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.