Jesse Ray Beard, the youngest Jena 6 defendants, was featured on CBS Evening News on Friday evening.  It was a human interest piece about a young man making the most of dramatically altered circumstances.   The crux of the story is that Alan Howard (a pro bono attorney involved in the Jena 6 legal fight) and his wife Patti agreed to serve as  guardians for the young man from Jena.  Here’s the heart of the matter:

Attorney Alan Howard, of the New York firm Dewey & LeBoeuf, represented Jody for free. “I saw a lot of resilience there,” he said. “Passion, charm, and I liked him right away.”

Howard wanted to give him an opportunity. So he turned to the people he trusted most – his family.

“I remember saying that he should come and live with us, Howard’s daughter Jesse said. “I was totally for it, but I never thought it would happen.”

Jody recalls Howard made him a promise:

“That if I stay out of trouble, that he would get me out of Jena.”

Howard made good on that promise, when he and other defense lawyers got the original judge in the case removed because of bias.

Howard thinks that if Jody had remained in Jena, “they would have found a reason to lock him up.”

CBS reporter Harold Dow wonders why an apparently humble, appreciative and intelligent young man is considered a thug in his home town.  Several dozen white Americans answered this question in the comments section.  Jesse Ray is considered a thug, they say, because he beat up a white kid.  End of story.  Although the article specified that only 2 of the 50 eye witness accounts make any mention of Beard’s involvement, the anonymous folks voicing their opinions have no doubt that Jesse Ray was guilty and that he should be spending several decades in prison.

I suspect that many of the comments come from the good citizens of Jena, Louisiana who can be forgiven for holding unusually vociferous opinions.  But many of the folks making the nasty remarks identify themselves as moderate-to-progressive voters who are just sick and tired of black thugs messing with their America. 

Just as troubling is the absence of positive comments. 

I have worked with these young men and, believe me, they ain’t no thugs. 

Why do so many white Americans find it so hard to identify with young black males who protested the hanging of nooses at their high school only to be told that (a) the incident in question was an innocent, non-racial prank and that (b) if they persisted in voicing their displeasure they would face criminal charges? 

To be more precise, DA Reed Walters reminded the young men that “I can make your lives disappear with a stroke of my pen.”

Those who doubt a prosecutor would make such a bizarre statement to black students in the aftermath of a hate crime should know that, confronted with his alleged remark at a pre-trial hearing, Walters admitted to saying precisely that, explaining that he thought the students should “work things out on their own.”

Well, they did.  They worked things out the way adolescent males work things out: with trash talk and physical violence.  These cases were ultimately settled in a reasonable manner because, had they gone to trial, the truth of my original narrative (and much more besides) would have been revealed in open court.  In particular, it would have become clear that, by their refusal to confront an obvious hate crime, Superintendent Roy Breithaupt and DA Walters set black and white male students on a collision course.

When I googled “Jena 6” the other night, I found 13.5 million documents.  That is not necessarily a measure of positive impact, but it demonstrates that the Jena story captured the attention of the nation as few stories have.  The most positive and practical result thus far is that school administrators across the nation are using the story as a cautionary tale about what happens when school officialsrefuse to confront bold expressions of bigotry and intolerance in a school environment.

Check out the comments section on the CBS website and let us know what you think.

This post is from Charles Kiker, a retired minister (and founding member of Friends of Justice) living in Tulia, Texas.

There’s an excellent article in the current (December 1) issue of The Christian Century, in their occasional “How my mind has changed” series. Nicholas Wolterstorff writes on “The Way to Justice.” Wolterstorff insists that he has not had any dramatic reversals in his thought. He describes himself as a Dutch Reformed Calvinist in the mode of Abraham Kuyper. That was his orientation from his days as a student at Calvin College, and that orientation remains.

While his mind may not have changed, his outlook has expanded in the matter of justice. In 1976 he participated in a conference at the University of Potchefstroom in South Africa. At that conference, he writes, “There were quite a few Dutch scholars present . . . , a few of us from Canada and the U. S., both blacks and whites from other parts of Africa, and Afrikaners from South Africa along with blacks and so-called coloreds.”

He reports that the Dutch were angry with the Afrikaners over apartheid, the Afrikaners were angry with the Dutch for being angry about apartheid. Then the blacks and coloreds began to speak up, more quietly than the Dutch and Afrikaners, about how they were daily humiliated and demeaned under apartheid. The Afrikaners did not disagree about the injustice, but they argued that justice was not a relevant category. The relevant category, they insisted, was “love, charity, benevolence.” And then they told of how they were benevolent to the blacks and coloreds: Christmas gifts, used clothing for the children, etc. And they (Afrikaners) were hurt that blacks and coloreds so seldom expressed gratitude for that benevolence.

