Sunday, November 5, 2017

On Folks and Definitions


It is February 2005 and I’m in Jackson, Georgia at a hotel room close to the state prison.  I’m prepping with Brian Kammer and pro bono private attorney David Harth to testify in the Marion Wilson case.  I’m consulting because the defendant is accused of being in the Folks gang and the "gang" label was used to get the death penalty for Marion and his co-defendant, Robert Butts. 

I had never testified in person in a death penalty case before and I’m a bit nervous. The stakes are pretty high. I am scheduled to appear the next day at a habeas hearing located in a special courtroom in the prison right next to the execution cell on death row. The lawyers are arguing Wilson had received ineffective counsel and should get a new trial.  Among other issues, Kammer and Harth reasoned the original trial attorney failed to call a gang expert to question countless stereotypes and prejudicial statements about gangs.  My job was to provide expert testimony that, had I been called to testify at the original trial, at least one juror would not have voted for the death penalty. Harth and Kammer went over the questions they would ask and the questions they expected from the state. We rehearsed several hours until I got it right. These are two top notch attorneys.

Later that night after my mock testimony I read and re-read the transcripts of the original trial.  I was dismayed by the many ludicrous and unchallenged statements by prosecution witnesses.  We had subpoenaed a manual of the Milidgeville police gang squad that, among other amazing claims,  instructed officers that gang members "all dressed alike" and "most gang members died before they were twenty one."   Ricky Horn, the Milledgeville  PD gang "expert" and Baldwin County Sheriff Howard Sils talked about gangs in language right out of the manual with little apparent understanding of the lives of poor black men.  There were pages of testimony denigrating Mr. Wilson but I suddenly stopped when I realized I had the names mixed up. I was reading statements by “Westin” believing he was the prosecutor. No! The prosecutor was Fred Bright and Westin was the “defense” attorney.  I could not tell the difference between them from the transcript.  They both talked in crude,  denigrating language about Mr.Wilson. It appeared they were working together for a conviction and death penalty.  It was worse than "ineffective counsel."

But these sensational stereotypes were activated because the defendant was a member of a gang, the legal equivalent of a terrorist. In fact the name of the statue Wilson was charged under was  The Georgia Street Gang Terrorist Prevention Act. It defines a gang in standard terms.
Criminal street gang "means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section.

Back in the 1960s Walter Miller and Malcolm Klein were the first criminologists to give a theoretical foundation to such soon-to-be created statutes. They discarded the classical  definition of gangs that described the process of adolescent gang formation and replaced it with one that highlighted criminality.  Mainstream criminologists believe their definitions are neutral generalizations of an empirical reality of gangs. This is what gangs really “are” they say.

But another way of approaching definitions is to consult social psychology and the literature on categorization.  This approach tells us definitions are constructs of the mind, not scientific generalizations of reality. I demonstrated in A World of Gangs that gangs are of many types and behaviors, and are constantly in flux.  To define something is to freeze it as one thing with no room for change. Defining is similar to framing.  Entman states:

To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation.

Mainstream criminologists have lent support to punitive policies by selecting out and promoting criminality as a defining characteristic of gangs.  Following Entman, they have defined the problem of gangs as criminality not youthful rebellion, implied crimes were not individual acts but caused by a criminal organization,  and this moral condemnation of criminal gang members laid the basis for harsh, enhanced sentences.  A definition, like a frame, is a choice by rule makers, and the foundation for laws like Georgia's were laid by criminologists.  Let's leave to one side that definitions of gangs like Georgia's can also describe most police districts. What characteristic of police do you consider most salient?

Frames or definitions are not scientific generalizations of a phenomena but a category that allows us to treat everyone the same.  When a "human kind” is defined,  Berreby says, we have a guide for our actions toward them.  Once crime was put into the definition and sanctified by law, the label "gang" becomes a code to a court that this kid is evil.  It’s like a jig saw puzzle  we see only a gold chain, dark skin, a gang tattoo and we can fill in the rest of the puzzle and conclude this guy is a violent criminal.  The code "gang member" is a map that cues familiar stereotypes in our brains, what Winter calls "dangerous frames."  We transform every piece of evidence in such cases and make it gang-related.

