Monday, May 22, 2017

Priming, Racism, Brains, and Gangs

In most of my trials a young African American male is led out to the defense bench by courthouse guards. Sometimes he is handcuffed and sometimes he is clad in a faded orange jumpsuit.   But he always appears in basic black.  
Social cognition literatures call the jury’s first impression of a man with black skin in custody a prime or cue.  The cue of his black skin involuntarily brings to life in juror’s minds cultural associations of black men with violence and criminality.

Susan Fiske says “The racial schema of black people is the belief blacks are dirty and physically skilled (e.g., athletic)…as well as militant, violent, criminal, and hostile.”   
             Views of a representative  sample of the US population. 
Blacks are seen as more violent , lazier, and less intelligent than whites
 General Social Survey 2000. National Opinion Research Center
If the defendant is also claimed to be a gang member in the prosecution’s opening statement, that association is unlikely to fade away.  Mock jury studies find that the mere association of a defendant with gangs makes it more likely he will be convicted.

Black √ Male √ In custody √ Gang Member √   — four strikes are more than enough.  From the first moment of court it becomes apparent to the average juror that this kind of defendant is guilty until proven innocent.  Eisen calls this “reverse jury nullification” or when the gang issue influences a jury to convict despite evidence.

Even mention of "gang" makes a guilty verdict more likely
Once cued that the defendant is a gang member and therefore likely to be violent and probably guilty of the charges, a jury’s critical thinking or system two reasoning often shuts down.  Gilovich says:  “When examining evidence relevant to a given belief, people are inclined to see what they expect to see, and conclude what they expect to conclude.  Information that is consistent with our pre-existing beliefs is often accepted at face value, whereas evidence that contradicts them is critically scrutinized and discounted.”  In other words the jury is on the prosecution’s side unless heroic efforts are made by the defense.

In Claude Steele’s classic, Whistling Vivaldi, he describes his experience jogging as a black man in liberal Hyde Park, home of the University of Chicago. New to the area and decked out in what might look like ghetto attire of a sweat shirt and pants, he fit the dangerous black male  stereotype. He got “looks” and people went to the other side of the street. How could he signal to his fearful white neighbors that he was one of us and not one of them? He solved the problem by whistling Vivaldi’s Four Seasons as he jogged, cueing his sophisticated watchers to his having a European classical background that would be unlikely to be in the repertoire of a street thug.

It’s not so easy to whistle Vivaldi in a courtroom.

Once a jury believes the defendant is likely guilty, confirmation bias does the rest. As Michael Shermer says  “research consistently shows that once people have established what they think is the cause of an event they just observed—(in other words, they have formed a link between A and B)—they will then continue to gather information to support that causal link over other possibilities—if they can even think of alternatives once the first causal link is established, which they usually cannot.”

And sadly, its not just a matter of culture. fMRI scans indicate that the amygdala is automatically activated whenever an out group is present. Link that activation of evolutionary “danger” of the presence of outsiders to stereotypes of black men and gang members and the courtroom becomes an arena where the defense is put in a position of having to prove a black gang-related defendant is not guilty.
The fight or flight center of the brain


The power of even unconscious primes has been demonstrated through much research. Steele reports female students who were shown subliminal images of professional, competent women before a math test performed significantly better than those who were similarly shown images of women in traditional gender roles. By the way the girls primed by professional images did even better than the boys on the test. 

We don’t have many studies of what happens during juror deliberation, but Fleury-Steiner’s research on death penalty juries reveals jurors routinely dehumanized a defendant, in interviews calling one a “ beast…sociopath…evil person.”  Jurors, Fleury-Steiner found, saw themselves as “us” and the defendant as “them,” more able to condemn to death a defendant because he was defined as an out group, particularly a racial out group:  “I saw the defendant is a very typical product of the lower socioeconomic black group who grew up with no values, no ideals, no authority, no morals, no leadership, and this is come down from generation to generation….. he wasn't a white kid.”  Sentence: death.

These findings are a warning to defense attorneys who think mitigation means to paint a picture of the defendant as an abused child and the product of an unforgiving environment.  This kind of testimony can evoke sympathy, but Fleury-Steiner found that it can also reinforce stereotypes and the “us vs them” dichotomy, making the death penalty or very long sentences more likely.   