Here, to me, in one short paragraph, is the heart of Wolterstorff’s article:

Scales fell off my eyes. What I saw, as I had never seen before, was benevolence being used as an instrument of oppression. I felt called by God, in the classical Protestant sense of call, to speak up for these wronged and suffering people and to speak up for justice.

My goodness! Benevolence as an instrument of oppression! One could chase all sorts of rabbits along all sorts of side trails with this thought. Much of our benevolence toward the poor may be a malformed love excusing or overlooking injustice.

Wolterstorff argues that the dichotomy between love and justice is a false dichotomy. “Malformed love,” he writes, “does indeed come into conflict with justice. But well-formed love incorporates doing justice. To delete justice from the Bible is to have very little lift; that holds for the New Testament as well as the Old.”

One final quote with which Wolterstorff ends his article:

“Justice is upfront in scripture. In the thinking and doing of many of my fellow Christians today, it is nowhere to be found. Love and justice weep.”

Amen, Brother Wolterstorff. Amen!

Twelve members of the White Knights of the Ku Klux Klan rallied at yesterday’s game between Ole Miss and LSU in Oxford.  For years the Ole Miss band has played “Dixie” during football games.  In 1962, then-governor Ross Barnett got so choked up listening to the song at halftime that he nearly reneged on a deal he had made with John and Bobby Kennedy to allow James Meredith enroll at the University.  The playing of Dixie was recently discontinued because students refused to stop chanting “The South’s gonna rise again,” at the conclusion of the piece.

This tradition gave the White Knights the impression that Old Miss students shared their hankering for the good ole days of Jim Crow segregation. 

Not so much, it appears.  Two hundred and fifty protestors showed up in Oxford to shout down the Klan.  While white students at Ole Miss enjoy shouting racist slogans at football games it’s more of a sentimental journey than a serious statement of intent.  At any rate, no one in Oxford was willing to stand with the beleaguered Klansmen. 

Saturday’s cold reception likely left the White Knights more than a little confused.  If the student body loves to chant “The South’s gonna rise again,” at the conclusion of Dixie, why didn’t they support the brave men-in-sheets fighting for their freedom of speech? 

But there’s a big difference between chanting provocative slogans designed to goose the Yankees and pushing hard-core Klan racism.   Few in Mississippi care to take their racism straight these days.  Semi-racist hints and insinuations are cool and all that, but who wants to be associated with the KKK? 

Of course, the same was true back in ’62.  The Citizen’s Councils were formed because the redneck Klan was giving the state a bad name. 

I’ve always wondered how the black football players on the Ole Miss squad felt when they heard the band playing Dixie and thousands of fans calling for a reprise of Jim Crow glory.  The administration didn’t want to eliminate “Dixie” from the band’s repertoire but when fans refused to quit shouting the offensive slogan the song had to go.

It is very difficult for folks who don’t live in Mississippi to make sense of all this.  I suspect it’s just as hard for native Mississippians to sort it all out.  Maybe it all boils down to what feels good at the time.  Chanting about the rebirth of the Confederacy feels good; being associated with over-the-top racists doesn’t.

(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.)

Fannie Lou Hamer was born in Montgomery County Mississippi in 1917, the last of Jim and Ella Townsend’s twenty children.  At the age of two, her parents moved to a plantation outside of Ruleville in Sunflower County.  The price of cotton was rising rapidly after the First World War and the thickly wooded land across Sunflower County was being cleared for new farms.  From the age of six, Fannie Lou, like her parents and grandparents before her, worked as a sharecropper.  Her father once came close to buying a few acres of his own, but a white neighbor poisoned his mule, an economic blow from which the family would never recover.

Plantation life was hard even during the best of years; in hard times families waged a relentless war with starvation.  Hamer remembered her mother wrapping her feet in old rags so she and her sisters could salvage the cotton the pickers had missed.

Mississippi sharecroppers owed their souls to the company store.  Wages were kept low, prices at the plantation store were artificially high and the money loaned to sharecroppers at planting time sometimes exceeded the profits accrued at harvest.  Entire families labored in the fields from “can-to-can’t”: from first light until it was too dark to work.  Cotton season covered nine or ten months of the year and field workers used the layoff between seasons to recover physically and emotionally.  Schools for African-American children were poorly equipped and understaffed.  Classes were suspended when students were needed in the fields.  Fannie Lou Hamer ended her school days barely able to read and write, but that was more than could be said for most of her peers.  Although Fannie Lou could pick almost as much cotton as a man, childhood polio made the work increasingly difficult.  At the age of 16, impressed with her intelligence, plantation owner W.D. Marlow gave Fannie Lou a job as timekeeper.

