…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.