How does this work in court?  In the Wilson case, my testimony was unsettling to the state, especially as I pointed out there was no evidence the crime was gang related.   Sheriff Sils was becoming red faced and visibly angry sitting in a row a few feet from the witness stand.  We could hear his muttering and eagerness to testify to counter my arguments.  As David Harth began his re-direct examination Sils was searching for a way to demonstrate the shooting was indeed all about gangs. Harth asked him when he had first thought the shooting had something to do with gangs? 

Sills: Well, there was one thing I always thought it could have been.

Harth: You must have thought of that since your deposition.

Sills: It was the fact they used F shot.  I never heard of F shot before this crime.  It’s a very large shot, bigger than normal bird shot. The gun had been stolen out of a car, but that ammo hadn’t been stolen with it. I always thought to myself that that F stood for FOLKS.  It is not widely sold.  Other grades are numbers, except BB shot. 


There was not any outright laughter in the court since the judge would have held us in contempt. Brian Kammer and I looked at one another and pressed our lips suppressing incredulous guffaws bubbling up from within. Just sit back for a moment and consider F...olks and F shot. Of course they are related and what else could F shot be but a sign of the Folks gang? What about F...armers or F....renchmen or F...igments of the imagination?

To reiterate: categories are not scientific generalizations of reality but processes of the mind. We are picking out some characteristics as salient and others as not important. For criminologists, prosecutors, journalists, and executioners crime is the most salient characteristic of a gang. For some of us, though,  the most important aspect of a gang is alienation and rebellion, and criminal acts should be punished for the harm they do, not because they were committed by a gang member.

Gangs are a "them" category that cues to "us" — in a court to judges and juries — that this guy is bad news and likely to be guilty. If the evidence isn't there a prosecutors can always search for the equivalent of F shot.

Berreby, David. 2005. Us and Them: The Science of identity. Chicago: University of Chicago.
Entman, Robert A. 1993. "Framing: Toward Clarification of a Fractured Paradigm." Journal of Communications 43(4):51-58.
Winter, Nicolas J. G. 2008. Dangerous Frames: How Ideas about Race and Gender Shape Public Opinion. Chicago: University of Chicago Press.



Thursday, October 12, 2017

Dehumanization Begins with the Law


I cried when I read my report to the court on the sentencing of 15 year old Diego Melendez. I  had actually advocated for a 30 year sentence for this child. Why? Because the judge determined the sentencing range was between 30-40 years.  Thirty years was the least he could hand out to this angel-faced kid waived to adult court.

Talking with Diego afterwards he clearly did not grasp what 30 or more years would mean. Thirty years is two life times for him.  He asked me if the court might reconsider his sentence in 10 years or so? It broke my heart but I told him while it was possible, the current law and climate made it unlikely. It does no good to lie to someone going to prison. They need a firm grasp on reality to survive.

I’ve been studying dehumanizing language but maybe I haven’t been thinking broad enough.   Donald Trump recently called the Central American gang MS 13 “animals” and has pledged to eradicate them.  In my courtroom cases gang members have been called “rats.” “snakes,” “beasts,” and wild animals of all sorts. Diego was called “cold blooded” like a reptile. One of the main points David Livingstone Smith makes in his Less Than Human is that dehumanization offers “a method for counteracting inhibitions against lethal violence by excluding our victims from the human community.” 

The US incarceration Rate is off the charts
Maybe dehumanization is a good way to describe our sentencing policy.  How can judges rationalize sentences of 30, 40, or even life in prison?  They say “let the punishment fit the crime” but the US is an outlier in our use of incarceration and the length of our sentences. For example. in Norway, the longest sentence someone can get is 21 years, for any crime.  In our country, one way to rationalize locking gang members up and “throwing away the key” is to consider them “animals.”  We rationalize the violence of incarceration by dehumanizing gang members and other dark skinned offenders.

