Wednesday, May 25, 2016

Denying Undeniable Racism

by Michael Dorf

Monday's SCOTUS ruling in Foster v. Chatman--finding that Georgia violated Timothy Foster's right to a capital trial before a jury selected without racial bias--makes no new law. The majority opinion of CJ Roberts methodically parses the trial record to show that Foster made out a prima facie case of racial bias and that the prosecutor's ostensibly race-neutral justifications for using four of the nine peremptory challenges it had to eliminate all of the Black jurors were, not to put too fine a point on it, bullshit. The Chief shows how the prosecutor's story was internally inconsistent and highlights documentary evidence that is pretty damning, such as the following notes:
On each copy [of the venire list], the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” The letter “B” also appeared next to each black prospective juror’s name.
It would have been remarkable had the case come out the other way, except of course it did come out the other way in the Georgia courts. And Justice Thomas dissented, partly on the ground that, as he read the record, the most recent Georgia ruling was not on the merits and thus there was no SCOTUS jurisdiction. But Justice Thomas also thought that his seven colleagues gave inadequate deference to the factual findings of the Georgia courts that there was no racial bias after all.

Over roughly the last three decades, scholars and pundits have sometimes observed that racism in America is not what it once was. Out-and-out Klansmen are a rarity, the argument goes, with institutional racism and unconscious bias as the main problems today. There's some truth to that, but a case like Foster shows that "classical" race discrimination is alive and well.

Perhaps as troubling as the overt racism is the denial (or more charitably, credulity) by people who are not themselves racists. Justice Thomas is not himself a racist, especially not an anti-Black racist, but his acceptance of the Georgia lawyers' and courts' explanations in Foster enables race discrimination. We can even assume that most of the judges and lawyers trying to preserve the conviction in Foster are not themselves racists. Foster did, after all, confess to the murder for which he was convicted and sentenced. Whatever the error charged by the petitioner, these judges and lawyers presumably would have tried to argue that no retrial is necessary. Still, in doing so, there are places that a responsible judge or lawyer does not go.

Is Foster an isolated egregious case? I don't think so. Consider the ruling of a federal district judge granting a writ of habeas corpus in Bennett v. Stirling a couple of months ago. Another court in a state of the former Confederacy--this time South Carolina--affirmed the conviction and death sentence of a Black defendant who contended that his trial was infected by race discrimination. In Bennett, the state courts used double-speak to deny that one of the jurors was racially biased even though, when asked why he voted to convict Bennett, the (white) juror replied: "He's just a dumb nigger." Res ipsa loquitur. Except, apparently, in the South Carolina courts.

But wait, that's not all. As an alternative basis for granting the habeas petition, the federal judge cited multiple occasions on which the prosecutor appealed to the all-white jury's presumed racial prejudice. These included noting (irrelevantly) that the defendant had (apparently consensual) sex with a "blond-headed woman," which, the state argued, did not reveal that said woman was white. In arguing to the jury, the prosecutor called the defendant  a "monster," a "caveman" and a "beast of burden." He said the jury should give the death penalty because otherwise encountering him would be like meeting "King Kong on a bad day." The prosecution denied that any racial imagery was intended or understood.

The federal district court opinion contains a sophisticated discussion of the history of racially loaded comparisons of Black men to apes and monkeys, including (in the official copy but not the version linked above, which is text-only), the following promotional poster from the 1933 movie.

The court notes that when the film was released in Germany it was titled "King Kong and the White Woman." The average South Carolinian doesn't know that, but it blinks reality to deny the existence of the racial stereotype. As a proponent of animal rights, I would welcome the day when comparisons of any humans to other primates (or cows, pigs, or chickens, for that matter) would not carry a pejorative implication, but that day most certainly is not yet here.

To be clear, I'm not saying that all or even many of the lawyers or judges in the South are racists. I am saying that by denying the obvious, they are enabling racial bias to infect the criminal justice system. That infection is pervasive, requiring structural solutions to a structural problem. But while we wait for those, the least we can expect is that when old-fashioned racism rears its head, lawyers and judges recognize it for what it is.

