Category: Criminal justice reform

Curtis, Kelvin, and the City of New Orleans

February 15, 2010February 15, 2010 · 7 Comments ·

Two bizarre murder investigations raise questions about the state of the American criminal justice system.

Who dat, who dat, who dat say gonna beat dem Saints?

If I had a dollar for every time I heard the Saints famous chant during a long and involved Super Bowl night I could fund Friends of Justice in perpetuity.

I was in Slidell, LA investigating the Kelvin Kaigler story (and a host of related complaints) when I got an invitation from Will Harrell to join him in New Orleans for the big game. I met Will back in the summer of 2000 when he called me in Tulia to see if there would be any more drug trials. I told him Kareem White was up on September 7 and a few days later Will, the newly minted Executive Director of the Texas ACLU was walking into the Swisher County Courtroom.

Although Will and I have spent a lot of time together over the years (he is a very bad influence on this preacher boy) I didn’t know his personal biography very well. Turns out he hails from Yazoo City, Mississippi and lived as a boy in New Orleans. He cheered for the Saints when Archie Manning (father of Payton and Eli) quarterbacked the team. With all the other Saints fans, Will invested most of his life, boy and man, watching the pride of New Orleans slinking off the field in disgrace.

Not surprisingly, Will was captivated by the football game; brimming with hope, bristling with dread. A few former neighbors from Austin had shown up to watch the game at his house, but they met some girls in a bar and never returned. That sort of thing happens a lot in New Orleans.

So it was just me and Will. He showed me the paper mache statue of San Simon he was given during his days in Guatemala, and lit the candles he had placed on either side of the icon. Maybe the patron saint of Latin American freedom could bring the Saints a victory.

With the Colts down by seven and plenty of time on the clock, Paton Manning trotted onto the field. “He thinks he’s gonna win,” Will told me. “There is no doubt in his mind; that’s what makes him so dangerous.”

But the future hall of famer felt the heat from his left side and fired the ball into first-down territoty a second earlier than he would have liked to. Tracy Porter, New Orleans fleet defensive back, cut in front of Manning’s receiver, picked off the pass and raced for the end zone. Forty-three years of frustration had ended.
A triumphant Will Harrell, bowed to St. Simon, grabbed his double bongo drum, and headed out to the porch. A stream of jubilant humanity was already flowing down Rue Dauphine toward the French Quarter. I crossed the street to take a picture of costumed kids with “NOLA” scrawled across their foreheads in black marker. They grinned for the camera and tossed me some Mardi gras beads.

By the time I was back to Harrell’s porch he had a smaller bongo slung over his shoulder and was ready to hit the streets. It was only 10:00 pm so I figured I’d tag along for a while–this was history in the making. It never occurred to me that we wouldn’t get back to Will’s place until 5:00 am.

You don’t see real celebration up close very often. This wasn’t your run-of-the-mill championship celebration; this was Easter morning. This was redemption.

As Will and I followed the growing crowd I couldn’t stop thinking about Rodney (Jack) Strain and the anti-New Orleans rant he had delivered three years earlier, particularly the part I failed to quote in my recent Kelvin Kaigler post: “I don’t want to see temporary housing because of Katrina turn into long-term housing for a bunch of thugs and trash that don’t need to be in St. Tammany Parish. We don’t want to wake up one day and find out that New Orleans has been damn successful at running all of the trash out of the city and it end up roosting in St. Tammany.”

At a meeting earlier that day at the Holy Ghost and Fire World Outreach Center in Slidell, Prophetess Kathleen Bacon told me that the High Sheriff was likely referring to the FEMA trailers that sprouted north of Lake Ponchartrain in the wake of hurricane Katrina. Conservative white folk have been fleeing New Orleans for generations. First they fled to the suburbs of Metairie and when upwardly mobile blacks followed suit, folks started moving to the North Shore, settling in places like Covington and Slidell.