A defendant is convicted or given a long sentence not so much by the evidence itself but by how the evidence is interpreted or framed by juries and judges. That frame is guided by non rational processes that include the racial and “gang” cues that establish likely guilt in a jury’s mind. My job as an expert witness is not just about using “research not stereotypes” but counteracting dehumanizing cues by explaining the defendant’s actions in terms a jury may condemn but still understand. In other words, my job is to “whistle Vivaldi” to the jury so they can look at the defendant as one of us, not one of them. 

Yeah. That’s hard.


Eisen, Mitchell L., Brenna Dotson, and Alma Olaguez 2014. "Practitioner: Exploring the prejudicial effect of gang evidence: under what conditions will jurors ignore reasonable doubt." American University Washington College of Law Review.  Brief 41.

Fleury-Steiner, Benjamin. 2004. Jurors' stories of death : how America's death penalty invests in inequality. Ann Arbor: University of Michigan Press.

Gilovich, Thomas. 1991. How We Know it isn't So: The Fallibility of Reason in Everyday Life. New York: The Free Press.

Shermer, Michael. 2011. The Believing Brain: From Ghosts and Gods to Politics and Conspiracies---How We Construct Beliefs and Reinforce Them as Truths. New York: Henry Holt & Company.

Steele, Claude. 2010. Whistling Vivaldi : and other clues to how stereotypes affect us. New York: W.W. Norton & Company.


Monday, April 10, 2017

Winning Over the Other Side (Part 3 of 3)


Once upon a time, in a galaxy not so far away, Chicago’s Gangster Disciples invaded Mahnomen, Minnesota, a bustling “metropolis”  235 miles north of Minneapolis.  Fear tore through the northlands as the “gang frame” was imposed to explain a local homicide.

A Gangster Disciple branch had secretly formed in upper Minnesota, two men said in a  plea deal.  They claimed the murder they committed was not their fault but ordered by Timothy Shanks, the “Pharaoh” of the gang. 

The Minnesota Attorney General was so alarmed by their state being invaded by a notorious Chicago gang that they sent in a team of Minneapolis lawyers to make sure Shanks would be convicted for this heinous gang-related crime.

This trial is a successful illustration of reframing, one of George Lakoff’s key techniques on persuasion.  Lakoff’s Don’t think of an Elephant was written in the wake of George Bush’ 2000 Republican electoral victory. Lakoff argues that Democrats tried to beat the Republicans by accepting their language and their “strict father” frame of reality.  

For example Lakoff points out that when the right says “family values” they mean obedience to the rules of a “tough love” father and an absolute sense of right and wrong based in obedience to God the Father. The sanctity of unborn life is enshrined in the Bible and God and priest need to be obeyed.  Rather than talk about family values as adherence to rules, Lakoff says we should “reframe” or suggest a different understanding of family, ie. the capacity of a mother to nurture and properly care for her child and who should be able to make her own decisions about her body.  Lakoff’s books give numerous, rich examples of reframing, of getting others to see things through shared, empathetic values.

Lakoff doesn't deal at length with crime, perhaps because crime (and gangs) in a courtroom immediately and powerfully cue the strict father frame through our System 1 reasoning.  From the judge sitting on high and a prosecutor who casts moral blame,  gang-related trials reverse the presumption of innocence.  Gang members are assumed guilty and defense attorneys need to prove otherwise. It worked that way in Mahnomen.

The prosecution of Timothy Shanks began as a gang-related murder and looked hopeless from the start. The judge who appointed local attorney Peter Cannon to defend Shanks, privately told his long time friend to forget about putting up a defense. The Minnesota Attorney General’s office had vast resources and in a trial of a black gang member in an all-white Scandinavian community, conviction seemed to be guaranteed. 

Like many of my stories, the real hero is an attorney who refuses to surrender to stereotypes. Something didn’t sound right to Peter Cannon and after many phone calls looking for a “gang expert”  he finally reached me. I talked with Mr. Shanks and quickly concluded that not only was this crime not gang related but Shanks was completely innocent. Shanks was being tried by the gang frame, not by facts. The actual shooters had got off with only a couple of years sentence by claiming Timothy, the “Pharaoh" of the GDs had ordered the “hit.” The key to this trial was to persuade the judge that the crime had nothing to do with gangs. And if it had nothing to do with gangs, there was no evidence whatsoever to charge Shanks.

