(This post is part of a series concerning Curtis Flowers, an innocent man convicted of a horrific crime that has divided a small Mississippi town. Information on the Flowers case can be found here.)
A new report from the Equal Justice Initiative suggests that racial bias in the jury selection process is rampant, especially in Southern states. No one who has spent much time in a courtroom, especially in small southern towns, will take issue with this finding.
Do prosecutors believe they are more likely to get a conviction from an all-white jury when the victim is white and the defendant is black?
Of course they do. But it goes deeper than that.
You rarely see prosecutors trying to limit the number of white jurors when the defendant is white; so why is the mirror image of this phenomenon such a prominent feature of judicial life in America?
As the EJI study suggests, prosecutorial bias against black jurors is particularly marked when the defendant is African American and the death penalty is on the line. African Americans, as a group, aren’t crazy about the death penalty, largely because it is used disproportionately against people of color.
In a groundbreaking study, Mark Pefley of the University of Kentucky and John Hurwitz of the University of Pittsburgh asked 600 white and 600 black participants if they supported the death penalty. True to form, white support was around 65% while a slight majority of blacks stated their opposition. The participants were then informed that some people oppose the death penalty because a disproportionate number of minorities are executed in America. Following this simple statement, subjects were once again asked if they supported the death penalty.
Black support for the ultimate punishment dropped by twelve percentage points. White support increased by twelve points.
This explains why Doug Evans, the man who will take Curtis Flowers to trial for an unprecedented sixth time next week, used all fifteen of his peremptory strikes on black residents back in 2004. The Mississippi Supreme Court called it the most egregious case of racial bias they had ever seen . . . then handed the case back to Mr. Evans. Under existing law, they had no choice.
The presence of a black defendant accused of raping or murdering a white victim naturally raises the issue of judicial fairness. But instead of making white jurors more sensitive to the danger of racial bias, the fairness question (whether stated or merely implied) deepens racial animus in white jurors.
In the South, this heart-hardening effect is driven by civil rights resentment. White Southerners have a well-publicized reputation for bigotry. Remember the outcry when Neil Young (a Canadian smart-ass like me) released the song “Southern Man” in the late 1960s?: “I saw cotton and I saw black. Tall white mansions and little shacks. Southern Man when will you pay them back? I heard screaming and bull whips cracking. How long? How long?”
Southern rockers Lynyrd Skynyrd scored an instant hit with “Sweet Home Alabama,” a song featuring the line: “I hope Neil Young will remember, a Southern Man don’t need him around anyhow.” (Of course, the niftiest guitar hook in the history of popular music didn’t damage the song’s appeal.) The spat wasn’t personal, but it emphasized the deep resentment any mention of the civil rights movement or Southern racism inspires in white folks.
Southern prosecutors aren’t necessarily racist, in the sense of hating black people; in some cases they are simply spinning a peculiar feature of American sociology to their advantage. But what happens when a prosecutor is every bit as influenced by civil rights resentment as the white jurors he so cynically manipulates?
Take Doug Evans for example. Before it became a social liability, Doug was a regular participant in meetings sponsored by a group of unapologetic white supremicists called the Council of Conservative Citizens. Until the late 1990s, the CofCC was so representative of white mainstream opinion in Central Mississippi that involvement with the organization was a reputation-enhancer.
When you start with Mr. Evans’ historical affiliation with a racist organization, add the fact that the biggest backers of his quest for an all-white jury in the Flowers case are card carrying members of the CofCC, and throw in the prosecutor’s hard-earned reputation as Mississippi’s most racially biased district attorney, a clear, consistent (and, frankly, terrifying) picture emerges.
We should be grateful to the Council of Conservative Citizens for laying their opinions on the table.
The CofCC calls its magazine, The Citizens Informer, a title that hearkens back to the glory days when the Citizens’ Council movement controlled Mississippi politics and literal “informers” blanketed the Magnolia State. The publication bills itself as “the voice of the no longer silent majority.” Does the CofCC speak for the white mainstream in Mississippi? If we’re talking about downtown Jackson and the ivy halls of Ole Miss, probably not. If we’re talking about Winona, the jury (as they say) is still out.
Last week, the Citizens’ Informer published a nasty piece of work by Lawrence Auster, a leader of the paleo-conservative movement. Auster was picking up on Rand Paul’s well-publicized difficulties with the Civil Rights Act of 1964. Auster doesn’t like the Civil Rights Act and isn’t inclined to tap-dance around the issue like candidate Paul.
Auster doesn’t have a problem with equality under the law or equal rights as abstract concepts. But when you grant black folks equal rights, he says, there is an expectation of equal outcomes. Because black people, in Auster’s view, are morally and intellectually inferior to whites, there is no way of bridging the performance gap unless you trash the great standards on which the nation was founded.
Thus, Lawrence Auster is death on the Civil Rights Act:
“By attacking, in principle, all racial discrimination, including private racial discrimination, it in effect delegitimized all natural and historical human groupings and cultures, if they were white. It delegitimized white people’s most basic rights of free association and of property, since such rights were now seen as having only one end in view: the oppression of blacks. And, as pointed out above, it said that whites’ entire history as the American majority was a scandal. The ongoing functional and economic deficiencies in the black community were seen as the result of the same historic white sin, which thus seemed to be still operative in the present as well as the past.”
You can see how this applies to the criminal justice system. “The liberal equality of individuals under the law is part of the essence of America,” Auster admits. “But it must not be America’s primary value. Liberal values–the belief in free inquiry, the treatment of all citizens according to the same rules–have an indispensable place in our heritage. But liberalism, the ideology that makes the pursuit of equality the most important thing, spells the death of our heritage.”
And here’s where Auster’s views (which are a highly articulate version of CofCC common sense) touch on the jury selection process. “The fact that the law is procedurally neutral and race-blind, doesn’t mean that the conditions that allow for such a system to exist are race blind,” Auster insists. “Change America into a brown and black country, and that new population will not only not have much regard for that impersonal, non-tribal system of justice, because they themselves are tribal, but they will seek to overthrow that system of justice, along with all other historical aspects of America, because they were made by whites whom the nonwhites are now replacing. From which it follows that to maintain its universalist and impersonal system of justice, America must remain a particularist, predominantly white country.”
In an article on his own website, Auster leaves nothing to the imagination. “Blacks are more ‘non-objective,'” he explains. “They understand things in a much more personal, subjective way than whites. They seem to have much less interest in knowledge or beauty for its own sake . . . Blacks feel they should not be held to moral standards for the crimes of blacks against whites, because blacks have been the victims of this vast and still unacknowledged evil by whites for several thousands of years. Blacks thus tend to see every issue in purely racialist terms.”
Is this the way Doug Evans thinks? If so, it explains a great deal.
Evans behaves as if black jurors can’t be trusted. When all five black jurors in the fourth Curtis Flowers trial voted to acquit, Evans never asked himself if these folks might be seeing something he was missing. Black jurors don’t believe the eye witnesses Doug Evans trots before the jury just because these people are all black. If black jurors in Montgomery County were convinced by Doug Evans’ case they would vote to convict. They don’t want to return a dangerous man to free society–you know whose neighorhood he would move into.
Does Doug Evans think like Lawrence Auster and the rest of the unapologetic white supremacists in the Council of Conservative Citizens? There is plenty of evidence suggesting he does and not the slightest indication that he does not.