My recent piece on the lessons of Jena inspired some justifiable criticism when it was picked up by Sojourners’ God Politics blog.  I suggested that folks who grow up attending Klan rallies have a hard time adapting when a new set of post-Jim Crow social rules are suddenly enforced on their town.  The comment fits the Jena context because the Klan was strong in that community into the early 70s making it perfectly conceivable that some of the leading actors in the Jena saga attended Klan functions as children.

On the other hand, the KKK lost favor among southern conservatives when their crude tactics inspired embarrassing headlines and cast the South in the worst possible light.  Neo-confederate groups like the Council of Conservative Citizens now carry the torch for southern-style racism and none of these organizations boasts very impressive membership lists.

It would be a mistake, however, to conclude that conservative southerners have outlived their deep resentment of the civil rights movement.  Consider this distressing article from the Dallas Morning News (and the Rev. Gerald Britt’s anguished response).

The committee in charge of shaping curriculum for the Texas public schools solicited the advice of six “experts” and the recommendations these men provided have been controversial to say the least.

Consider this: “‘To have César Chávez listed next to Ben Franklin’ – as in the current standards – ‘is ludicrous,’ wrote evangelical minister Peter Marshall, one of six experts advising the state as it develops new curriculum standards for social studies classes and textbooks. David Barton, president of Aledo-based WallBuilders, said in his review that Chávez, a Hispanic labor leader, “lacks the stature, impact and overall contributions of so many others.’”

And this: “Marshall also questioned whether Thurgood Marshall, who argued the landmark case that resulted in school desegregation and was the first black U.S. Supreme Court justice, should be presented to Texas students as an important historical figure. He wrote that the late justice is ‘not a strong enough example’ of such a figure.”

Why are these conservative experts so intent on eliminating civil rights and feminist icons from school history books ? 

Because they challenge the doctrine of American Exceptionalism.  The expulsion of Anne Hutchinson from the Massachusetts Bay Colony, for instance, raises questions about the sanctity of the Pilgrim Fathers.  Expert Peter Marshall thinks Hutchinson doesn’t rate a mention.  “She was certainly not a significant colonial leader, and didn’t accomplish anything except getting herself exiled from the Massachusetts Bay Colony for making trouble,” Marshall wrote.

“‘Anne Hutchinson does not belong in the company of these eminent gentlemen,’” he said, referring to colonial leaders William Penn, Roger Williams and others. Williams later invited Hutchinson to help establish a colony in what became Rhode Island.”

Unfortunately for Marshall, Roger Williams was also expelled from the Massachusetts Bay Colony for advocating the separation of church and state.  Could the fact that Hutchinson was a woman preacher be an issue here?

Please read the article below and share your thoughts.  (More information can be found at Tony’s curricublog.) 

Conservatives say Texas social studies classes give too much credit to civil rights leaders

12:00 AM CDT on Thursday, July 9, 2009

By TERRENCE STUTZ / The Dallas Morning News

tstutz@dallasnews.com

AUSTIN – Civil rights leaders César Chávez and Thurgood Marshall – whose names appear on schools, libraries, streets and parks across the U.S. – are given too much attention in Texas social studies classes, conservatives advising the state on curriculum standards say.

“To have César Chávez listed next to Ben Franklin” – as in the current standards – “is ludicrous,” wrote evangelical minister Peter Marshall, one of six experts advising the state as it develops new curriculum standards for social studies classes and textbooks. David Barton, president of Aledo-based WallBuilders, said in his review that Chávez, a Hispanic labor leader, “lacks the stature, impact and overall contributions of so many others.”

Marshall also questioned whether Thurgood Marshall, who argued the landmark case that resulted in school desegregation and was the first black U.S. Supreme Court justice, should be presented to Texas students as an important historical figure. He wrote that the late justice is “not a strong enough example” of such a figure.

The recommendations are part of a long process as the State Board of Education prepares to write new social studies curriculum standards for public schools. Debate on the issue, which will also include questions of the role of religion in public life, could be as intense as that on new science standards that were adopted by the board in March, when evolution was a major flashpoint.

The social studies requirements will remain in place for the next decade, dictating what is taught in government, history and other social studies classes in all elementary and secondary schools. The standards also will be used to write textbooks and develop state tests for students.

Six experts

Although the actual standards are being drafted by teams of teachers, academics and community representatives, the education board appointed a panel of six experts to help guide the writing teams. Three of the experts, including Barton and Marshall, were appointed by Republican social conservatives on the board, while the other three experts – all professors at state universities in Texas – were appointed by the remaining Republicans and Democrats on the 15-member board.

Texas Freedom Network, a nonprofit group that has battled social conservatives on education issues, questioned the academic credentials of Barton and Marshall, and said their negative comments on Chávez are just the start of a “blacklist” of historical figures considered objectionable by social conservatives.

“It is what we expected from unqualified political activists put on this so-called panel of experts,” said Dan Quinn of the freedom network. “This is yet another step toward politicizing our children’s education.”

State board member Don McLeroy, R-College Station, took issue with the criticism of Barton and Marshall, saying they are “very qualified” to consider social studies standards.

“There is no doubt they have the experience and expertise to advise the writing teams and the board on the standards,” he said, noting he has not yet read the experts’ recommendations.

All six submitted reports to the board this month, critiquing the current social studies standards – adopted in 1998 – and offering suggestions for the curriculum.

Jesus Francisco de la Teja, chairman of the history department at Texas State University and former state historian who was also a curriculum reviewer, said while he had not read the reports from Barton and Marshall, he had a far different view of Chávez.

“I don’t share their opinion at all,” said de la Teja. “Unlike them, I did include César Chávez in my recommendations as someone who was worthy of attention and discussion” in social studies classes.

“Whether you approve or disapprove of what he did, there is no doubt about his contribution to bettering the lives of an untold number of Americans of limited economic means and education,” de la Teja said.

The third expert appointed by social conservatives was Daniel Dreisbach, a professor in the public affairs school at American University in Washington, D.C. He was more moderate in his recommendations, but he agreed with Barton and Marshall that the Founding Fathers wanted a distinctly Christian nation based on biblical principles.

In his report, Marshall, president of Peter Marshall Ministries in Massachusetts, contended that students in government classes must focus on the historic Roe vs. Wade decision on abortion rights, “which has arguably more impacted American life than any other Supreme Court decision in the 20th century.” Marshall strongly opposes the ruling.

‘Republican’ values

Barton, a former vice chairman of the Texas Republican Party, said that because the U.S. is a republic rather than a democracy, the proper adjective for identifying U.S. values and processes should be “republican” rather than “democratic.” That means social studies books should discuss “republican” values in the U.S., his report said.

Both Barton and Marshall also singled out as overrated Anne Hutchinson, a New England pioneer and early advocate of women’s rights and religious freedom, who was tried and banished from her Puritan colony in Massachusetts because of her nontraditional views.

“She was certainly not a significant colonial leader, and didn’t accomplish anything except getting herself exiled from the Massachusetts Bay Colony for making trouble,” Marshall wrote.

“Anne Hutchinson does not belong in the company of these eminent gentlemen,” he said, referring to colonial leaders William Penn, Roger Williams and others. Williams later invited Hutchinson to help establish a colony in what became Rhode Island.

New construction at Jena High

What lessons do we take away from the Jena 6 story? Six young men won’t be dragging a felony conviction into adult life. That’s reason for rejoicing, but as this saga approaches its third birthday it’s fair to ask if we have learned anything?”

Jena 6″ was briefly transformed into a popular movement that brought at least 30,000 people to a small central Louisiana town in September of 2007.

Mass awareness of the Jena story was spread by the black blogosphere, radio personalities like Michael Baisden, internet-savvy organizations like Color of Change and the brief but highly publicized involvement of civil rights celebrities like Al Sharpton and Jesse Jackson.

Unfortunately, the movement that culminated with the September 20th march lacked an end game. Nobody knew what came next, so not much did. 

Or so it seemed.

The huge turnout on September 20th placed enormous pressure on Jena officials, but the key to success was community organizing, savvy media outreach and strategic legal work.

Friends of Justice started with the goal of recreating the coalition of reform organizations and legal firms that overturned a corrupt drug sting in Tulia, Texas. Long before anyone from the outside had taken an interest in the story we were sifting through legal documents, reading local newspaper accounts and conducting dozens of personal interviews. When the facts were clear we circulated a six-page narrative account describing what happened, why it happened and what justice would look like.

Our narrative called for Judge JP Mauffrayand District Attorney Reed Walters to recuse themselves from the Jena 6 cases. We supported a change of venue, a Department of Justice investigation and a program of diversity training in the public schools. We knew none of this could be accomplished without a huge groundswell of indignation, but our first step was to unite and organize the affected community. The families and friends of the defendants gradually learned to withstand the pressure of an outraged white community and to tell their personal stories with verve and enthusiasm.