In 1945, she married Perry “Pap” Hamer.  The couple had no children because Fannie Lou had been sterilized (without her knowledge or permission) in accordance with a Mississippi policy designed to reduce the number of indigent children in the state.

Hamer was introduced to the fledgling civil rights movement in the early 1950s when she attended annual conferences of the Regional Council of Negro Leadership (RCNL) sponsored by T.R.M. Howard, a wealthy African-American physician.   The RCNL had a top-down organizing strategy designed to empower educated African-American leaders, but the annual meetings in the all-black town of Mound Bayou frequently drew 10,000 people from across Mississippi.  In the early 50’s the focus was on making the “equal” in “separate but equal” mean something; full integration wasn’t considered a realistic (or safe) goal at that point.  But the RCNL conferences drew speakers like Thurgood Marshall and performers like Mahalia Jackson and nurtured young leaders like Aaron Henry and Medgar Evers who would lead the fight for civil rights in Mississippi when Dr. Howard, intimidated by death threats, packed his bags and headed for Chicago.

Fannie Lou Hamer was still working as W.D. Marlow’s timekeeper on August 23, 1962 when she attended a civil rights meeting in Ruleville featuring the Rev. James Bevel.  An associate of Martin Luther King Jr., Bevel was working with the Student Nonviolent Coordinating Committee (SNCC).  When Bevel called for volunteer’s to register to vote at the county courthouse in Indianola, Hamer’s hand shot into the air.

A week later, Hamer and a small group of volunteers drove from Ruleville to Indianola in a rented bus.  Black people who attempted to register in the Mississippi Delta could expect to lose their jobs and possibly their lives.  “I guess if I’d had any sense, I’d have been a little scared,” she said years later,  “but what was the point of being scared? The only thing they could do was kill me, and it seemed they’d been trying to do that a little bit at a time since I could remember.”  Hamer encouraged the group by breaking into well-known church songs like “This Little Light of Mine” and “Go Tell it On the Mountain.”  As Fannie Lou’s powerful voice filled the bus, her companions joined in.

Hamer’s experience at the Indianola courthouse was life-changing.  Only a handful of the people were allowed to enter the courthouse, the rest were turned away.  Once inside, the fortunate few were shown a portion of the state constitution and asked to interpret it for the registrar.  Until that moment, Hamer didn’t know that Mississippi had a constitution.  Informed that she had failed the test, Hamer announced her intention to return to Indianola every month until she passed.  On the way back to Ruleville, the group was intimidated by state troopers who claimed their bus was “too yellow”.

Back on the plantation, Hamer learned that Mr. Marlow was looking for her.  The cotton planter informed his timekeeper that Mississippi wasn’t ready for voting Negroes.  Therefore, if she didn’t go back to Indianola and withdraw her application she and her family would have to leave his farm.  Marlow’s threats were understandable.  No cotton man who allowed his Negroes to vote could maintain a place in white Delta society.

To Marlow’s amazement, Hamer quit her job on the spot.  She and Pap stayed with friends for a few days, but when their location was discovered the home was strafed with bullets.  Still Hamer refused to back down.  It wasn’t long before civil rights leader Bob Moses was looking for “the lady who sings the hymns.”  Hamer started attending classes led by Annelle Ponder, a twenty-six year-old school teacher from Atlanta who had recently joined the freedom struggle in Sunflower County.  Under Ponder’s tutelage, Hamer learned the Mississippi Constitution well enough to pass the registration test.  Soon, Hamer was being invited to sing at rallies and fundraising events across the country.

Fannie Lou Hamer’s hymn singing and natural eloquence were a boon to the civil rights movement, especially in Mississippi.  Bookish leaders like Moses and Bevel were more comfortable debating the fine points of Reinhold Niebuhr’s theology or the tenets of Gandhian pacifism than they were connecting with semi-illiterate Mississippi sharecroppers.  Fannie Lou Hamer’s melodious voice bridged the cultural gap between movement leaders and their intended audience.

But Hamer had far more to offer the movement than a powerful singing voice and a folksy manner; she was a prophet in the full biblical sense of the word.  Hamer’s religion was personal, emotional and supernatural.  She took her Bible straight, unmediated by the “chicken-eating” black preachers she endured on Sunday mornings or the learned theologians who informed movement intellectuals.  Hamer was convinced that God was working through the civil rights movement to usher in the Kingdom of God Jesus talked about.  Her favorite Bible passage was from the 4th chapter of Luke’s Gospel:

The Spirit of the Lord is upon me, because he hath anointed me to preach the gospel to the poor; he hath sent me to heal the brokenhearted, to preach deliverance to the captives, and recovering of sight to the blind; to set at liberty them that are bruised, to preach the acceptable year of the Lord.

