What should a criminal defense lawyer do about racial prejudice?
Daily Journal, September 21, 2006
By: Thomas A. Mesereau Jr.
I have tried a number of cases, ranging from business fraud to the death penalty, where this issue has squarely arisen. Inevitably, this sensitive problem generates differing reactions among lawyers. Many are uncomfortable and choose to ignore it. Some flail around with artificial drama and make things worse. Should this problem be tackled immediately or left for the right moment?
I firmly believe that racial prejudice must be immediately addressed and presented in a manner that empowers jurors to rise above it. The trials in which I have had to address the issue have principally involved potential prejudice among whites toward blacks.
One must begin somewhere. Before analyzing individuals, I start with heartfelt generalities. What else can you do with people you don’t know? Regarding white-black relations in the criminal justice system, I usually assume the following:
- Racial prejudice exists at every level of our criminal justice system. No judge, jury, prosecutor, defense lawyer or witness is immune.
- All of us are raised with prejudice. Anyone who denies this fact is potentially more dangerous than the avowed racists who admit their bias.
- African-Americans are raised with a strong concern and sensitivity to race. They are more open to “racist conspiracies” than whites.
- White people, generally, do anything to avoid confronting racial issues. They automatically hope and assume that racial prejudice is absent, particularly when confronting criminal justice. But they want to be fair.
- African-Americans continually refer to themselves as “the black community.” This sense of community is necessary for any oppressed minority to fight for freedom and dignity.
- White Americans rarely see themselves as a “white community.” White people generally have not had to worry about such communal protection.
- All human beings have a natural tendency to devalue others whom they perceive as different.
- Racism exists on both a conscious and a subconscious level. People are often unaware of their racism.
A rich illustration of these principles is a criminal trial that took place in 1925 in Detroit, Mich. In this case, the legendary Clarence Darrow defended eleven members of an African-American family who were charged with murdering a white man. Darrow, white himself, faced a jury of 12 white males.
A word about Darrow. He was born in the small, white community of Kinsman, Ohio. His father was an impractical man who virtually lived to read books. The elder Darrow taught his son to read and critically consider all academic disciplines, including philosophy, religion, history, science and literature. The young Darrow was raised never to accept blindly any conclusion and to maintain a learned, piercing skepticism about virtually everything.
Darrow’s father was a strict abolitionist with a burning hatred for slavery. He was known as the village infidel. Reportedly, the Darrow home was a way station on the Underground Railroad and a vehicle for fleeing slaves to find their way to freedom. As a boy, young Clarence never knew when a knock on the door at sunrise would produce a group of weary blacks hiding by day in his home and traveling by night to Canada.
Detroit was seething with racial tension. Long before the civil rights struggles of the 1960s, Detroit was a northern city in which the Ku Klux Klan was dominant and white resentment of an expanding black population was freely expressed. Because of the availability of jobs in the automotive industry, the black population had expanded from 6,000 in 1910 to 70,000 when the trial took place. Racial violence was rampant.
Darrow faced a situation where, unless the poison of prejudice was handled properly, conviction was automatic. His client, physician Ossian Sweet, had moved his family into a lower-middle-class white neighborhood. A white mob immediately formed under the guise of a neighborhood improvement association. These vigilantes surrounded the Sweet home. Shouts and rocks flew. The family had stored various weapons and ammunition in their home, and broken window panes were the stimulus for the fatal shot. After retaining a prominent black law firm in Detroit, the local National Association for the Advancement of Colored People sought the Chicago-based Darrow to address what they knew would be an exclusively white jury.
In his memoirs, “The Story of My Life,” Darrow says the following about the Sweet trial:
“A man who practices law in the criminal courts should be able to tell something about a man by looking at his face. A large part of his work is sizing up judges, jurors, and witnesses at the first glance. … I kept wondering what a white man would think of his chances for getting a fair trial in Africa if he had killed a Negro and was placed on trial before twelve men with black faces. … No one knows so little about a man’s ability to be fair as the man himself.”
