The Darden Dilemma

THE PHRASE MAY STICK. IT has the dual virtues of alliteration and notoriety, a fact clearly not lost on Christopher Darden himself, who dryly observes in his new book: "I understand that some black prosecutors have a name for the pressure they feel from those in the community who criticize them for standing up and convicting black criminals. They call it the "Darden Dilemma'."

That passage, like much of "In Contempt," resonates with anger, sorrow, defiance and pain. The pain he blames in large measure on Johnnie Cochran, the silky, slick lawyer he once admired who painted him, for the world and to Darden's dismay, as "an Uncle Tom, a traitor used by The Man." Darden makes clear, however, that he was familiar with the charge long before O. J. Simpson burst into his life, and he defends himself against it at length and well. Recalling his aggressive offensive against black gangbangers, he asks, indignantly, rhetorically: "How could I put other brothers in jail? How could I not? As long as they were victimizing old people and making orphans of children, how could I not?"

Other prosecutors have felt Darden-like anguish--though none have suffered it as publicly--as they confront community disapproval for merely doing a necessary job. Yet it is not so much a "dilemma" Darden describes as a burden. And it is one that comes with the turf of representing a criminal-justice system that in recent years has imprisoned more blacks than whites. According to the U.S. Department of Justice, a black man's odds of being incarcerated are nearly eight times that of a white man's. Even given the fact that blacks seem to commit a disproportionate number of crimes, critics find the disparity alarming. Such statistics, along with longstanding (and often justified) black suspicions of police, are potent weapons in the hands of defense attorneys wishing to portray minority prosecutors as sellouts.

Deputy District Attorney Robert L. Grace of Los Angeles, who was just on the losing end of a murder prosecution of Calvin Broadus (better known as rapper Snoop Doggy Dogg), reflected deeply on Darden's experience before agreeing to take on Broadus. The potential for a media circus, with Grace cast in the role of Uncle Tom prosecutor, was obvious. "Everybody was a little hesitant to become involved with another high-profile case because we saw what could happen," said Grace. The defendant referred to him as an "Uncle Tom," and Grace still bristles. "He had an entire table of white lawyers. And he talks about a sellout? . . . I am very committed to the community; so committed they won't have to give me a welcome-back party in the next few weeks."

Yet even low-profile prosecutions of blacks can raise difficult questions for minority prosecutors. The conflict between not wanting to put more brothers in jail and also not wanting to let black predators go free is "something all of us who have worn the mantle of prosecutor have wrestled with," says Norman Early Jr., the former Denver district attorney. Black prosecutors, Early notes, already face an uphill battle, "trying to do justice within a hostile environment," within a system that sometimes devalues black lawyers as ruthlessly as it devalues black defendants. At least public defenders have the consolation of knowing that within the black community they are generally seen as fighters for the oppressed. Minority prosecutors, however, have to face people who see them as "turncoats for having the temerity to prosecute people of color."

But when they're not being called traitor, they're being asked for favors. Black criminals and their advocates seem to feel that black prosecutors "should give them the break no one else will give them," says Odell McGhee, Polk County, Iowa, assistant district attorney. His refusal to cave in to such pressure, he says, has won him the contempt of the minority bar and kept him from becoming a judge.

JEFFREY CRAIG, DEPUTY ATTORNEY general of Pennsylvania, is sometimes reluctant to tell other blacks what he does for a living. Even though he prosecutes white-collar crimes and most of his defendants are white, he knows people won't realize that from his job title. Nor will they know that he is a critic of a system that at times, especially when dealing with petty criminals, ends up "putting a bandage on an infected sore." Instead, people will see a symbol of something they detest. Craig, a former cop, observes with obvious regret that in his former career, "brothers and sisters feared me; and they still fear me."

Even when they are scrupulously fair, minority prosecutors are not necessarily comfortable with how justice is dispensed. "It's very hard, when you look across the table at someone who could be your brother, or even your husband, and you realize they could go to jail for a long, long time," says Marcia Cooke, executive assistant U.S. attorney for the south Florida district.

She has a particularly hard time with crack-cocaine defendants, on whom federal sentencing guidelines are especially tough. "It makes no sense to me as a prosecutor," she says, to send someone, generally black, away for years for possessing a few vials of crack while "Mr. Big, with two pounds of cocaine," generally white, walks away with a relatively light sentence.

Richard Mangum, executive assistant district attorney in the Bronx, N.Y., and head of the National Black Prosecutors Association, sees the pressures facing black prosecutors as an unavoidable consequence of progress. "You have to have black prosecutors. You have to have black jurors. You can't abdicate anything . . . as lawyers and as citizens." The alternative is too painful: virtually the only black in the courtroom would be the guy in handcuffs.

In past years blacks who prosecuted controversial cases were likely to be (in the community's eyes) on the side of the angels. Mangum, for instance, was on the team that convicted several whites in 1987 of a racist and fatal assault on a black man in Howard Beach, N.Y. Others went south to prosecute civil-rights violations, or took aim (as Darden did, pre-Simpson) at brutal and racist cops. Blacks who are serious about taking on broader responsibilities, Mangum suggests, can't pick and choose high-profile cases on the basis of whether they make them look good in the 'hood.

Mangum, like many other black prosecutors, is nonetheless concerned with statistics showing huge numbers of blacks headed for jail. Former federal prosecutor and George Washington law-school professor Paul Butler advocates a radical step: black jurors should refuse to convict certain nonviolent black criminals. "Something is dreadfully wrong if our "remedy' for social problems is to lock up black men. This is especially true when we consider the reasons that black men commit such a disproportionate amount of crime. I contend that much of this conduct can be explained, if not excused, by poverty, by discrimination, by extraordinarily limited opportunities," wrote Butler in a Washington Post commentary.

Still, most black prosecutors see little point in coddling black wrongdoers, especially since most of their victims are black. Excusing criminal behavior, says Paul Gamble, an assistant U.S. attorney in New York, was not the aim of the civil-rights movement. "I don't think Martin Luther King Jr. would say, "Give the brother a break, even though he robbed or murdered someone'." Butler would limit his automatic acquittals to small-time crooks, but that's not a distinction prosecutors find particularly comforting.

In the end, each black prosecutor has to face a simple question: "Would things be better if I weren't here?" The question is not always easy to answer, but Gamble takes heart each time he looks into the jury box and notices, with affection, the faces of old black women from Harlem or Brooklyn who beam on him with pride: "I carry around with me the faces of the jurors." They know--and Darden emphatically argues this point--there's more than one way to be a brother.

Most people in the justice system are white--except the prisoners. The disparity allows defense lawyers to play to black suspicions.

Whites, Black Hispanic others Judges 2% 1% 97% Lawyers 4 3 93 Police, Detectives 11 9 80 Correctional Officers 28 5 66 State Prisoners* 46 17 37 ..MR.-

Numbers don't add due to rounding. *1995 figures except prisoners, 1991. Sources: Bureau of Labor Statistics, Bureau of Justice Statistics. ..MR0-