During the past decade, an academic movement called critical race theory has gained increasing currency in the legal academy. Rejecting the achievements of the civil rights movement of the 1960s as epiphenomenal, critical race scholars argue that the dismantling of the apparatus of formal segregation failed to purge American society of its endemic racism, or to improve the social status of African Americans in discernible or lasting ways. The claim that these scholars make is not only political; it is also epistemological. Our perception of facts, they maintain, is contingent on our racially defined experiences; and, since the white majority can never transcend its racist perspectives, formally neutral laws will continue to fuel white domination. The prevailing mood is fatalism.
For these and other reasons, critical race theorists have largely rejected law as an instrument of racial progress and turned instead to extralegal prescriptions. Some scholars advocate an intellectual strategy that has been described as "storytelling": they call for the creation of counternarratives of black empowerment that might help to challenge the dominant racial paradigms, and they have celebrated stories, such as conspiracy theories, that are widely accepted in the black community, even though they are factually untrue. Other scholars are even more radical: they have suggested that black jurors may nullify certain laws if sending guilty black defendants to prison would not serve the instrumental goals of the black community. For these scholars, black lawbreaking is a form of black self-help, a legitimate way of adjusting the scales after centuries of racial oppression.
All this represents, to put it mildly, a stark challenge to the liberal ideal of the rule of law. And the challenge is not merely academic. Despite the subversiveness of the descriptive and prescriptive claims with which critical race scholars confront American society, the rhetoric of the movement is already reverberating beyond the lecture hall and seminar room. It is finding echoes in the courtroom, too, and in popular culture. Gangsta rappers call openly for race war. A new movie, Set It Off, admiringly portrays a group of young, attractive African American women who decide to rob banks as a form of self-empowerment, and then go on sisterly shopping sprees with their ill-gotten gains. And surely the most striking example of the influence of the critical race theorists on the American legal system is the O.J. Simpson case, in which Johnnie L. Cochran dramatically enacted each of the most controversial postulates of the movement before a transfixed and racially divided nation. Indeed, Cochran's strategy in the courtroom might be best described as applied critical race theory.
How could an academic movement that lurked only a few years ago at the fringes of the academy have resonated so forcefully with our legal and popular culture? One explanation, perhaps, is the willingness of some of the most distinguished members of the American bar to popularize the premises of critical race theory and to soften its more unsettling conclusions. Consider A. Leon Higginbotham, Jr.
It is difficult to imagine a loftier pillar of the American legal establishment. The son of a maid and a factory laborer, Higginbotham attended a segregated school in Ewing Park, New Jersey, graduated from Purdue University and Yale Law School, and clerked on the Pennsylvania Supreme Court for Justice Curtis Bok, the father of the future president of Harvard. After working for the district attorney of Philadelphia, and representing personal injury plaintiffs for a few years, Higginbotham was appointed by President Johnson to the U.S. District Court in Philadelphia in 1964, at the age of 35. Promoted to the U.S. Court of Appeals for the Third Circuit by President Carter in 1977, Higginbotham became Chief Judge in 1989. In 1993, he stepped down from the bench, and a year later he became the first Public Service Professor of Jurisprudence at the Kennedy School of Government. A recipient of the Presidential Medal of Freedom, he continues to practice law at the Paul, Weiss firm in New York, and he sits on the boards of the U.S. Civil Rights Commission, The New York Times and other estimable institutions. He was recently retained by Texaco Incorporated, after allegations that senior executives had made racist statements, to refurbish the company's "human relationship policies and practices." And this mandarin of mandarins has just published a book, Shades of Freedom, which attempts to put a benign face on the critical race scholars' racialism. Never mind that his life is a devastating refutation of his analysis.
In his first book on race and the American legal process, In The Matter of Color, which appeared in 1978, Higginbotham described the role of law in subjugating blacks during the colonial period. In examining the origins of slavery in colonial America, Higginbotham focused on the statutes and the judicial opinions of six colonies: Virginia, South Carolina and Georgia in the South, and Massachusetts, New York and Pennsylvania in the North. Although the book was respectfully received as an accurate description of the evolution of legal doctrine, Higginbotham was criticized for the selectivity of his focus. He was taken to task, for example, for oversimplifying the political status of African Americans in the eighteenth-century South. In every Southern state except the three that Higginbotham singled out, free blacks were permitted to vote until sometime around the War of 1812. As for the North, in New Jersey, there is some evidence that slaves were legally permitted to vote in general elections; and Maine, New Hampshire and Vermont by the end of the eighteenth century gave their small black population almost total de jure equality with whites.
If Higginbotham's first book presented a narrowly doctrinal portrait of the evolution of slave law during the colonial period, his second book is far more ambitious. He wishes to bring his project up to date by examining the racial presumptions of the American legal system from the seventeenth century through the twentieth century. Higginbotham's "dominant perspective," he says, is "the role of the American legal process," between 1619 and 1996, "in substantiating, perpetuating, and legitimizing" what he calls "the precept of inferiority," which he defines as: "Presume, preserve, protect, and defend the ideal of the superiority of whites and the inferiority of blacks."
Shades of Freedom might be called an anti-Whig history of race and American law. Higginbotham's thesis is that the "precept of black inferiority" was "presumed" during the colonial era, "carefully defined" and "ruthlessly enforced" between 1662 and the 1830s, "defended and protected" from the 1830s until the end of the Civil War, "did not die" after Reconstruction, and continued to distort and disfigure the American system even after 1954, "once the more oppressive forms of segregation were eliminated." Higginbotham concludes with a rather remarkable appendix enumerating what he calls "The Ten Precepts of American Slavery Jurisprudence." These include Precept One, "Inferiority," and Precept Three, "Powerlessness." Higginbotham defines the latter this way: Keep blacks--whether slave or free--as powerless as possible so that they will be submissive and dependent in every respect, not only to the master but to whites in general. Limit blacks' accessibility to the courts and subject blacks to an inferior system of justice with lesser rights and protections and greater punishments. Utilize violence and the powers of government to assure the submissiveness of blacks.
According to Higginbotham, "the precepts pertaining to inferiority and powerlessness continue to haunt America today," nearly a century and half after the Emancipation Proclamation. "The precept of black inferiority," he writes, "is the hate that raged in the American soul through over 240 years of slavery and nearly ninety years of segregation. Once slavery was abolished, and once the more oppressive forms of segregation were eliminated, many whites' hate still had not lost its immediate object. The ashes of that hate have, over the course of so many generations, accumulated at the bottom of our memory. There they lie uneasily, like a heavy secret which whites can never quite confess, which blacks can never quite forgive, and which, for both blacks and whites, forestalls until a distant day any hope of peace and redemption."
Judged as a historical narrative, Higginbotham's argument is crude. He insists that pure racism, fueled by "sex and religion," rather than a shifting and complicated combination of economic, political and ideological factors, was the overwhelming catalyst for the legal subordination of African Americans in the pre-revolutionary period. This leads him to neglect a great deal of countervailing evidence and to slight important nuances that might complicate his argument about the centrality of racism in American law. To take just one example of his selectivity: Higginbotham emphasizes that, in the late seventeenth and early eighteenth century, Virginia enacted a statute providing that it was not a felony for a master to kill a recalcitrant black slave, because the slave was the master's property, and the master could not be presumed to have the requisite malice to "destroy his own estate." He fails to note that Virginia, in 1788, repealed the statute of 1705 that made the manslaughter of a slave a non-offense, and began to treat the killing of slaves as murder rather than as trespass to chattel. (Indeed, two of Jefferson's nephews were prosecuted for killing their own slaves.)
The repeal of the Virginia statute, as Robert Cottrol has observed, was part of an unsuccessful effort to reconcile slave-holding with the rise of liberal ideology in the late eighteenth century. As the rise of Lockean liberalism brought the practices of chattel slavery into sharp question, the South increased legally mandated racial restrictions while providing, at least in theory, more procedural protections for the slaves under criminal law. By codifying a racist ideology that emphasized black inferiority, while also emphasizing the South's paternalism toward the dependent Negro, the antebellum South attempted to maintain the fiction that slavery was good for the slaves.
Cottrol's picture is not pretty, but it is less simple and less teleological than Higginbotham's view that Virginia society from the seventeenth century onward "had fully accepted the idea that blacks were not quite human." It serves Higginbotham's purpose to portray American history as an unbroken tale of racial oppression. To sustain his narrative, however, he must coarsen history and erase distinctions, most jarringly in his treatment of abolitionism and Reconstruction. His chapter on "The Politics of Inferiority, 1830-1865" is subtitled: "Abolition and Uncle Tom: Political Posturing Without Challenging Notions of Inferiority." In fourteen highly tendentious pages, he belittles the motives and achievements of abolitionists such as William Lloyd Garrison and Harriet Beecher Stowe. In his view, Garrison and Stowe sustained "the precept of inferiority" by taking the view that "blacks were infantile saints who needed to be protected and who could not even understand their own need for freedom and equality." Here is Higginbotham on Stowe: "One reads a book such as Uncle Tom's Cabin, or other antislavery articles and speeches of the time, with the nagging suspicion that the sweet-tasting flesh of the fruit of the abolitionists' good works was wrapped around a hard and bitter seed of contempt for the very group they were trying so hard to free."
At one point Higginbotham seems to recognize the absurdity of his attempt to judge nineteenth-century radicals by the standards of twentieth-century radicals. "Is it too much to expect Mrs. Stowe to have depicted Uncle Tom," he asks, "with the character traits and political beliefs of, say, Malcolm X?" Well, yes, it is. (And why, exactly, should the virtue and the truth of Malcolm be assumed?) And he proceeds to ignore his own warning, concluding that "abundant good intentions aside, the abolitionists' view of African Americans served to sustain the precepts of inferiority."