Thinking back on Sheriff Jack’s anti-New Orleans rant I was struck by the man’s confidence–it was as if he saw himself as the embodiment of a people scared to death that their righteous way of life was being contaminated from without. I had sensed the same paranoid spirit in a sermon delivered by a Baptist pastor in Jena Louisiana shortly after a white student was beaten senseless at the high school. After celebrating the glories of small town life, the pastor warned his flock that big city vice and violence had invaded their holy Zion in the piney woods. He was referring, of course, to the Jena 6.

But Strain’s revulsion for New Orleans transcended race. Every race under the sun was on the streets of the French Quarter Super Bowl night, but white folks predominated. But these were not your Grandma’s white people. As Will and I followed the joyful throng we passed by an old-time jug band that was sitting in the doorway of a neighborhood bar. Looking for all world like Charles Manson, the guitarist was strumming his Epiphone guitar and wailing that old Louie Armstrong standard, The Saint James Infirmary Blues: “I went down to the St. James Infirmary, saw my baby there, stretched out on a cold white table, so sweet, so cold, so fair.”

I wondered if Louie Armstrong had ever performed the song in that very establishment. If not, he had sung it within a stones’ throw of the place. St. James Infirmary is a song about the tragic death of a young woman. The song hints that the singer’s “baby” was the victim of foul play. That sort of thing happened in old New Orleans. You run into death on the streets of old New Orleans. A mad waltz between life and death drives the spirit of celebration for which the town is famous. Jack Strain’s St. Tammany Parish is all about light and life (to hear Jack tell it anyway); New Orleans lives in the shadowlands between the light of life and the dark shroud of death.

There is nothing subtle about this death dance. You see it on the walls of the little bars: skulls, skeletons and other harbingers of death. There is more than a hint of threat and intimidation in some of the costumes I saw on the street Super Bowl night. People were not trying to look pretty or sexy; they were trying to look grotesque and slightly dangerous. And they succeeded.

Still, most of the folks in the pink hair and garish costumes live relatively normal lives and are in little danger of driving over the cliff. Their regular celebrations of animal appetite are only one side of the picture; they are also parents with children to care for and employees with jobs to go to. Moreover, the rules to New Orleans Bacchanalia are solidly anchored in the history of the town–these folks know what to do and how to do it–even when dem Saints win de big game. What could be more reassuringly innocent than a sousaphone blaring out When the Saints go Marching in?

And then there is the traditional role of New Orleans religion. These sinners are also saints. Mardi gras provides one last celebration before Ash Wednesday ushers in the somber season of Lent. There is a rhythm to these things. New Orleans is far more than a party town–at least for those who live there long enough to soak in the history.

On the other hand, Sheriff Jack Strain has a point; a lot of people go off the rails in New Orleans. In fact, many were never on the rails in the first place. Take away the counterbalance of work, family and religion and big cities like New Orleans can get pretty bleak. Thousands of people are too captive to their addictions to celebrate anything. The demand for booze, marijuana and hard narcotics will always be supplied. In the booze category, a rough and ready set of local and state rules apply. For the illegal stuff, only the threat of violence keeps folks honest. When people don’t hold up their end of the contract you can’t take them to small claims court. Bones must be broken–and that’s just for starters.

Back in 1986, Clyde Simpson, a Mississippi boy, was asked to store bales of marijuana in his garage in exchange for $50,000. Clyde had a little painting business at the time and his brother Doyle had come down from Winona to help him. One day somebody broke into Clyde’s garage and stole a few bales of marijuana. That made things contractually complicated. Did the big boys still owe Doyle his $50,000, or did he now owe them? To settle the issue, the big boys decided to take out a hit on poor Clyde.

One morning in December, Doyle Simpson pulled up to Clyde’s place and waited in his car in the driveway for his brother to come out. Doyle didn’t know that a man with a knife and a gun was hiding behind the fence at the side of the house. When Clyde emerged, the man slit his throat like a watermelon and pushed him inside the house. Clyde was in shock. He rushed to the refrigerator to find ice for his throat, but two bullets put him on the floor. As a puddle of blood began to form on the kitchen floor, the man with the knife burst out the front door and caught sight of Doyle waiting in his car. Thinking on his feet, the man climbed into the car, held his gun to Doyle’s head, and told him to drive.

