Orig News/Public Writings

OpEd in Philadelphia Inquirer September 7, 2023

In an effort to draw attention to the pervasiveness of criminal activity that made it impossible to open our doors when planned, Alson (Al) Clayton Alston wrote an OpEd in the Philadelphia Inquirer.  (In the photograph below, please note that Al's glasses are prescription lenses with an auto-tint that he does not control.)

Exposing Discriminatory Interviews Occurring in the District Attorney Offices of Montgomery and Chester Counties

Below is a detailed description of two interviews for Assistant DA that I recently had, separately, with Deb Ryan, Chester County DA and Robert M. Falin, Chief of Appellate Division in the Montgomery County DA's Office.  

The only ends I seek by telling this publicly are that every attorney interested in public service as a dedicated prosecutor will have a fair chance to work for the office of their choosing and that justice delivered from that office will be consistent with the law and responsible public policy, never bigotry, gamesmanship, politics or favoring one group over another.

Background

I became an attorney this year, at the age of 58, to complete much of the activism I led in my North Philly community a decade ago. I am an African-American male who has always put family and community first. When I setup my law firm in my old neighborhood of Brewerytown, the local drug dealers, who had slowly taken over my block, did everything in their power to shut my doors, including a campaign of violence, threats and intimidation; they followed me up and down Girard Avenue hurling every insult they could. No matter how many letters I wrote or meetings I attempted to hold, I could not get the police department to re-establish community policing or detectives to investigate the firebombing of my office. I spent my scarce savings on fortifying the building.

Things only started to change -- a little -- when I published an OpEd in the Inquirer in September.  Within a few days, I saw a beat cop for the first time in years.  

The dozen drug dealers camped out at 29th & Girard became a half-dozen.
The campaign of intimidation slowed.  

I had argued for a visible police presence as a difference-maker. Though improvements are manifesting far too slowly, we are on the right track.

The Interviews

I decided that I had to put my law practice on hold and work for law enforcement more directly.  I applied for Assistant DA positions in Philadelphia and nearby counties.  I interviewed for ADA roles in Chester and Montgomery Counties.  What happened during those interviews was far worse than anything criminal elements did to me in Philadelphia.  Those DAs would make me question whether I really wanted to be an attorney, after all.  In both cases, the interviews took a decidedly negative and inappropriate turn when Robert M. Falin, Chief of Appellate Division in the Montgomery County DA's Office and DA Deb Ryan herself, in Chester County, first asked me when I had graduated from law school.  I knew this was a violation of the Age Discrimination in Employment Act, because it was an attempt to discuss and characterize my age.  But, I answered it to be cooperative.  They each flipped the pages of my resume back and forth, dropped eye contact and followed up with an accusatory: "Did you pass the bar exam on your first attempt?"  
I had been taught by recruiters that any employer who asks that question will not hire you; they have already made a value judgment and they just need you to say a few magic words, so they can eliminate you as an applicant.

I still answered the question, telling them that I was a very good law student, finishing Penn State with a 3.55 GPA and several awards for high grades, but that I had no funds or time to study for the bar immediately after law school.  My focus was on taking care of my ailing mother, who had lived in my home for 2 decades.  She was bed-ridden, needed 24/7 care, so I drove Lyft and Uber to keep the bills paid.  There was zero chance to study for the bar.  But, I had already paid the fees and did well enough in law school to think that I had a 50-50 chance of passing.  Unfortunately, I missed a passing score by 1 question, well within any possible margin of error, but no bar exam anywhere has yet to follow the LSAT and build a margin of error into the official score.

I chose my responsibilities of being a son over an exam and I would do the same thing, again, every time and without hesitation.

But, when Robert Falin in Montgomery County and Deb Ryan in Chester County probed for an answer to whether I had passed and why I had not, a number of doubts started to rise in me.  The ugly looks of disdain on their faces have stayed with me.  I had always been considered among the best and brightest; my academic record was something almost anyone would be proud to have; going to law school at 50 seemed like an accomplishment; taking care of an elderly parent seemed honorable and praiseworthy.  But, these two individuals had me, for one of the few times in my life, questioning my confidence, my choices, my intellectual abilities, my worth as a human being.

It took several weeks to put everything into focus again.  I researched the two questions and others that Ms. Ryan and Mr. Falin had asked me and I learned that EEOC guidance, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and PA's human rights law all would likely deem these questions unlawful.  As well, the body of academic research on bar exams makes clear that bar exams are tests of resources, not competence.  They do not measure intelligence or your value as a human being.  They measure your time and resource commitment to preparing for the exam.  Successfully preparing for the bar is a noteworthy feat and anyone who achieves that is to be commended, please understand.  In fact, every lawyer, including me, has met that challenge!  Therefore, those who lacked the time and resources to pass initially, cannot be judged as unqualified or less qualified for any attorney role.

I further confirmed that questions about when you graduated from law school and whether you passed the bar on your first attempt are not actually part of the job descriptions for an Assistant DA in either county.  Neither question is job-related for a more obvious reason: only the first bar exam passage, not the first failure allows you to be hired for any attorney role, at any age.  Finally, since, for identical reasons to mine, excellent African-American, Latino, Native American and Asian attorneys are less likely to have passed the bar exam on the first attempt than white attorneys, these questions have a disproportionately negative impact (called a disparate impact) on applicants of color -- those impacts range from extreme discomfort during and after the interview to being denied a job unfairly.  For all of these reasons, both DA offices violate the civil and human rights of each applicant when they ask those questions.

I concluded that Mr. Falin and Ms. Ryan are bright enough, and have entire HR departments at their disposal, to know that racially discriminatory questions and those that explore the age of applicants are illegal. I believe that they attempted to make me uncomfortable and make it easier to disqualify me as an applicant because they want to keep the numbers of Assistant DAs who are older or people of color to an absolute minimum. I wrote to Governor Shapiro and Attorney General Henry to investigate how widespread this practice is and to put an end to it.

The people of every county deserve an equal opportunity to serve in government and both criminal defendants and crime victims need to see a diverse set of prosecutors making life and death decisions for them.  

An Unsolicited Opinion Regarding the Chester County DA Race: Hyde vs. Sarobe

I need to say one more thing about my interview with Deb Ryan.  My experience setting up a law firm in Philly taught me not just that a visible police presence, which is at the heart of community policing, is vital in serious efforts to control crime everywhere.  But, I also realized that I had never seen a detective or prosecutor in my neighborhood confronting the bad guys or just reassuring the residents and business owners that their law enforcement public servants in suits are there for them and are on the job.  When I told Deb Ryan about this observation, she asked me if I wouldn't be happier working for the Philly DA, with ideas like that.

A few days ago, I read the positions and speeches of the two men who are vying to replace her as Chester County DA on November 7th.  I was literally astonished to see that the Republican candidate Ryan Hyde had exactly the same observation about visibility on multiple occasions.  He called the DA's office on Market Street in West Chester an "Ivory Tower" and pledged to have his prosecutors and detectives become visible public safety advocates on County streets.

I was not paid for this statement.  I want to publicize what happened in the interview rooms of two district attorney offices.  Some have told me that I should fear reprisals.  But, speaking truth to power is our individual and collective responsibility.  So, I told the truth and I will face anything that evil doers entrenched in power want to do to me.  My faith is infinitely stronger than their hatred or corruption.

My name is Alson Clayton Alston and I wish you all good fortune, good health and good will.

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