In addition to the historical crudity of holding the icons of the past to the standards of the present, Higginbotham's refusal to engage the abolitionists on their own terms undermines his thesis that the Reconstruction Republicans deserve little credit for attempting to purge the American Constitution of its presumptions of racial inferiority, even before the Reconstruction Amendments were eviscerated by the Supreme Court. Although Higginbotham quotes from the Reconstruction debates, at no point in his book does he acknowledge the basic distinction that was embraced by black and white Republicans, who held that civil rights, but not social rights or political rights, should be extended to all citizens regardless of race.
By disclaiming any intention of achieving equal "social" rights for African Americans, Republicans from Lincoln and Sumner to John Marshall Harlan implied that a black man had no right to dine at a white man's table or to insist that whites must associate with blacks in the private sphere; and in this sense they were indeed racist. At the same time, the Republicans aspired to purge much of the public sphere of racism by insisting on formal color-blindness in the assignment of civil rights--which included, in their view, the right to make and enforce contracts, to sue and be sued, to inherit property, and to gain equal access to public accommodations, such as railway cars and theaters.
In his eagerness to portray American history pessimistically, as a narrative of uninterrupted racism, Higginbotham elides the distinction between social, civil and political rights. He quotes a black congressman from Mississippi, John R. Lynch, arguing for the Civil Rights Act of 1875 by insisting that "it is not social rights we desire. We have enough of that already. What we ask is protection in the enjoyment of public rights. Rights which are or should be accorded to every citizen alike." According to Higginbotham, Lynch's speech "demolished the idea that African Americans should not take part in politics because they were intellectually inferior to whites and therefore incapable of such high responsibilities of citizenship." In fact, political participation was not considered fundamental to the "high responsibilities of citizenship": women were citizens, but they could not vote. Neither the Civil Rights Act nor Lynch's argument had anything to do with equality of political rights; both sought equality of civil rights.
As it turned out, of course, the Supreme Court, in the Civil Rights Cases of 1883, subverted even the narrow vision of formal equality that the Republicans had attempted to enshrine in the Fourteenth Amendment to the Constitution: the justices struck down the Civil Rights Act of 1875 on grounds plainly inconsistent with the original understanding of its framers. Equal access to streetcars and theaters, the Court held erroneously, was a social right, rather than a civil right; and, therefore, Congress lacked the power to forbid discrimination in places of public accommodation. The promises of the Reconstruction Amendments would lay dormant for another eighty years, when they were finally fulfilled by the Civil Rights Acts of the 1960s.
Still, Higginbotham is wrong to believe that the racism of the Reconstruction Republicans was formally enshrined in the American Constitution, as he is wrong to believe that "most whites" in the Reconstruction era "were unwilling to live alongside African Americans as equal citizens." In fact, the Republicans sought to separate their private racism from their aspirations for civil equality. The tragedy of Reconstruction was not, as Higginbotham suggests, that the Civil War amendments failed to eliminate private "presumptions of inferiority" from the hearts and minds of white Americans, but that the constitutional guarantee of equal civil rights, or equal privileges and immunities, for all citizens was so cavalierly thwarted by unelected judges and racist officials.
Higginbotham's historical chapters are more polemical and less balanced than one expects from a man whom Henry Louis Gates Jr. calls "the major scholar of this field." And his thesis is a little trite. The argument that American law reflected and sustained presumptions of racial inferiority from the colonial period until the Brown decision in 1954 is hardly controversial. At least until the Civil Rights Acts of the 1960s, as Higginbotham vividly demonstrates, American statutes and judicial opinions formally enshrined racism of the starkest kind. Far more radical is Higginbotham's argument that the civil rights movement of the 1960s, rather than representing a meaningful break with the past, had little success in uprooting the "precept of inferiority." That precept, writes Higginbotham, "has persisted even to recent times, when many of the formal, overt barriers of racism have been delegitimized.... [I]t is probably still helpful to note contemporary incidents of the last decade that will illustrate the continuum up to today of the precept of inferiority that began in an era of slavery centuries ago."
This allegation of a perfect continuity is an explosive charge. What "contemporary incidents of the last decade" does Higginbotham offer to support it? In his introduction, he points to six recent cases in which "a white person made false accusations that an African-American man had committed a terrible crime." These include Susan Smith's claim that an armed black man kidnapped her children and Charles Stuart's claim that a black man fatally shot his pregnant wife. According to Higginbotham, "I begin with these events because I believe that there is a direct and tragic nexus between the false allegations and perceptions of today, as we approach the end of the twentieth century, and some of the perceptions of black inferiority that have endured from the colonial period to the present."
But what on earth does Susan Smith have to do with the Black Codes of the antebellum South? Higginbotham says that in 1996, as in 1619, "the public perception of African Americans as inferior and venal beings provides the basis of acceptability for the most outrageous of lies." But this is bewildering, or worse. In all of the cases that Higginbotham mentions, the legal system exposed the false accusations against African Americans as a racist hoax, and brought the real murderers to justice. And, once they were exposed, each of these racist lies quickly became a national outrage, and each of the perpetrators was, appropriately, shunned and vilified in the starkest terms. Far from being misled by racial presumptions of inferiority, prosecutors and judges scrupulously resisted the temptations of racialism, and color-blind justice prevailed.
In a chapter called "Unequal Justice in the State Criminal Justice System," Higginbotham repeats his explosive thesis: "To use Cornel West's felicitous phrase, `Race [m]atters.'... Unfortunately, I remain confident that even today there are many cases whose outcome can be explained only by way of racial considerations." But again Higginbotham points to no contemporary cases to support his assertion. As an example of "Apartheid in the Courthouse," he cites a case concerning segregated seating in the courtroom from 1948; but then he acknowledges that it was overturned in 1963. In a section called "Overt Discrimination by Judges in the Courtroom," he cites a case from 1963 in which a trial judge held a black witness in contempt after she refused to answer a prosecutor who addressed her by her first name; but then he acknowledges that the contempt judgment was summarily reversed by the Supreme Court. Higginbotham's most recent example of judicial misconduct is a California superior court judge who, in 1982, made racist comments off the bench; but then Higginbotham himself concedes that the judge was publicly censured by the California Supreme Court. How all of this adds up to what Higginbotham calls "a jurisprudential culture" of "black inferiority" in the state criminal justice system today is hard to discern.
Hard to discern, that is, until one examines the unstated epistemological premises that lurk behind Higginbotham's claims. For Higginbotham's thesis fits comfortably within the critical race theory movement, and, although he shies away from some of its most extreme conclusions, he shares many of its troubling assumptions. While Higginbotham gives the legal revolution of the 1960s some credit for moving our nation "from total oppression to varying shades of freedom," he shares the conviction of critical race scholars that the achievement of "formal equality" has failed to eradicate the endemic racism that African Americans encounter in their daily lives. "My view is that those past and present instances of racism are more than mere aberrations or isolated blemishes that occasionally crop up and mar the normally effective dispensation of justice," writes Higginbotham. "Rather, they are symptoms, signals, and symbols of racism in the broader society." As for the prospect of eradicating the precept of inferiority in the foreseeable future, Higginbotham shares the pessimism of the critical race movement. Thus he writes that "for many, there still persists a nagging doubt as to whether the legacy of legally sanctioned racism will be eradicated in this decade or even in the next century."
The view that blacks experience racism as normal rather than exceptional leads some critical race scholars to a vulgar racial essentialism. The daily experience of racism, they hold, leads blacks to perceive particular events in American law and culture differently than whites, and so those who dissent from the black perspective are not really black. Attacking racism, these scholars promote racialism. Perhaps the thrall of essentialism helps to explain the vehemence of Higginbotham's obsessive attacks on Justice Clarence Thomas, whom he has repeatedly assailed for racial self-hatred. "Many white judges share an underlying belief about the rarity of racist occurrences in the courtroom," Higginbotham writes in Shades of Freedom. "In contrast, I know of only one African American federal judge [he means Thomas] who minimizes the significance of the fact that societal racism, even unintentionally, often affects the adjudicatory and fact-finding process of courts."
If racism is endemic, and if our perception of facts is racially contingent, and if neutral laws fuel white domination, then what is the cure for what Higginbotham calls "the precept of inferiority"? Critical race scholars view litigation, the traditional remedy of the civil rights movement, as an ineffective avenue of relief. As Derrick Bell argued in 1976, the legal goal of integration responded to the political ideals of white public interest lawyers rather than the "actual interests" of black communities themselves. Rejecting law as an engine of social change, Richard Delgado seems to endorse two extralegal prescriptions: storytelling and legal instrumentalism, or black "self-help."
Like his earlier book, The Rodrigo Chronicles, Delgado's new book, The Coming Race War?, is itself an exercise in storytelling. It takes the form of a fictional dialogue between two characters, Rodrigo, the brilliant African American student, and his doting "Professor." In his forward to Delgado's book, Andrew Hacker defends the storytelling movement on the grounds that African Americans have a less linear approach to ratiocination: "Black culture tends to be at home with what might be called a discursive style, which takes a more forthright approach to intellectual inquiry. Instead of being bound by rigid rules, the search for truth should encourage a more relaxed ambience." The condescension in those sentences is amazing. And in the same vein, Delgado, speaking through Rodrigo and the Professor, complains that "the basic problem is the legal narrative: One simply cannot tell stories of many kinds of injustice through law." The traditional protocols of the courtroom favor the powerful, rather than "society's outcasts," because "the rules of courtroom etiquette require that one not use emotional discourse, that one speak within the legal paradigm, adhere to rules of evidence that carve one's narrative into little pieces, destroying its momentum and integrity."