The community organizing effort required the involvement of natural allies like Tory Pegram and King Downing of the ACLU and, further down the road, James Rucker of Color of Change, but the impetus behind the public meetings and the courthouse demonstrations came from the families and friends of the Jena 6.

Initially, the only media outlet willing to tackle the Jena story was Tony Brown’s Eyes Wide Open radio program in nearby Alexandria. But the minute the local folk were ready to tell their story, Friends of Justice began shopping our narrative to journalists like Howard Witt of the Chicago Tribuneand Wade Goodwyn of National Public Radio who could be trusted with a highly ambiguous assortment of facts.

The families and friends of the Jena 6 had been gathering at a local black church and holding demonstrations on the steps of the LaSalle Parish courthouse long before CNN, NPR and the Chicago Tribune were on the scene.

Jena's infamous tree

Just as the mainstream media was picking up on Jena, independent journalists and bloggers were warming to the story.  Color of Change started collecting signatures for a petition and soliciting donations to a legal defense fund.   Across America young black men and women were asking how they could help the Jena 6.  The student body of Howard University got into the action and the civil rights community eventually swung its weight behind the Jena justice movement.

When I talked to the folks who came to the massive rally on September 20th it was quickly apparent that the folks who rode the buses were a bit fuzzy about the most basic facts.  The general impression was that some white kids had hung nooses in a tree at the high school and black kids had retaliated by beating up one of the noose hangers.  There was little understanding that Justin Barker, the victim of the December 4th beat-down, hadn’t been directly involved in noose hanging incident or that the two episodes were separated by three months. 

Jena on September 20th

The facts in Jena were of secondary importance to the bus riders.  They were drawn to Jena by personal experience.  People told me they were there for a son, a boyfriend or a nephew who had received grossly disproportionate treatment at the hands of the criminal justice system.  These people had no trouble relating to the plight of the Jena 6.  

 When the crowds left Jena the movement quickly ran out of gas.  It didn’t matter.  By that time the five Jena defendants still awaiting adjudication were represented by some of the best legal talent in America.  DA Terry McEachern had been no match for the legal “dream team” that rose to the defense of the Tulia 46 and I knew Reed Walters would fare no better against the legal firepower he was facing.  The facts were all on the side of the defendants.  Another trial would have established the link between the hanging of the nooses in September and the tragic events of December.   Reed Walters and his supporters in Jena’s white community simply couldn’t allow that to happen. 

The Jena phenomenon demonstrates the power and the limitations of public narrative.  Jena happened because public officials like Reed Walters and School Superintendent Roy Breithaupt were typical small town white southerners.  They didn’t want to revert to the apartheid world they were raised in, but they deeply resented the civil rights movement that had swept it all away. 

Therefore, when Kenneth Purvis asked the high school principal if it was okay for black kids to sit under the tree in the school courtyard these men froze.  When white students sent a “hell no” message by hanging nooses in the school colors from that very tree school officials insisted that the act was devoid of racial significance.  When black students voiced their incredulity by gathering around the tree, Superintendent Breithhaupt called an emergency assembly in the school auditorium where DA Walters laid down the law.  Turning to the black students who had been causing all the trouble, Walters reminded them that “with a stroke of my pen” he could make their lives disappear.

If Breithaupt and Walters had called a hate crime by its proper name they would have validated the civil rights narrative they resented so deeply.  So they resorted to threats.  Nothing was going to change at Jena High School and the black students would just have to suck it up.

Asked to explain his “stroke of my pen” remark at a pre-trial hearing, Walters admitted that he was angry with the students causing the unrest.  The kids, he explained to the court, needed to “work out their problems on their own.” 

Tragically, that’s precisely what happened.

Ultimately, Jena was a Lord of the Flies story about adolescent males functioning without adult guidance.  If any of the remaining Jena cases had gone to trial this version of the Jena story would have taken center stage.  Unfortunately (and perhaps inevitably), this was not the way the Jena narrative unfolded in popular culture.

In Jena two powerful narratives competed for dominance.  A “thug narrative” was concocted for folks who resented the civil rights revolution.  Jena was about six black thugs doing what comes naturally and a Bible-believing prosecutor gutsy enough to hold them accountable.  The hero of the thug narrative is Reed Walters, the victim is Justin Barker and the villains are six black misanthropes.  In the thug narrative, the noose incident in September was utterly disconnected from the the “attempted murder” of Justin Barker in December. 

The people behind the massive September 20th protest embraced a ”noose narrative” which contrasted the lenient discipline meted out to the noose hangers in September with the grotesque prosecutorial over-reaction following the “schoolyard fight” in December.  Reed Walters was a racist, this narrative argued, because he was way too soft on white kids and way too hard on black kids.  In the noose narrative, the noose hangers are the villains, the Jena 6 are the victims and the folks rushing to their assistance are the heroes.

While the noose narrative reigned in the blogoshpere, the thug narrative showed up in publications like the Jena Times, the Christian Science Monitor and the Weekly Standard. 

The “objective” mainstream media fell back on a “town-divided” storyline in which angry proponents of the two competing narratives were given fifteen seconds of fame. 

This kind of noncommittal reporting left both sides vulnerable to criticism.  Thug narrative people sounded racially insensitive and parochial; noose narrative folk appeared callous when they minimized the seriousness of Justin Barker’s wounds. 

Lost in all of this back and forth was a simple irony: Reed Walters’ “stroke of my pen” oratory unleashed a chain of violence that reached a violent crescendo  in the December 4th altercation he was now trying to prosecute as attempted murder.  

What are the implications of all of this for criminal justice reformers?  Are we doomed to hawk simplistic morality tales to a tiny demographic of likeminded activists; or is honesty still the best policy?

Perhaps the truth lies somewhere between these two extremes.  The goal isn’t just to get the facts straight or to rev up the faithful; we are trying to change public perception.  Cases must be carefully selected.   If we want to gain and hold an audience, even the most compelling stories must be pared to their essentials.  

But even stripped-down narratives must comport with reality.   Both sides in the Jena imbroglio wowed the faithful at the cost of losing credibility with the general public.   If we are trying to change public perception an ear for nuance is essential.  America has changed dramatically from the day when a reformer like Fannie Lou Hamercould be beaten half to death in Winona, Mississippi for advocating racial equality.  “Nothing has changed” rhetoric appeals to impatient reformers but it won’t get a hearing in middle America.  Similarly, crude references to the depradations of “black thugs” may play well in the small-town southland, but this kind of talk doesn’t work in the wider world.

A small sampling of Jena 6 Attorneys

The public officials at the heart of the Jena story personify the southern dilemma.  They were raised with one set of rules then forced to adopt a new rule book.  No one helped them negotiate these troubled waters, they simply had to make the best of a bewildering circumstance.  No wonder they are confused–who wouldn’t be? 

When Jena’s infamous tree gained iconic significance the town fathers and mothers cut it down and built a new addition over the spot where the tree once stood.  This was the most creative response they could muster.

This southern shadowland is most apparent in the criminal justice system.  How can men and women who grew up attending Klan rallies be expected to dispense equal justice in the dawning days of the twenty-first century?  How can people reared in segregated schools and workshops be expected to fight for cultural diversity?   America is a work in progress.  We ain’t where we need to be–not even close.  But thank God Almighty, we ain’t where we used to be. 

Theo Shaw, Jesse Ray Beard, Bryant Purvis, Corwin Jones and Robert Bailey

Alan Bean

Friends of Justice

RESPONDING TO THE CRISIS IN JENA, LOUISIANA

 The Jena Case in Brief

 On the morning of September 1, 2006, three nooses dangled from a tree in the High School square in Jena, Louisiana.  The day before, at a school assembly, black students had asked the vice principal if they could sit under that tree. 

 Characterizing the noose incident as an innocent prank, a discipline committee meted out a few days of in-school suspension and declared the matter settled.

 At the end of November, the central academic wing of Jena High School was destroyed by fire (the smoke damage is evident in the picture above).  Over the weekend, a stream of white-initiated racial violence swept over the tiny community, adding to the trauma and tension. The following Monday, a white student was punched and kicked following a lunch-hour taunting match.  Six black athletes were arrested and charged with conspiracy to attempt second-degree murder.  If convicted, some defendants are facing sentences of between twenty-five and 100 years in prison without parole.

