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2% of state lawyers are black: Is that enough?

Elliot Hicks remembers talking to the Louisiana business owner numerous times on the telephone. It was 1990, and the man’s upcoming civil trial in West Virginia looked to be his best option.

“His posture was so defiant before it was time to come to trial,” Hicks said. “He wasn’t going to settle.”

But when the man arrived to meet Hicks at Yeager Airport, it became obvious that his lawyer wasn’t what he expected.

Hicks is black.

And the man’s trial was scheduled for rural Nicholas County, where there weren’t likely to be any blacks on the jury.

“He had no idea how to deal with it,” Hicks recalled. “We were going to get talking about the trial, but he was getting so nervous. ... The further and further we drove into rural West Virginia, he grew more nervous.”

Hicks and an estimated 60 to 80 other state lawyers are black, less than 2 percent of the nearly 4,300 active lawyers in the state.

Before the trial began, the man told Hicks he was ready to settle, something he had never mentioned in the buildup to trial.

“He’s begging me about talking settlement now,” Hicks said.

The case went on in the all-white courtroom before an all-white jury.

“We got an excellent result ... he was ecstatic,” Hicks said.

That trial and countless others had one thing in common for Hicks.

“I wasn’t just the only black in the courtroom; I would imagine I was the only black person in the county.”

In his 80-plus jury trials, only five times has Hicks had a black juror on one of his juries.

On a 1999 State Bar membership survey, 1 percent of the lawyers who responded marked the box “African-American.” Ninety-seven percent marked Caucasian.

A later survey question revealed that in the three years prior to the survey, 5 percent of State Bar members saw instances of racial bias in the courts.

Kanawha Circuit Judge Irene Berger, one of two female circuit judges in the state and the only female judge who is black, notices such disparities, but has never considered her race a hindrance.

In a state that barely has a 3 percent black population, the low number of blacks on juries and in courtrooms is not surprising and seems to follow the statewide racial breakdown.

“It may well be representative,” Berger said. “I don’t think jurors are getting more diverse.”

As a prosecutor in Kanawha County in the 1980s and 1990s, she once had a white victim request a white prosecutor because the defendant was black.

“We’re still making some progress,” Berger said.

On the other side, the treatment of blacks as defendants in the legal system has been the topic of debate.

Juvenile blacks, for instance, have a better chance of getting sent to adult court, according to a 2001 report by the American Friends Service Committee.

While black youths made up 4 percent of the state’s youth population, they accounted for half of the juvenile criminals tried as adults.

Those findings prompted a state Supreme Court petition asking the high court to examine the disproportion.

In the more than two years since the petition was filed, the Supreme Court has charged a committee of lawyers, judges and state and county officials to study the role of minority youth in the state’s justice system.

In public forums statewide, residents voiced their opinions on how they perceive the state’s justice system. The committee’s final report is at least six months from completion, and Supreme Court officials did not immediately make transcripts of the public comments available.

Lewisburg lawyer Rick Lorensen, who heads the task force, said most of the people who showed up at the nine meetings have been black.

“They say the justice system is a white system. The lawyers are predominantly white, the judges are predominantly white and the probation officers are predominantly white,” Lorensen said.

‘I just don’t get it’

Sitting in his Huntington office, Herbert Henderson grins when he tells the story of his rise from fighting in the Korean War to becoming the first full-time black law student at George Washington University in Washington, D.C.

Henderson has fought for integration since he became a lawyer in 1958, four years after the monumental Supreme Court decision Brown v. Board of Education, when the justices decided to integrate schools.

Henderson was a battery commander in the Korean War. A white airport worker in Louisville, Ky., who refused to serve him a hot dog marred his return to the United States. He stood with three white military officers, who “went crazy” when the worker told Henderson, “We don’t sell to y’all,” obviously referring to his race.

“That really stuck with me,” he said.

Newspaper accounts in Korea had brought him news of the Brown v. Board of Education decision and encouraged him.

“Because of that, I decided to go to law school,” Henderson said.

He remembers reading that George Washington had never had a full-time black law student. So as his legal career reflects, Henderson didn’t shy away from the challenge.

At the time, even his law school application didn’t have a place for him to mark his race. People in the black community wanted him to withdraw his application. If there was going to be a black full-time student at the law school, they wanted it to be someone who would perform better than they thought Henderson would, he recalled with a laugh.

“They said they knew the school would flunk me out,” Henderson said. “They wanted the first black student at George Washington to be brilliant. I said I’d probably go and get Bs, but they didn’t want a ‘B’ student.”

His legal studies began in loneliness and ended the same way.

“For three years, they didn’t even speak to me,” he said of his fellow students. “I never even had anything that approached a friend in law school.”

Slowly, times began changing for law students. Berger, who was in law school at West Virginia University in the late 1970s, was one of six black law students in her class, but one of only eight blacks in the school, which usually averages more than 100 students.

Hicks, who graduated two years after Berger, in 1981, was one of about a dozen black students in WVU’s law school. He graduated as one of five black students in his class.

Bob Bastress, a longtime WVU College of Law professor, estimated an average of six to 10 black students enroll every year.

“In a class of 150, it’s going to be hard to get above that number,” Bastress said.

The number of black law students and black lawyers in West Virginia appears to match the state’s black population numbers. The numbers show promise, as Hicks indicated in a 1998 newspaper interview as he began his term as State Bar president.

Henderson said he has struggled for years to get state government officials in the state to see that simply representing the state’s black population in social circumstances isn’t good enough.

“The thing that makes me sick, sick, sick is when I talk to white people in power and they say, ‘We already have our 3 percent,’” Henderson said. “I just don’t get it.”

To contact staff writer Charles Shumaker, use e-mail or call 348-1240.


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