My first reason for thinking the gang-related charge was bogus was that there is no rank of “Pharaoh” in the Gangster Disciples. In a written affidavit and later in testimony in court I disputed the gang frame in its entirety and went through all of the evidence, giving an alternative story that explained the crime without the gang frame. By doing so i encouraged the court to use System 2 reasoning and not settle for System 1 stereotypes.

Timothy Shanks was a black man from Gary making his living on the carnival circuit in northern Minnesota. He had a faded tattoo from his youth of the GD six pointed star. Having such a tattoo I explained was not evidence of current gang membership, but  was normal for many poor black kids in the Chicago area and meant little a decade or so later.  What about his “order” to murder?  At a party the two shooters asked Shanks what they should do about money owed to them by the victim? By all accounts, Shanks, who was surrounded by several local girls, huffed “Do what you gotta do.” That was it.  No gang meetings or evidence of any other gang activities.  Just words at a party impressing a couple of young white girls.

Shanks’ murder charge, I argued, could be reduced to a desperate ploy by the shooters to cut a deal with gullible prosecutors.  My cases are filled with allegations by jail house snitches or co-defendants claiming a crime actually was gang related in order to get a favorable deal for themselves.  In this situation the two pleaders got the gang leader title wrong, but in others cases I’ve discovered “gang evidence” was completely fabricated. What is amazing is that such skimpy evidence could invoke a “gang as evil” frame that would cause prosecutors to imagine Timothy Shanks ordering a murder. This is the definition of System 1 thinking.

There was one other piece of evidence tying the carny worker to the Gangster Disciples. It was established in testimony that Shanks often used the expression “What’s up Folks.” By the time this came up in the trial things were already getting dicey for the prosecution. My reframing the crime as a ill-informed plea deal plus the rather questionable notion of gangs running wild in Mahnomen was raising doubts to the judge and even the prosecutors.  I calmly explained that “what’s up folks” is a common greeting in black communities, not necessarily gang related. If everyone who said “What’s up folks” was a gang member, I testified,  then the court ought to indict Porky Pig and his Disney folks gang. 

Well the judge had had enough. He called the Assistant Attorneys General to the bench and it was agreed to drop all charges. Peter Cannon dug into his pocket and gave Timothy bus fare back to Gary.  Justice was served, though Timothy had spent months in jail awaiting trial in what was truly a “gang frame-up.”

Lakoff gives four pieces of advice in how to win over the middle: Show Respect; Respond by Reframing; Think and Talk at the Level of Values; and Say What You Believe. In the Mahnomen courtroom I responded with reason and facts but mainly reframed the crime as having nothing to do with gangs. Rather than an actual gang hit what we had was 1. Two guys trying to avoid long prison terms; 2. The stereotype that black men + a murder means they must be in a gang; and 3. All-too-common macho talk at a party.  Shanks’ old tattoo, his saying “What’s Up Folks,” and being black in Mahnomen are flimsy evidence to prove he was a “gang leader” who called a hit.

Unlike the Tennessee judges, these prosecutors were open to my arguments when I activated a different frame. They had read People & Folks, my first book, and in cross examination I was treated with respect and I gave it back on the stand. Prosecutors aren’t always so reasonable and most of my clients are not innocent.  But the lesson is that among those who disagree with you there are some who can be won over by conscious reframing.  In blogs to come, I’ll draw on more of my cases to explain the power of stereotypes in court and relay different tactics I’ve used to combat them. 


Kahneman, Daniel. 2011. Think Fast and Slow. New York: Farrar, Strauss and Giroux.

Lakoff, George. 2004. Don't think of an elephant! : know your values and frame the debate : the essential guide for progressives. White River Junction, Vt.: Chelsea Green Pub. Co.



Monday, April 3, 2017

Winning Over the Other Side (Part 2 of 3)

There are some people you can’t win over, at least in the short term. That doesn’t mean you don’t try, but presenting the facts alone won’t cut it.
A few years ago I gave a talk at the Tennessee Judicial Conference, an annual meeting of judges. Tennessee is a death penalty state and judges there, like everywhere, are hostile to gang members who are on trial.  I made my standard presentation on stereotypes, drawing a laugh here and there at my powerpoint graphics. But otherwise the judges were silent. After a while I suspected most had stopped paying attention.  