 A survey of relevant events:

• On Thursday, August 31, 2006, a small group of black students asked if they could sit under a tree on the traditionally white side of the Jena High School square.
• The students were informed by the Vice Principal that they could sit wherever they pleased.
• The following day, September 1, 2006, three nooses were found hanging from the tree in question.  Two of the nooses were black and one was gold: the Jena High School colors.
• On Tuesday night, September 5, 2006, a group of black parents convened at the L&A Missionary Baptist Church in Jena to discuss their response to what they considered a hate crime and an act of intimidation.
• When black students staged an impromptu protest under the tree on Wednesday, September 6, 2006, a school assembly was hastily convened.  Flanked by police officers, District Attorney Reed Walters warned black students that additional unrest would be treated as a criminal matter.  According to multiple witnesses, Walters warned the black student protestors that, “I can make your lives disappear with a stroke of my pen.”  This was widely interpreted as a reference to the filing of charges carrying a maximum sentence of life in prison.
• On Thursday, September 7^th, police officers patrolled the halls of Jena High School and on Friday, September 8^th, the school was placed on full lockdown.  Most students, black and white, either stayed home, or were picked up by parents shortly after the lockdown was imposed.  The Jena Times suggested that black parents were to blame for the unrest at the school because their September 5^th gathering had attracted media attention.
• Principal Scott Windham recommended to an expulsion hearing committee that the three white boys responsible for hanging the nooses in the tree should be expelled from school. 
• On Thursday September 7, 2006, asserting that the noose were merely a silly prank inspired by a hanging scene in the television min-series ‘Lonesome Dove’, the committee opted for a few days of in-school suspension.  The names of the three students were not released to the public for reasons of confidentiality.
•  According to press accounts, on September 10, 2006, several dozen black parents attempted to address a meeting of the school board but were refused an opportunity to speak.
• At a second September meeting of the school board, September 18, 2006, a representative of the black families was allowed to give a five-minute statement, but school board refused to discuss the “noose issue” because the matter had been fully addressed and resolved.
• Although few major disciplinary issues emerged during the fall semester at Jena High School, there is strong evidence that several black male students remained unusually agitated throughout the semester and that disciplinary referrals on these students spiked sharply.
• On Thursday, November 30, 2006, the academic wing of the Jena High School was largely destroyed by a massive fire.  Officials strongly suspect arson.
• Throughout the following weekend, Jena was engulfed by a wave of racially tinged violence. 
• In one incident, a black student was assaulted by a white adult as he entered a predominantly white partly held at the Fair Barn (a large metal building reserved for social events).  After being struck in the face without warning, the young black student was assaulted by white students wielding beer bottles and was punched and kicked before adults broke up the fight.  It has been reported that the white assailant who threw the first punch was subsequently charged with simple battery (a misdemeanor), but there is no documentary evidence that anyone was charged. 
• In a second major incident, a white high school graduate who had been involved in the assault the night before pulled a pump-action shotgun on three black high school students as they exited the Gotta-Go, a local convenience store.  After a brief struggle for possession of the firearm, the black students exited the scene with the weapon. 
• The Jena Times has reported that, in light of these racially-tinged incidents, several high school teachers begged school administrators to postpone the resumption of classes until the wave of hysteria had dissipated.  This request was ignored and classes resumed the morning of Monday, December 4, 2006.
• Shortly after the lunch hour of Monday, December 4, 2006, a fight between a white student and a black student reportedly ended with the white student being knocked to the floor.  Several black students reportedly attacked the white student as he lay unconscious.  Because the incident took place in a crowded area and was over in a matter of seconds eye witness accounts vary widely.  Written statements from students closest to the scene (in space and time) suggest that the incident was sparked by an angry exchange in the gymnasium moments before in which the black student assaulted at the Fair Barn was taunted for having his “ass whipped”. 
• The victim of the attack is close friends of the boys who have admitted to hanging the nooses in September of 2006.
• Within an hour of the fight, six black students were arrested and charged with aggravated battery.  According to The Jena Times, at least a dozen teachers subsequently threatened a “sick-out” if discipline was not restored to the school.  According to the Alexandria Town Talk, District Attorney Reed Walters responded to the teacher’s threat by upping the charges on the six boys to attempted second-degree murder and conspiracy to commit second-degree murder—charges carrying a maximum sentence of life in prison.
• On the basis of the charges filed by the District Attorney’s office, all six black students have been expelled for the remainder of the school year and, according to The Jena Times, several teachers quickly demanded that the accused boys be barred from the school for life.
• On December 13, 2006, District Attorney, Reed Walters published a statement in The Jena Times in which the young men arrested in the school fight incident were characterized as criminals who had been terrorizing both the school and the community.  The sloppy wording of the statement and an introduction associating the tirade with the “recent two incidents at Jena High School” created the impression that those accused of involvement in the fight were also suspected of settling the school fire. 
• The Louisiana Rules of Professional Conduct 3.6(a) state that: “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
• At a January 29 school board meeting called to consider the possibility of reversing the decision to expel the students, District Attorney Reed Walters, appeared as the school district’s legal counsel.  Although it is standard practice in Louisiana for district attorneys to represent the local school board, there is strong evidence that the disciplinary investigation undertaken by the school and the criminal investigation of the December 4 fight are virtually indistinguishable.  This heightens the impression that the charges filed by DA Reed Walters reflect the understandable hysteria engulfing both the student body and the school faculty in the wake of the school fire and a weekend of racial violence.
• An attorney hired to represent two of the defendants was informed by District Judge J. P. Mauffray that he could represent neither because, having interviewed both clients, he had a conflict of interest if one of them should decide to testify for the state.  This ruling has been appealed.

 Preliminary Observations:

 The competence and independence of investigators is seriously in doubt.

• There can be little doubt that a white student was assaulted by several black students at Jena High School on December 4, 2006.  However, conflicting eye witness statements make it extremely difficult to determine the number of participants or the identity of the alleged assailants with any degree of certainty. 
• It is virtually certain that at least one of the alleged assailants was not near the scene of the fight. Most of the students accused of participating in the assault deny involvement.
• The defendants are invariably described as “good kids” by black residents.  One of the defendants is a highly respected athlete with a clean disciplinary record who has been repeatedly praised by his coaches as an exemplary student on and off the football field.
• The assault on a black student at the Fair Barn on Friday night and the fight at Jena High School on Monday morning are mirror images.  In the first instance, a white twenty-two year-old initiated the fight with a punch to the face of a black seventeen year-old; at the school, a yet unidentified black student initiated the fight with a punch to the face.  In both instances, the assailant’s friends joined the fray instantly.  The striking difference is that the white youth responsible for the Friday incident have not been charged while those allegedly responsible for the school fight are facing charges that could send them to prison for 100 years without parole..
  • Although a “bill of information” (based largely on mutually contradictory eye witness accounts) has been filed in connection with these cases, none of the accused has been formally indicted.  In the state of Louisiana, only defendants facing the death penalty or life in prison must be indicted.
  • In the state of Louisiana, if the victim of an alleged assault is a juvenile, the assailant can be found guilty of attempted second-degree murder even if there was no clear intent to do serious bodily harm.  In other words, a seventeen year-old who strikes another seventeen year-old can end up doing fifty years without parole.  Any “enhancement” (such as a prior conviction) doubles the penalty.

 The behavior of school officials and school board members reflects a breathtaking insensitivity to the mixture of anger, intimidation and horror inspired by the hate crime of late August.

• The response of school administrators to a flagrant hate crime was radically insufficient.  According to The Jena Times, the noose incident was officially characterized as a harmless prank in which white students were merely imitating the actions of cowboy vigilantes in the television mini-series, ‘Lonesome Dove’ with no intent to intimidate the black students who had expressed a desire to sit under the tree.  This construal of the noose incident is so unconvincing that the objectivity of anyone who accepts it must be questioned by any reasonable observer.
• In several statements published in The Jena Times, investigators have insisted that the alleged fight at the High School has no connection to either the November fire or the September noose incident.  This statement violates the canons of simple common sense.  Indeed, as the teacher’s post-fire plea to administrators suggests, the incendiary atmosphere created by the tragic fire and a weekend of white-initiated racial violence made a violent episode at the High School virtually certain.  The objectivity and independence of LaSalle Parish investigators would be regarded as suspect by any reasonable person. 
• Unambiguous hate crimes call for harsh discipline and an extensive program of sensitivity training for administrators, teachers and the student body.  Yet school administrators failed to discuss this or any other serious option. 
• Even in the face of heartfelt pleas from black parents, school administrators and the LaSalle Parish School Board refused to discuss the implications of the noose issue.
• This derogation of responsibility would be deeply troubling to any reasonable observer with even a cursory appreciation for the racial history of the region.
• Similarly, school administrators who placed the school on lockdown following the noose incident in September failed to anticipate trouble on December 4, 2006. 

