Mimesis Law
10 August 2020

Zoe Smith and the Apology That Wasn’t

Mar. 15, 2016 (Mimesis Law) — Although the 2016 election and the Donald Trump Effect don’t have a per se effect on the criminal justice system in most instances, it seems to have inspired a deputy district attorney in Oregon to commit career suicide.  Zoe Smith, a 10 year veteran of the Washington County District Attorney’s Office, took to Facebook to share her views on the Trump campaign, writing:

I keep reading about the anti-politically correct movement to support Trump. For the record, I’m on board.  If you’re looking for a terrorist, look at a young Muslim male.  If you’re looking for a gang shooter, look for a young black guy.  If you’re looking for a child molester or a mass shooter, look for a white guy.  That’s just common sense.  I’m more concerned about the environment in which we live and economic equality for those who work.  Tell me how you plan to fix that, Mr. Trump.

Just from a structural perspective, the paragraph is a strange one. Breaking it down, she basically stated that she’s on board with Trump being politically incorrect, threw in some gratuitous info about racial profiling, yada yada, and then moved on to talk about economic equality.

The sentences insulting Muslims, blacks, and white guys were unnecessary and stupid. As humans, we all find ourselves falling prey to preconceived notions from time to time, and prosecutors are no exceptions.  But to share feelings on Facebook that are nothing short of racial profiling when you are a prosecutor?

The completely-to-be-expected uproar that ensued when the post was covered by the Portland Tribune seemed to have caught Smith off guard, and hurt her feeling.  In response to Edward Kroll, president of the Oregon Criminal Defense Lawyers Association, condemning her statement and complaining to her boss, Smith defended herself via e-mail, writing:

This is so sad after 10 years of hard work to be a fair and honest DDA. I have a wonderful relationship with the defense bar and trust many of them implicitly.

“Trust many of them implicitly?”  Isn’t this the equivalent of defending yourself against being called a racist by pointing out that you have several black friends? It appeared that Smith was letting the newspaper know how disappointed she was in the defense bar for making her bone-headed comments public and creating such a stir about them. In doing so, she missed the forest for the trees in stunning fashion and avoided examining the contents of her own statement.

Smith then issued an official apology statement that was so stunningly bad that she would have been better off saying, “yes, I believe in racial profiling, so what?”

It has come to my attention that a FB post of mine has offended some people that I care a lot about, both personally and professionally. I want to say first that I take responsibility for that and am sorry.  Second, I want everyone to know that the comment was intended to further an ongoing political discussion and to make a point.  It was not meant to be taken literally or as a comment on what I do for a living.

For those who know me, you know that I am open-minded and a pragmatist. I usually want to cut to the chase and find a solution.  My point was first and foremost that we are all in this together.  Every group of people has their stars and those they’d rather disclaim.  My point was only, let’s acknowledge that and then move on.  We don’t have to believe every stereo-type but sometimes they can help frame the issue.  One of my favorite quotes is by Chimamanga Ngozi Adich, an author.  She explains, “The problem with stereo-types is not that they are untrue, but that they are incomplete.”  That’s how I feel.  To ignore race, or education, or background is un-productive.  Acknowledge it and move on to a solution that works for us all.  I hope this helps give some context to my point.  I have always tried very hard to give everyone I interact with a fair shake.  This was purely an intellectual discussion, not a play-book for law enforcement.

It is difficult to know where to even begin with pointing out how bad this non-apology apology letter is.

-“It was not meant to be taken literally or as a comment on what I do for a living.” Well, you prosecute people for crimes, including gang shootings, and stated that “you look for a black guy.” That seems to be both literal and a comment on what you do for a living.

-“My point was first and foremost that we are all in this together.” I must have completely missed that point in the original post.

-“We don’t have to believe every stereo-type but sometimes they can help frame the issue.” Well, stereo-typing certainly can help frame some people, one might suppose.

To ignore race, or education, or background is un-productive.  Acknowledge it and move on to a solution that works for us all.”  This isn’t an apology.  It’s a doubling down on her initial statement.  This letter exemplifies the First Rule of Holes: when one finds oneself in a hole, one should probably stop digging.

In the criminal justice world, police officers, prosecutors, and defense attorneys all make assumptions on a daily basis. If a child is abused, many people will ask the assumptive question, “Mom’s new boyfriend?”  If a woman is killed, we ask, “was it the husband?”  If there’s a fatal car accident, “drunk driver?”  Some level of intuition and assumption is just a byproduct of experience.

But making race-based assumptions isn’t intuition and experience. It’s just racism.

All humans are prone to saying something stupid from time to time, and that’s just a part of life. But what Zoe Smith said went beyond just a stupid comment. She said that when certain types of crimes are committed, certain races of people should be regarded as suspects. That goes far beyond being proudly “politically incorrect” and well into the “totally racist” column.

She shared a belief that she had. When called out on it, she simply rephrased the same belief and called it an apology. How could that possibly not work?

5 Comments on this post.

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  • Laura
    16 March 2016 at 10:03 am - Reply

    I first heard the term “politically correct” back in 1987 in my freshman year at college. Back then, it meant “don’t be an ass.” The idea was that if you were going to say something hurtful, you should think twice and maybe either not say it or find another way to put it so it was kinder. Like maybe don’t use racial epithets. In my mind, it was always about self-regulating: I don’t want to be an ass, so I’ll say this thing in a less asslike manner so I can have a civil conversation without hurting people.” So now, whenever someone says “I hate political correctness,” I hear “I hate having to not be an ass.” So when someone like this woman decries “political correctness” and then procedes to say a bunch of racist crap, I’m hardly surprised. The translation is just “I’m tired of supressing my inner asshole so I’m gonna just let it fly.”

  • Richard G. Kopf
    16 March 2016 at 11:24 am - Reply

    Murray and Laura,

    I have a far different perspective. Take it from someone who knows, Ms. Smith needs an editor and nothing more.

    She does not warrant condemnation. She does not warrant being pulled from her responsibilities as a prosecutor. She mistakenly grabbed, with unfiltered gusto, the law’s third rail (race) in a simple-minded way in order to make a point that unfortunately was only elliptically connected to the predicates.

    Her point was essentially this: OK Trump, I’m down with being politically incorrect. But that’s hardly enough to warrant electing you as President.

    Ms. Smith has been pilloried and for that, I have great empathy for her. With respect, there is no need pile on.

    All the best.

    Richard G. Kopf
    Senior United States District Judge (NE)

  • Michael
    16 March 2016 at 12:48 pm - Reply

    The best part about the First Amendment (and liquor) is it shows us who we are dealing with.

    • Richard G. Kopf
      16 March 2016 at 1:33 pm - Reply


      I like both (the First Amendment and liquor)!

      All the best.


  • Justice
    17 March 2016 at 12:53 pm - Reply

    The county’s social media policy explicitly states that employees should refrain from making statements that hinder the effective performance of County functions also refrain from making comments that threatening physical violence harassed and bullied discriminate or retaliate against the county’s customers elected officials officers employees representatives business partners vendors or service providers also refrain from using social media to engage in abusive defamatory obscene violent deliciously false or otherwise agree just conduct or statements directed at or implicating the county its citizens or customers elected officials employees representatives business partners service providers or vendors .

    Her statements reflect who she really is.