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In 2018, in the course of a few months, several people came to the my law office, complaining of the same thing—that they were healthcare workers falsely accused of neglect or abuse by their racially-biased employers and as a result were administratively prosecuted and unjustly found guilty by the New York State Justice Center for the Protection of People with Special Needs.  The “Justice Center” employs procedures that deny to workers accused of neglect or abuse the basic due process right to confront their accusers, by prosecuting the cases on hearsay evidence alone over 95% of the time.  What I have concluded in litigating three cases that came to my office is that I was witnessing first-hand the American caste system at work—the system described in detail in Isabel Wilkerson’s eye-opening 2020 book, Caste: the Origins of our Discontents. 

What I observed in both the representations that I undertook as a lawyer, and found in reported decisions, were repeated unfair finding of guilt by the Justice Center against low or modest wage workers who are predominantly African American and Hispanic workers.  The accusers are usually White and, as part of the employer’s management, and so too are the prosecutors and agency judges.  The employer and the self-important agency both can reasonably be viewed as “upper caste,” and the accused healthcare workers, usually people of color, as “lower caste.” The end result of this caste system of injustice is that commonly an accused healthcare worker is prosecuted in flimsy evidence, and then found guilty first by a Justice Center investigator and then, perhaps two years later, at a show trial presided over by a member of the Justice Center’s staff (an attorney designed hearing officer—and self-designated “ALJ”). The accused’s employment is routinely terminated as a result of the neglect or abuse finding, often followed by the loss of a livelihood and a career. This is Jim Crow justice, in New York State, conducted in plain view.[1] 

Let me discuss my three different clients.  Each came to my office within a few months of each other, which signaled to me that something is rotten in the state of Denmark (sic New York).  I agreed to take on the cases of three different clients victimized by the Justice Center.  Each client is African American.  I challenged in both federal and state court the Justice Center’s failure to provide adequate due process—specifically, the failure to provide them with an opportunity to confront their accusers.[2]  Yet I have been unsuccessful in obtaining judicial redress, with one longshot motion pending before the U.S. Supreme Court. 

In my view, the Courts ignored both the facts and the law to uphold what appears to me to be a caste system of Jim Crow justice.  Blacks and Hispanics are disproportionately impacted. Neither the ACLU, NAACP nor 1199 SEIU has volunteered to help this caste of aggrieved workers.[3] Undoubtedly they view it as too much of an uphill battle, fighting a state agency, not just “fighting city hall.”

I have thrown one last “hail Mary” pass in this civil rights effort—a motion for the Supreme Court to reconsider its denial of certiorari for two of my clients, Mr. Gerard Lynch and Mr. Rotimi Salu.  My effort will likely be futile.  The state and federal courts will then have countenanced a caste system that permits the Justice Center to deny hundreds, if not thousands, of minority healthcare workers in New York State the basic due process right to confront an accuser.  The Jim Crow system, rooted in caste, is disguised in aura of governmental quasi-judicial legitimacy and thus may be difficult for the superior caste to recognize.  Yet it is very apparent and painful to its subordinate caste victims.  

My three African American clients offer a case study of implicit bias against African Americans, and their cases clearly reveal a caste system of justice at work.

Let me briefly describe only the non-hearsay facts that were before the federal and state courts. In each of the litigations, I asserted on behalf of my clients that the hearsay evidence was unreliable and that the accuser or accusers could be demolished if the accused was allowed cross-examination.   Yet my clients were never permitted confrontation.  My African American accuseds were never permitted to face their Caucasian accusers.   The caste system would not allow it.

I personally witnessed the power of the caste system at work.  As a Caucasian attorney representing African Americans, I experienced judicial prejudice directed at me for advocating for my clients.   A Caucasian federal court judge criticized me (a non-Ivy League solo practitioner—a lower caste lawyer?) for having the audacity of submitting corroborative assertions from an unnamed high level former official of the employer who happened to be African American.  The assertions of the African American were rejected out of hand by the judge.  (The witness remains willing to share her knowledge.)   The federal judge then went on to verbally accost me for having the temerity of asserting that the employer’s Caucasian decision-maker was biased (even though I alleged specific facts showing racism).  The all-white panel of the Second Circuit Court of Appeals upheld the Caucasian lower court judge.  