In its weakest form, legal storytelling is nothing more than a proposal for broadening the narratives available to judges and juries, to help them get (quite literally) to the bottom of things. Instead of being limited by a legal system that "disaggregates and atomizes" communal grievances into individual disputes, Rodrigo recommends that litigants think about group grievances rather than their own, and tell "the broad story of dashed hopes and centuries-long mistreatment that afflicts an entire people and forms the historical and cultural background of your complaint." Insisting that dominant groups (that is, whites) protect their own interests by constructing social reality through language, other critical race theorists stress the importance of counternarratives by "voices from the bottom" that emphasize context and personal experience. These storytellers maintain that African Americans not only have different experiences, they also have different ways of communicating and understanding them. The "voice of color" is said to be emotional rather than analytical, less concerned with descriptive accuracy than with personal authenticity.
In its most radical form, the storytelling movement is a direct assault on the possibility of transracial agreement, on the possibility of objectivity. Drawing on strains of literary theory, some critical race theorists claim that no event or text has an objective meaning, that each community of readers must determine how the text will be understood, that every community has a responsibility to create its own stories out of every text. Of course, if the community of readers is racially defined, and if no racial community can extricate itself from its socially constructed perspectives, then our perception of facts will be racially contingent.
This cult of contingency may be bracing, or forgivable, in literature departments, where what is at stake is the interpretation of Huckleberry Finn or the boundaries of the canon. For the law, however, the cult of contingency holds the seeds of nihilism. Judges, juries, lawyers and legal scholars are charged, among other things, with being objective; and if objectivity is unattainable, then so is the rule of law itself.
Perhaps the most famous example of storytelling as an invitation to relativism is Patricia Williams's description of the Tawana Brawley hoax in The Alchemy of Race and Rights. Brawley was discovered in a vacant lot with cigarette burns and dog feces on her body, and falsely claimed that she had been raped by a group of white men. But Williams is not concerned with the truth of Brawley's claim. She is concerned with its social meaning: "Tawana Brawley has been the victim of some unspeakable crime," Williams wrote in 1991.
No matter who did it to her--and even if she did it to herself. Her condition was clearly the expression of some crime against her, some tremendous violence, some great violation that challenges comprehension. And it is this much that I grieve about. The rest of the story is lost, or irrelevant in the worst of all possible ways.
But the rest of the story, of course, is not lost or irrelevant. Al Sharpton and the other collaborators in the Brawley scam were guilty of more than narrativity. At no point in her essay does Williams acknowledge that Brawley made her story up; that it was fiction, not fact. Instead Williams worries that those who doubted Brawley's fiction are reinforcing an oppressive narrative. According to Williams, "Tawana's terrible story has every black woman's worst fears and experiences wrapped into it. Few will believe a black woman has been raped by a white man." In Williams's world, as Larissa MacFarquhar nicely put it in Lingua Franca, "a black woman who has been raped by a white man and a black woman who was unhappy enough to say she was raped by a white man and even `every black woman' blur together into an even thicker epistemic, mythical fog than they already inhabit."
Higginbotham does not explicitly endorse storytelling as a cure for racism. Perhaps he has too much experience of the real world to think that the ills of the inner city will be cured by a variety of post-structuralism. Like Williams and Delgado, however, Higginbotham appears to be more concerned by the social meaning of racially charged accusations than by the facts underlying them. Nothing else could explain his fixation on the racist stories told by Susan Smith and Charles Stuart. Perhaps he is suggesting that, as forms of hate speech, they have the power to stigmatize African Americans, and so must be challenged by counternarratives. On this point, Higginbotham approvingly cites Charles Lawrence's definition of racism as "the systematic imputation of stigma onto African Americans through the courts and through extralegal actions." Lawrence proposes that whenever "the culture thinks of an allegedly discriminatory governmental action in racial terms," regardless of the actual facts or motives underlying the controversy, the action should trigger the strictest judicial scrutiny.
The reductio ad absurdum of the storytelling movement, with its celebration of subjectivity over objectivity, of emotion over truth, is the scholarly romanticizing of black conspiracy theories by Regina Austin. (The refusal of Harvard Law School to hire Regina Austin in 1990 prompted Derrick Bell, the founder of the critical race studies movement, to resign from the faculty in protest.) Last year, in an essay called "Beyond Black Demons & White Devils: Antiblack Conspiracy Theorizing & The Black Public Sphere," Austin reviewed empirical evidence suggesting that blacks are more likely to believe race-related conspiracy theories, while whites are less suspicious of government. "Without access to the information that has become a prerequisite for the daily consumption of highly literate sophisticated consumers," Austin writes, "some blacks rely on conspiracy notions to protect themselves from excessive manipulation, economic abuse, and physical harm." Rather than lamenting the prevalence of conspiracy theorists today, however, Austin condescends to those who embrace them:
Even though conspiracy theorizing is far from an ideal form of discourse and leaves much to be desired as a manifestation of black critical judgment, it has its usefulness. Because I respected the speakers, I felt compelled to investigate the speech. What I found leads me to believe that antiblack conspiracy theorizing is not all bad. Whether the theories are true or not, I would argue that the theories themselves reveal much about the concerns of contemporary blacks regarding law, medicine, economics, politics, and the media, and warrant serious consideration on that account. The theories represent critiques of major institutions and social systems by a people who are and have been foreclosed from full participation in them. Antiblack conspiracy theorizing generates a counter-response to exclusion and discrimination by mobilizing collective black self-interest in a way that contributes to the growth and the strength of the black public sphere.
How, precisely, the belief that the aids virus was planted in Africa to ravage black people, or that the slaughter of black drug traders by other black drug traders is a conspiracy of white bankers and importers to "destroy black males," or (to take another of Austin's examples) that the prosecutions of Marion Barry, Mike Tyson and O.J. Simpson are part of "a generalized scheme to bring down black men"--how these fantasies contribute to "collective black self-interest" and empowerment, rather than to black marginalization and demoralization, is, for Austin, too obvious to require elaboration. She ventures only the following exegesis: "Blacks who, in analyzing the crack trade, indict the whites who import the drugs, sell the guns, and launder the money for being engaged in a collective effort to destroy black communities are offering a sophisticated reading of contemporary property relations."
Again, the ideas of the seminar room trickle down, or up. In October, The Washington Post offered a front-page excursion into Austinian hermeneutics when it tried to explain why the belief is widely held in black neighborhoods that the CIA was behind the crack epidemic in the inner city of Los Angeles. "conspiracy theories can often ring true; history feeds blacks' mistrust," read the Post's headline. This apologia for African American credulity ran alongside a story that proved that the allegation about the CIA and crack was utterly unfounded. What the editors of the Post were saying, then, was this: the allegation is false, but if you are an African American, you may continue to believe it is true. Perhaps they share Austin's sentimental view of conspiracy theorizing as "an obviously imaginative and creative oral folk art form which attempts to grapple critically with the complexities of a postmodern, post-industrial political economy."
In a powerful criticism of narratology, published in Law's Stories, the proceedings of a conference on "Narrative and Rhetoric in the Law" held at Yale Law School in 1995, Daniel A. Farber and Suzanna Sherry argue that the storytellers' claim for the persuasive power of emotive language over rational argument resonates also with the indeterminacy embraced by critical legal scholars. Legal reasoning, those scholars hold, does not provide concrete answers to particular legal problems, and legal decisions are ultimately based on social and political judgments about power. There is also, more mundanely, the unfortunate fact that few of the storytellers are gifted at telling stories. Richard Delgado uses his characters as vehicles for provocative speeches about subverting the dominant racial paradigm, interspersed with an ongoing dialogue about their shared affinity for gourmet coffee. "Rodrigo, who had been eyeing my espresso machine, nodded enthusiastically and held out his cup. As he was stirring in his condiments, I asked: `And I gather you think this lack of empathy is somehow responsible for our current predicament?' `Thanks, Professor. This is a good blend--a little milder than last time. French roast?'" Alas, storytelling, too, requires rigor.
Fortunately for the critical race movement, a second battle ground has recently opened up as a scholarly cure for endemic racism: "self-help," which, in Delgado's words, "includes selective lawbreaking." Delgado's Rodrigo is cheerfully candid about the virtues of what he calls "legal instrumentalism." He says that "minorities should invoke and follow the law when it benefits them and break or ignore it otherwise--when it gets in the way, is unresponsive or adverse to their interests. We should treat it like any other social institution, the highway department, for example." And later, "We should be zero-based and as dispassionate as possible, choosing legality when doing so will benefit us, and straightforwardly pursuing other means when it does not."
Critical legal scholars have only begun to explore the limits of black lawbreaking as a mechanism for black liberation. But the scholarship is growing starker by the day. In an essay called "`The Black Community,' Its Lawbreakers, and a Politics of Identification," published in 1992, Regina Austin compared "street women [who] accept the justifiability of engaging in illegal conduct to rectify past injustices and to earn a living" to political revolutionaries such as Malcolm X. She calls for "a legal praxis ... [that] would find its reference points in the `folk law' of those black people who, as a matter of survival, concretely assess what laws must be obeyed and what laws may be justifiably ignored."
And last year, in an article in the Yale Law Journal that was later excerpted in Harper's, Paul Butler carried the premises of critical race theory to their logical conclusion. Accepting the idea of legal instrumentalism--that blacks should use power, when they have it, to serve the interests of the black community--Butler called on African American jurors to use their power to free guilty black defendants accused of nonviolent drug crimes. Maintaining that the black community would sometimes be better served by freeing guilty black men than by putting them in jail, Butler also proposed that jurors should make case-by-case determinations about whether or not the black community would be harmed or benefited by freeing black defendants accused of stealing the property of white people. Butler drew the line at calling for jury nullification in cases of murder, which are considered malum in se, or inherently immoral. But Butler's proposal is different only in degree from the open race war endorsed by William Kunstler in 1988, when he persuaded a black and Hispanic jury to acquit Larry Davis, a black defendant who had shot six police officers. According to Kunstler, the case was about "how the police treat young Third World people in the depressed communities of the city."
