Racism is alive and well in the criminal justice system

Having tried over two hundred cases in a 40-year career in criminal defense, I know something about lawyers who use appeals to racial bigotry to win cases. Even though it’s unethical, lawyers do it all the time by producing “racially neutral” explanations for their behaviors. We all know the judges will usually let us get away with it.

I have known Frank and Laura Hogue, who represent one of the accused in the Ahmaud Arbery murder case, for 20 years. They are not racists, but they and the other defense lawyers have used racist speech to defend their clients.

The judge and every lawyer in the case agreed that race should play no role in the case. Does anyone see the irony in an all-white group making this decision? One of the defendants wanted a photo of a license plate on his car to be blurred to hide an image of the old Georgia state flag containing the Confederate flag. The image of the Confederate Flag was added to the Georgia State Flag in the 1950s to protest the Brown v. Board of Education. The lawyer said the image his client chose to display publicly on his car was an inappropriate comment on his client’s character and would raise “something we have all tried to avoid.”

Defense attorneys howl when prosecutors give so-called “non-racial” reasons for excluding black jurors from service, and judges fail to consider a prosecutor’s “non-racial reasons”. But we clearly learned how to get a practically all-white jury. After the defense eliminated all but one of the black jurors, the judge said there appeared to be deliberate racial discrimination, but the “race-neutral” reasons given by the defense were good enough to be accepted. A lawyer complained that there were not enough white “Bubbas” or “Joe six pack” men on the jury.

One of the defense attorneys, complaining about black pastors in the courtroom, compared their presence to that of white men dressed like Colonel Sanders in the courtroom and told the court: “ We don’t want black pastors here anymore.

Ms Hogue told the jury that it was “inexplicable” and “illogical” for a black man in Georgia to be afraid just because he was being chased by three armed white men in pickup trucks. His argument could only succeed in a world where anti-black violence in Georgia, the South, and across America is ignored by the jury, and that requires jurors who ignore or don’t care about our true history.

Ms Hogue argued that Mr Arbery was a “recurring nighttime intruder” and that “turning Ahmaud Arbery into a victim after the choices he made does not reflect the reality of what Ahmaud Arbery brought to Satilla Shores in his khaki shorts with no socks to cover his long dirty fingernails. He walked through and looked at a construction site several times without taking anything. Apparently if you are running at Satilla Shores you better wear a Nike running suit with some socks from runner – and your toenails should be clean.

The defense narrative was that the black man looked out of place, so he got what he deserved when he didn’t immediately obey the whites who were trying to stop him. Prosecutors do not have a monopoly on using racist narratives to win in the criminal justice system. Defense lawyers know how to do it.

When a criminal case in America is prosecuted or defended on the basis of a racist narrative, we all lose out in the end, no matter which side does it.

• Jeffrey Robinson is the former Deputy Legal Director of the ACLU and the star of the documentary “Who We Are”.


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