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.

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.