 The ethical lapses and flawed professional judgment of LaSalle Parish District Attorney Reed Walters call for strong remedial action:

• On September 6, 2006, Mr. Walters made intimidating remarks interpreted by many black students as a suggestion that any illegal acts committed in response to the noose incident would result in a life sentence.
• Mr. Walters’ published comments in the December 13, 2006 edition of The Jena Times represent an unambiguous attempt to poison the minds of potential jurors and grand jurors.
• Mr. Walters’ decision to increase the charges of defendants involved in the alleged fight at the school to attempted second-degree murder and conspiracy to attempt second-degree murder have transformed a routine school fight into a premeditated gangland hit perpetrated by street thugs intent on murder.  This bizarre escalation of charges is impossible to justify on even the most extreme and pro-prosecution interpretation of the meager facts at hand.
• There is strong evidence that Mr. Walters, in his role as counsel for the LaSalle School Board, has been so influenced by the atmosphere of paranoid trauma sweeping the school in the aftermath of (a) the noose incident, (b) the school fire and (c) a weekend of racial violence, that he has lost any remnant of professional objectivity.

 Response

Restoring justice to Jena will require the following:

• The Louisiana State Police must be assigned to the investigation of the alleged fight at the school.
• District Attorney Reed Walters must recuse himself from the investigation and prosecution of the black defendants in the alleged school fight of December 4, 2006 or the incident at the Gotta Go Convenience store on December 2, 2006.
• The legal cases cited above must be transferred to an alternative venue.
• A special prosecutor must be assigned to prosecute whatever charges (if any) are deemed appropriate on the basis of an independent state police investigation.
• The Civil Rights Division of the United States Department of Justice should launch a full investigation into events in Jena, Louisiana, beginning with the noose incident of August 31, 2006, and culminating in the alleged fight of December 4, 2006 to determine if the civil rights of Jena residents have been violated.
• The inaction of the LaSalle Parish School Board on the noose incident represents a clear violation of Title VI of the Civil Rights Act.  Therefore, a written complaint should be filed with the U.S. Department of Justice.
• The LaSalle Parish school system must institute a rigorous program of diversity education beginning in elementary school and continuing through high school with a particular focus on the history of race relations in America and the virtues of pluralism, mutual respect and equal opportunity.  In addition, a yearly, system-wide in-service diversity training program must be provided for teachers and administrators.

 Alan Bean

Friends of Justice

Chances that the Supreme Court will address the Troy Davis case improved markedly when the court took its summer break without making a decision on the vexing case. 

The Davis case demonstrates the weakness of circumstantial murder prosecutions based largely on eyewitness testimony.  A series of crucial eye witnesses have recanted earlier testimony, often complaining that they were pressured by the authorities. 

What do we make of a juror who swears to one thing on the witness stand then, years later, reverses course?  Spencer Lawton, the prosecutor who convicted Troy Davis eighteen years ago, called the recanted testimony “suspicious”.  But will Larry Chisolm, the new Chatham County DA take the same view?

Common sense suggests that witnesses were more likely to get it right eighteen years ago because memory fades over time.  On the other hand, investigators desperate for a conviction in a high-profile case can shape testimony by abusing the power of suggestion.  Memory isn’t like photography; you don’t capture a pristine and timeless image that can be taken out and re-examined at a later date.  Initial impressions fade with remarkable rapidity.  At best, memory is a jigsaw puzzle with most of the pieces missing.  The mind creates a coherent memory by filling in the missing pieces, often drawing on fragments of unrelated memory and personal prejudice (wishful thinking) to connect the dots. 

When an investigator emphasizes a certain suspect by repeating his name, subtly drawing attention to a particular photograph in a photo spread, or including a photo of the prime suspect noticably different from the other pictures in an array, eyewitnesses are being encouraged to incorporate this new piece of information into their memory of the event.  “Yes, now I remember, that’s exactly what the guy looked like.”  Witnesses who initially claim they can’t remember much about the bad guy often find their memory sharpens considerably once they embrace an investigator’s theory of the crime.  A comparison between initial statements and courtroom testimony often reveals the evolution of a false sense of certainty.

Now, when the eye witness remembers the event, the perp really does wear the face of the prime suspect and this impression intensifies over time.  This is why the witnesses who have been proved wrong in DNA cases often insist that they were absolutely positive they had the right guy.

Competent investigators don’t want to nail the first guy who lacks a good alibi; they want to find the truth.  They are fully aware of the power of persuasion, manipulation and suggestion and therefore leave witnesses free to tell their own stories in their own way.  But under the pressure of public expectation and institutional group-think it is frightfully easy for an officer or a prosecutor to prematurely lock onto a certain suspect and shape the facts to fit the orthodox theory of the crime. 

Wrongful convictions are particularly common in heinous cases with spotty and ambiguous evidence.  The public clamors for closure and legal professionals feel pressured to produce a suspect.  Witnesses willing to tell the story “right” are considered credible while witnesses whose recollections clash with the state’s narrative are ignored and sometimes belittled and denigrated. 

In time, however, victims of memory manipulation can come to doubt their “recollections”, especially when fellow witnesses are questioning the accuracy of their own trial testimony.  Since recantation comes with a considerable price tag (no one wants to admit a mistake and perjury charges are always possible) witnesses who change their stories after trial should be taken seriously.  On the other hand, witnesses who had it right at trial can be manipulated to question earlier statements–the power of suggestion works both ways.  Unfortunately, most people have a hard time maintaining an independent point of view in the face of adamant opposition. 

As a practical matter, the judicial system would devolve into chaos if witnesses were allowed to change their stories after the fact.  The system places a high premium on finality.  Once a jury hands down a guilty verdict it is frightfully difficult to challenge the result.  Jurors are heavily invested in their decisions and legal professionals tend to be forward looking because they face perenially overflowing dockets. 

You can’t stand up for Troy Davis without questioning the objectivity, fairness and basic adequacy of our current legal system.  That’s why every court thus far has decided to pass on this troubling set of facts.  The Supreme Court’s willingness to leave the issue open is thus a very positive sign.

Supreme Court delays Troy Davis decision

ASSOCIATED PRESS

Tuesday, June 30, 2009

SAVANNAH — Death row inmate Troy Anthony Davis got another legal break Monday when the U.S. Supreme Court recessed for summer without acting on his latest appeal, likely delaying any developments in his case until fall. Earlier, his supporters presented Savannah’s district attorney with 60,000 petition signatures urging him to reopen the case.

Davis has spent nearly 18 years on deathrow after his conviction for killing an off-duty police officer, and his case has become a rallying point for death penalty opponents worldwide. His attorneys say Davis is innocent of killing officer Mark MacPhail and deserves a new trial after several prosecution witnesses reconsidered testimony given at his 1991 trial.

Davis has been spared from execution three times since he was first scheduled to die by lethal injection in 2007, as various courts have weighed and ultimately rejected his appeals.

Davis’ attorneys filed his latest appeal with the U.S. Supreme Court after the 11th Circuit Court of Appeals rejected their request for a new trial in April. The Supreme Court had not decided whether it would hear Davis’ appeal when justices recessed for the summer Monday. They won’t reconvene until September.

“It’s definitely good news,” said Jason Ewart, Davis’ attorney, who interpreted the court’s inaction as a sign it wants to take a closer look at the case. “It’s not just a move buying more time.”

While the Supreme Court’s in recess, the next move would be up to Chatham County District Attorney Larry Chisolm.

There’s no stay of execution preventing Chisolmfrom seeking a judge’s order to move forward withDavis’ death sentence. The prosecutor released a brief statement Monday that stopped short of saying he would wait for the Supreme Court before acting.

“As previously stated, the Chatham County District Attorney’s office has no comment on the substance of this case until all appeals are exhausted,” Chisolm said.

Chisolm’s spokeswoman, Lydia Sermons, declined to comment further.

Davis’ supporters say Chisolm has another option. They’re working to pressure Chisolm to reopen Davis’ case without waiting for the courts.

“He doesn’t have to wait for them,” said Martina Correia, Davis’ sister. “He could still open this case at any time.”

About 25 people from the NAACP, Amnesty International and other groups supporting Davis held a news conference Monday outside the Savannah courthouse to present Chisolm’s office with 60,000 petition signatures urging the prosecutor to seek a new trial for Davis.

They said about 11,000 signatures came from Savannah and surrounding Chatham County, where black voters were key to Chisolm’s election as the county’s first African-American district attorney last fall. Davis is also black.

“We have sufficient evidence, we believe, to show that Troy Anthony Davis is innocent,” said Prince Jackson, president of the NAACP’s Savannah branch. “We are asking that he be given a chance. After all, his life is at stake.”

Sermons, who accepted the petitions on Chisolm’s behalf, has previously said the district attorney wasn’t sure he has the legal authority to halt Davis’ execution. She declined to elaborate Monday.

Chisolm’s predecessor, Spencer Lawton, was district attorney when Davis was convicted. Prosecutors under Lawton, who retired last year, rejected Davis’ claims of innocence and labeled statements by recanting witnesses as “suspect.”

MacPhail was slain 20 years ago while working off-duty as a security guard at a bus station. He had rushed to help a homeless man who had been pistol-whipped at a nearby parking lot, and was shot twice when he approached Davis and two other men. Witnesses identified Davis as the shooter at his 1991 trial.