Fannie Lou Hamer made this mission her own and was never comfortable with more realistic goals.  “If Christ were here today,” she said, “he would be branded a radical, a militant, and would probably be branded as ‘red’. They have even painted me as Communist, although I wouldn’t know a Communist if I saw one.”

Hamer cooperated with every phase of the civil rights movement, from the conservative NAACP to the Black Panthers.  But when the SNCC began evicting white members from leadership positions, Hamer mounted a powerful protest.  “Jesus wasn’t talking about black people, or about white people,” she said, “he was talking about people. There’s no difference in people, for in the 17th chapter of the Book of Acts, the 26th verse, Paul says, ‘God hath made of one blood all nations of men for to dwell on all the face of the earth.’  That means that whether we’re white, black, red, yellow, or polka dot, we’re made from the same blood.”

Hamer transcended petty politics by interpreting the freedom struggle in supernatural and cosmological terms.  When the going was tough and emotions within the movement ran high, Hamer would quote Ephesians 6:11-12: “Put on the whole armor of God, that ye may be able to stand against the wiles of the devil. For we wrestle not against flesh and blood, but against principalities, against powers, against spiritual wickedness in high places.”

The language of spiritual warfare allowed Hamer to interpret the cruelty of her opponents as an unavoidable aspect of a God-driven transformational drama that she saw sweeping over the nation.  This blending of biblical piety and revolutionary spirit helped Hamer and her companions stand firm in the face of bestial cruelty.   In June of 1963, less than a year after she won the right to vote, Fannie Lou Hamer found herself in the Montgomery County Jail in Winona, Mississippi.  What happened in that dark place would stretch her soul to the breaking point and change America forever.

Wesley Pruden (and practically every other conservative pundit) thinks Barack Obama is a wimp for bowing to Japanese emperor Akihito.   The world is supposed to grovel before the American Imperium; real Americans bow to no one. 

Pruden, the editor emeritus of the conservative Washington Times, is being excoriated by liberal bloggers as an arch-racist.  I doubt he minds.  Pruden has made a career out of pushing the racial envelope.  His readers (real Americans all) cheer wildly each time Pruden oversteps the bounds of civility.  Even better, when liberals rant and rage about racism, the value of the Pruden brand name grows.

Here’s the quote that’s got everybody in Leftyland stirred up:

It’s no fault of the president that he has no natural instinct or blood impulse for what the America of “the 57 states” is about. He was sired by a Kenyan father, born to a mother attracted to men of the Third World and reared by grandparents in Hawaii, a paradise far from the American mainstream.

He no doubt wants to “do the right thing” by his lights, but the lights that illumine the Obama path are not necessarily the lights that illuminate the way for most of the rest of us. This is good news only for Jimmy Carter, who may yet have to give up his distinction as our most ineffective and embarrassing president.

Who does Pruden mean by “most of the rest of us”? 

White people, of course.  You know, “real Americans”. 

If Wes Pruden lived in Middle America he would keep his sentimental hankering for the halcyon days of white supremacy to himself.  But when you live with both feet firmly planted in the world of American conservatism you can pretty much say whatever you like without embarrassment.  Birthers, tea baggers and Fox News devotees are not embarrassed by crude racism; they find it exhilarating.

American conservatism has not always been overtly racist.  The folks who like small governments, fiscal responsibility and traditional values like honesty and hard work haven’t always understood the non-white world.  Old school conservatives could be insensitive and patronizing; but they weren’t mad or mean-spirited about it.

The conservative movement that took shape in the late 1960s was driven by civil rights resentment.  Men like Wesley Pruden want the world to bow and scrape before America in precisely the way black southerners once deferred to white folks.   And for much the same reason.  This is a political philosophy driven by racial resentment.  I’m not suggesting that everybody associated with the conservative movement is bigoted.  It’s not that simple.  But politicians like Richard Nixon (cautiously) and Ronald Reagan (enthusiastically) embraced the sworn enemies of the civil rights movement as natural allies.  Not everyone in the conservative camp was happy with this development, but they all learned to live with it.  You couldn’t survive as a white son or daughter of Mississippi in the early 1960s unless you backed segregation; and you can’t survive within the conservative movement today without embracing white supremacy.  You don’t have to be gross about it, but you must never criticize those who are.