So far, that hasn't happened. The state has filed a notice of appeal in Bennett. The decent thing to do would be to drop it and confess error.


Hashim said...

A slight quibble -- while the prosecutors were engaged in undeniable race discrimination, it's not fair to say that they were engaged in undeniable racism. Striking black jurors isn't necessarily, or even likely, based on a belief in black inferiority or any other inherently negative view of black people, which is what the word "racism" (or "racial bias") most naturally entails. Rather, striking black jurors is based on the prediction that they'll typically be more pro-defendant, which isn't inherently negative at all -- indeed, I suspect most proponents of Batson would think it's a good thing. While acting on that non-racist prediction is impermissible racial stereotyping as a matter of law under the EPC, it may well be accurate as a matter of fact. In fact, the prosecutor's investigator who wrote the most damning notes in Foster was himself black (and presumably not a self-loathing racist). So, while the prosecutors engaged in impermissible race discrimination, they weren't "racists" (much like public-school administrators who practice affirmative action).

Shag from Brookline said...

"In fact, the prosecutor's investigator who wrote the most damning notes in Foster was himself black (and presumably not a self-loathing racist)."

Maybe the investigator was doing what his superior wanted or directed, showing his loyalty - and desire for job security. Or perhaps the investigator was prescient as to the outcome and set up a smoking gun for some form of justice on appeal. I appreciate the difficulty in finding a "wink, wink" in the public record.

Michael C. Dorf said...

I accept Hashim's quibble w/r/t the Foster case. The use of racial stereotypes that are statistically accurate (if they are) could be race discrimination without necessarily connoting any view about racial superiority or inferiority. I would, however, use the word "racism" w/r/t the Bennett case. There, we have an expressly racist statement by a juror and the appeal to racist stereotypes by a prosecutor.

Jim said...

With all due respect, I think Hashim is somewhat "whitewashing" the record in Foster. Although the prosecutor did not explain exactly why he was targeting black jurors in his use of peremptory strikes, there is reason to infer from the record that this decision was motivated more by animus than by concern that black defendants will "typically be more pro-defendant." As noted by the Court, in justifying the striking of one black juror, the prosecutor explained that this juror gave "confused and slow" answers to questions about his views on the death penalty. Yet, a "white juror who showed similar confusion served on the jury." The prosecutor also suggested that this black juror's son had been convicted of the same offense that Foster was charged with, a suggestion that Chief Justice Roberts aptly characterized as "nonsense." More generally, the Court pointed to the prosecutor's repeated mischaracterizations of the record and shifting explanations for his peremptory strikes of black jurors. The totality of this record seems more suggestive of someone who is trying to hide his racial animus, as opposed to engaging in more benign "racial stereotyping." In any event, such stereotyping, even if viewed as more benign than racist in origin, not only violates the guarantee of equal protection (as Hashim acknowledges), but also defeats the defendant's right to be tried by an impartial jury of his peers.

On a more general level, as someone who works at a trial court, it is gratifying to me to see the Supreme Court actually dig into a record and take seriously its obligation to determine whether a court's findings are clearly erroneous. The Court has a tendency to decide legal issues without sufficient regard for the evidence bearing on those issues -- perhaps a function of there being only one (I think?) justice with experience as a trial court judge.

Jim said...

A minor edit -- my reference to "black defendants" in the second sentence above should read "black jurors."

Joe said...

"take seriously its obligation to determine whether a court's findings are clearly erroneous"

an issue in Glossip ... think SCOTUS would in general be loathe to second guess even lousy factual findings but it's good to hear an opinion from a player in the field

Unknown said...

Over preoccupation with Race has made our Nation and our system of jurisprudence inherently afflicted with a schizophrenic polity.

Martin Kessler

Shag from Brookline said...

The over preoccupation with race pointed out by Unknown began with the Article of Confederation, then the 1787 Constitution, then the bill of rights, then the Civil War, continuing with the Reconstruction Amendments, followed by Jim Crow, etc, etc, and currently and continuing, as the demographics change, with continuing resistance against level playing fields. The Founders, Framers didn't start it but they incorporated race into the system.