Since I lost the appeal, I was either too close to the case to recognize my own failings in taking the case, or the Second Circuit was affected by its own implicit bias to disfavor the subordinate castes (my African American clients and me as a solo practitioner advocating for them).  I would be very interested in seeing how some African American law or history professors, or Isabel Wilkerson, might evaluate the cases. 

What I found most intriguing (and concerning) was the federal judge’s outrage at my questioning the impartiality and institutional bias of the N.Y.S. agency involved—the Justice Center.  How dare I assert that the state agency might be institutionally racist!  How dare I draw the conclusion that simply because the Justice Center appears to prosecute mostly African Americans and Hispanics, and that it denies 95% or more of them the opportunity to confront their (usually white) accusers.  My essential argument that something is rotten in … New York![4] 

What my three clients’ cases demonstrated to my intellectual satisfaction is both the Justice Center’s and the state and federal judiciary’s unconscious bias inclining each to uphold America’s caste system of justice.   Examining the reliable (non-hearsay) evidence in each case makes this abundantly clear. 

My first client victimized by the Justice Center was Kerry Walker, an African American woman.  She and two other African American co-workers were accused by two Caucasian women—both patients at the assisted living facility—of neglecting to respond to these invalid patients cries (even screams) of help throughout an entire night.   Yet the accusations seem preposterous, at least absent the racist presumption that Blacks are lazy and negligent. One of the accusers was a patient who had previously made her racism clear, and made clear that she did not want a Black person as her aide at the assisted living facility.  Ms. Walker had previously alleged discrimination to the employer.  

The tangible evidence supported Ms. Walker.  There was no physical evidence of neglect (as there should have been if the patients had actually been ignored all night). The employer reported neglect to the Justice Center at the behest of the racist patient, and this patient was also an “honorary member” of the facilities board of directors.  

Thus, the two patients were believed on their “say so” alone over the three minority healthcare workers who said the patients were making up the story.  The accusers, and all the subsequent decision-makers (employer and Justice Center), were Caucasian.  Neither before or at the Justice Center trial was Ms. Walker provided the opportunity to confront her accusers, the Caucasian patient and her Caucasian roommate.  The result was what one would expect in a caste system—the lower caste person lost, with caste system kept intact.  The upper caste patients, with no physical evidence, prevailed over the lower caste healthcare workers (whose evidence demonstrated innocence).  Ms. Walker was adjudicated by this state agency as having committed neglect—and thus branded neglectful with the imprimatur of the state.  Her actual offense, it appears, was “working while Black.” 

Not long after I began my representation of Mr. Walker, I took on the representation of someone who impressed me as a very respectful, intelligent, soft-spoken you man.  A Penn State graduate.  A big (6’3”, 230 pound), strong-looking young man.  An African American.  

Rotimi Salu explained how on the day in question, working as a healthcare worker at the Westchester Medical Center’s juvenile psychiatric center, he was assigned to look after one particular teenager, but in the course of doing so, another juvenile (Caucasian) needed his attention.  Mr. Salu took the bait, stepped into the other juvenile’s room and was viciously attacked.  No harm or threat of harm befell the child Mr. Salu was supervising, yet Mr. Salu was prosecuted for “neglect” because he momentarily lost visual contact with the juvenile he was supervising (because the other teen was attacking him).  The Justice Center ALJ (a white woman) found Mr. Salu guilty of neglect, even while commenting that Mr. Salu’s “dedication to and concern for each [juvenile] was credible and commendable.”  However, his good intentions did not  “abrogate the duty he owed to the [unharmed juvenile] to maintain constant … supervision.” The fact that the lower caste individual, Mr. Salu, was attacked by an upper caste individual (the other juvenile) was irrelevant to the (upper caste) ALJ.   

In Mr. Salu’s case, the only reliable non-hearsay facts in the case were that the supervision policy that Mr. Salu was charged with violating was not strictly enforced; that Mr. Salu walked down a hospital corridor a foot or so ahead of the child he was supervising; and that he momentarily stepped into the other child’s room while the child being supervised stood idly by in the otherwise vacant corridor.  It appears that, like Ms. Walker, Mr. Salu was guilty of “working while Black.”  