When I finished I asked for questions and there were none….. just stares.  This same talk had received enthusiastic applause and numerous questions at a Vanderbilt University law conference the year before, but the judges hated it. Why?

Trying to figure this out I have turned away from sociology and have been exploring social cognition literatures, defined by Susan Fiske as “how ordinary people think about people and how they think they think about people.”  In the academic tradition where I was trained, there is an unstated assumption that rigorous research will produce facts that will persuade others.  I found it seldom works that way.

WYSIATI means "What You See is All There Is"
Daniel Kahneman had made the important discovery that we think in two distinct ways.  Kahneman points out we are generally lazy thinkers and prefer to use what he calls our System 1 thinking that looks for simplified cause and effect patterns consistent with our prior beliefs.  “System 1 is designed to jump to conclusions from little evidence"  when that evidence is consistent with our stereotypes.  System 1 is our default way of thinking and it includes a gendered ethnocentrism and identification with one's own group.  It operates mainly by associations and in frames, not by logic. It requires effort by more complex System 2 thinking to break stereotypes and most people typically would rather not put in that much work. 

For example, in several of my court cases, police officers have taken the stand to explain that a murder was committed “to advance the defendant’s status in the gang.” This sometimes makes a crime “gang-related” and eligible for enhanced penalties.  In every case of mine where this assertion was made by police, there was absolutely no evidence that “advancing in the gang” was any part of a motive.  The defendants denied it and there were no interviews with other gang members who could confirm such a dubious claim.  

Where did this imaginary but useful notion come from? From police "training" on gangs,  of course!   According to the American Prosecution Research Institute manual on gang prosecutions, such “expert” testimony by police gang squad officers "explains the inexplicable.”  In other words, a wholly made up “motive” works because it fits with juries’ stereotypes of gangs.  Juries tend to accept these allegations unconsciously through their System 1 thinking. Unless challenged, such imaginary motives are accepted as facts.

On a grander scale, Donald Trump’s unsupported claim that millions of people voted illegally fits with stereotypes of “aliens” taking advantage of "our" America. Trump repeats this lie and millions accept it by relying on the frames and confirmation bias of their System 1 reasoning.  

While Allport explained long ago that we all think in categories the content of our stereotypes largely depends on our world outlook. Many Trump supporters and the Tennessee judges, I suspect,  share what George Lakoff calls the “strict father” world view. 

The strict father outlook is fundamentally authoritarian asserting “following the rules is most important.” For my judges and millions of others, evil exists and the world is a dangerous place. The law protects us from the “other” who need to be harshly punished.   Criminals’ less-than-human status also means they are incapable of rehabilitation.  By punishing “them” we reaffirm “us,”  what Durkheim called the organic solidarity of society.  This outlook underlies our policies of mass incarceration which have put a disproportionate number of African Americans in prison.  Preserving the dominant white culture against dark-skinned threats like gangs is a core element of this view.

Gangs, to the Tennessee  judges,  are essentially evil and an insult to authority.  In a world with absolute rights and wrongs, gangs are simply wrong. Many harmful stereotypes of gangs are accepted on their face since they fit into a popular story line reinforced by prosecutors of gangs as intrinsically evil.  While gangs can be a “scapegoat” for white anxieties, a deep antipathy exists in our culture for the dark other, and gangs are a metaphor for what is perceived as an existential threat to white identity. 

The main reason I couldn’t get through to the judges was that they and I were operating within different frames and with different values. The judges never moved beyond System 1 thinking because I was unable to “reframe” my comments in ways they could understand.   While I’m sure I could have done a better job, one thing I’ve learned is that there are a large number of adherents to this hard core authoritarian outlook who cannot be won over in the short term no matter how persuasive we are.  We are literally living within different worlds and talking within different frames. Tune in to Rush Limbaugh and hear this for yourself.   Some arguments can only be won at the ballot box, in the streets, or by jury verdicts.  The courtroom, unfortunately, is an inherently unfriendly theater with the defendant playing “them” and judge, prosecutor, and jury playing “us.”

