Knowing Elena Kagan will win confirmation to the Supreme Court, Republican Senators used her confirmation hearing to malign the legacy of Thurgood Marshall.

Marshall believed that when the political process fails to protect the legitimate claims of the poor and the oppressed, the legal system should provide a second resort. 

This is what happened in Brown v. Board of Education in 1954. 

Which explains why conservative senators were at such pains to denigrate the Marshall heritage–he represented a theory of law they abhor.  Not all conservatives have accepted the logic of Brown v. Board and the Never in a Thousand Years philosophy of the late 1950s is emerging as a new orthodoxy.

The concept of civil rights has never been popular among conservatives.  For a time, they adjusted to the undeniable momentum behind the civil rights movement; but those days are long since gone.

Thurgood Marshall was appointed to the Supreme Court in 1967.  It is almost impossible to imagine a person of his judicial philosophy being appointed prior to 1964 or after 1968; the window of opportunity was exceedingly narrow.

Elena Kagan clerked for Marshall and considers him a mentor.  But she also works to distance herself from the Marshall legacy.  She embraces the death penalty because, as a practical matter, she must.  You can’t sit on a jury in a capital case if you oppose capital punishment, and you can’t get elected either.  If you want a seat on the Supreme Court, support for the ultimate penalty is mandatory.

Thurgood Marshall knew the American status quo was fundamentally unjust.  He was rejected by the University of Maryland law school in 1930 because of his color.  Had he been accepted, Marshall might have adopted a mainstream pragmatism.  Instead, he went to Howard University where he came under the influence of people like Charles Hamilton Houston who took the concept of equal justice under law seriously.

As a Jewish woman, Elena Kagan has likely experienced rejection and prejudice; but nothing like what Marshall and his black contemporaries faced. 

The resurgence of 1950s conservatism is apparent in the Marshall-bashing on display this week and in the thin-gruel liberalism exhibited by the nominee.  Conservatives, for all their setbacks, are on the offensive; liberals went into a defensive crouch in the chaotic years between 1966 and 1980 and have yet to stand up for their ideals. 

In fact, in twenty-first century America, only conservatives can have ideals; liberals must present themselves to the world as fuzzy pragamatic survivalists.

In an environment like this, trying to bring the criminal justice system into line with Thurgood Marshall’s vision is an uphill slog.

Mandis Barrow is getting a new probation revocation hearing.  His twin brother, Landis, received similar relief from the Texas Court of Criminal Appeals in November of last year. 

Potter County District Attorney Randall Sims (pictured to the left) is unlikely to press for a second revocation. 

The case of the Barrow twins is complicated.  As teenagers, they were accused of aggravated robbery in Amarillo.  Their attorney felt the charges were weak enough to fight, but the DA was offering deferred adjudication in exchange for guilty pleas and that meant a one way ticket back to the streets. 

This kind of short-term thinking often leads to a world of hurt.  Probation can be revoked for technical reasons (missing a meeting with a probation officer, for instance), but any new charges mean a virtually certain revocation.

That’s where Tom Coleman, the hero of Tulia’s once-fabulous drug bust, comes in.  An Amarillo judge heard Tom Coleman say he bought drugs from the Barrow twins and sentenced them each to twenty years in prison. 

While incarcerated, Landis and Mandis received money from a 6 million dollar settlement; but they remained in prison.

Randall Sims could have granted relief to the Barrow twins a long time ago.  Ably represented by the indefatigable Vanita Gupta (then with the Legal Defense Fund), the twins argued that, since their probation had been revoked on the uncorroborated word of a notorious liar, they should receive a new hearing.

Their plea fell on deaf ears. 

So now, with both brothers are back in the free world,  joint revocation hearing will be held in the near future.  If you want to read more about this story there is an article in the Amarillo Globe-News and Scott Henson has a good post at Grits for Breakfast that talks about the wide repercussions of the Coleman fiasco.

This case is personal to me. 

I corresponded with the twins for years and they helped me understand the social background of the Tulia drug sting. 

Secondly, I bumped into Mr. Sims at an event in Amarillo several years ago.  When I mentioned that I was from Tulia, he automatically assumed that I was one of the law abiding folks who backed the Coleman operation 110%.  The DA told me that Tulia was getting a really bum deal and everybody in Amarillo knew it.

In reality, Tulia had sown the wind and was reaping the whirlwind.  If prosecutors like Mr. Sims understood the seriousness of what was happening in Tulia they would have granted relief to the Barrow twins years ago.

Alan Bean

The evidentiary hearing in the case of Troy Davis has come and gone.  If Mr. Davis is now guilty until proven innocent, Patrick Rodgers thinks his lawyers have little cause for rejoicing.  The waters are just as muddy now as they have ever been. 

But is this process just about the guilt or innocence of Troy Davis?  I don’t think so.  In fact, I predict that the State of Georgia will be unable to execute Troy Davis.  Why?  Too many people either think he is innocent or distrust the investigation underlying this case.  When that happens, the criminal justice system freezes up. 