Republican strategy in the South is predicated on the conviction that you can alienate non-white voters and still win elections.  You can’t win every election this way because white voters don’t predominate in every precinct.  But civil rights resentment is so prevalent in the South that an unapologetically pro-white political agenda, even if it comes wrapped in the confederate flag, will push you over the top when it matters. 

Sometimes you have to subtle; often you don’t.

Which brings me back (yet again) to Lydia Chassaniol, the Mississippi Senator who freelyacknowledges her ties to a white supremacy organization.  Were people outraged?  Two or three.  But civil rights resentment runs so deep in Mississippi that not a single mainstream voice was raised in protest.  What good would it have done?  Racism is only racism when it appeals to a small lunatic fringe, right?  If most people are nodding along in agreement you can’t be a racist no matter how egregious your opinions.  The Council of Conservative Citizens is so mainstream in rural Mississippi it is practically invisible.   

Contemporary southern racists are generally nice people.  They go to church, they pay their taxes, they tuck their kids in at night and they vote.  When they see their neighbors on the street they give a great big wave.  They have no beef with black people because blacks and whites rarely interact.  African American adults have the vote but they can’t win (or even influence) the big political races.  African American children attend public schools–in fact, they often have the schools all to themselves. 

Things aren’t ideal outside the South either, of course.  But you can’t win elections in urban America without tossing a bone or two to moderate white and minority voters.  The South is the only region where you can build a career by banging the drum of civil rights resentment. 

How many white southerners feel any real remorse when they reflect on the tragic history of Jim Crow?  Or is this kind of reflection even an option?  Suppose a white southerner were to suddenly “come under conviction” (as we Baptists like to put it).  To whom would he confess?  Who would be willing to listen?  And who would hold her feet to the fires of history in the first place?  It isn’t unusual for white people who renounce white supremacy in clear and unambiguous terms to find themselves disowned by their families.  I can’t imagine a public school teacher or a Sunday school teacher broaching the subject in most white southern settings.  Even in Arlington, Texas the subject is largely taboo in white churches.  White children growing up in segregation academies (now called “Christian schools”) learn nothing about the civil rights movement or the social sins that made it necessary.

Lou Dobbs continued his misinformed rant against the undocumented for years before CNN finally pulled the plug.  But if Mr. Dobbs schleps over to Fox News he will have carte blanche.  The folks at Fox can’t say, “I hate niggers” or “only white folks are real Americans”.  But they are free to speak of an America that only white conservatives could relate to or would want to live in.  That kind of discourse is considered acceptable.

Wesley Pruden doesn’t care if American presidents bow to foreign dignitaries, but he will take any opportunity to take a cheap shot at president Obama.  In the real America presidents have the good sense to be white.  African Americans, Asians and Hispanics are allowed to occupy the occasional place of honor so long as the position is ceremonial or several giant steps from the real corridors of power.  But the big cheese is supposed to a white male.  By being black and having a foreign dad Mr. Obama’s shows he just doesn’t get what the real America is all about.

I repeat, there is no necessary connection between conservatism and bigotry.  Therefore, I am waiting patiently for the first principled conservative to say ‘yes’ to the civil rights tradition and a resounding ‘no’ to the monochrome Real America extolled by pundits like Wes Pruden.

Laws.com has an article featuring the fifty best Justice blogs.  Friends of Justice comes in at number 11, although I have no idea how the rating order was determined or what consitutes a “justice blog”.   Still, if you want to know who else is writing about justice issues this article is a good place to start.

Neal Kumar Katayal became famous three years ago  as the lead counsel for the Guantanamo Bay detainees in the Supreme Court case Hamdan v. Rumsfeld.  Back then, Katayal was arguing that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay “violate both the UCMJ and the four Geneva Conventions.” 

What a difference a change of administrations makes.

Now Mr. Katayal is arguing that American citizens have no “free-standing due process right not to be framed.” 

Asked to explain this perverse doctrine, Katayal said that prosecutors must not be dissuaded from their responsiblity to prosecute hard cases by fears that a resentful defendant might take them to court. 

In other words, a lawyer once on the side of the angels is now dancing with the devil. 

But the irony deepens.  The attorney arguing that prosecutors should occasionally be liable for their sins is former Bush Administration Solicitor General, Paul Clement. 

This strange reversal of roles is partly explained by the changing of the guard in Washington.  The conservative Clement was willing to defend the authoritarian doctrines of the Bush administration, but now that it’s a Democrat pushing the authoritarian envelope Clement is pushing back.

We must also remember that Clement and Katayal are both lawyers who argue the position they are retained to argue.  When your boss is the government, you argue the government’s position. 

So why are bleeding hearts like Neal Kumar Katayal and Barack Hussein Obama now arguing that prosecutors should be as nasty as they wanna be?