Like most mainstream scholars, Higginbotham has gone out of his way to distance himself from Butler's unvarnished endorsement of jury nullification. Appearing with Butler at a recent symposium in Washington, D.C., on "Race and the Justice System," Higginbotham said: "Professor Butler with eloquence describes the frustration. But at some point we have to move from frustration to solution." Higginbotham's demurral seems more prudential than principled. Butler at least has the intellectual courage to embrace the implications of their shared premises. And in the end it is not unfair to call Higginbotham to account for fanning the flames that Butler lights. By flirting with the epistemological axioms of critical race theory, by belittling the achievements of the civil rights revolution, by agreeing that neutral laws fuel white domination, by exalting racially contingent perceptions as more important than objective facts, by comparing Dred Scott to Susan Smith, and by suggesting that the "precept of inferiority" has continued to be embedded in American law and culture in a virtually unbroken parade of horror from 1619 to 1996, Higginbotham has contributed to an intellectual and cultural climate where it is respectable to suggest that race-based juror nullification is an instrument of black liberation. Thank heavens that Higginbotham and Butler, both former prosecutors, are safely ensconced in ivory towers, where their philosophically provocative but politically incendiary ideas cannot be played out in real courtrooms or influence jurors in actual cases.
Although no critical race scholars have thanked Johnnie L. Cochran for the compliment, the defense strategy in the Simpson case was a textbook implementation of the premises of the critical race movement. Cochran methodically selected an African American jury, predicting correctly that their racially fraught experiences with the police would influence their perception of the facts. He set out, through storytelling and the manipulation of racial iconography, to create a narrative that transformed O.J. from coddled celebrity into the civil rights martyr of a racist police force. He put Mark Fuhrman's racial epithets on trial, suggesting, in the manner of a good social constructionist, that, because reality is owed to language, hate speech can be compared to a physical assault. He relentlessly pressed the claims of group solidarity and racial essentialism, insisting that African Americans who failed to embrace his narrative, such as the hapless prosecutor Christopher Darden, were not only wrong, but were not really black. And he ended his closing argument with an explicit call for race-based jury nullification, calling on African American jurors to ignore the evidence and "send the message" to the racist police that letting a murderer go free was an appropriate payback for a legacy of state-sponsored oppression.
The Simpson case is something of an embarrassment for critical race theorists. (Paul Butler has criticized Cochran for his explicit invitation to the jurors to ignore the evidence in a murder trial.) Yet it is also something of a vindication for them. The Simpson case confirmed one of the central descriptive claims of critical race theory: that perceptions are racially contingent, and that a jarring gap in perceptions between whites and blacks can no longer be denied. The crits deserve some kind of credit for their early recognition of the reality of racial perspectivism in America. "If radical differences [in perspective] did exist," Daniel Farber and Suzanna Sherry wrote in their criticism of the storytelling movement in 1993, "we would expect that empirical studies or at least everyday observations would consistently reveal some differences, even if the results were not all of the magnitude predicted by the theory." In the post-O.J. world, however, such skepticism about the wages of racialism reads like the antiquarian scruples of a distant era, like William Jennings Bryan demanding biblical evidence for the theory of evolution.
Similarly, in July 1994, when Jeffrey Toobin of The New Yorker, acting on a tip from Robert Shapiro, reported that the defense was going to play the race card and spin a fantastic story pitting a "racist cop" against a black victim, many of his readers responded with incredulity and scorn. It seemed inconceivable that African Americans would perceive and evaluate the evidence of Simpson's guilt so differently than whites. And it seemed inconceivable that lawyers, black or white, would attempt to win an acquittal by denying the possibility of objectivity and further fraying the already frayed comity of American society. Scarcely a year later, however, America has lost its epistemological innocence. Everybody knows now about the agonizing fracture in our civic life, and for this enlightenment we have Shapiro and Cochran to thank.
Toobin's book is a joy to read, even if its tale brings no joy. It is one of the most elegantly gripping trial narratives of our time. In the company of Simpson commentators, Toobin is the only one whose fair-mindedness can be trusted. Cochran and Darden have produced apologias; Lawrence Schiller, a researcher and literary mercenary from Los Angeles, ghostwrote O.J.'s entirely fictional exercise in storytelling, I Want To Tell You and, after gaining access to the defense team, promptly betrayed it by reporting that all of O.J.'s lawyers, with the arguable exception of Cochran, were convinced of his flamboyant guilt.
What makes Toobin's book at once humanly entertaining and morally serious is its combination of a meticulous narrative of the trial with an exuberant contempt for nearly all its protagonists. Toobin's judgments are wickedly reliable, from Shapiro ("from the moment Simpson vanished, Robert Shapiro focused on his top priority: Robert Shapiro") to Judge Ito ("Ito suffered, in the end from an undue eagerness to please, an unwillingness to offend--and a fatal lack of gravitas," manifested in his courtroom fawning over Larry King) to Simpson himself ("He was an uneducated, semiliterate ex-athlete who could barely understand much about the legal proceedings against him ... banality, self-pity, and narcissism ... are the touchstones of his character").
As the Woodstein of the race card strategy, Toobin is especially attentive to its underpinnings, and he provides lots of useful details about the stark differences in perspective between blacks and whites. During Simpson's suicide flight along the Santa Ana Freeway--we learn from Schiller that he had searched for a suitably theatrical place to commit the happy dispatch before jumping in the Bronco--he was greeted by cheering black crowds and largely impassive white crowds. At the edge of Watts, black spectators shouted "Go, O.J.!" and "Save the Juice"; but as O.J. approached the Sunset exit to his house in Bel Air, the few curiosity-seeking white spectators looked on silently.
But the really stark empirical evidence of a racial divide emerged with the arrival of the focus groups. Johnnie Cochran turned to Jo-Ellan Dimitrius, the Dick Morris of the jury consulting industry, who helped to choose the black jury that slapped the wrists of the black assailants of Reginald Denny, and who also picked the white jury that acquitted the four white police officers accused of beating Rodney King. According to Schiller, only three of the 200 African Americans that Dimitrius's team polled assumed that Simpson was guilty. Thirty-seven percent thought that he was innocent, and 66 percent thought that he hadn't had enough time to commit the murders. Forty-four percent said that L.A. cops had treated them unfairly at least once; and 29 percent believed that blacks were rarely treated well in the local legal system.
The prosecution, for its part, got similar advice from a firm called DecisionQuest, which offered its findings to Marcia Clark. (With the puritanical integrity that helped to sink her case, Clark refused to heed the free advice.) On a focus group panel of five men and five women, with six whites and four blacks, the racial divisions were stark: all the whites voted for conviction and all the blacks for acquittal. Toobin reports that, as an experiment, the firm asked the black members of the panel to assume that it was 100 percent certain that the blood to the left of the shoe prints at the murder scene was O.J. Simpson's and that the glove was definitely identified as Simpson's. Although this was practically a directed verdict of guilty, three of the four blacks still said that they would vote to acquit. (After the trial, polls of the general public revealed that up to 80 percent of African Americans thought that Simpson was innocent.)
Although the focus groups and the polls revealed a harsh divide between blacks and whites, they also, when examined more closely, called into question the vulgar essentialism of some of the critical race theorists, who suggest at times that all blacks, and all women, share common perspectives forged by the common experience of discrimination. Or, more precisely, the essentialism of race was shown to be diversified by gender and class. (Kimberle Crenshaw, one of the most nuanced and impressive of the critical race theorists, has written about how race and gender solidarity breaks down on the issue of domestic violence against black women.) Telephone surveys revealed that black men were three times more likely than black women to believe that Simpson was guilty. Belief in Simpson's guilt among African American men and women increased dramatically with education. Moreover, the prejudices of less-educated black women, as revealed in Dimitrius's focus group, startled even Cochran and his team. Cochran had assumed that black women would resent Simpson for marrying Nicole Brown. Instead, according to Schiller, the focus groups revealed that
black women hated her. They resented Nicole's lifestyle. The big house, the servants, the travel, the jewelry--all from a black man's money.... They didn't criticize Simpson for living an upscale white lifestyle, leaving his community behind. That wasn't important. He'd left them long ago. The gut issue was Nicole. This white woman had lived their fantasy. She had things they should have. The team was stunned. The women came close to calling Nicole a whore. They came right to the edge of suggesting she got what she deserved.... Virtually every middle-aged African-American woman in the focus group supported Simpson and resented the murder victim.
So the critical race theorists are wrong in an important respect: class envy, rather than shared experiences of racial and gender oppression, turned out to be the most important predictor of juror sympathies. But gender solidarity broke down in another important respect as well. Marcia Clark had assumed that black female jurors would be sympathetic to the prosecution because they would sympathize with her narrative of domestic violence. This prediction turned out to be wrong. Far from sympathizing with Clark, the DecisionQuest focus group revealed, black women viewed her as a "castrating bitch" who was trying to demean a symbol of black masculinity.