But Davis’ lawyers say new evidence proves their client was a victim of mistaken identity. They say three people who did not testify at Davis’ trial have said another man confessed to the killing. But in an interview with the Associated Press, the jury foreman at the trial said he had no doubts about Davis’ guilt.

The case has attracted worldwide attention, with calls to stop Davis’ execution from former President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize-winner Desmond Tutu. Rallies have been held as far away as Paris.

The Jena 6 and Justin Barker are now free to move ahead with their lives.  The terms of the plea agreement were revealed in the course of a two-hour court hearing at the LaSalle Parish courthouse.  Each of the five remaining defendants in this case pleaded “no contest” to the misdemeanor charge of simple battery.  Each will be placed on non-supervised probation for one week and must pay a $500 fine and in most cases an additional $500 in court costs.  In addition, a civil suit filed by the family of Justin Barker was settled when the Jena 6 defendants (including Mychal Bell) agreed to pay the Barker family an undisclosed settlement.  Attorneys are not allowed to reveal the details of the settlement but a reliable source has disclosed that the payment was approximately $24,000.

The picture above was taken on the LaSalle courthouse steps moments after the settlement brought a two-and-a-half year legal fight to a satisfying conclusion.  Pictured (left to right) are Corwin Jones, 20, Jesse Ray Beard, 18, Bryant Purvis (20), Robert Bailey (19) and Theo Shaw (20) and, in the second row, yours truly (56).  Judge Thomas Yeager was clearly impressed that all five of the defendants who appeared before him today are enrolled in college.  Two of them tell me they are considering law school.

I will explain how we got to this point in a later post, but the short answer is that we were able to recruit skilled and dedicated attorneys (some of whom are pictured to the left).  The legal fight never attracted much media coverage, but everyone familiar with the American criminal justice system knows it is virtually impossible to achieve a positive outcome in a morally and factually ambiguous case without highly trained legal professionals. 

The legal fight began in earnest when the Southern  Poverty Law Center agreed to secure the services of the best defense attorney in Louisiana–they did some checking and called up Jim Boren of Baton Rouge.  Jim’s involvement opened the door to pro bono talent from law firms in Chicago and New York City.  In addition, several regional attorneys lent their talents to the project. 

 David Utter and Jesse Ray Beard

Theo Shaw and Rob McDuff

Jim Boren and Una Dean (background) attorneys for Robert Bailey

I will have more to say about this historic settlement in the next few days.

I got a call from one of the Jena 6 lawyers this afternoon about this dramatic conclusion to the Jena 6 saga.  I won’t comment beyond what the AP story below reveals, but I certainly intend to be in Jena on Friday.

AP Newsbreak: 5 remaining Jena Six cases near conclusion; plea deal expected Friday

MARY FOSTER, Associated Press Writer

7:09 PM PDT, June 24, 2009

NEW ORLEANS (AP) — Five of six black teens accused of beating a white high school classmate in a case that led to the biggest civil rights protest in decades will plead guilty in a deal expected to be finalized this week, Louisiana court officials involved with the case told The Associated Press on Wednesday.

The six students were initially charged with attempted murder in the 2006 attack on Justin Barker and became known as the “Jena Six,” after the town where the beating took place.

Charges against Carwin Jones, Jesse Ray Beard, Robert Bailey Jr., Bryant Purvis and Theo Shaw were reduced to aggravated second-degree battery.

Court officials, who asked not to be identified because the agreement was not yet public, told the AP that those five will plead to lesser charges Friday but would not be specific. Officials also would not talk about penalties.

A sixth defendant, Mychal Bell, pleaded guilty in December 2007 to a misdemeanor second-degree battery charge and was sentenced to 18 months in jail.

Bill Furlow, a spokesman for LaSalle Parish District Attorney Reed Walters, confirmed the hearing for the remaining five defendants, but said Walters would have no comment.

Bailey’s attorney, James Boren, wouldn’t confirm the deal but said, “you certainly want to be in court on Friday.”

The severity of the original charges brought widespread criticism and eventually led more than 20,000 people to converge in September 2007 on the tiny central Louisiana town of Jena for a major civil rights march.

Racial tensions at Jena High School reportedly grew throughout in the months before the attack. Several months before attack, nooses were hung in a tree on the campus, sparking outrage in the black community. Residents said there were fights, but nothing too serious until December 2006 when Barker was attacked.

Barker was knocked unconscious as the lunch period was ending. He was hit and kicked by the defendants as he lay on the ground, according to court testimony. Pictures from the emergency room show his face was swollen and bloodied, but he was not admitted and was able to attend a school function that same night.

Barker graduated that spring and is now working on an oil rig, according to Henry Lemoine Jr., the attorney representing Barker in the civil cases.

Bell graduated in May and is currently trying to find a college where he could play football, according to his attorney Louis Scott. Bell was considered a top football prospect before the attack and Scott said he was being widely recruited.

Meanwhile, Lemoine said Barker’s family agreed on a settlement Wednesday with Bailey, Shaw and Jones.

His family filed a lawsuit in state court against the LaSalle Parish School Board, the parents of the young men accused of beating him and the adult defendants.

“It’s not much, but the Barkers are satisfied,” Lemoine said. “They believe it’s time to put this to bed.”

The agreement, according to Lemoine, also provides for Barker to receive the royalties from any account of the incident by any of the defendants.

“If they get funds from any source for anything about the incident within the next five years, we get them,” Lemoine said.

The school board has not agreed on a financial settlement, Lemoine said.

           Wiley Drake                                       Dwight McKissic

A Southern Baptist pastor raised eyebrows earlier this month when he told an interviewer that he is praying for the death of president Barack Obama. 

Wiley Drake, a California pastor who once served as second vice president of the Southern Baptist Convention, has biblical support for his death prayers.  The Book of Psalms contains a number of furious polemics against evil men who prey upon the weak and the innocent.  Here’s an example from Psalm 109:

May his days be few; may another seize his goods!  May his children be fatherless, and his wife a widow!  May his children wander about and beg, may they be driven out of the ruins they inhabit!  May the creditor seize all that he has; may strangers plunder the fruits of his toil!  Let there be none to extend kindness to him, not any to pity his fatherless children!

That’s just a brief excerpt; there’s lot’s more. 

Imprecatory, or cursing psalms are the flip side of the biblical call to justice for the weak and the poor.  The recipient of all the woes in Psalm 109 aroused the author’s wrath because “he did not remember to show kindness, but pursued the poor and needy and the brokenhearted to their death.”

Words of imprecation crop up in even the most lovely psalms.  The plaintive Psalm 137 recounts the plight of captives from Judah forced to sing “the songs of Zion” for the amusement of their Babylonian overlords.  At the end, the focus shifts from lament to cursing: “O daughter of Babylon, you devastator!  Happy shall he be who requites you with what you have done to us!  Happy shall he be who takes your little ones and dashes them against the rock!”

While this sort of unsettling outburst is largely confined to the Hebrew Scriptures, the New Testament’s book of Revelation breathes much the same spirit.  In Chapter 18, the “saints and apostles and prophets” of the Christian church are called to rejoice over the destruction of “Babylon the great” (an obvious reference to the Roman Empire) “for God has given judgment for you against her!”

Jews and Christians have always struggled with these passages.  The sentiments are understandable enough.  Anyone who has suffered oppression can be blamed for praying vengeance on the heads of the tormentor.  But do these emotions, human as they are, a reflection of the heart of God?

The prophet Ezekiel (one of the 6th century BC exiles in Babylon) cautioned those who called for judgment against the wicked.  “Have I any pleasure in the death of the wicked,” God asks through his prophet, “and not rather that he should turn from his way and live?”  A man is accountable for his own sins, Ezekiel argued, but no one can be held responsible for the sins of his parents.

Words of curse and imprecation are particularly problematic for followers of Jesus.  “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth’,” Jesus says in the 5th chapter of Matthew.  And “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’  But I say to you, Love your enemies and pray for those who those who persecute you, so that you may be sons and daughters of your Father who is heaven; for he makes his sun rise on the evil and on the good, and sends rain on the just and on the unjust.”

If you asked Wiley Drake about Jesus’ teaching he would likely suggest that the forgiveness and pacifism of Jesus must be “balanced” with all the nasty bits about cursing the enemy found elsewhere in the Bible. 

While most Southern Baptist leaders have refused to comment on the Rev. Drake’s death prayers, a few brave souls (Richard Land, for instance)have suggested that Drake the flake lives far from the mainstream of Southern Baptist life.

This is likely so, but people who subscribe to the “flat Bible” theory have a problem with the cursing psalms, the martial spirit of books like Joshua and the spiteful tone of the book of Revelation.  If all Scripture is God-breathed and it to be interpreted literally we are forced to conclude that God inspired the psalmists, the author of Joshua and John of Patmos to rain down fire and brimstone upon their enemies.  There is a clear and unavoidable disconnect between cursing your enemies and praying for their well being; the two positions cannot be reconciled.

