP! DONT SHOOT! I CANT BREATHE!
Verla Wiley is a Civil Rights & Union Advocate. She can be reached at 301-538-1945 or firstname.lastname@example.org