I emphasize the middle names because both Katayal and Obama were fathered by men who entered the United States as immigrants.  They can identify with outcasts like the Guantanamo defendants who are tried outside the constitutional protection of American law.  So why are they so eager to strip men like County Attorney David Richter and Assistant County Attorney Joseph Hrvol (the defendants in the Pottawattamie case) who forced witnesses to fabricate lies against two black defendants before feeding these lies to a jury? 

Neither Obama nor Katayal derives any pleasure in this mambo with Mephistopheles.  But at the great cotillion we call politics you dance with the devil (now and then) or you don’t dance at all.  We can’t know what quid pro quo bargain Mr. Obama thinks he’s making with legal conservatives, but he has something in mind. 

Pretty it ain’t.  Scott Henson of Grits for Breakfast recently took Obama and the Democrats to task for their role in the Pottawatomie fiasco.

Katayal insisted to the court that while a policeman or even a prosecutor who fabricated evidence in the investigative stage of a case only had qualified immunity, if the same prosecutor put the fabricated evidence on at trial, they would confer upon themselves absolute immunity for the act – an outcome Stevens referred to as “perverse.” Yes, that’s right, one of the liberals on the US Supreme Court – the Justice President Obama is most likely to replace next, in fact – called the Obama Administration’s doctrine of prosecutorial exceptionalism “perverse.” Chew on that for a moment, Democrats.

This afternoon I was  perusing Katayal’s Friend of the Court brief in the Pottawatomie vs. McGhee case when I was alerted to an incoming email from Radley Balko. The senior editor of Reason shared my wonderment at the Justice Department’s strange arguments before the Supreme Court. 

Pottawatomie vs. McGhee has Balko revisiting the case of Ann Colomb and her three sons.  Five years have passed now since my jeremiads against snithc testimony were being featured in the online version of the Lafayette Daily Advertiser while the Colomb trial was unfolding.  Each night I warned that “perjury parties” were being conducted in the federal prison system.  Unfortunately, I wasn’t able to keep Ann and her boys from being convicted and sent to the slammer. 

But it wasn’t long before two defendants stepped forward to confirm my worst fears.

Balko (the only journalist I have ever been able to interest in the Colomb story) begins his most recent essay with an extended critique of Brett Grayson, the man who used fabricated testimony to prosecute the Colomb family.  Grayson is precisely the kind of man who could benefit from a law suit.  The devout Pentecostal layman might not like being sued, but it would be good for his soul.

Balko’s reflections deserve to be quoted in full:

Absolute Immunity on Trial

Bush’s former solicitor general tries to roll back prosecutorial abuse.

In 2006, Assistant U.S. Attorney Brett Grayson lined up more than 30 jailhouse informants to testify that they had sold drugs to Church Point, Louisiana homemaker Ann Colomb and her three sons. (I wrote about the Colomb case in the May 2008 issue of Reason.) Grayson had used some of these snitches before, in the trial of a Houston drug kingpin. After the Houston trial, Grayson was notified that several of his informants had lied, and that there may have been an information sharing network and perjury ring inside the federal prison system. No matter. Grayson used them again. Colomb and her sons were convicted, and spent three months in prison.

The Colombs were eventually freed, with all charges dismissed. Grayson’s jailhouse snitches had lied again, and this time, federal judge Tucker Melancon ordered an investigation into new evidence that, somehow, portions of Grayson’s case file were being distributed through federal prisons in Texas and Louisiana. The Colombs, meanwhile, spent their life savings on their defense, and were never compensated. According to defense attorneys, Grayson said at one point during the trial that it didn’t matter if he personally believed his snitch witnesses, it only mattered what the jury believed, a notion he articulated again in his closing argument.

I thought about the Colomb case while reading the transcript of the oral arguments in Pottawattamie v. Maghee, heard last Wednesday before the U.S. Supreme Court (read my previous column on the case here). The case turns on whether prosecutors who knowingly fabricate evidence to convict an innocent person should be susceptible to lawsuits, or if prosecutors should always have absolute immunity from such suits, no matter how bad their behavior.

During the hearing, Deputy Solicitor General Neal Katyal argued that “if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.” Katyal made similar statements throughout the hearing: “When someone is introducing evidence at trial, you don’t want to chill them in the performance of their duties in any way,” and “the overriding interest is protecting the judicial process and not letting information be chilled and not come in.” Chief Justice John Roberts underlined that formulation, twice inquiring as to the “chilling” effect of stripping immunity for prosecutors.