Jesus pulled rank on the rest of Scripture when he taught his followers to love, forgive and bless regardless of the circumstances.  This teaching marked a profound departure from mainstream views as Jesus well knew.  That’s why the 5th chapter of Matthew follows that pattern: “You have heard it said of old . . . but I say to you.”

Jesus wasn’t inventing a new teaching; he was radicalizing the prophets emphasis on “justice, mercy and humility” (Micah 6:8) that runs throughout the Hebrew Scriptures.   The forgiveness vs. vengeance debate runs through the length and breadth of Scripture. 

I hold two degrees from the Southern Baptist Theological Seminary in Louisville, Kentucky, an institution currently celebrating its 150th year of existence.  Established fifteen years after Baptists in the South separated from their northern counterparts over the slavery issue, the seminary moved to Louisville after the Civil war.  Louisville was one of the few Southern cities still relatively intact after the Union armies did their worst.

In honor of Southern’s 150th anniversary, Gregory Wills has written a triumphal history of the school.  In the early 1990s, while I was hurrying to finish my doctoral dissertation, my almamater was taken over by champions of biblical innerancy led by the seminary’s current president, Albert Mohler.  Mohler’s name is on my PhD diploma. 

When I arrived at the seminary in 1989, the faculty was largely unchanged from 1978, the year I graduated with my Masters of Divinity.  Within four years almost all these men and women had been fired or forced into exile in what may be the most brutal institutional takeover the American religious world has ever witnessed.

Gregory Wills’ celebratory book argues that this dramatic about face brought the school back in harmony with the orthodox intentions of its founding fathers.  

Wills has a point.  Beginning in the late 19th century, and increasingly throughout the 20th, Southern professors trended in a liberal direction (at least by Southern Baptist standards).   For generations, Southern Seminary carried the torch for scholarship and ecumenical dialogue.

Wills calls this a betrayal of the intentions of founders like James Petigru Boyce and the conservative inclinations of a conservative denomination.  In order to survive as a an island of liberalism floating in a vast ocean of conservatism, Wills argues, Southern professors disguised their true beliefs from their students and convention laity.

Having researched these issues in considerable depth, I am inclined to agree with Wills.  My dissertation was on the thought of W.O. Carver, a professor of missions and the philosophy of religion who joined the Southern faculty in 1898 and continued as a professor emeritus until 1954.  Carver, his students tell me, was likely a closet universalist (someone who believes that all shall be saved in the end) in his later years.  As his theology gradually evolved in a liberal direction, Carver’s prose became more dense and less distinct.  What he wanted to say couldn’t be said–not within the stifling confines of the SBC.  As a true child of the South; Carver couldn’t imagine life outside the SBC.

But Wills fails to address an important question: Why did so many Southern Seminary professors opt for a comparitively liberal theology in a denomination where such views could spellprofessional death?

Were men like Carver tempted onto the rocks of theological nihilism by the siren song of Yankee liberalism? 

I think the answer is far more simple.  Carver et al wished to remain true to the teaching of their Master and that meant saying No to the vengeful rage that surfaces throughout the Hebrew and Christian scriptures.  They were what Tony Campolocalls “Red Letter Christians”; people who interpret Scripture in light of the words of Jesus recorded in the Gospels.  When Jesus was out of step with the rest of the Bible, men like Carver went with Jesus.

According to the tenets of “inerrantist” fundamentalism, Jesus always marched in lock-step with the rest of the Bible.  Jesus was God, the Bible is God’s word and God cannot contradict himself.  

Or, some would argue, if Jesus did depart from the biblical mainstream it was because God periodically changes the rules of the religious game.  At times God is judgmental and vengeful; at times he is gracious and forgiving: it all depends on which “dispensation” one is living in.  Currently, this thinking goes, we are living in the dispensation of Grace–but that will all end when Jesus comes in triumph to kick ass and take names.

This week, the Southern Baptist Convention holds its annual meeting in Louisville, Kentucky.  The Rev. Dwight McKissic, the black pastor of Cornerstone Baptist Church in Arlington, Texas, has proposed a resolution celebrating the election of Barack Obama as “as a significant contribution to the ongoing cause of racial reconciliation.” 

McKissic is famous for his opposition to gay rights.  “To equate civil rights withgay rights,” he once said, ”is to compare my skin with their sin.”  The Texas pastor couldn’t even bring himself to vote for Barack Obama (because the Democrat was pro choice) or for John McCain (because of the Republican’s opposition to Martin Luther King day).  Being a black Southern Baptist gets complicated.

It will be interesting to see if the SBC allows McKissic’s resolution to reach the floor and, if it does, how the vote will go.  The current SBC President, likely fearing negative media, has signalled his suport for the resolution and he may carry the day.  But President Obama is even less popular in much of the Deep South (particularly in Mississippi and Alabama) than Democrats like John Kerry.

Ostensibly, Obama’s great sin is support for abortion rights and, to a slightly lesser extent, gay rights.  Obama holds moderate views on both positions, but for zealots on the extreme right and left there are no shades of gray on these matters. 

Who speaks for Southern Baptists, the Rev. McKissic or the Reverernd Drake?   Or is neither man a representative voice?

Wiley Drake’s big issue is abortion.  He is proud of the fact that he prayed for the death of Dr. George Tiller, the Wichita abortionist who was recently gunned down as he distributed church bulletins at a Luthern church.  Drake isn’t saying he approves of the way the deed was done; but he isn’t inclined to quibble–God, after all, works in mysterious ways.

There are hundreds of thousands of sincere men and women across America who identify deeply with the unborn.  These people are shocked by that a parent would terminate a living soul out of mere convenience.  But political opposition to abortion is particularly strong in the South because the issue enables Southern conservatives to regain moral high ground surrendered during the civil rights movement. 

In the period just before and after the Civil War, supporters of southern slavery made much of the fact that the Bible neither condemns nor endorses the South’s peculiar institution–slavery in most sections of the Bible is simply accepted as a social fact.   The Yankee call for abolition was interpreted as a rejection of biblical norms.  God, it was argued, blessed and honored the South because the South upheld the sanctity of God’s Holy Word.

The same sort of argument is currently being pressed on the abortion issue.  As guardians of the unborn, southern conservatives stand against the callous Yankee infidel.  Southern Baptist leaders like Al Mohler now admit that their embrace of slavery was unfortunate (the convention formally apologized for slavery in 1995); yet they demonize their political opposites using the same sort of culture war rhetoric employed in the 19th century and throughout the Jim Crow period.

Supporting McKissic’s resolution might distance Southern Baptists from their racist reputation; but how can you celebrate the election of a baby killer without getting cosy with the Devil? 

This religious stuff isn’t a parlor game for me.  Southern religionists are among the most punitive and vengeful people on the planet because they have never embraced Jesus’ call to mercy and radical forgiveness.   A region in love with mass incarceration and the death penalty has surrendered the right to sanctimony.   Southerners are every bit as friendly as their reputation suggests, but the region is controlled by the hard of heart.  This contradiction defines the region.

I pray that a new generation of compassionate conservatives will resurrect the radical grace of Jesus in the Southern Baptist Convention (for all I know my prayer has already been answered).  In the meantime, I will be following the denomination’s annual convention with rapt interest.

If anyone knows how to get the attention of Attorney General Eric Holder please give me a shout.

Federal judge Leon Holmes has rejected Alvin Clay’s motion for a new trial.  If you have no idea what I am talking about you can find a brief summary here.

In his motion for a new trial, Clay argued that the government’s case was based entirely on the testimony of Donny McCuien, a witness who lied repeatedly under oath.  Holmes didn’t deny that the egregious McCuien lacked credibility.  At trial, McCuien was eager to please his puppet masters and his lies were blatant, constant and frequently bizarre.  McCuien insisted that he had no experience buying or selling homes bought or sold homes or doing rehab work.  When Clay did his own investigation post-trial he turned up a long list of McCuien’s victims eager to testify that the seasoned con man had scammed them on real estate deals and had spent most of his professional life doing rehab work.

The government could easily have discerned that their main man was an ignorant psychopath—but that would have meant dropping their case against Clay.  So they crossed their fingers and hoped the truth wouldn’t come to light.

Judge Leon Holmes also rejected Clay’s argument that his attorneys were derelict for not discovering the truth about McCuien pre-trial.

You may be asking how a federal judge can refuse to grant a defendant a new trial when the credibility of the government’s only meaningful witness disintegrates utterly.  Holmes dodged the bullet by arguing that, even without McCuien, a reasonable jury might have convicted Clay simply because he was peripherally involved in transactions that were clearly illegal. 

The same could be said for the buyers, sellers, bank officials, title companies and appraisers who signed off on the Neely-McCuien deals—but they aren’t being prosecuted.  All these folks could have discovered they were being lied to if they had asked the right questions.  Nobody asked the right questions because they didn’t want to lose a pay day.