Lakoff points out all people have both strict father and what he calls nurturant parent outlooks. I’d call the two polar outlooks authoritarian and empathetic.  These viewpoints do not coincide with “left” and “right” or Democrat or Republican. Leftwing authoritarianism has been responsible for mass murders in Russia and China and is characteristic of those who exercise bureaucratic power, e.g. Michels’ “iron law of oligarchy.”  Some Christian conservatives can be deeply empathetic to the poor and the “other.”  Prosecutors claim they are empathetic to the victims of crimes, but not to offenders. 

While a minority of the population consistently holds one view or the other,  most people have elements of both. The key to persuasion of those in the middle is to activate frames based on your values that resonate with theirs.  In my final blog in this series I’ll turn to how Lakoff and others suggest we win over the undecided through an example from my court work.


Alexander, Michelle. 2010. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.

Allport, Gordon W. 1954. The Nature of Prejudice. Reading, MA: Addison-Wesley.

Durkheim, Emile. 1933. The Division of Labor in Society. New York: The Free Press.

Fiske, Susan T., and Shelley E. Taylor. 1991. Social cognition. New York: McGraw-Hill, Inc.

Kahneman, Daniel. 2011. Think Fast and Slow. New York: Farrar, Strauss and Giroux.

Lakoff, George. 2004. Don't think of an elephant! : know your values and frame the debate : the essential guide for progressives. White River Junction, Vt.: Chelsea Green Pub. Co.

Michels, Robert. 1962 {1915}. Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy. New York: The Free Press.

Monday, March 27, 2017

Winning over the Other Side (Part 1 of 3)

Do you think there something wrong with me? I not only read the New York Times  and listen to NPR and Democracy Now, but I also tune into to Rush Limbaugh, check  Breitbart’s website, and, gasp!, actually follow Donald Trump’s Twitter feed. 

You might diagnose masochism but I’ve long forced myself to listen to the other side. Yes, Rush Limbaugh has helped me understand why it is so hard to counter demonization of gang members in court.  

Of course I’ve found the obvious: tens of millions of people in our country live in radically different worlds.  Within these separate bubbles, people choose their media outlets, e.g. CNN, Democracy Now, Breitbart or Fox, to reinforce their pre-existing views. We are witnessing what psychologists call confirmation bias on a grand scale. While we convince ourselves we are using reason, Benferado says “really our minds are bending the facts, sawing off inconvenient corners, and tossing away contradictory information so that everything can be fit into ready-made boxes.” Not just them, us too. And unfortunately that is also how juries work.

If you encounter a fierce partisan from “the other side” on social media or in real life, you might realize it is virtually impossible to have a rational disagreement.  Sooner of later you conclude “they must be crazy,” and if you haven’t figured it out, they think the same about you.  They look only within their frame and you look only within yours.  

What is a frame? “Frames are mental structures that shape the way we see the world”, social psychologist George Lakoff says. Think of a picture frame when you focus on what is inside and pretty much ignore what is outside of it. It is what mass media do routinely, pointing your attention to one aspect to what is a more complex picture.  Lakoff (2004, 115) argues that “frames trump facts.”  He claims you cannot win an argument with facts alone, a sober realization that also applies in the courtroom. 


Frames are psychological cousins of the “social construction of reality,” a concept introduced by Peter Berger and Thomas Luckman.  In 1967 they asked philosophically (p 13), “What is real? How is one to know?” Their sociology of knowledge explains how reality becomes “institutionalized” and legitimated through secondary socialization. Today that socialization is fueled by one’s media choice. The proliferation of alternative media has led us into polarized camps, each of us drinking different flavors of cultural Kool-Aid.  Does this mean there is no “objective” reality? No, only that reality is contested.

This, of course,  brings me back to gangs.  The reason I stopped running gang programs in Milwaukee in the early 1980s was that while I directed a successful diversion program, it had no effect on what politicians or the public thought about gangs. In short, gangs were framed as evil incarnate and what the people and public officials wanted most was more police and longer prison terms. 

