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.

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.