Let me tell you about Diego Melendez and how he came to be caged for 30 years.

Diego was what we call “socialized to the streets.”  His parents had been Latin King and MS 13 members. He started hanging out with gang members at age 8 and was jumped into the Maniac Latin Disciples (MLD) at 10 or 11.  I told an incredulous judge that for Diego the gang was normal. The judge was engaged with my testimony and asked me numerous questions about why such young boys join gangs? The Assistant States Attorney tried to cut me off several times, but the judge reprimanded him and told him to not “cut off a witness again.”  This white suburban judge was struggling to understand how a young kid like Diego could be in a gang and kill. This kind of judicial questioning is what you want to see as an expert witness.

The homicide, like all murders was heart-rending. Diego’s MLD leader told him and another child soldier that the Latin Kings were invading and gave them guns. Diego saw two guys running 30 or 40 yards away.  He told me he thought he fired into the ground.  Most likely he and his comrade fired in the general direction and as fate had it one of their unlucky shots hit home and killed Jonathon Quebrado.  

The States Attorney made a big deal about how after the shooting, Diego laughed. That proved to him Diego was cold blooded and a long prison term was needed to protect society from such a heartless killer. I’ve seen this response many times after a shooting. It is part of the process of dehumanization. The prohibition of killing is so strong that when you actually kill someone, you need a response that counteracts the searing emotional pain of having violated the internalized moral code: “thou shalt not kill.”  Laughing, scoffing, flashing your gang sign, or even shouting in triumph are not indications of inhumanity, but psychologically are the opposite.  Professional hit men do not celebrate a shooting, they go about their business. Diego was not a hit man, he was a child with a gun.

When Diego learned the young man who been killed was not a Latin King, but an innocent bystander, he was disconsolate. He cooperated with the prosecution which will not be helpful for him in the Illinois prison system. He talked to me about his interests and life in a suburban jail. My written statement to the court tried to bring the boy in Diego to life.

But did you know Diego Melendez loves to read? When I asked him if I could send him a book, he lighted up and said “Eclipse,” by Stephanie Meyer. Looking over my shoulder he said Meyer, with an "e" not  "a"  This isn’t my idea of a great read but Meyer’s books are intensely popular among teenagers of every race and class. As he described the plots of various books he liked, I thought sadly, “he’s just a kid.” That “kid” is there alongside of the gangster, competing for his life. 

I stayed on for the sentencing which immediately followed my testimony.  I think the judge was moved by Diego’s youth but felt constrained by the law. After he handed down a 33 1/2 year sentence I was taken aback by the Public Defender’s congratulation. “The betting pool among PDs” he said, “was 38 or 39 years. Your testimony saved him five or six years.”

These small victories may be all we can get in today’s cruel world of lengthy sentences. But they speak to the limits of the kind of work I do or the often futile efforts of Public Defenders and defense attorneys. If I do my job well, I can humanize a gang member, like Diego Melendez. But I can’t humanize a system of mass incarceration that throws away lives since they aren’t really considered to be human anyway. 

Diego’s mother had a tear drop tattoo and had been told by attorneys to get rid of iit or not show up in court since it would cue “gang involvement” to the judge.  As I left, I told her to make sure to keep that tattoo and look at it everyday in the mirror and think of Diego. How can we not cry over a system that is drenched in the pain of dehumanization?



Berreby, David. 2005. Us and Them: The Science of Identity. Chicago: University of Chicago.
Fine, Gary Alan. 1987. With the boys : Little League baseball and preadolescent culture. Chicago: University of Chicago Press.

Smith, David Livingstone. 2011. Less Than Human: Why We Demean, Enslave, and Exterminate Others: Amazon Kindle.

Wednesday, July 26, 2017

On Murderers and Babysitters (Part Three)

There is a postscript to this story that explains why I added the word "babysitter" to the title of these blogs.