Supreme Court Justice Anton Scalia painted the Supreme Court into a constitutional corner when he made this stunning observation:

“This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.  We have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Scalia apparently think that’s okay.  Most Americans would disagree . . . if they were paying attention. 

The trouble with the Davis case is that so many people are paying attention.  Normally, the Alice in Wonderland character of the legal system goes unnoticed.  When a case gains widespread attention, a tipping point is reached.  The Davis case tipped a long time ago.

JUNE 29, 2010

Sound and fury: The Troy Davis hearing

Patrick Rodgers

Twenty years in the making, last week’s proceeding didn’t seem to clarify anything.

In a city with a reputation for celebrating the intersection between odd personalities and true crime drama, last week’s evidentiary hearings for Troy Davis did not disappoint.

There were remorseless convicts correcting the state’s legal team about prior arrests; wild–haired old ladies reflecting out loud (to no one in particular) about the distant past; tense moments implicating possible police malfeasance; and a court room audience that did not hesitate to emote audibly as various witnesses were questioned.

“We don’t usually have this much excitement in the courtroom,” I overheard a member of the court staff say while waiting for Wednesday morning’s session to convene.

It was expected to be a circus – after all, the case has grown from local tragedy to international controversy over the last few years. The Pope and the French government, among others, have even taken sides.

Media, special interest groups and curious observers all gathered to catch a glimpse of the proceedings.

In front of the court house dozens of high school and college students gathered to assist Amnesty International and the NAACP with a rally, waving signs, chanting and passing out fliers. The atmosphere was electric. (more…)

Who is Curtis Flowers?  A lot of people have opinions, but those who grew up with Curtis are uniquely qualified to speak.  Michelle Milner contacted Friends of Justice shortly after Mr. Flowers was convicted and sentenced to die by lethal injection.  Michelle is a doctoral student in urban higher education at Jackson State University with a research interest in justice-related higher education.

I have observed with considerable angst the circus that has surrounded Curtis Flowers for some 13 years…a sort of morbid fascination with the injustice and racism that I see displayed. The prosecution’s distortion of Curtis Flowers as a murderer would be laughable if not for the fact that the individuals actually believe this pack of lies. The Curtis Flowers that I know could never have committed a crime such as this one.

I met Curtis as a teenager. I lived in a small town neighboring Winona, MS. Since our small community didn’t have very much to offer in the way of entertainment so we frequently traveled to nearby Winona, MS to attend games, dances, and participate in other activities. I struggle to remember our very first introduction because I honestly can’t remember a time as a teen that I didn’t know him or know of him.

Curtis is the kind of person that makes you feel instantly at ease. He is laid back, kindhearted, funny, and very easy to like. Some of the young men in Winona would fight with young men from our community, sort of a rivalry and a way to keep them away from the girls in Winona. He was never a participant in any of that foolishness. As a matter of fact I never remember him being involved in any altercations even when he was provoked. He dated a girl that lived near me for a short time. She never mentioned violence or a mean streak. Curtis had it all—good looks, great personality, charm, and a beautiful tenor voice that he used with the Unionaires (a male singing group). I have to admit it wasn’t always my love of Gospel music that made me search out churches where he would be singing. He was always willing to laugh and talk after service. We loved to hear him sing. I’m sure “the Curtis Effect” was obvious by the number of younger females that filled the audience during the time that the group sang. That’s the Curtis Flowers that I know and remember. He was a smiling, lighthearted, down-to-earth, fun-loving, and grounded Christian that boldly sang of God’s grace and goodness. I don’t remember which songs he sang, but I remember that he sang them with conviction and boldness. (more…)

CNN’s Emanuella Grinberg did an excellent job of covering the final days of the Curtis Flowers trial from every conceivable angle.  Emanuella got her start in journalism with Court TV, so she has a good feel for courtroom dynamics.

One crime, six trials and a 30-minute guilty verdict

Winona, Mississippi (CNN) — The fatigue was palpable by the eighth day of Curtis Flowers’ sixth murder trial.

On the ninth day — Friday — Flowers was found guilty of four counts of murder in the July 16, 1996, shooting deaths of four people inside the Tardy family’s furniture store in downtown Winona.

The seven women and five men on the jury took just half an hour to resolve a case that has haunted the courts of Mississippi for 13 years. (more…)

In a federal courtroom in Savannah, Georgia today, a parade of eye-witnesses admitted to perjury.  At the 1991 trial of Troy Davis, witnesses described seeing him shoot police officer Mark Allen MacPhail.  Others testified that Davis had confessed to the killing. 

Why would so many people lie about what they saw and heard back in 1989? 

Intimidation.  Recanting witnesses claim that they were threatened and bribed by investigators desperate to bring a cop-killer to justice.

Prosecutors claim the recantors had criminal records, some of them extensive.  But that’s just the point.  Ex-offenders are infinitely vulnerable to prosecutorial manipulation.  A childhood friend of Mr. Davis says he testified at trial because he was a street hustler and was afraid the police would hang a drug charge on him. (more…)

(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.)

Alan Bean, Friends of Justice

Curtis Flowers has been sentenced to die by lethal injection.