Darrow squarely and immediately addressed the issue of white prejudice by stating that he and the jurors all suffered from it. Rather than talk down to his audience, he invited them to overcome their prejudice with him. His voir dire, opening statement and witness examinations continually expressed his disdain for the uncontrollable mob and the dangers of prejudicial thinking.
In many different ways, he challenged the members of this white jury to rise above themselves and open their hearts and minds to a different way of looking at reality. Darrow challenged the jurors to understand the Sweets’ fears, intentions and reactions by understanding the history and psychology of their race. His closing argument is a classic example of a superior advocate who handles a delicate subject with dignity, passion and an unusual ability to empower ordinary citizens to rise to a new level of consciousness and responsibility.
The prosecutors argued (as they always do!) that race had nothing to do with the case. Early in his closing, Darrow proclaimed, “I insist that there’s nothing but prejudice in this case; that if it was reversed and eleven white men had shot and killed a black while protecting their home and their lives against a mob of blacks, nobody would have dreamed of having them indicted. I know what I’m talking about, and so do you. They would have been given medals instead.”
Darrow softened his accusation of juror prejudice by shrewdly suggesting he believed none of them actually wants to be. He had the jurors visualize how black and white children live and play together without bigotry. Darrow described how prejudice is directed at all kinds of things: looks, politics, religion, color.
His clients were charged with conspiracy to murder. But Darrow labeled the true conspiracy as a crowd of whites who formed to drive the black family away. Of the dead, Darrow boldly stated, “Who was he? He was a conspirator in as foul a conspiracy as was ever hatched in a community; in a conspiracy to drive from their homes a little family of black people.” In other words, Darrow prosecuted the alleged victims as the real conspirators, labeled his clients as the victims and, in effect, accused the prosecution of bringing the wrong case.
Darrow openly said he must be careful not to “shock” the sensibilities of the jury when challenging their humanity and courage. He positioned his black clients as protectors of the constitutional right of all to self-defense and protection of one’s home. He softened his attack on the white mob by suggesting its members honestly believed that they were better than blacks and had a duty to keep “colored people” out of their neighborhood. His hard and soft approach not only was brilliant but also reflected a profound understanding of the psychology and limitations of his audience.
This was a time when black lynching was common. Darrow invited the jurors to stand in the shoes of this black family and view the surrounding mob through a historical lens of slave ships, lynching, mob violence and poor police protection. He called racism toward blacks “part of a great human tragedy” and said the only time white people allow blacks to go first is in battle! He referred to a “Jim Crow YMCA,” “black angels” and a “Jim Crow heaven” as the logical extension of racism.
Darrow humanized his clients by discussing their dreams for a family, education and an honest living. He cautioned the jury that black dreams were no different from theirs. Regarding what triggers legitimate self-defense, he discussed the uncontrollable mob and asked how many windows had to be broken before the need for self-preservation arose? He discussed the need to disperse a mob as a duty rather than pure defense: “Freedom comes from human beings, rather than laws and institutions.”
The verdict? Not guilty.
Ferreting out the potential prejudice of jurors is one issue. Alleging the racial bias of police, prosecutors and witnesses is something else. Both concerns need to be confronted because they all provide possibilities for inhumanity and injustice.
If it appears obvious that the panel could contain prejudiced jurors, a lawyer’s concern must be handled immediately during jury selection. It may involve little more than expressing one’s honest fear that prejudice could play a role. Jurors should be questioned in a respectful, conversational tone about their thoughts on the issue. Their responses will lead to sensitive, follow-up questions and inquiries. No tricks, please!
Whether evidence of racial bias will enter the trial, like it did in the Sweet case and O.J. Simpson case, is a separate matter for adjudication.
The question of whether an investigation or prosecution has been influenced by racial bias must be litigated. Obviously, had Darrow not been permitted to raise evidence of racism, grave injustice could have resulted. The defense lawyer must fight hard to bring social reality into the courtroom.
Whatever the situation, prejudice must be handled deftly and soon. A lawyer’s passion and sincerity must proceed with an obvious respect for the jury’s sensibilities. Trial lawyers would be wise to study the masterful techniques of Darrow.