Specifically, it is difficult to imagine a non-Black female nurse doing exactly the same thing and suffering the same adverse consequence as befell Mr. Salu.  A Caucasian nurse or physician likely would have been given an award for wrestling down the violent juvenile.  What is also not difficult to imagine is that Mr. Salu could have shown his complete innocence had he been afforded the right to confront his accusers.   Upon examination, the hospital officials may have testified that Mr. Salu did nothing substantively wrong, and that “no harm, no foul” should have prevailed.

Around this same time, I took on a third Justice Center case on behalf of Gerard Lynch, who was an experienced substance abuse counsellor—another healthcare worker whose employment was within the statewide jurisdiction of the Justice Center.  Essentially, Mr. Lynch was accused by one Caucasian drug addict, and then her friend, another female Caucasian drug addict, of essentially making salacious comments and touching each on the back below the waistline/upper buttocks.   Without any opportunity to confront either of these female accusers, the Justice Center adjudicated Mr. Lynch as a sex abuser and placed him on a statewide list that permanently bars him from similar work.  

The federal court found no due process violation.  Rather, the federal judge scolded the author for suggesting that the credibility of a drug addict could be questioned—after all, I am a civil rights attorney and should not be myself prejudiced against two women because of their apparent  disability—their drug addiction, psychiatric problems, repeated institutionalization for such, and likely chronic inability to tell the truth.  Why, pray tell, might drug addiction and psychiatric problems possibly bear on credibility?!  

Caste is the obvious answer.  Was the upper caste judge unconsciously wishing to remove a lower caste plaintiff’s case from his docket decided and for this reason decided that he should believe upper caste (White) drug addicts over the protestations a lower caste(solo practitioner) lawyer?  That on matters of credibility, no confrontation or trial is necessary for two upper caste drug addicts (White women) to prevail over a lower caste Black healthcare worker. Yet if two Black women had uttered exactly the same allegations against a male Caucasian psychiatrist, would the caste system protect the physician?  We can only guess. 

Mr. Lynch had more healthcare experience with patients than many psychiatrists. So why would the federal judge automatically disbelieve him?   Assuming honesty by the White females and dishonesty by the Black man is a 21^st Century version of To Kill a Mockingbird.  Would White hospital management have countenanced a White psychiatrist being prosecuted on the say so of two psychotic African American drug addicts?  

The end result was that based upon two drug addicts’ unsworn accusations, Mr. Lynch’s career and livelihood was forfeited at the hands of the Justice Center, because it refused to allow him to confront his accusers.  As with Ms. Walker and Mr. Salu, Mr. Lynch may well have been guilty of only one thing—working while Black.”

Other African American healthcare workers (and one white worker) contacted my office with similar complaints of injustice by the Justice Center.   I declined representation because none had sufficient funds to pay for my professional services.  The “fee shifting” provisions of federal civil rights statutes would be of no help unless I could establish a federal constitutional violation, but the federal courts were blind to the due process/confrontation violation.  Other employment law attorneys have heard similar Justice Center stories of abuse from workers seeking help, but declined to take on these cases for similar reasons to my declining new cases of this sort. 

What is astonishing is the blatancy of the constitutional deprivation, and its being borne mainly by the African American and Hispanic workers who make up the majority of the private sector workforce that is subject to the Justice Center’s jurisdiction. My office reviewed about three years of Justice Center adjudicatory decisions found on its website.  What we found in reviewing hundreds of cases is that in over 95% of the prosecutions, the Justice Center’s entire case is presented on hearsay evidence alone.[5] Thus, its policy and practice denies accused healthcare workers of the ability to confront their accusers.  This is a denial of a right fundamental in American jurisprudence, a basic tenet of due process, a tool viewed as vital to fair fact-finding, and something so important that the Founders concretized the criminal defendant’s right to confrontation in the Eight Amendment to the U.S. Constitution.   Yet as to an African American faced with a lost livelihood and career at the hands of the Justice Center, the right to confront the accuser apparently means nothing to both the federal courts and the New York state courts.

What possible explanations?  There are many, but the most plausible is caste.  Isabel Wilkerson describes the implicit and explicit biases—and the racism—that influence private and public decision-making in Caste.[6] What she describes rings so true in what I discovered in the Ms. Walker’s, Mr. Salu’s and Mr. Lynch’s cases described above, including my own experience in representing these three African Americans.