I had maintained contact with Ike along with his dedicated lawyer,  Aviva Futorian. I remember one visit at Pontiac when Ike was led out in chains to talk with us through glass. He was intensely aware of his “slave-like” status and told me he was deeply embarrassed. He didn’t want to be seen in chains and we found discussions labored and the visit didn’t last long. We did talk about my six year old son Jess.  Ike’s art gave meaning to his life and my little Jess had artistic talent.  Ike had sent Jess a picture and Jess drew one for him along with a few words that a six year old could muster to someone in such an incomprehensible situation.

Ike's letter to my son, Jess
It was at this Pontiac visit that Ike told me that he would not be able to send any more pictures to Jess since his pencils had been taken away from him as possible “weapons” and he was unable to draw with the crude colorless implements they allowed him to have.  

As someone who had killed a prison official Ike had to be constantly aware of threats to his life by correctional officers. His treatment by guards was hostile and at times cruel.  Taking away his colored pencils seemed to me mainly about breaking his spirit.

Things changed a few years later. As Ike sat on death row, Illinois Governor George Ryan became aware of the torture of black gang members by Chicago Police Commander Jon Burge. Several of these men who had been sentenced to death were exonerated by DNA evidence. Ryan ordered hearings to be held on every inmate on death row to allow testimony, mainly from victims, on whether the Governor should grant clemency.  

Two motivations drove me to show up to testify on Ike’s behalf. The nature of his trial had convinced me that some ways had to be found to counter the reign of stereotypes and demonization of gang trials.  And second, my own interactions with him had taught me Ike was not an evil monster, despite having committed evil acts. He was more than one thing and there was a depth of humanity to a man who interacted so sensitively with my son. I had found Ike was likeable and I believed he could be redeemed and rehabilitated.

I showed up at the state office building where the hearing was to be held and entered a room packed with prison guards and officials. They were lining up to testify and filled with hate. One mid level corrections bureaucrat said “Easley must be killed before he kills again.” The testimony went on for a couple of hours before the chair introduced Ike’s new appointed attorney who was visibly intimidated by the show of force by dozens of armed correctional officials. 

His comments are a good example of what passes for a legal defense in many gang trials. He was appointed to make the case for clemency.  I’ll repeat all of his comments verbatim. He said “Here is Professor Hagedorn who will say something on Ike’s behalf.”  That was it, his whole case. 

Everyone’s eyes glared at me as I took the stand. My Oppositional Defiant Disorder kicked in and I briefly summarized the unfairness of Ike’s trial. But my main argument was that this man, who was labeled a monster who had to be killed, was a human being with much good in him. I talked about his abused childhood and feelings of abandonment. I recalled his peacemaking actions in the prison. But I mainly talked about his exchanging letters and art work with my young son. Why would you kill someone who could show such feelings of empathy? Why not treat his emotional distress and let him channel his anger into art? 

There were some jeers but mostly angry stares implying “how dare you defend this monster.”  But the room was stunned when I concluded that if Ike Easley could be paroled and given another chance at life I would welcome him as a babysitter for my son.  I remember a couple of journalists running out of the room to phone in the story and a few newspapers reported my comments. The correctional officials just looked at me in disbelief. My testimony made no sense to them whatsoever. I lived in a different world than they did. Some frames never interact.

Ike only was granted clemency since Gov. Ryan commuted sentences for everyone on death row.  If you haven’t read Ryan’s remarkable clemency statement, it can be found here. If Ryan had looked at clemency case by case I’m quite sure he would have succumbed to pressures by the correctional bureaucracy and Ike would not have been spared.

It was Ike Easley’s trial and humanity that put me on the path to confront stereotypes and demonization at criminal trials.  To me justice in gang trials means two things. First jurors should decide cases and sentences on evidence not on fear and false generalizations. Second gang members are human beings.  Doing evil doesn’t mean you are evil. My empathy for the families of victims does not stop my feeling empathy for a gang member who killed. Another word for “murderer,” after all,  is “human being.”  And I know that is hard for most people to accept.