When Doyle had driven fifteen miles west, the man with the knife told him to stop the car. Doyle was handcuffed to a tree. His throat was cut. Two bullets were fired and both found their mark. The man went back to the car to reload his weapon, then, deciding Doyle was dead, climbed into the car and attempted to drive away. But the car was helplessly stuck in the mud, so the man ended up hitching a ride on the highway.

Doyle Simpson found a broken bottle and was able to saw off the limb that tethered him to the tree. He then staggered to the highway, collapsing on the roadway just as a trucker rounded the bend. The driver drove Doyle to the hospital just in time to save his life.

The killer, a hired thug named Horace Toppins Jr, was charged with several counts in two Louisiana parishes and eventually sentenced to 30 years. It looked for all the world like an paid hit, but the victims were low status so nobody traced the crime back to its source.

Ten years later, in 1996, Doyle was back in Winona, Mississippi when somebody sold him a gun. Two months later, four people were gunned down in Tardy’s Furniture Store in Winona, the very morning Doyle reported his gun had been stolen from the glove compartment of his car. Ballistics tests demonstated that whoever killed Bertha Tardy and three employees had used Doyle Simpson’s gun. Doyle was picked up and asked who sold him the gun.  Doyle said he got the gun from his step-brother, Robert Campbell.

It was a lie.

Confronted by investigators, Doyle said he had purchased the gun from a friend named “Ike”, but Doyle didn’t know the man’s last name.
Surprisingly, no one has ever pressed Doyle on the Ike question, perhaps because everybody knows its pointless.

But Robert Campbell, Doyle’s half-brother, believes that the mystery man who placed the murder weapon in Doyle’s hands is connected to the Tardy murders. Moreover, Campbell argues that the folks that paid to have Clyde Simpson murdered in 1986 were behind the murders in Winona in 1996.

Independently, I have come to the same conclusion. I have no idea why anyone would want Bertha Tardy dead; but somebody did. Since its hard to find an experienced hitman in Montgomery County, Mississippi, it was natural to look to a big city like Memphis or New Orleans. And if you wanted access to hired killers in the Crescent City, Doyle Simpson (a man who had worked at Tardy Furniture in the past) would be the man to approach.

I am not suggesting that Doyle Simpson was the trigger man, or even that he anticipated the horrible crime. But anyone who has seen the man testify or, like me, read through the transcripts of all five trials, knows that Doyle Simpson makes a frightened witness.

Did anyone steal the murder weapon from Doyle Simpson’s car the morning of July 16, 1996? We have only Doyle’s word for it and, as we have seen, he is not a credible witness. Was the gun stolen at all, or did someone from Doyle’s New Orleans past make an offer the Winona boy couldn’t refuse?

There is little evidence that these questions have ever been asked. Certainly not by Doug Evans, the Mississippi prosecutor who decided the day Bertha Tardy died that an ex-employee named Curtis Flowers did the deed. No other options were ever considered. Evans didn’t want to ruffle feathers in Winona’s white community by suggesting that somebody held a grudge against a well-respected local merchant. Of course, prosecuting Curtis Flowers has ruffled plenty of feathers in Winona’s black community, but Mr. Evans can live with that.

As we have seen, the fabled dark side of New Orleans received national attention ten years after the Tardy murders. As in Winona, four people had been killed execution style in the North Shore town of Slidell. Investigators speculated that Roxy Agoglia, a heroin addict and heroin dealer with roots in New Orleans, had angered the kind of people that came after Clyde Simpson twenty years earlier. Jack Strain certainly thought so. St. Tammany Parish had never seen a quadruple murder. New Orleans trash, Sheriff Jack told the cameras, had invaded the fair precincts of St. Tammany Parish and somebody was going to pay. A young witness told investigators that one of the killers had a scar on one cheek, a tatoo on his arm, and wore dreadlocks. To Sheriff Jack, that description had New Orleans Trash written all over it.