My solution was to do research to “reframe” the problem.  My first study, which became People & Folks,  won a front page headline in the Dec. 12, 1986 Milwaukee Journal, reframing the gang problem as a lack of jobs.   Some good that did.  Thirty years later on August 13, 2016 in Milwaukee’s Sherman Park neighborhood where I had done much my research,  gangs and other youth rioted because of lack of jobs  and persistent police brutality.  If anything has changed, it’s been for the worse. And in 2017 the mayor still wants to hire more police. I failed to change public opinion.

More recently President Trump said illegal immigrant gangs were the cause of most of the violence in Chicago. He has threatened to “bring in the feds” unless the city gets its gang problem under control.  Simply stating the facts,  like 3/4 of homicide victims and offenders are African American, not immigrants or Chicago’s homicide rate is considerably lower than the rate in Detroit or St. Louis,  is hardly persuasive.  Logic doesn’t change the beliefs of racists on the alt-right or divert Chicago’s violence-torn black community from fears of much-too-frequent violence.

This is the problem I’ve confronted in all of my gang related trials. In court, reality also has two sides: the prosecution insists the facts prove guilt; the defense says they do not.  In a trial, both the prosecution and the defense construct theories or frames that explain and dispute the facts.  Demonizing gangs and reinforcing stereotypes is a winning strategy for the prosecution, constructing frames so hard the facts will bounce off.  Thus my job as expert witness is to use research to combat stereotypes and try to reach a judge or jury.  But if disputing the facts is insufficient, what rational tools do we have to combat stereotypes?

In a trial, the defense goal is often to win over just one juror to not convict, which is much harder than it might seem. In the court of public opinion, we are looking for ways to win over millions of people who may be open to not getting on the Trump train or might want reasons to duck out.  My work in court exemplifies this problem of the limits of rationality. In my next two blogs I’d like to outline a few of my ideas on the power of stereotypes by applying concepts from the works of George Lakoff and Daniel Kahneman. Coming next week:  Two Opposed Ways of Thinking.


Benferado, Adam. 2015. Unfair: The New Science of Criminal Injustice. New York: Crown Publishers.


Berger, Peter L., and Thomas Luckman. 1967. The Social Construction of Reality. Garden City, New York: Doubleday & Company Inc. Anchor Books.

Lakoff, George.  2004. Don't think of an elephant! : know your values and frame the debate : the essential guide for progressives. White River Junction, Vt.: Chelsea Green Pub. Co.

Wednesday, February 22, 2017

Trump, Deportations, and “Gang Members”

Latino youth beware!  You may be a gang member and not even know it!  And no, you might not be able to dispute that label if it is made by ICE. Welcome to America, or rather….. Farewell.

President Trump’s Executive Order on Immigration and his Implementation Memo dated 2/20/17 are aimed to “take the shackles off” of the nation’s immigration enforcers. According to Sean Spicer, the EO makes it clear that “the No. 1 priority is that people who pose a threat to our country are immediately dealt with” (New York Times  2/21/17). Among others, this means gangs, or at least people ICE decides are gang members. 

And that’s the rub. Bureaucratically law enforcement has a process to officially label a youth a “gang member.” There are checklists like this one:

However the judgements are highly subjective. In the recent highly publicized case of Ramirez Medina, ICE agents apparently mis-identified a tattoo as “gang related” and  although Ramirez was a DACA protected Dreamer, held him as a gang member and began deportation proceedings.

Law enforcement agencies have a long history of stereotyping and mis-labeling minority youth as gang members. In  Los Angeles, California Supreme Court Justice Chin questioned official gang identifiers, pointing out that “the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or 'Los Angeles Raiders' garments.” In Denver police created a data base that classified an astounding two out of every three black youth as gang members. 

As one law review article put it, police officers and ICE agents already “exercise virtually unchecked discretion” when it come to gangs.  This means racial stereotypes can be given free reign.  A deportation case I consulted in demonstrates how dangerous stereotypes plus  ICE's “unchecked discretion” can be.  For obvious reasons I changed the name of my client and masked some of the circumstances.

Dante Menzies was a 15 year old high school student. He was a rebel, and he and two friends formed a group called “Cholo or Die.”  They spray painted it on walls and had hats made with “COD” letters. One of Dante’s friends got into a tussle with a teacher.  Dante intervened and punches were thrown. Dante was arrested, and then the astounding happened.