Black women believed overwhelmingly, the focus group revealed, that even if Simpson had beat his wife, he wasn't necessarily more likely to kill her. Forty percent of black women felt that, in a marriage, physical force was "appropriate." The women in the focus group, in fact, took a position similar to the one advocated by Shahrazad Ali in her self-published classic from 1989, The Blackman's Guide to Understanding the Blackwoman, which urges black men to "slap" black women "across the mouth" when they are "disrespectful," in order to re-establish the patriarchal authority that racism has disrupted. The focus group showed little interest, however, in the kind of global storytelling about domestic violence advocated by Richard Delgado. (Rodrigo laments that "when the plaintiff starts to tell her story," and to explain that her husband beat her for ten years, "we interrupt and say, `Don't tell us that story, tell us about imminent threats of death or violent injury. What was your husband about to do to you when you killed him?' If it turns out the women has nothing to tell of this kind of story, we tell her to keep quiet.")
Simpson himself, of course, is an unlikely protagonist for a narrative based on the premise that African Americans share a common legacy of harassment by the police. As Toobin puts it, "In a trial that resounded with talk of conspiracies within the lapd ... the only conspiracy [was] the one to help O.J. Simpson escape prosecution from beating his wife in 1989." After Nicole's brutal beating, the starstruck officers on duty let Simpson flee into the night, in a dramatic foreshadowing of his more famous flight five years later. When Nicole tried to file a formal complaint, the detective on the scene pleaded with her to drop the charges, to protect O.J.'s image. The police had visited Simpson's house eight times before 1989 to stop him from beating Nicole; but after Nicole signed a police report not a single officer would admit to having gone to Rockingham: about forty officers had visited Simpson's home as guests, and they were intensely protective of the celebrity. Finally, prosecutors decided to bring a case against Simpson, after his history of abuse was confirmed by an officer named Mark Fuhrman. But O.J. was let off with a slap on the wrist and allowed to atone by organizing a celebrity fund-raiser for his favorite charity. It is no surprise that, when Simpson began stalking Nicole in the week before her death, Nicole called a battered woman's shelter, rather than the lapd, to plead for protection.
In addition to being pampered (rather than oppressed) by the police, Simpson hardly identified himself by his race. Quite the contrary. He crisply summarized his views on the question of racial essentialism in an interview with The New York Times in 1968, as the country smoldered with racial resentments and other African American celebrities marched in the streets for racial justice. "I'm not black," he said. "I'm O.J." Fenced off in his million-dollar Rockingham fortress, O.J. married and dated white women and hung out almost exclusively with white men. With one exception, all of the fifteen friends named in his suicide note were wealthy, middle-aged and white. "Only blacks who are bound by shared economic, social, and political constraints, who pursue their freedom through affective engagement with each other, live in real black communities," writes Regina Austin in "`The Black Community,' Its Lawbreakers, and a Politics of Identification." By the standards of some critical race theorists, then, Simpson not only had withdrawn from the black community; he was not, in fact, authentically black. He was, you might say, the Clarence Thomas of Brentwood.
Before the trial, Simpson himself couldn't fathom why race should be relevant to his defense. For months after his arrest, according to Schiller, Simpson had told his friend Robert Kardashian that color should be irrelevant in jury selection. "I don't see race," he maintained. "Race is not an issue." Under Cochran's tutelage, however, Simpson was, as they say, sensitized about race; and he was as surprised as the rest of the country to learn how differently whites and blacks reacted to him. In the nick of time, Simpson metamorphosed into a walking advertisement for social constructionism. Quickly he changed his tune. "I need black jurors," he told Kardashian after the voir dire. "I came into this color-blind. I thought everybody was the same. I realize I need them. It's sad."
Sad, and also unconstitutional. According to the Supreme Court, prosecutors and defense attorneys are prohibited from striking prospective jurors on the basis of race or gender. With the help of Dimitrius's computer print-outs, however, Cochran flagrantly ignored the letter and the spirit of the Supreme Court decisions and set out to empanel a jury with as many African American women as possible. Disregarding the cautions of his colleagues, who thought to stop while they were ahead, Cochran continued to use his peremptory strikes until he had managed to select a jury with eight African American women, the most pro-Simpson jurors of all. ("You guys wanted me to give up when we had six," he crowed to his colleagues. "You guys were scared.") Cochran reports that when the prosecution "made a halfhearted attempt to claim we were excusing Caucasian panelists without cause, we were able to use our detailed questionnaires to demonstrate that the excused candidate had revealed actual bias, as was the case of one man who said he believed DNA testing `always was 100 percent accurate.'" But Cochran himself was far from halfhearted about accusing the prosecutors of violating the constitutional guarantees that he himself flouted with impunity: every time the hapless prosecutors struck a black juror (and Marcia Clark failed to use all her peremptory challenges because she was trying so hard to be color-blind), Cochran thunderously objected to the complicit cameras.
As a result of this blatant exercise in jurymandering, the jury that decided Simpson's fate looked nothing like America--or like Los Angeles County, which is only 11 percent black. It included one black man, one Hispanic man, two white women and eight African American women. Only two of the jurors were college graduates. Walking back to his holding cell after jury selection, Simpson was appropriately excited. "If this jury convicts me," he joked to his lawyers, "maybe I did do it." And armed with a jury of African American women disposed to resent Nicole, and a narcissistic defendant more disposed to identify with white policemen than with the black underclass, Cochran set out to construct a defense based on the same device that he had been using in courtrooms for the past decade: racial storytelling.
In his memoir, Cochran unwittingly embraces the critical race theorists' term. "The jurors, then, must trust the lawyer as a `storyteller,'" he declares. Toobin, too, calls the defense strategy "an effort at public storytelling, the creation of a counternarrative based on the idea of a police conspiracy to frame Simpson." To some extent, of course, all trial lawyers are storytellers, battling the disaggregating force of the rules of evidence to construct a narrative that will appeal to the jury in dramatic terms. In the Simpson case, however, Simpson's lawyers could not tell Simpson's own story. The reason was simple: Simpson had no coherent account of his activities on the night of June 12.
To his lawyers' dismay, Simpson was never able to come up with a consistent account of how, precisely, he cut his finger. Simpson had told Cochran that he cut himself in Los Angeles, but then he told Detective Vannatter that he cut himself in Chicago. When Barry Scheck and Cochran wondered how to reconcile the conflicting stories, Simpson offered to produce an airline reservations operator in Chicago who had purportedly heard him break a glass on the phone. But this story didn't convince his lawyers. How could Simpson break a glass in the hotel bathroom while talking on the phone in the hotel bedroom? And if the phone was in the bedroom, how could the reservations agent hear a glass breaking in the bathroom? "I'm starting not to believe him," Cochran confessed angrily when confronted with these absurdly conflicting tales. Like a good storyteller, though, Cochran refused to let facts gets in the way of his own fictions. "It doesn't matter," Cochran told his colleagues when Geraldo Rivera called him a liar for defending Simpson's shifting versions of events. "We shouldn't commit ourselves to one explanation to the exclusion of the other." The dream team of post-modernism.
Larry Schiller, playing courtier and business manager at the same time, came up with a brazen fund-raising idea: a book of Simpson's responses to the thousands of letters he had received in jail, evocatively titled I Want To Tell You. But Simpson, of course, couldn't tell his own story, because he had no coherent story to tell and also because he was, as Toobin notes, virtually illiterate. (Toobin quotes Simpson's unedited suicide note, later cleaned up by his friend Kardashian: "First everyone understand nothing to do with Nicole's murder. I loved her, allways have and always will. If we had a promblem it's because I loved her so much. Recitly we came to the understanding that for now we were'nt right for each other at least for now ...") So Schiller took it upon himself to invent a ghost-written story in Simpson's name. According to Toobin, Schiller wandered around the press room chuckling at Simpson's obvious guilt and also at the notion that Simpson had written or thought the words that Schiller attributed to him. The most quoted passage in the book, subsequently repeated by Simpson on talk shows across the land, appeared on the last page: "I know in my heart that the answer to the death of Nicole lies somewhere in the world that Faye Resnick inhabited." As Schiller told Toobin, "I put that in at the last minute."
For the jury that really mattered, however, Simpson designated not Schiller but Shapiro and Cochran to tell his story; and the story that Cochran told had nothing to do with Simpson and everything to do with race. Cochran had been honing his metanarrative about racism and the lapd for the past decade. In constructing the attack on the institutional racism of the lapd that made him rich during the 1980s (Schiller estimates that Cochran earned $45 million in civil damages during the past ten years) Cochran was initially on the side of the angels. The lapd was indeed guilty of appalling acts of racism and brutality throughout the decade, and Cochran played an important role in exposing police excess.
Still, if challenging police brutality was to be an authentic civil rights struggle, Cochran had to reinvent himself as the Thurgood Marshall of his age. In a passage not designed to convey irony, Cochran recounts his own feelings of guilt when he realized that, instead of participating in Martin Luther King's March on Washington, he had "traded his birthright" by working as a prosecutor in the Los Angeles city attorney's office:
Sleepless, I tossed and turned through anxious nights. Gradually, I began to listen to the voices that always have been there for me. I remembered the Gospel admonition I first heard echoing off the clapboards of the Little Union Baptist Church: "A man cannot serve two masters." I thought of my mother on the night I first told her I wanted to be a lawyer: "John, just promise me this. Be the best you can be." I pictured the fearless Thurgood Marshall on the steps of the U.S. Supreme Court, his great work of righteousness like an invisible crown upon his brow. I realized Du Bois's description of how Frederick Douglass had resolved his own inner struggle because he "bravely stood for the ideals of his early manhood--ultimate assimilation through self-assertion, and on no other terms." I knew what I had to do. At the dinner table that night, I told Barbara of my decision to leave the city attorney's office and enter private practice.
As if taking his cues from The Coming Race War?, Johnnie L. Cochran, private practitioner, came to reject the notion that there had to be intentional acts of racial discrimination to create victims of racism. Instead Cochran insisted on turning every trial into an opportunity to tell the story of (to use Delgado's words) "the broad story of dashed hopes and centuries-long mistreatment that afflicts an entire people...." This meant that, even before the Simpson case, Cochran was beginning to use his emotionally compelling narrative on behalf of clients whose claim to the services of Thurgood Marshall was open to question.