Tuesday, July 25, 2017

On Murderers and Babysitters (Part Two)


Defendant also attached to his post-conviction petition a report by John Hagedorn, who is a sociologist and an expert on street gangs. In his report, he conceded that the gang-related evidence may not have changed the outcome of the guilt phase of the trial. However, he opined that the gang-related evidence "exercised considerable influence on the jury in the penalty phase of the trial. In other words, if the gang issue had not been such a major focus of the trial, I believe the jury would have been substantially less likely to ask for the death penalty.”

We disagree…

People v. Easley.  Supreme Court of Illinois.·148 Ill.2d 281 (Ill. 1992)


My involvement with Ike Easley’s appeals led me to immerse myself in studying the power of stereotypes.   One key lesson I’ve learned from my studies in social cognition is that a jury already has an image of a gang member in mind before a trial starts, what is called a prototype. This prototype is typically of a gang member as a “savage beast” and left unchecked, juries will be receptive to evidence that confirms their stereotype and reject any evidence that contradicts it.  My expert witness work is aimed at helping jurors question their stereotypes so they are more able to accept "discrepant information" or evidence that doesn't fit with pre-existing images. 

We think in metaphors which according to Winter “are neither true nor false, but have consequences, perceptions, inferences, and actions.”  This means if a gang member is like a savage beast then a jury will believe he is likely to have killed "like an animal" as alleged.  The savage beast metaphor includes the related notion that such wild animals need to be “put down.” Stereotypes can kill.

You probably guessed Ike's jury was all-white. But this was not by accident. The prosecutor excused every black potential juror with the argument that since they lived in black communities where black gangs also resided,  jurors were likely to be intimidated by the threat of gang retaliation. Despite criticism of this tack by the Seventh Circuit Ike did not face a jury of his peers.

But it gets worse, much worse. Because of the intense publicity in the area around Pontiac, Ike’s trial was moved to Will County and the city of Joliet. In the week before the trial, three El Rukn gang members had murdered a Joliet prison guard and newspaper accounts of this crime circulated among Ike’s jurors. Ike remembered the judge making comments about the El Rukn murder during the trial. If Ike's case evoked a frame of gang members as savage beasts who kill prison guards, the environment in Joliet at the time strongly reinforced that frame.

Pontiac Correctional Center
The prosecutor had been prohibited by the court to allege the killing was the result of a gang conspiracy. The court found there was no evidence of such a conspiracy and this was affirmed by the Illinois Supreme Court on appeal. Despite this admonition, the prosecutor claimed in his opening statement, during trial, and at closing that the killing was ordered by the Black Gangster Disciples. The image was the gang letting the beast Ike Easley out of his cage and telling him to “kill.” The Supreme Court ruled that while the allegation of a conspiracy was “improper” Ike “suffered no prejudice therefrom.” I disagreed.

Let me tell you about killing. Randall Collins says violence is hard. While there are “hit men” who are cold and mechanical about killing, most murder is done in passion and with adrenaline flowing. The court acknowledged after Ike was detained he yelled out ““all you honkey motherfuckers want is a nigger donkey to pin this case on, and I am your donkey, I am your killer.”  Ike denied to me that any gang meeting had ordered the killing.   In one of the most emotional exchanges of my life Ike talked about the “uncontrollable” urges that streamed over him once the violence had begun and he and Taylor fought for their lives. Afterwards Ike said he blacked out and  “I threw up like a motherfucker.”  These are emotions, triggered by an extreme event — the killing of Ike's best friend and revulsion toward his own violent act.  Therapists say people like Ike can be responsive to long term treatment.  To me Ike's emotional response to his violence was an indication of his humanity and an example of how killing violates deeply held norms.

The final “nail in the coffin” in enflaming the fears and prejudices of the jury was not mentioned in any of the court decisions. I pointed out in my statement that a “moral panic” atmosphere surrounded the trial. My field notes capture the pi├Ęce de r├ęsistance that inhibited reason from deciding this case.