It took new Associate Justice Sonia Sotomayor to make the obvious point: We want prosecutors to “flinch” before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie. If Brett Grayson had known he could be held liable for his parade of lying jailhouse snitches, perhaps he’d have vetted their stories a bit more carefully, or been more vigilant about ensuring that portions of his case file didn’t somehow get passed around the prison system.

The amount of liability the would-be plaintiffs in Powattattamie want prosecutors to shoulder is minimal. The Supreme Court has held for 30 years that even prosecutors who knowingly withhold exculpatory evidence in a case that results in the conviction of an innocent person can’t be sued for damages. The wrongfully convicted men in Powattattamie aren’t even seeking to undo that. They’re asking that prosecutors who knowingly fabricate evidence against an innocent person, then use that evidence at trial, be susceptible to a lawsuit. And even there, prosecutors would still be afforded the qualified immunity given to police officers, which means potential plaintiffs would still have a high hurdle to clear before getting into court. (It’s worth noting that the prosecutors in Powattattamie weren’t sanctioned or disciplined in any way, which is about par for the course in the criminal justice system.)

The problem here is that the Supreme Court has painted itself into a corner. While the Court has always upheld absolute immunity for prosecutors while trying a case, it has ruled that prosecutors who help investigate a case—that is, who act as police officers—should receive the same, reduced qualified immunity given to cops. But here’s where it gets messy. At what point is a prosecutor acting as a prosecutor, and at what point is he acting like a cop? The roles have been muddied over the years.

Consider snitch testimony. Under federal law, only a federal prosecutor, and not a federal police investigator, can gauge whether information offered by a jailhouse snitch is useful enough to offer time off the informant’s sentence in exchange for his testimony. That means prosecutors are put in the role of interviewing potential informants to determine whether the stories are plausible (or, if they’re less scrupulous, merely whose stories are most damaging to the defendant). This is more the role of an investigator than the prosecutor of a case.

Solicitor General Katyal and the attorney for the prosecutors in Powattattamie both made the absurd argument that the actual injury in Powattattamie occured when the defendants were wrongly convicted and jailed, not when the evidence against them was manufactured. Therefore, because the prosecutors were acting in their role as triers of the case when the injury occurred, they should be immune to lawsuit, even though they were acting as investigators when they conjured up the perjured testimony in the first place. Had they passed the evidence off to another prosecutor for trial, they could still be sued. This led Justice Anthony Kennedy to ask, “so the law is the more deeply you’re involved in the wrong, the more likely you are to be immune? That’s a strange proposition.”

It certainly is. Katyal went so far as to argue that even police officers who manufacture evidence used to convict an innocent person may not be liable, so long as they tell the prosecutor ahead of time that the evidence has been faked—again because the actual injury occurs at the time of conviction, and at the time of conviction the state actor inflicting the damage is the prosecutor acting in his role as prosecutor, at which point he has immunity. Kennedy reiterated the problem: “Again, the more aggravated the tort, the greater the immunity.”

Katyan went on to argue that there is no “free-standing due process right not to be framed,” a striking line that made it around the Internet last week. If you’re a constitutional originalist, that statement isn’t quite as controversial as it first sounds: An originalist may believe that the Constitution protects us from government overreach, but it doesn’t explicitly lay out a method of recovering damages for government violations of our rights; that’s left up to Congress.

The problem with the originalist interpretation is that the Constitution’s authors surely would have hoped for and expected at least some relief. The Bill of Rights both establishes a civil courts system to allow citizens to recover damages from one another, and lays out a clear set of rights that government officials aren’t permitted to abrogate. It makes little sense to think, then, that the document would be consistent with the notion that government officials could systematically violate two citizens’ rights in a way that resulted in significant injury (in this case, 26 years in prison), and yet be wholly immune from those citizens’ efforts to collect damages, simply because Congress failed to legislate a path to relief.

One of the notable things about this case is that the pro-law enforcement position was argued by Katyan, an official in the Obama administration, while the pro-defense, anti-executive branch position was argued by Paul Clement, the former solicitor general for the Bush administration. The Obama administration has consistently taken the pro-prosecution side in criminal justice cases, proving that where the rubber meets the road on issues related to police powers and the rights of the accused, what matters most is not political ideology but who holds the reins of power.

Clement’s toughest questioning came from the Court’s two Bush appointees, Chief Justice Roberts and Justice Samuel Alito. But Clement rather brilliantly concluded his time with a direct challenge to the two Bush-appointed justices that probably won’t affect either’s ruling, but at least ought to make them squirm. Keeping prosecutors immune from liability, he argued, is a classic case of judicial activism.