You could indict the one hundred people closest to Bernie Madoff on conspiracy charges and argue that they must have known what was going on.  In some cases you might even be right.  But would the federal government get such a case by a grand jury without a single witness?  And if they did, would a jury buy their case?

Unfortunately, the answer to both hypothetical questions is yes.  The government could indict Madoff’s associates and they could probably get convictions.

The Clay case, like all document-heavy white collar cases, involved complex transactions.   Everyone knew Ray Neely and Donny McCuien were guilty as hell.  But when you move down the line of business partners the guilt by association equation gets increasingly complicated.  How do you prove what a person does and doesn’t know.

The Clay trial was much like a physics professor writing a hopelessly complex equation on the blackboard and asking his freshman students if they thought the value of “x” is five or seven.  Greeted by blank stares, the professor says, “Let me give you a hint; I am your professor, I trained at MIT, and I think x = 7.”

A jury faced with a complex paper case will almost always side with the government unless they have a strong personal identification with the defendant.  That wasn’t going to happen in a case involving twelve white jurors, two white Assistant US Attorneys, a white judge and a black defendant with two black attorneys.

Once a jury decides to side with the US government their decision becomes an undisputed fact. 

It is appropriate that Judge Holmes’ ruling was issued on the same day the US Supreme Court ruled, by a slim 5-4 margin, that prison inmates have no constitutional right to DNA testing.  An Alaskan inmate wants the rape kit examined to see if it contains his DNA.  He is willing to pay for the examination out of his own pocket.  But John Roberts and four other justices don’t want undisputed scientific facts undermining the authority of jury decisions.

It is also appropriate that Judge Holmes’ Clay decision was issued along with Ayatollah Ali Khamenei’s authoritative pronouncement that the election in Iran was fair and accurate.  The system produced this result and the system must not be questioned.  A jury convicted Alvin Clay and Leon Holmes is loath to question their authority.

Of course a reasonable juror could have decided that Alvin Clay was guilty even though the government failed to produce a single witness tying him to the crime alleged in the indictment.  But how do we know the jury would have done so?

 The question is purely hypothetical.  Since juries side with the government in 97% of federal cases it is always possible that “a reasonable jury” would buy the government’s line in the absence of credible evidence.

 I decided to blog about the Clay case because it touches on virtually everything that is wrong with the criminal justice system.  In the process, Alvin Clay became a personal friend—but in the beginning that didn’t figure.

 Let’s take a quick whirlwind tour of the issues and events surrounding this case.

1. This is a case of vindictive prosecution that began in 1999 when the federal government was prosecuting a confidential informant for blowing the whistle on a bogus drug bust.  The government, represented by AUSA Bob Govar, was taking the cop’s word even though the CI who worked closely was saying the man was hopelessly corrupt.  There was no upside to the CI’s recantation and he stuck to his guns even when the government, desperate to avoid a potentially embarrassing trial, offered a sweetheart plea agreement.  Alvin Clay defended his client by exposing their bizarre commitment to a clearly fraudulent drug bust.   
2.  Alvin Clay ran afoul of the US Attorney’s office a second time when he went to the wall for a pathological scam artist.  Clay wasn’t convinced of his client’s innocence, but the government had broken the law in prosecuting her and Alvin wasn’t going to stand for that.  Clay was forced to withdraw from the case and wasn’t even allowed in the courtroom to monitor the government’s behavior. 
3. It was in the context of highly charged conflict that Clay’s name came to the attention of the very AUSA’s who were prosecuting Clay’s former client.
4. The Neely-McCuien scam never would have been investigated if Clay’s name wasn’t associated with it.  Neely was of interest only because of his association with Clay.  This is why the government was willing to offer Donny McCuien a sweetheart deal for pointing the finger at Clay and why the government virtually dropped the charges against Ray Neely.  The feds couldn’t try Neely without putting the disgraced Donny McCuien on the stand.  In short, the government had no interest in the men who clearly perpetrated an illegal scam—they wanted to nail the guy who was messing up their legal workshop.
5. While all of this was unfolding, the FBI was refusing to prosecute one of the most egregious police corruption scandals in Arkansas history.  A Lonoke County lawman with a history of dirty dealing was accused of farming out jail inmates to county residents, stealing prescription medications and even running a personal meth lab.  Meanwhile, the cop’s wife was feeding booze and drugs to inmates in exchange for sex.  Bob Govar, the AUSA who first took an interest in the Neely-McCuien scam, was one of the local residents who broke the law by using inmates to work on his property.  Govar served as a character witness for the crooked cop and threatened a local newspaper editor who suggested that he had used his influence to keep the FBI from investigating the case.
6. The Bureau was depleting its limited resources by investigating people like Alvin Clay.  Rodney Hays, the newly minted FBI agent assigned to investigate the Neely-McCuien imbroglio, failed to recognize that McCuien was a certified con artist.  Hays believed every word McCuien uttered because he needed McCuien to bust Clay so he could keep the boys at the US Attorney’s office happy.  
7. Rodney Hays indicted Clay by passing McCuien’s lies to a grand jury.  When it became obvious that McCuien was twisting the facts, Hays failed to inform the grand jury that he had given them false information. 
8. There is strong evidence that Hays has used illegal tactics in an unsuccessful attempt to coerce witnesses to testify against Alvin Clay.
9. AUSA Steven Snyder inherited the case when the Eastern District of Arkansas was recused in order to remove the appearance of vindictive prosecution.  Snyder simply dropped the elements of the case based on Rodney Hays’ perjured grand jury testimony and moved forward without asking why the federal government had a compelling interest in such a Mickey Mouse prosecution.  Snyder didn’t want to earn the enmity of his counterparts in the Eastern Division by dropping the charges against Clay. 
10. Judge Holmes refused to characterize the Clay case as vindictive prosecution because Bob Govar testified that he had no role in presenting the case to a grand jury.  When transcripts surfaced proving that Govar was lying, Holmes stuck with his ruling.

 Leon Holmes knows that AUSA Bob Govar lied about his role in the Clay prosecution.  Holmes knows that Rodney Hays knowingly lied to a grand jury.  Holmes knows that Steven Snyder’s use of McCuien’s testimony at Alvin Clay’s trial amounts to suborning perjury (any fool could see that McCuien was untrustworthy and Snyder is highly intelligent).  Judge Holmes knows that if he granted a new trial the government would be forced to drop all charges against Alvin Clay because they can’t put the discredited Donny McCuien back on the stand.  Nonetheless, in order to preserve the sanctity of the jury system, Judge Holmes is refusing to hold the FBI and the US Attorney’s office accountable. 

 I repeat, if anyone knows how to get the attention of Attorney General Eric Holder, give me a shout.

This feature story from the Los Angeles Times will be of interest to all those concerned about the plight of Troy Davis.  With the Supreme Court unlikely to give Davis his day in court attention is shifting to Larry Chisolm, the fledgling District Attorney who may soon have a politically volatile decision to make.  Should he anger black Georgians by letting Davis die, or should he anger the (largely white) political and legal establishments by calling for a new hearing?  (See story pasted below).

In another development, the NAACP and the Black Congressional Caucus have thrown their support behind Mr. Davis, making it virtually impossible, in my opinion, for the state to carry out an execution.  Once a case achieves a critical mass of media attention and official concern the rules of the legal game change fundamentally.

You may be wondering why the NAACP has been so slow to come to Troy Davis’s defense.  When the state has lots and lots of witnesses (however dubious the quality) no one is willing to support the defendant. 

So, why is the legal establishment so opposed to re-opening this case now that most of the witnesses have recanted their original testimony?  The system sees recantations as inherently suspect.  The rule is simple: eye witnesses are to believed when they are singing in harmony with the state and become suspect when they stray off tune.  Got that?

DISPATCH FROM SAVANNAH, GA.

Case of death row inmate Troy Davis puts new D.A. in tight spot

Some say Davis, a black man, was wrongly convicted of killing an off-duty white police officer. They are pressing the county’s first black D.A. to intervene, a politically dicey prospect.

By Richard Fausset

June 3, 2009

Reporting from Savannah, Ga. — Larry Chisolm, the first black district attorney in Chatham County, Ga., was sitting in his modern, sixth-floor office, tolerating an interview but declining to speak about the problem that he may have to address soon — the one that could come to define and complicate the rest of his young political career.

It is a problem he inherited. The problem of death row inmate Troy Davis.

Behind Chisolm, a window framed the western flank of this old Southern city, the county seat, offering a clear view of the bus station parking lot where Davis, a black man, allegedly killed an off-duty white police officer in 1989.

In recent years, recantations from key witnesses — and Davis’ inability to win a new trial — have made the case an international cause celebre, sparking European street demonstrations and calls for a new day in court from former President Carter, a Democrat, and former U.S. Rep. Bob Barr, a Republican.