Finally, in my mind, the most damaging event was the manner in which the jury was protected during trial. Defense attorneys have told me that sharpshooters were deployed to protect the jurors.   When the jurors asked why there were sharpshooters, they were told something like that "the gang may want to kill jurors." It is hard to underestimate the impact this must have made on the jury. 

It is not easy to use System 2 logical reasoning when you are in a state of fear. “Terror Management Theory” finds that people, e.g. jurors, when faced with threats to their own mortality are more likely to rely on stereotypes and not think analytically.  Duh. What do you think the jury was feeling while being told Ike’s gang might kill them? 

Consider the scene: An all-white jury, in a setting that recently witnessed a similar murder of a local guard by gang members, listening to a prosecutor who improperly alleged a gang conspiracy and then had the deliberating jurors surrounded by sharpshooters protecting them from being assassinated by the gang.  I don't care what the jury decided, it was not based on a reasoned judgement of Ike Easley’s potential for rehabilitation or any dispassionate consideration of justice. Fear, not facts, drove that jury to their fatal decision and sent me on my path of studying the power of stereotypes in court.

One final chapter remains: the clemency hearings and the commutation of Ike's death sentence.

Cohen, Stanley. 1972. Moral panics and folk devils. London: MacGibbon & Kee.

Collins, Randall. 2008. Violence : a micro-sociological theory. Princeton: Princeton University Press.

Greenberg, Jeff, Sheldon Solomon, Mitchell Veeder, Tom Pyszczynski, Abram Rosenblatt, Shari Kirkland, Deborah Lyon. 1990. "Evidence for Terror Management Theory II: The Effects of Mortality Salience on Reactions to Those Who Threaten or Bolster the Cultural Worldview." Journal of Personality and Social Psychology 58(2):308-18.


Maruna, Shadd. 2001. Making Good:  How Ex-Convicts Reform and Rebuild their Lives. Washington, DC: American Psychological Association.


Winter, Steven A. 2001. A Clearing in the Forest:  Law, Life, and Mind. Chicago: University of Chicago.

Monday, July 24, 2017

On Murderers and Babysitters (Part One)


As I near my 70th birthday I have been asking myself why I spend so much of my remaining time in life consulting for the defense of gang members who are charged with murder. While some may be innocent, most are guilty.  How can I justify this?

For many of the lawyers I work with defending gang members means upholding civil liberties and giving their client the best defense they can offer.  I’m not a lawyer and many cases boil down to technical disagreements and narrow applications of the law more than issues of justice. 

On the one hand, ethically, I do not believe people who kill should get away with it.  I feel empathy for offender and victim.  On the other hand I think our sentencing policy is draconian.  Incredibly, one in every five African Americans in prison today are serving life sentences and two thirds of all inmates serving life are minorities.   Human beings, even those who kill, are still human beings and I do not think they should be caged like wild animals for their natural life.  

During sentencing I try to explain gang involvement in such a way that a judge can have a bit more understanding, if not compassion.  A gang member’s life should not be reduced to a snapshot of a crime scene, but considered as one frame in a life long movie of change and maturation. I believe everyone deserves a chance at rehabilitation.

I’ve been immersed for two decades in the literatures on how we think in stereotypes,  but I began my court work not through books but experience. What directly pulled me into this field was getting to know gang members who killed and learning how their trials were conducted.  Let me introduce you to Ike Easley.

Ike Easley's current IDOC photo
Ike was one of the first expert witness cases I took and I’m afraid explaining his importance will take three blogs over the next three days.  The issue with Ike was not whether he killed: he committed not one, but two homicides. Let me walk you through his case from its beginning to the commuting of his death penalty sentence by then Gov. Ryan of Illinois. 