Cochran's most objectionable pre-Simpson performance in this regard occurred in the wake of the Los Angeles riots in 1992, when he represented Reginald Denny, the white truck driver who had been beaten by a black mob and rescued by the lapd. Rather than seeking damages from the black assailants who were, after all, poor, Cochran, retained by Denny for the civil suit, sued the lapd on the theory that it had engaged in racial discrimination by devoting inadequate resources to the black neighborhood where Denny was beaten. Again, Delgado: "Sometimes the law requires you to tell the other person's story--the perpetrators'--not your own."
Even for a lawyer dead to irony, turning O.J. Simpson into a heroic epigone of Homer Plessy and Medgar Evers posed a special challenge. "To put it bluntly," Cochran confesses, "nobody thought of him as black." Cochran proved equal to the task. When accused by Shapiro of playing the race card during the Simpson trial, Cochran announced that "race plays a part in everything in America" and those who deny it are "totally insensitive to the problems of race in America and the underclass." (Simpson's membership in the underclass required no corroboration.) And after the last week of testimony, Cochran addressed the legislative conference of the Congressional Black Caucus, calling the Simpson trial the latest in a long line of civil rights struggles for African Americans, struggles that included Plessy v. Ferguson, Brown v. Board of Education and "yes, even the Simpson case."
As an applied critical race theorist, Cochran insisted from the beginning that the facts of the Simpson case were less important to the defense than the social meaning that might be attached to the protagonists. As Cochran puts it, "Our theory was based not only on the facts before us but also on what our experience suggested to us about their meaning." So how, precisely, did Cochran construct a story that transformed a wealthy shill for white corporations into an oppressed tribune of the underclass? Among other things, by interior decoration. Perhaps the most shameful of Cochran's many shameful exercises in racial storytelling was his redecoration of Simpson's home, in preparation for the look-see visit of the black jurors. All day on Saturday, according to Schiller, members of the defense team were hard at work "establishing O.J.'s African American identity." The lawyers found Simpson's walls lined with pictures of white people: girlfriends, celebrities, corporate sponsors. "The faces were overwhelmingly white," Schiller notes. "That's not the way to please a jury dominated by African American women." On Cochran's orders, "The white women on the walls have to go, and the black people have to come in." Down went a nude portrait of Paula Barbieri that had been hanging near the fireplace, and up went pictures of Simpson's family--"his black family," in Cochran's words. Kardashian had the photographs enlarged at Kinko's, and nicely framed. "The jurors won't notice that they are color photocopies," Schiller notes cheerfully.
But homey xeroxed pictures of Simpson and his mother weren't enough for Cochran. As Schiller reports: "Cochran wants something depicting African-American history. `What about that framed poster from my office of the little girl trying to get to school?' he asks. Johnnie means Norman Rockwell's famous 1963 painting, The Problem We All Live With, in which a black grade school girl walks to school surrounded by federal marshals." And so Cochran's framed picture was hung at the top of the stairs, where the jury couldn't miss it as they trooped up to Simpson's bedroom. "Everyone," Schiller reports, "is pleased."
Well, not everyone. After the verdict, as the full horror of what they had wrought filtered back to the defense team, each of the principal lawyers, in his inimitable way, frantically tried to distance himself from his own responsibility for playing the race card. Shapiro, who had told Toobin that Mark Fuhrman was a "racist cop" who may have planted evidence, hysterically faxed a press release to Barbara Walters from the courthouse, minutes after the verdict came down, deploring his colleagues for playing the race card "from the bottom of the deck."
And in an exchange with Toobin in The New York Times Book Review, Alan Dershowitz denies his own role in dealing the race card. "It was Mr. Toobin who first suggested playing the race card," wrote Dershowitz. "It was he who called me and told me about Mr. Fuhrman's racist background." Toobin disputes this: it was Dershowitz, he writes, who first told him that Fuhrman "sounds like Oliver North, looks like Oliver North, and lies like Oliver North." This set Toobin down the trail that led to Toobin's discovery of Fuhrman's attempt to obtain a disability pension on the grounds that he, Fuhrman, was a hopeless racist. Although Toobin deserves credit for his remarkable scoop, his industry provoked others to supply corroborating details that helped the defense flesh out its narrative. "One of the consequences of Toobin's article was that important witnesses with firsthand knowledge of Fuhrman's racist inclinations came forward," writes Cochran smugly. "All in all, it was a fairly successful exercise."
In any event, the question of Dershowitz's culpability for dealing the race card is academic in light of his shamelessness in trying to evade responsibility for the narrative structure in which the card was played. At the Yale conference on "Narrative and Rhetoric in the Law," held serendipitously in the middle of the Simpson trial, Dershowitz had the gall to denounce the rise of storytelling as a legal movement. "[L]et fact finders, especially jurors, be warned that life is not a Chekhovian narrative," Dershowitz intoned. "When we import the narrative form of storytelling into our legal system, we confuse fiction with fact and endanger the truth-finding function of the adjudicative process."
To illustrate his point, Dershowitz attacked the Simpson prosecution for its "misuse of narrative" in trying to persuade the jury "that the cannons of drama required it to conclude that O.J. Simpson's alleged history of spousal abuse inevitably led him to murder his wife." The defense, Dershowitz thundered, would provide facts rather than tell stories, and the fact was that in "real life," as opposed to "fictional drama," fewer than one in 1,000 wife-beaters go on to murder their wives. At the conference, which I attended, Dershowitz's balloon was punctured by Elaine Scarry, a professor of English at Harvard, who asked him point-blank what percentage of women beaten by their husbands, and subsequently murdered, are killed by people other than their husbands. Unable to provide the figure, Dershowitz stammered that, of course, "most clients are, uh, most defendants, are guilty."
In the course of the trial, moreover, Dershowitz gave the lie to his own criticism of storytelling. The crux of the Simpson defense, constructed with Dershowitz's expensive assistance, consisted of the claim, put in the form of a story, that officers in the Los Angeles Police Department are racist and, absent evidence to the contrary, should be presumed to act in accordance with their racist presumptions. Sometimes the story was told a little less dramatically: given evidence in the Simpson case that Fuhrman lied about his own racism, the defense suggested, it was reasonable to presume that he also lied when he denied planting evidence. Both stories, of course, are vulnerable to precisely the criticism that Dershowitz offered against the narrative of wife-beating: if it is not reasonable to presume that people who beat their wives will go on to kill their wives, surely it is not reasonable to presume that police officers who lie about their hatred for African Americans will go on to plant evidence against African Americans. Life, as the un-Chekhovian Dershowitz reminds us, is not a story.
The unspoken premise at the heart of the Simpson defense, which might have come directly from a critical race theory seminar, was that black jurors and white jurors, owing to their socially constructed perspectives, are likely to view the reasonableness of these presumptions differently. The trial confirmed that this premise was, in fact, descriptively correct: white jurors, in other words, are more likely to presume that, absent other evidence, police officers do not fabricate evidence against black defendants, while black jurors are more likely to presume the opposite. (The question of which presumption is objectively more reasonable is an empirical question that should not be conceded to the social constructivists.) But Cochran, who could give Dershowitz a lesson in chutzpah, doesn't even have the courage of his own fictions. In his book, he backs away from the claim that he pressed in the courtroom: that an elaborate conspiracy of racist police officers had framed Simpson and then engineered a massive cover-up. "[W]e never believed or argued that some shadowy cabal of Los Angeles police offices [sic] set out to frame O.J. Simpson for murder because he is a black man," Cochran backpedals. "`Absurd' would be too charitable a description for such a contention."
Absurd or not, this was precisely the contention that Cochran made in his closing arguments. As Toobin reminds us, Cochran and Scheck explicitly suggested that the racist police, in a determined effort to frame Simpson, had planted at least the following items: "(1) Simpson's blood on the rear gate at Bundy; (2) Goldman's blood in Simpson's Bronco; (3) Nicole's blood on the sock found in his bedroom; (4) Simpson's blood on the same sock; and (5) the infamous glove at Rockingham which had, as Clark put it in her summation: `all of the evidence on it: Ron Goldman's fibers from his shirt; Ron Goldman's hair; Nicole's hair; the defendant's blood; Ron Goldman's blood; Nicole's blood; and the Bronco fiber.'"
Why does Cochran deny his own storytelling in his book? Perhaps because the story is, as Cochran says, "absurd." How could Fuhrman have planted fibers from the Bronco on the Rockingham glove and on the hat found at Bundy? How could he have planted Simpson's hair on Goldman's shirt? We learn from Schiller that when the defense team learned, to its horror, that DNA tests had identified Goldman and Nicole Simpson's blood on the Bronco console, and O.J.'s blood next to the wrist vent, Barry Scheck was unable to reconcile the evidence with the defense's theory that Fuhrman had intentionally wiped the bloody glove on the console. If the glove was wet when it was wiped, then Simpson's wet blood would have been transferred onto the console as well. If the glove was dry, no one's blood could have been transferred. "The glove theory," the defense team concluded, "doesn't work." In the courtroom, however, Scheck decided to ignore the problem. "The only answer is that the glove was smeared by Fuhrman," he said, contradicting the claim in Cochran's book that "there had been no concerted plan."