But now, as Davis’ execution looks increasingly likely, the advocates for a new case are turning their attention to Savannah’s newly elected prosecutor. The local NAACP chapter is imploring Chisolm to get involved. Carter sent him a letter recently, as did the Congressional Black Caucus.

“It is up to principled leaders like you to take the actions necessary to ensure that flaws are corrected, that wrongs are righted, and that justice prevails over injustice,” said the caucus’ letter, whose signatories included a Georgia civil rights icon, Democratic Rep. John Lewis.

If Chisolm — a trim, fastidious 49-year-old with a quiet, measured voice — was feeling the pressure on a hot Thursday afternoon, he didn’t let on.

As to whether he has the power to intervene, he said, smiling, “When you find that out would you let me know?”

Some of Davis’ supporters say that Chisolm indeed has the ability to intervene — and they predict that he will have to make a decision soon. Though Davis has a petition pending before the U.S. Supreme Court, his lawyer, Jason Ewart, admits the filing is “a longshot.” An execution date has not been set; the high court could rule on the petition as early as this month.

If, as expected, the petition is denied, observers say that could leave Chisolm with a vexing choice.

He could ask the state parole board to postpone the execution and open a new investigation, as Davis’ attorneys have requested. That would be a bold move for a rookie elected official: Both the Georgia Supreme Court and the U.S. 11th Circuit Court of Appeals denied Davis a new trial, in part because courts view recantations as inherently suspect.

Reopening the case could also risk alienating white and conservative voters and complicate Chisolm’s relationship with the police force. But if Chisolm fails to intervene, “that would be very unpopular to a lot of black folk,” said the Rev. Matthew Southall Brown, a longtime black leader in Savannah.

“All eyes are on him to see what he’s going to do, and how he’s going to handle this thing,” said Brown, 77, the pastor emeritus of St. John Baptist Church. “It’s a Catch-22 for him. . . . You’re damned if you do, and damned if you don’t.”

Though it has earned global attention, it is difficult to gauge how potent the Davis case is here. Savannah is an old-fashioned place that prizes gentility and manners, and even local activists say it’s no hotbed of public demonstration.

Moreover, the Davis saga has played out at a near-glacial pace. It was nearly two decades ago when Officer Mark MacPhail rushed across the dark parking lot to aid an African American homeless man who was being pistol-whipped by another man. Someone fatally shot MacPhail before he could help.

In court, nine witnesses testified against Davis. But seven of those witnesses began recanting their testimony in 2000 — nine years after the trial. New witnesses have emerged who assert that a man other than Davis was the shooter, according to court filings from Davis’ attorneys.

Prince A. Jackson Jr., head of the Savannah branch of the National Assn. for the Advancement of Colored People, said that his group didn’t get involved early on because the case against Davis seemed so strong: “It was almost open and shut,” he said.

But the group has changed course over time. In hindsight, Jackson now says, the case was a “rush to judgment,” brought on in part by the fact that the officer was white.

Over the years, former Dist. Atty. Spencer Lawton Jr. — who was portrayed unfavorably by author John Berendt in the nonfiction murder mystery “Midnight in the Garden of Good and Evil” — stood by his prosecution of Davis. Chisolm worked in his office as an assistant prosecutor from 1987 to 2006, but was not involved in the Davis case.

When Lawton announced he would retire in 2008, Chisolm decided to run on the Democratic ticket, even though Lawton, a 28-year veteran of the office, had handpicked Republican David Lock, his chief assistant, to be his successor.

Chisolm won the race over Lock in November with 54% of the vote, thanks in part to large black turnout for Barack Obama.

The achievement of the hometown lawyer generated pride among blacks in this Old South city. Chisolm’s father was a maintenance man at Savannah State University, the local black college. Chisolm left Savannah for Duke University, where he attended law school.

He returned home to a city where many black residents continue live in dire conditions amid charming, tourist-friendly historic squares. According to the 2000 census, 34% of black children in the Savannah metropolitan area live in poverty.

“It gave hope to all the other young African Americans who have ambitions and want to move up the ladder,” Jackson said.

Even as he pressures Chisolm to intervene in the Davis case, Jackson, like the Rev. Brown, admits that the new D.A. is “between a rock and a hard place.”

In the interview, Chisolm spoke generally about the death penalty, saying he supports it because it is Georgia law. He said he sought it twice as an assistant D.A., with both cases ending in life sentences.

Chisolm said he wouldn’t speak about the Davis case until all appeals were exhausted. And yet he did offer one comment: He noted that Officer MacPhail died coming to the aid of an African American.

“He put his life at risk to try to save the life of a black man,” he said. “And that’s a story in and of itself in terms of race, and where Savannah is in terms of race relations.”

The tragic story of Brandon McLelland took a much-anticipated twist on Friday.  McLelland was run over on a lonely highway outside Paris, Texas last September and, pinned against the undercarriage of the vehicle and apparently dragged down the highway. 

But who was driving the vehicle that struck McClelland and was his death intentional?  That was a question for investigators to answer.  Shannon Finley became the prime suspect after law enforcement examined the undercarriage of his Dodge Dakota pickup.   Ryan Crostley, a white passenger in Finley’s truck, was indicted as an accomplice.

 Although law enforcement accused Finley of attempting to destroy evidence by hosing down the vehicle, no evidence of skin and blood was discovered.

 The McClelland story is a cautionary tale for the civil rights community. 

Due process is designed to protect defendants from a rush to judgment.  Purported white racists are just as vulnerable to sloppy investigation and overly aggressive prosecution as purported black thugs.  In both cases, criminal justice professionals reach a conclusion before all the evidence is in then twist the facts to support their pet theory.  Had Shannon Finley been a member of a prominent Paris family the authorities would have been much more circumspect.  Had Brandon McClelland been a highly respected businessman the DPS trooper who initially investigated the incident would have searched the death scene far more carefully. 

It is always a bad sign when prosecutors try a case in the papers.  Toby Shook didn’t get incriminating evidence from Finley’s truck but he made the press believe otherwise.  You can’t blame the media for reporting what they are told–that’s their job.  Shook was trying to job the system and civil rights folks like me let him get away with it. 

Activists who have spoken out against Mr. Shook’s decision to drop the charges need to re-think their position.  There is no case.

Friends of Justice works to restore due process protections to all Americans.  The fact that poor African Americans are disproportionately victimized by a broken system doesn’t mean they are the only victims.  Racial justice is equal justice.

Friends of Justice was reluctant to join the protests in Paris.  We have seen the wheels come off too many bogus investigations.  Instead, we opened this page to people on both sides of the controversy.

Americans who care about judicial fairness need to look beyond the Mississippi Burning narrative with its innocent black victims and its virulent white racists.  Crude racial hatred hasn’t disappeared, but the species of racism that afflicts the criminal justice system is far more subtle and, as yet, ill-defined.  The New Jim Crow inflicts a world of hurt because it doesn’t conform to the Hollywood paradigm or racial injustice. 

In contemporary America, status drives the hate game far more than skin color. 

Hate groups are proliferating in America and I’m glad organizations like the Southern Poverty Law Center are monitoring their activities.  But that is rarely the species of racism that sends poor people of color to prison.  Low status black people are wrongfully convicted because they fit the thug paradigm.  Skin color factors into the equation to be sure; but it isn’t the primary cause of wrongful prosecutions. 

Shannon Finley is as white as they come, but he was easily stigmatized by his lack of education, his well-documented abuse of alcohol, his criminal record and his spotty work history.  In short, Finley fit the profile of the southern white racist, the only type in America more despised than the dangerous black thug. 

When I talk about racism I don’t have Shannon Finley in mind; I’m talking about people who vote, people attend church regularly, people who serve on juries.  These folks don’t wear their racism on their sleeves, but they take a dim view of poor people and are willing to believe the worst about every poor soul the authorities hall into court.  There is more continuity between the Old Jim Crow and the New Jim Crow than is commonly realized, but the social landscape has changed markedly (although not always for the better).

I’m not saying Shannon Finley is innocent.  If he hadn’t been driving drunk, Brandon McClelland would have remained in the vehicle and the sad saga could have been averted.  But Finley doesn’t have to prove his innocence; the state has to prove his guilt.  The state couldn’t make its case so the charges were dropped.  That’s the way the system is supposed to work. 

But what if a truck driver hadn’t stepped forward with a story about hitting something on the road?  What if a crooked forensics expert had decided to cooperate with the state’s story about blood and skin?  Under those conditions, Shannon Finley would have been convicted. 

He fits the profile.

The civil rights community needs to stop combing the Southland for Old Jim Crow stories.  Sure, these narratives can still be dredged up here and there, but they don’t explain why so many poor people of color are going to prison.  So long as we are chasing ghosts, flesh-and-blood inequities go unaddressed.