The local police claimed out of the blue that Dante was a “Sureño,” and COD, Dante's gang of three,  was a chapter of MS-13.  He was turned over to Homeland Security and subject to deportation. His lawyer called me and I interviewed Dante via Skype, reviewed the documents, and talked to local police officials. My question was simple: how did the officer determine Dante was a MS-13 member? 

The checklist above is from Dante’s case. Here is the evidence: the graffiti on buildings was Dante and his two friends writing “COD” on the school bathroom walls.  Dante apparently was determined to be MS-13 because he wore the color blue..... and get this, the only blue he had on were his blue jeans. The arrest for a violent crime was the juvenile adjudication of delinquency in the scuffle which resulted in a couple of months in detention. 

The police department refused to explain what “correspondence" named Dante a gang member.   My guess is that the local Gang Investigators Association sent some background information or this referred to memos within the file between local officers.  Police departments or ICE do not have to disclose “gang intelligence” information as with other evidence subject to discovery. In other words, like in this case, ICE can allege gang membership as a basis to deport and never reveal how they drew that conclusion.

I have no way to know if 15 year old Dante was actually a secret MS-13 member.  But the evidence the police presented led me to conclude that Dante’s “MS-13” membership was most likely made up by the officer so deportation proceedings could begin. It was a false generalization that was necessary to justify punishing Dante, as in "Aren’t most of those Mexican kids gang members anyway?"  Why not just make up the evidence — who will know? 

Well the attorney called their bluff and I made an aggressive case that there was no evidence to even assume Dante was a MS-13 member.  He was spared deportation but not every youthful immigrant will enjoy such advantages.

I think Sean Spicer got it right. Trump’s order is meant to “take the shackles off” ICE agents, to give them even greater discretion to act on their hunches and biases in order get “them” out of the country. The facts be damned.

Gang members, along with Muslims, are the quintessential “them” to the virtuous “us” of the all-white alt-right.  Being in a gang is not illegal.....yet.  But even the allegation of gang membership puts Latino youth at risk of deportation.  This over-broad net of ICE predates Trump and former President Obama can't escape culpability. The fight against demonization in all its forms is an on-going struggle for us all.

Hufstader, Rebecca A. 2015. "Immigration reliance on gang databases: Unchecked discretion and undesirable consequences." New York University Law Review 90:671-709.

Leyton, Stacey. 2003. "The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases." in Crime Control 
            and Social Justice: The Delicate Balance., edited by Darnell Felix  Hawkins, Samuel L. Myers, Randolph N. Stone,. Westport, CN: Greenwood Publishing Group.

Wednesday, February 8, 2017

Lynching, Gangs, and the Courts



…the prosecutor’s remarks were designed to humanize the victim, demonize the defendant and his alibi witnesses, and remind jurors of the brutality of the crime. His intentions were to give the trial one last heavy dose of emotionalism. 

This quote could describe prosecutors' rhetoric in every gang-related legal case I’ve worked.  Emotional appeals to racial stereotypes and the routine demonization of gang members is “expected behavior” for states attorneys. As a manual on gang prosecution argues,  when the defense objects to gang evidence as "prejudicial" prosecutors should respond:  “Of course it is. That’s the point! “   Offering research to combat stereotypes is why I consult on gang related legal cases. 

The trial the first quote comes from, however, was from 110 years ago in Chattanooga, Tennessee. In his final appeal to the all-white male jury,  prosecutor Matt Whitaker raised his voice and thundered:

Send that black brute to the gallows and prove to the world that in Chattanooga and Hamilton County the laws of the country does not countenance such terrible crimes, has not ceased to mete out the proper punishment for such horrible outrages. 

Contempt of Court  tells the story of Ed Johnson, accused of the rape of a white woman. Likely innocent with multiple alibi witnesses,  Johnson was hurriedly tried and convicted in an emotionally charged city.  Attempts to change venue were denied because the judge and sheriff stated the mob would lynch him before letting him leave Chattanooga. During final arguments, one of the jurors tried to jump out of the jury box and threatened to tear out the defendant’s heart.

Two black attorneys made an unprecedented legal journey to the US Supreme Court in 1906.  When Justice John Marshall Harlan granted a stay of execution, an angry white mob of hundreds of locals, aided and abetted by Sheriff Joseph Shipp, broke Johnson out of the jail, lynched him and filled his still-shaking body with bullets.