The moment the jury was seated, a conviction was a foregone conclusion.  Over the years, Winona has woven a guilt-narrative around Curtis Flowers.  White Winona sees Curtis Flowers as a cold-hearted killer, nothing more.  Black people who know the good-natured gospel singer shake their heads in bewilderment when they hear white folks talk about him.  The Curtis of popular white imagination does not exist.

The jurors seated for the sixth Curtis Flowers trial could have rendered a guilty verdict without hearing a word of testimony–they already knew the story as well as the folks commenting on the Friends of Justice website.

The next phase of the process is a justice struggle that could take years.  But the case against Curtis is too weak to stand.  Exposed to proper scrutiny, it will crumble to dust.  Most of the thousands of people currently reading this website every day will lose interest.  That’s natural.  But the quest for justice will continue nonetheless.  I am asking you to join us in this quest.  We deeply appreciate the support you have shown over the last two weeks.  Lydia and Alan Bean will be returning to Texas later today after speaking to a group of civil rights veterans in Neshoba County and will have more to say about the Flowers trial in the days to come

(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.)

Alan Bean, Friends of Justice

Curtis Flowers has been found guilty on all four capital murder counts.  No surprise there, but I wasn’t prepared for a twenty-seven minute jury (non)deliberation.  That’s right, twenty-seven minutes.  Hardly long enough to pick a jury foreman.

The courtroom quickly filled up with the kind of folks who have been leaving derogatory comments on our blog.  One older man rushed up the courthouse steps as I was emailing supporters.  “I guess I’m late,” I heard him say, “but maybe not.”

“They’re just starting the sentencing phase,” another man replied.

“That’s the part I’m looking for,” the first man exulted.

He will have to wait until tomorrow morning.  The defense put on an elaborate and lengthy mitigation case highlighted by the testimony of corrections expert James Aiken.  He testified that he had to sit down with Curtis Flowers for two face-to-face meetings because he couldn’t believe that a man locked up for almost fourteen years doesn’t have a single disciplinary write-up.  Aiken testified that manipulative inmates can put up a good front for a short time, but anyone who holds up for over a decade is an exceptional inmate.

The disconnect was almost surreal.  There is a very good reason why Curtis Flowers has a discipline record bordering on the miraculous–he is 100% innocent.  He simply doesn’t fit the killer profile.  His detractors have done a good job of demonizing Mr. Flowers over the years, but anyone who has sat down with the man (as I did for forty-five minutes Wednesday night) can’t help but be impressed with his gentle faith and quiet confidence.

The sentencing hearing got under way with several representatives of the victims families testifying.  The room was in tears as Roxanne Ballard explained that her children were too young in 1996 to know the woman she used to be.  One of Carmen Rigby’s sons talked about the horror of losing a mother on the verge of college.  The grief in the room was palpable.

Unfortunately, the victim families will find little solace in the conviction of an innocent man.  I suspect they know that.  Curtis Flowers has long been the fifth victim of the Tardy tragedy.  Sentencing him to death does nothing to bring solace to the grieving families.

Several potential jurors who swore they could put their deep affection for the victims families aside if they were named to the jury joined the celebrants in the courtroom this evening.  I suspect they still think they could have been fair and impartial, but the joy on their faces tonight suggested otherwise.

Several family members testified that Curtis was devoted and fun-loving.  Archie Flowers, talked about the day Curtis joined his gospel group, the Unionaires.  “I kept asking him to start singing in public,” Archie recalled, “but he just told me he’d let me know when he was ready.”

A video clip of Curtis singing lead for the Unionaires was then played.  There was something eery about a younger, slimmer Curtis Flowers belting our a gospel tune on the screen while his father looked on from the jury box.

“I’m afraid we’re going to have to interrupt this presentation,” Judge Loper broke in.  “I’m told the pizzas for the jurors have arrived and we don’t want the food to get cold.”

On the way out of the courthouse, the father of one of the slain victims confronted Curtis Flowers’ sister, Priscilla.  “We always knew that nigger was guilty anyway,” he barked.  Sheriff’s deputies quickly descended on the scene.  The same man had approached me earlier in the day as well.  I had been fielding insults all week long, and was running short on patience.  “If you want to try out a clever insult, I’m not interested,” I snapped.

Moments later, I apologized.  People don’t get over the kind of tragedy that engulfed Winona fourteen years ago.  On the other hand, a personal tragedy is no excuse for boorish behavior; especially when the crude remark is aimed at the sister of a man about to be sentenced to death by lethal injection.

The packed courthouse received the verdict without an outcry.  After twenty-seven minutes, everyone knew what was coming.

I will have more to say about the sentence in a day or two.  The jury will almost certainly hand Curtis Flowers another death sentence.  There is no big surprise here.  We were hoping for a better result, but when a jury of eleven whites and one black was selected the writing was on the wall.  That’s okay; every successful campaign Friends of Justice has launched began with a conviction (sometimes several).  This case is simply too weak to stand.

So enjoy the party while it lasts, Winona; brighter days lie ahead for Curtis Flowers and his loved ones.