Ike was a severely abused child who was bullied at school. When his sister was being repeatedly struck by her boyfriend and threatened his mother,  Ike intervened. When the the abuser went for a gun, Ike shot him first.  Wolfgang calls this victim-precipitated homicide and this kind of murder is quite common. Ike reasonably argued it was self defense. He had no criminal record and was taken by utter surprise by a guilty verdict and a sentence of 20 years in prison.  Cook County Jail was also a shock, and Ike’s membership in the then Black Gangster Disciples was both a protective factor and an emotional response to what he saw as an unjust sentence.

Ike’s second killing got headlines and a high profile trial. Ike stabbed and killed Robert Taylor,  the Assistant Superintendent of Pontiac Correctional Center.   Taylor was a widely admired African American administrator and his murder sparked outrage among prison officials and prosecutors.   Ike’s trial resulted in a guilty verdict and the death penalty.  I got involved with the case through Ike’s appellate lawyer, Aviva Futorian, on a habeas petition of ineffective counsel in his original trial.  

I traveled to Menard where Ike was incarcerated and awaiting an execution date. I did not know what to expect in meeting this double murderer.  He had been transferred from Tamms, Illinois’ super max prison that was recently closed.  He was singled out in media accounts as among the “worst of the worst.”  This didn’t fit with the man I met.   I found Ike to be a gentle giant, soft spoken and an astute cultural critic. He was keenly aware of the culture of violence  promoted on TV and on the streets where he grew up. He admitted he experienced the effects of this culture personally and felt an obligation to warn youth of its dangers. In my statement to the court I compared him to troubled white kids I knew growing up in Clintonville, Wisconsin.

Magic to My Soul by Ike Easley
On my first visit we had an intense four hour conversation about what had happened on the day of his lethal assault on Taylor and exchanged personal experiences and outlooks.  Ike had never admitted to the murder and his vivid description of the incident to me was one of the most emotionally draining experiences of my life.  Ike is extremely emotional and his pent up rage contributed to both murder charges.  He also displayed a sensitive, artistic side and questioned me about my own children and life.  I'll explain the "babysitter" in the title in a later blog.  We connected on a human level in the first and subsequent meetings.

My conversations with Ike were the beginnings of my realization that gang members, like all of us, have multiple conflicting identities. While Ike had killed he also loved and at most times lived a life of peace. In prison he had often functioned as a peacemaker, breaking up fights.  For abused children like Ike who have faced unjust, racist treatment throughout their life extreme events can trigger inner violence.  This is what happened at Pontiac in 1987 as Ike snapped.

The events surrounding the murder were much more complex than presented at the trial as a cold blooded gang-ordered “hit.”  Conditions at Pontiac were described by many observers as “out of control.” Gangs were at war within the prison and weapons and drugs were everywhere. The year after Ike’s conviction, 16 guards were indicted for drug trafficking at the prison, This confirmed Ike’s sober explanation to me of how prison corruption was related to the murder.

According to Ike, various persons and factions within the prison administration were maneuvering to get their share of drug profits by allying with the Vice Lords and El Rukns against the Black Gangster Disciples. One of Ike’s best friends, Billy Jones or “Zodiac” was killed by guards and Ike and others believed his killing was part of a power play by guards and their new gang allies to seize control of the drug trade.  The guards claimed Zodiac swallowed a bag of cocaine and “accidentally” died but Ike told me he saw the assault on his best friend and became enraged.  Soon after Zodiac’s death Ike entered Taylor’s office with a “shank” and stabbed him to death. Tragically, there is no evidence Taylor was corrupt but only an available target for Ike’s out of control rage. 

While Ike’s history of abuse may be mitigating, his crime is surely deplorable. It is easy to see why any prosecutor or jury would be outraged. “Outrage” also isn’t a bad word to describe his trial as well.  In the next blog let me describe Ike’s trial in Joliet IL which to me is symbolically adjacent to Salem, MA.



Wolfgang, Martin E. 1957. "Victim Precipitated Criminal Homicide." The Journal of Criminal Law, Criminology, and  Police Science 48(1):1-11.

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 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.