The story of the book is that this event caused the Supreme Court for the first time to apply the 14th amendment to state criminal courts, with a particular concern with the lynchings that were terrorizing black people in the south.  The Supremes were split about whether to interfere in criminal matters traditionally left to the states. They had decided less than ten years previously in Plessy vs Ferguson that “separate was equal” and had given free reign to Jim Crow.  Justice  Harlan, who dissented in Plessy, argued not only that ignoring the Supreme Court’s habeas order was a direct insult to the Court, but Johnson’s unfair trial and subsequent lynching violated the basic rights of black people to equal protection under the law. 

Harlan’s argument was buttressed when a deliberating court heard about of another lynching in Oxford Mississippi. That mob was brazenly led by a US Senator, W.V. Sullivan,  who boasted to the press:  

I directed every movement of the mob. I wanted him lynched. I saw his body dangling from a tree this morning and I am glad of it. I aroused the mob and directed them to storm to jail.

This was too much and the court unanimously found Sheriff Shipp and others in contempt bringing them to trial. While Shipp and the others got off with light sentences the Fourteenth Amendment would from then on be applied to state criminal proceedings and actions. Federal courts would be used to bring civil rights suits against local authorities and to challenge egregious violations of justice in local courts.

The last two lynchings in the US took place in 1944.  That is progress. But this does not mean that black people receive equal protection of the laws. Like Ed Johnson, black males — in my work this means gang members — are still considered guilty unless proven innocent by extraordinary efforts of defense attorneys.

So while we celebrate progress, we must note mass incarceration is a Mark of Cain on our nation, persuasive evidence of the permanent nature of racism. Remarks by prosecutors still seethe of racial resentment and routinely spout out “alternative facts.” For example in one case in Georgia where I consulted, the prosecutor, Fred Bright, claimed that a gang related homicide was an example of a “the carnage” gangs had brought to Milledgeville, Georgia in recent years. His theatrics led to death sentences for the two defendants, Robert Butts and Marion Wilson.

I was retained by counsel for both defendants in appeals. The habeas hearings where I testified had been made possible by US vs. Shipp a century before.  On the stand I pointed out that with the advent of gangs in the late 1980s, the homicide rate in Milledgeville had actually declined, not spiked. Gangs in that city, the former capitol of the Confederacy, were in neighborhoods that were far apart and conflict between them was held to a minimum. 

We don’t know if Ed Johnson was innocent of rape, though after Contempt of Court  was published his conviction was set aside 94 years later.  Butts and Wilson, however, likely participated in the homicide on Donovan Parks.  Does their guilt make the unbridled demonizing rhetoric of prosecutors acceptable?

Gang neighborhoods in Milledgeville
 were not adjacent to one another
Bright grandstanded in his opening statement that the murder was a gang related crime. Despite offering not a shred of evidence of gang involvement he kept hammering his “alternative facts” into the heads and hearts of the all-white jury, stoking their fears.  He knew gang evidence is prejudicial and he kept riding that bucking bronco in rodeo-like proceedings.  In closing he evoked images of Muslims and terrorism as well as continuing his “Satanic” version of gang rituals of murder.  The appointed defense attorneys offered few objections at the original trial — they were indeed “friends of the court.” 

Like in the Johnson case, the prosecutor got his death penalty. Unlike Chattanooga in 1906, the convicted defendants were not lynched.  Times have changed and fortunately America is still not “great again” as in the good old days of vigilante justice. But despite years of hard work by the Georgia Resource Center and two high power private law firms working pro bono, both Butts and Wilson remain on death row.  


I think the use of “alternative facts,” demonizing defendants, and evoking strong emotions to cloud judgement violates the spirit of what we mean by justice.   A cynic might call what happened to the two Folks gang members a “legal lynching.”


Curriden Mark and Leroy Phillips, Jr. 2001. Contempt of Court: The turn-of-the-century Lynching That Launched a Hundred Years of Federalism. New York City: Anchor Books.

Jackson, Alan. 2004. "Prosecuting gang cases: What local prosecutors need to know." Alexandria, VA: American Prosecutors Research Institute.