Perhaps the reason that Cochran now abandons his charge that the police had a "concerted plan" to frame Simpson is because the defense was never able to produce a remotely plausible explanation of how, precisely, the heinous plan could have been carried out. In this instance, their narrativity failed them. As Toobin crisply summarizes:
Not only would [Fuhrman] have had to transport the glove with its residue of the crime scene, but he would also have had to find some of Simpson's blood (from sources unknown) to deposit upon it and then wipe the glove on the inside of Simp son's locked car (by means unknown)--all the while not knowing whether Simpson had an ironclad alibi for the time of the murders.... The other police conspirators (conspicuously unnamed by the defense) would have had to be ... even more determined. Many of the police officers at the crime scene noticed the blood on the back gate at Bundy; someone would have had to wipe that off and apply Simpson's. The autopsies, where blood samples were taken from the victims, were not performed until June 14, more than a full day after the murders. Someone would have had to take some of Goldman's blood and put it in the Bronco, which was then in police custody. And someone (the same person? another?) would have had to take some of Nicole's blood and dab it on the sock, which was then in a police evidence lab. (When Vannatter took his notorious trip to Brentwood with the blood vial, he had only Simpson's sample, not Nicole's with him.) All of these illegal actions by the police would have had to take place at a time when everyone involved in the case was under the most relentless media scrutiny in American legal history--and all for the benefit of an unknown killer who, like only 9 percent of the population, happened to share Simpson's shoe size, twelve.
It is hardly surprising that in his book Cochran backs away from the only empirically verifiable claims that he raised in the courtroom. For, in a larger sense, the defense's narrative was a constantly shifting story. Schiller tells us that the defense made it up as the trial progressed. The only consistent feature of their story was a deep cynicism about the relevance of facts. In his book Cochran boasts that, in order to win the jurors' trust as a reliable "storyteller," he considers trust a narrative "thread" that must be cultivated through the entire trial: "It begins in voir dire, when I use eye contact to establish an implicit bond of faith with the jurors: it continues into the opening statement, when I promise them certain things; it extends through the presentation of evidence, when I try and deliver what I've promised; then it ends in the final argument, when I remind them of their promises and the promises I've kept and explain those things on which I have been unable to deliver."
Cochran is obviously unaware of the mercenary tone of this boast about method. And, judged by his own standards, Cochran insouciantly betrayed the jurors' trust. He was "unable to deliver" on virtually any of the promises of his opening statement. Cochran never called the dog walker Tom Lange, who would testify (Cochran promised) that he had seen Nicole embracing a stranger the night of her murder. He never called Rosa Lopez, whose name he mentioned more than a dozen times and whom he promised would testify that Simpson's Bronco was parked at Rockingham at the time of the murders. The blood under Nicole's fingers, which Cochran had initially suggested was inconsistent with her own blood, or Goldman's, or Simpson's, turned out to be her own. Cochran suggested that Simpson suffered from arthritis so severe that, on the day of the murder, "he could not shuffle the cards when he played gin rummy at the country club," but it turned out that Simpson did not shuffle the cards for an entirely different reason. His friend Alan Austin would not let him shuffle: he knew that Simpson cheated when he dealt.
But all these criticisms are very old-fashioned. They fail to grasp the philosophical elan of the Simpson defense. To focus on the factual inconsistencies in Cochran's counternarrative entirely misses the point. The point is that this trial took place in a world that had transcended facts. The insidious genius of the defense strategy was to act on some of the central premises of critical race theory: that racism is institutional and endemic; that there is no need to prove individual acts of intentional discrimination to establish that an African American defendant has been victimized by racism; that race is socially constructed and factual conclusions are racially contingent; that any African American who holds incorrect views is not really black; that hate speech is spirit murder: that a racial epithet is, in Patricia Williams's words, "as psychically obliterating as robbery or assault; indeed they are often the same"; that the appropriate remedy for institutionalized racism is legal instrumentalism or nullification; that, to punish the racist constables, guilty black defendants must go free.
Let us take up each of these premises in turn. The old civil rights paradigm held that a plaintiff is not entitled to a legal remedy for racial discrimination unless he can prove that he has suffered from an intentionally racist act. The first premise of what we might now call Cochranism is that all African Americans are victims of racism, whether or not they have suffered from racist acts, whether or not anyone can point to individual racist oppressors. This was the subtext of Cochran's closing statement, which began by quoting Martin Luther King: "Injustice anywhere is a threat to justice everywhere." But King was propounding an integrationist ideal in his Letter from Birmingham City Jail. ("We are caught in an inescapable network of mutuality, tied in a single garment of destiny.") Cochran had something very different in mind. As Darden incisively decodes Cochran's message: "I could see where he was going. This is about injustice elsewhere, he was telling the jury, about Rodney King, and Thirty-ninth and Dalton, and racist white cops. That injustice allowed them to ignore the facts and concentrate their anger on what has been done to African Americans."
If Cochran's closing statement was directed primarily toward the blacks on the jury, it was also, as Darden recognizes, "directed toward me." The second premise of Cochran's strategy was to force the jury to choose, as Darden puts it, "between the Man and the Juice." And to achieve his goal Cochran had to make clear that Darden himself was "on the wrong side." It is possible to dismiss Darden, of course, as a poignant figure out of his depth. He had come from a more disadvantaged background than any other lawyer in the Simpson case, and he had the best intentions, but he was not, as Toobin writes, "an especially talented trial lawyer." And his consuming envy of Cochran, palpable on almost every page of his sad memoir, led him to make the most serious strategic error of the trial: goaded by F. Lee Bailey (at Cochran's suggestion), Darden ignored Marcia Clark's explicit instructions and had Simpson try on the bloody glove in open court. As Clark had predicted, the latex liner made the skin-tight glove fit even more snugly, and the resulting fiasco ("Darden has helped the defense more than Shapiro," Cochran quips in his book) may have sunk the prosecution.
Still, it is hard not to feel both sympathy and respect for Darden, who continued to hold fast to his color-blind ideals even as Cochran systematically set out to banish him from the African American community. "Stay out of the racial stuff, and we'll see what we can do about getting you back in," Cochran told Darden in a high-handed threat that brings to mind Leon Higginbotham's open letters to Clarence Thomas. Darden, to his credit, refused to be cowed. When Cochran whispered in his ear that he shouldn't cross-examine Fuhrman--"This shouldn't be your issue," he hissed. "Let these white people get up and argue about Fuhrman. OK?"--Darden rebuffed him with dignity. "I wasn't going to be limited by my race and I told him so."
The contest between the race-neutral Darden and the race-partisan Cochran turned out to be no contest. And the battle was played out over the critical race theory notion that hate speech is a form of "spirit murder," almost as reprehensible as murder itself. The perverse ingenuity of Cochran's victory consisted in his ability to maneuver Darden into taking Richard Delgado's position in the hate speech debate, while Cochran was able to pose as an earnest child of John Stuart Mill. When Cochran sought to introduce Mark Fuhrman's past use of the word "nigger," Darden objected in terms that could have come directly from the pages of The Coming Race War?: "Your Honor, when you use that word, you are using fighting words.... It is a call to arms...." Darden then read Judge Ito a quotation from Andrew Hacker, who wrote that memorable forward to Delgado's book: "When a white person voices [the N-word], it becomes a knife with a whetted edge. No black person can hear it with equanimity or ignore it as simply a word. This word has the force to pierce, to wound, to penetrate as no other has...."
Cochran's response was as disingenuous as it was effective: "It is demeaning to our jurors to say that African Americans who have lived under oppression for two hundred plus years in this country cannot work within the mainstream, cannot hear these offensive words," he proclaimed. "I am ashamed that Mr. Darden would allow himself to become an apologist for this man, to justify the fact that he is a police officer." Cochran's subtle but unmistakable accusation of Tomism had its effect. When Darden returned to his office, the phone began to ring. "`Uncle Tom.' And again. `You are a disgrace to your race.' Again. `Don't ever refer to yourself as black, 'cause you ain't.'" The strategy was working.
By the end of the trial, both men showed their stripes. Darden regained his bearing and eloquently defended the principles of Mill. "How many times must Fuhrman say nigger," he asks pointedly in his book, "before his transgression was the moral equivalent of two homicides?" As for Cochran, with his disgusting comparison of Fuhrman's bigotry with Hitler's "genocidal racism," he unmasked himself as a limousine illiberal, a remorseless race-peddler. Thus, Cochran includes the following apologia in his book: "I never intended to suggest that Fuhrman's perjury was morally--or in any sense--comparable to the genocidal crimes of the Third Reich.... I never suggested nor do I believe ... that Fuhrman and Hitler were the same. I have been to Yad Vashem. No one goes away from that unchanged." No one, apparently, except for Cochran. He concludes with this little homily: "In one of its most inspiring moral injunctions the Talmud tells us, `If you save one life, it is as if you had saved the entire world.'"
What makes all this especially grotesque was Cochran's refusal, when he brandished Hitler during the trial itself, to speak the word "anti-Semitism." A close reading of Cochran's closing statement reveals the dark side of the storytelling method. Stories do not appeal to reason; they usurp it. Reasoned arguments depend on things such as truth, evidence, logic, objectivity and the rest of the anachronistic apparatus of the critical mind. Stories, by contrast, appeal to the heart. They are designed to edify, and to confirm the prejudices of a community of listeners. For this reason, stories are a primary instrument of identity. So let us recall precisely what Cochran said: "There was another man not too long ago in the world who had those same views.... This man, this scourge, became one of the worst people in the history of this world, Adolf Hitler, because people didn't care or didn't try to stop him. He had the power over his racism and his antireligion. Nobody wanted to stop him, and it ended up in World War II." Antireligion, not anti-Semitism. Cochran was surrounded at this point by bodyguards supplied by the Nation of Islam, and he was so loath to ruffle the sensibilities of his jurors that he told a story about Hitler that omitted the central detail of what Hitler did. This, of course, was a rhetorical strategy employed by the fascists themselves. (I do not intend to suggest that Cochran's rhetoric was morally--or in any sense--comparable to the crimes of the Third Reich. I have been to Yad Vashem....)