 

I recently submitted what will be my final request to our American court system in this matter. In January 2022, the Supreme Court upheld the right of confrontation in a criminal case, and in so doing, recognized its roots in the common law and its relevance to fair fact-finding.[7]  In January 2022, the Supreme Court granted certiorari in the Students for Fair Admissions[8] cases to decide whether affirmative action in college admissions is unconstitutional. And because in January 2022 the High Court denied Mr. Lynch’s and Mr. Salu’s certiorari petitions, I decided that it would be appropriate to request Supreme Court reconsideration of its refusal to hear these Justice Center cases.  

I informed the Supreme Court in my motion for reconsideration that the Justice Center’s abuse adversely affects hundreds or thousands of mostly African American and Hispanic healthcare workers.  I pointed out that, in contrast, the college admissions cases involve academically elite Asians who, if denied admission to Harvard in favor of some worthy African American, will certainly be admitted to some other elite college—perhaps Yale or Stanford, and that “ain’t too bad”!  However, for the otherwise qualified African American applicant who was raised in the ghetto and whose family has been the victim of centuries of racism, the Black candidate may be relegated to City College.  And these are the African American families who have, through America’s caste system, likewise been relegated to, and who end up populating in our caste system, the “blue collar” type jobs—low and middle wage jobs—that come under the Justice Center jurisdiction.

The right to confront is so clearly a basic American right, and the ability of the courts to assist African American and minority healthcare workers so easy to do by upholding such right, but yet the courts are silent.  The (mainly White male) judges choose instead to keep their heads in the sand regarding implicit (or explicit) bias, by protecting the White actors (employer and Justice Center staff) against the defense of racism that the African American employee could offer is permitted to confront the accuser.  

The “system” appears intent to uphold one thing, and one thing alone—America’s anti-Black caste system. I put this to the Supreme Court rather pointedly in my motion for reconsideration, stating:

“Thus, by granting certiorari in this case, the Court can examine how systemic denial of a constitutional right can, as it did here, fall disproportionately on a minority population.   This will assist it in its Students for Fair Admissions decision-making.  

Here the denial of the right of confrontation punishes the healthcare system’s low and middle wage workers, who are mostly African Americans and Hispanics.  Here, without “affirmative action,” this Court can protect the constitutional rights, and thus the employment, of a large number of healthcare workers, most of whom are persons of color.  The Court need only apply a core principle of due process of law—one that is basic to American jurisprudence—the right to confront one’s accuser.

Alternatively, the Court can turn a blind eye to injustice, turn a blind eye to human nature, and turn a blind eye to large scale systemic racial bias in action, by denying Messrs. Lynch and Salu’s request for certiorari.  The Court can keep its eyes shut to the reality of implicit bias (implicit bias has a scientifically demonstrated basis) by refusing to entertain Messrs. Lynch and. Salu’s cases.  In so doing, the Court will be keeping its head in the sand as to the realities African American face in America—realities summarized in The Atlantic’s cover page in June 2014:  

“250 years of slavery.

90 years of Jim Crow.

60 years of separate but equal.

35 years of state-sanctioned redlining. ***”[9]
 

If the Court has a sincere interest in individual liberty, equal protection of the law and due process, it should grant certiorari in this case.  Unlike affirmative action, this is a case where conservative ideology coincides with liberal ideology—as it involves basic fairness in adjudicative hearings.  

***

I also spent 29 years in the U.S. Army Reserves, with tours of duty in Germany, Iraq and Afghanistan.   In my observation, when society treats people with equality (as does the U.S. Army), individuals will succeed on their own merits.  But where society is not color blind (and America most certainly is not color blind), racial discrimination will continue and thus keep African Americans down, too many relegated to a lower caste.  If this Court holds that courts and governmental actors must always be color blind in matters of diversity and social justice—or blind as to the systemic bias that underlies this case—the result will be Judges blind to racial injustice, past and present.”  

 

My guess is that my plea to the Supreme Court will be ignored.  Sadly, this may be because American justice is a caste system built on a house of cards that the most upper caste institution of all, the Supreme Court, must not disturb. 

Michael Diederich, Jr.     © 2022

February 9, 2022