The phrase “absolute immunity” appears nowhere in the Constitution, nor does it appear in Section 1983, a part of the federal criminal code that provides a way for citizens to collect damages against the government. The Court read absolute immunity into the law in the 1976 case Imbler v. Pachtman because it feared the ramifications of prosecutors being susceptible to lawsuits. As Clement argued, there is “no common law support at all for absolute immunity. And I wouldn’t think that this Court was particularly interested in coming up with implied immunities that aren’t in the statute and had no basis at the common law, and that’s why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text.”

So while for most of the hearing the Court and litigants took absolute immunity as a given and debated whether and how to carve exceptions into it, Clement concluded by pulling the sheet back on absolute immunity, period. In doing so, he cleared a path for the justices to revoke absolute immunity altogether, or at least severely limit the concept. That almost certainly won’t happen. But it should (but probably won’t) give the Court’s conservative wing some cover to at least poke enough holes in prosecutorial immunity to discourage the more egregious examples of misconduct.

Radley Balko is a senior editor at Reason magazine.

Terry Harrington (pictured at the left) and Curtis McGhee served a quarter century of prison time for another man’s crime.  In 1977, an all-white jury found the two men guilty of killing John Schweer, a recently retired Council Bluffs (Iowa) police officer who was working security at a used car lot.  This week, the Supreme Court of the United States will decide if Harrington and McGhee can sue the prosecutors who framed them.

According to an article at Law.com, then-County Attorney David Richter and Assistant County Attorney Joseph Hrvol “shifted their attention from a suspect who was white and had been seen in the area carrying a shotgun, toward a group of blacks.”  Paul Clement, the attorney representing Herrington and McGhee, claims “a witness was coerced to pinpoint Harrington and McGhee, and jailhouse informants were recruited to make false statements about them.”

A recent Washington Post editorial claims that “The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.” 

When the star witness couldn’t produce a credible story that would stand up in court, prosecutors showed him statements made by other inmates.

None of this would have come to light if prison barber Anne Danaher hadn’t struck up a casual conversation with member’s of Terry Harrington’s family.  The enterprising Danaher thought the case sounded fishy, and filed freedom of information requests on Harrington’s behalf.   The inmate had exhausted the appeals process by that time, but clear evidence of prosecutorial misconduct compelled the Iowa Supreme Court to vacate the conviction.  

In another odd twist, Harrington and McGhee are being represented before the Supreme Court by former Bush Administration Solicitor General, Paul Clement, a staunch defender of prosecutorial immunity.  Asked to explain his sudden shift in emphasis, Clement said, “What it signifies is that I’m no longer working for the government.”

Radley Balko, a Senior Editor at Reason.com and a leading critic of prosecutorial and judicial immunity, sums up the key issue this way:

Hrvol and Richter contend that prosecutorial immunity gives government officials the right to coerce witnesses to lie, withhold evidence pointing to a suspect’s innocence, and work with police to manufacture false evidence of guilt, then use that evidence to win false convictions that send two men to prison for 25 years. Their motivation for making this argument is obvious; they’d rather not pay for their misconduct. But they’re supported in amicus briefs filed by the U.S. Solicitor General, the National District Attorneys Association, and the attorneys general of 27 states and the District of Columbia. Notably, Cook County, Illinois, home to a number of wrongful convictions, also filed its own brief in support of the prosecutors.

A brief filed in support of Hrvol and Richter by Iowa prosecutors cuts to the heart of the matter: “There is no freestanding constitutional ‘right not to be framed’.”

Maybe not, but there should be.  The Washington Post’s editorial board says good prosecutors have little to fear if Harrington and McGhee prevail:

Prosecutors need to be able carry out their duties without fear that they’ll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently — and correctly — made it even more difficult for plaintiffs to make officials personally liable unless there’s convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.

Here at Friends of Justice we are following Pottawattamie County v. McGhee and Harrington with great interest.  A similar species of prosecutorial misconduct is evident in the case of Curtis Flowers (and every other case in which we have intervened).  There is strong evidence, for instance, that potential witnesses in Winona were bribed with promises of a $30,000 reward and, in some cases, threatened with prosecution if they didn’t cooperate.  The major difference is that witnesses in the Flowers case clearly were not exposed to the testimony of other witnesses.  If they had been, their physical descriptions of Flowers would have overlapped at least a little. 

The Washington Post assures us that most Hrvol and Richter are just a couple of bad apples; but there is nothing unusual about prosecutors pressuring vulnerable people into perjured testimony.  Hrvol and Richter represent an egregious instance of a common phenomenon.  They knew their star witness was lying; in most cases, prosecutors merely suspect that the men and women they browbeat into cooperation might be lying–they don’t know for sure . . . and they don’t care.