The final prong of Cochran's strategy was his racialist inversion of his favorite Talmudic injunction. To save one life, Cochran told the jury, you are justified in inflaming the entire world. His closing argument was an appeal for racial solidarity and an explicit call for race-based nullification: "Your verdict in this case will go far beyond the walls of Department 103 because your verdict talks about justice in America and it talks about the police and whether they should be above the law," Cochran announced. "Maybe this is why you were selected," Cochran said to the African Americans on the jury, whom he had selected for this very purpose. "There's something in your background, in your character, that helps you understand that this is wrong. Maybe you are the right people, at the right time, at the right place to say, `No more, we are not going to have this. This is wrong.' What they've done to our client is wrong. You cannot believe these people. You can't trust the message. You can't trust the messengers. It is frightening." Cochran subtly--and illegally--reminded the jury of its power to nullify ("You are empowered to say, `We are not going to take that anymore.' I'm sure you will do the right thing about that"), and he challenged the jurors to "Stop this cover-up:"
Who, then, polices the police? You police the police. You police them by your verdict. You are the ones to send the message.... If you don't speak out, if you don't stand up, if you don't do what's right, this kind of conduct will continue on forever. And we'll never have an ideal society.
Why should the acquittal of O.J. Simpson be seen as a social crisis rather than the traditional windfall that guilty defendants routinely reap from the exclusionary rule, which says that the criminal must go free when the constable blunders? In most cases, of course, the remedy for an unconstitutional search is the exclusion of evidence rather than the dismissal of an indictment; but, in light of the virulence of the evidence of Fuhrman's racism, couldn't the jurors have entertained reasonable doubts about whether he was capable of acting out fantasies? And wasn't Cochran simply playing a conventional lawyer's role, poking holes in the prosecution's narrative to help a guilty man go free? To put it differently: wasn't he the student of Dershowitz and not the student of Higginbotham? Isn't it unfair, moreover, to hold Cochran to standards of narrative coherence? Defense attorneys are not usually required to tell stories that are airtight and logically consistent. Why should it matter if the lapd could not logically have done what they would have had to have done to support Cochran's charge that Simpson was framed? And given Fuhrman's bigotry, wouldn't it have been professional malpractice not to interject race into the trial?
All these are questions that Cochran invites us to ask when he presents himself in his memoir not as a legal performance artist indifferent or hostile to the law but as an entirely traditional defense advocate, "an advocate for the law as much as an advocate for the individual." But he cannot be excused so easily. In his closing statement, after all, Cochran explicitly invites us to construe the meaning of an acquittal as something more than a windfall for his client. He calls on the jury to articulate a message that will provoke social reform. So it does Cochran no injustice to evaluate the social significance of the verdict on his own terms and to conclude that its significance was, in a word, toxic.
Christopher Darden, for his part, had no doubt that the jury's verdict should be construed as an intentional act of race-based nullification, an example of racial instrumentalism in the starkest sense: "I was ashamed of a jury that needed just four hours to dismiss the lives of two people and a year's work, a jury that picked a dreadful time to seek an empty retribution for Rodney King and a meaningless payback for a system of bigotry, segregation and slavery." The jurors' conduct before, during and after their brief deliberations also undermines the claim that the verdict should be understood as an expression of reasonable doubt, rather than as an act of nullification. When it was time to discuss the facts of the case, Anise Aschenbach, one of the two white jurors--Toobin and Schiller report that Cochran's team, using a Nation of Islam epithet, repeatedly called her "the white demon"--announced that she wanted to say something. "I was so outraged at what [Cochran] said," Aschenbach told her fellow jurors, according to Toobin. "He wants us to send the lapd a message. Does he think we're so stupid that we're going to send a message rather than decide based on what we heard in the case? I hope I was not the only one offended by his remarks." But her fellow jurors responded with silence.
The more hopeful hypothesis, that the jurors conscientiously considered the evidence of Simpson's guilt and found that they were not convinced beyond reasonable doubt, is further undermined by the briefness and the banality of their deliberations. The factual doubts that they raised were irrelevant or trivial. Why wasn't there more blood around the glove Fuhrman said he found at Rockingham? one juror asked. Another wanted to know why, if the glove came off Simpson's hand during the fight, it wasn't inside out. Three jurors mentioned that the glove didn't fit. As for the DNA tests, which the defense team had considered almost conclusive proof of Simpson's guilt, the jurors referred to them only once. Two jurors said they didn't think that the tests were reliable, since the DNA came from the back gate at Bundy. The jurors made no attempt to engage the unrefuted evidence presented to them and summarized by Toobin: that Simpson had a violent relationship with his ex-wife and that tensions were increasing between them in the weeks before the murders; that Simpson had no alibi for the time of the murders; that his Bronco wasn't parked at Rockingham during that time; that Simpson had a cut on his left hand the day after the murders; that DNA tests showed Simpson's blood to the left of the shoe prints leaving the scene; that the blood of Goldman, Nicole and O.J. was found in the Bronco, and hair consistent with Simpson's was found on the killer's cap; that the gloves that Nicole gave Simpson as a present in 1990 were almost certainly the ones used by the murderer.
Critical race theorists, of course, are more interested in the social meaning of a particular action than in the personal motives underlying it. By this standard, plenty of circumstantial evidence suggests that the decision of the Simpson jurors must be seen as a racially charged act. Darden recalls that early in the deliberations one juror heard another say: "This is payback time!" The prosecution decided that it was a bad sign when another juror was seen carrying a copy of Nathan McCall's minor classic of black rage, Makes Me Wanna Holler, which begins with McCall's gleeful account of his brutal beating of a white boy who strayed into his neighborhood. Jurors who were dismissed in the middle of the trial emphasized the centrality of race in the deliberations. "For the black jurors, Simpson was one of our own," one juror confessed in a tell-all book published the summer before the verdict. "He was a brother and he was in trouble." After the verdict was announced, Lon Cryer, juror number six, turned to Simpson and raised his fist in a black power salute. And as the jurors sat in silence in the eleventh-floor lounge, one of them, Carrie Bess, announced to no one in particular: "We've got to protect our own."
Even the most radical critical race scholars have not, to my knowledge, pressed the claim that Cochran was justified in calling for nullification. The argument would be very hard to sustain. Principled acts of nullification, such as the refusal by abolitionist juries in the antebellum period to enforce the fugitive slave laws, involved conscientious decisions not to convict guilty defendants because of a belief that the laws in question were unjust. Nobody on the defense team ever suggested there is anything unjust about the laws prohibiting intentional homicide. Instead, Cochran called on the jurors to refuse to apply a just law in order to punish the police and to express solidarity with the defendant.
This is racist nullification in its purest form. It is precisely the kind that was practiced by white Southern juries in the nineteenth and twentieth centuries, culminating in the acquittal of the two white men charged with murdering Emmett Till in 1955, and of Byron de la Beckwith, the murderer of Medgar Evers, in 1963. It was then appropriated by William Kunstler, who invited black jurors to acquit guilty Black Panthers as a form of racial payback. But Kunstler at least employed his rhetoric of race-based nullification on behalf of criminals who conceived of themselves as political revolutionaries. The unique contribution of Cochranism was to transform a pampered celebrity into a victim of oppression; to construct, with the aid of ghost-written books and xeroxed photographs, a charged and lachrymose identity for the defendant that bore no relation to the one that he had selected for himself.
In the end Cochran managed to drown out the factual question of guilt or innocence with a narrative that he summarized neatly at a defense conference two weeks before the close of the trial. "I know it's our job to get Simpson off," Cochran told his colleagues, "but I think our legacy should be to show this country that the cops will do just about anything. They will lie because they believe that the end justifies the means." This is indeed the ultimate legacy of Johnnie L. Cochran, and he must be held accountable for it. It is he who believes that the end justifies the means. His storytelling transgressed the boundaries of acceptable advocacy, and shook the color-blind aspirations of American law more profoundly than any murder trial in the post-civil rights era.
Decrying the use of racist stereotypes by white prosecutors in the 1960s, Leon Higginbotham eloquently identifies the dangers of interjecting "elaborate and detailed myths about African Americans" into the "conscious and unconscious minds of courtroom participants. Once these racist attitudes and assumptions have been tapped into," Higginbotham notes, "the judge, jury and lawyers are more likely to stimulate and rely on their collective consciousness or unconsciousness, applying related racist myths and stereotypes," rather than finding facts and applying the law as dispassionately as possible. Higginbotham goes on to quote Anthony Amsterdam, a civil rights advocate from another era:
[T]he very fact that a racist pitch is made in closing argument almost always means that the prosecutor has read the jury--on the basis of knowledge about the individual jurors or their backgrounds or the community or on the basis of a hundred signs that may be very subtle or very glaring in the atmosphere of the courtroom but are totally undetectable on the cold written record preserved for appeal--and that the prosecutor has decided that, with this jury in this case, a racist pitch will work. Courts that ignore this reality are willfully blind.
In the context of a criminal trial, there is no moral or legal difference between racialism and racism. Ascribing the sympathetic attributes of victimhood to a defendant because of his race is just as subversive as ascribing the pernicious attributes of villainy to a defendant because of his race. Appealing to the racial prejudices of black jurors is just as indefensible as appealing to the racial prejudices of white jurors. There was a time in American history, a long and vicious time, when these things were not obvious. Then, in the middle of this century, as a consequence of harsh and noble struggle, there was a hopeful moment when it seemed at last that these things might become obvious. Now we know that they still are not. The prestige of color-blindness is diminishing in America, and not only among people of color. This is a disaster. For we will be blind to color or we will be blind to justice.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.