This explains why the first year of the murder investigation into the quadruple murders in Slidell focused on New Orleans heroin dealers with a penchant for violence. An investigator named Scott Davis was focusing his attention on a white heroin dealer who used two black men for “muscle”, one of whom had dreads, a tatoo and a scar. This fit witness testimony perfectly: a white guy waiting in the car while two black assailants pulled off the hit.

Then Gus Bethea had a chat with a Slidell drug dealer named Frank Knight. Frank was one of those denizens of New Orleans who never had a shot at the straight life. His mother was shooting heroin and dealing on the streets when Frank was born. In fact, it was Frank’s mother who suggested that her darling boy should confess to the police.

I know this sounds odd. Why would anyone say they were party to a notoriously violent drug hit if they had nothing to do with the crime? Well, if you are looking at 60 hard years for a multitude of drug-related felonies and the nice man in the uniform is hinting that you might be on the streets in seven years if you sign a confession, you sign the paper. Then you ask what you are signing so you will know what to say on the witness stand.

The New Orleans connection disappeared and Scott Davis was busted from detective to street patrol. The DA’s office had a confession and they knew a St. Tammany jury would buy it. So what if Frank Knight was fabricating a story in exchange for a get-0ut-of-jail-free card; a difficult case would be closed.

Once again, investigators refused to ask the obvious questions. Why would a young man like Kelvin Kaigler murder Roxy Agoglia and three innocent relatives? True, in High School, Kelvin always told his friends that he was from New Orleans; Slidell sounded so uncool. He dropped out of High School, got a job on the riverfront in New Orleans, fell in with the sort of people Jack Strain rails about, and began experimenting with crack cocaine.

P2065185 — Debbie Callens and Gloria Kaigler

Then, about a year before the quadruple murders in Slidell, Kelvin Kaigler’s life underwent a dramatic reversal. He developed a love for Christian rap music and cut off all contact with his former friends in New Orleans. “Kelvin was working in New Orleans when he had a car accident,” neighbor Debbie Callens, told me. “He totalled his car and didn’t want to replace it. He was doing landscaping work aroun the neighborhood and my husband and I had him work in our yard. When that kid smiles, everything lights up. He has a very bkind spirit, very gentle. When you see Kelvin, you can see into his soul. He told me he didn’t want a car because it wanted to stay close to home.”

“We felt like he was turning the corner,” Kelvin’s brother Earl tells me. “The guys he had been hanging with in New Orleans were kind of sketchy; the kind of people that would make money and blow it. But once he settled down, every penny Kelvin made was going into his music and his CD.”
The lyrics on the CD Kelvin released prior to his arrest are an earnest testimony to the dramatic conversion playing out in his soul.

“Something’s missing inside,” he sings. “I’m tryin’ to think of what it could be. All the pain that I’m feeling, all the death that’s all around me. Lookin’ at myself up in the mirror, thinking where I went wrong.”

“No more chains holding me down,” Kelvin declares in another song, “bustin’ loose, flying free. I’m so weak, but the Lord kept me by his side, and brought me through all the rain, no more pain, and from that day, my life could never be the same. No more chains.”

Then everything fell apart. “The first week in August, Mr. John (that’s my father) closes down his barber shop in New Orleans, rents a van, and drives the whole family to Cairo, Georgia, to pick up my mother’s 90 year-old mother. Then we all drive up to Gatlinburg. It’s mostly white tourists up there, but we always have a good time. In 2007, Kelvin came along for the first time in a long time, and that’s when he was arrested. He saw them coming and told Mr. John he might want to open the door. These deputies busted into the room witht their guns drawn the second night the family was up there. One of them said he knew Kelvin didn’t do it, but they thought he might know something. But in the papers they made it look as if Kelvin was a fugitive from justice.

Kelvin Kaigler and Curtis Flowers have a lot in common. Both men love gospel music: Kelvin likes rap and Curtis (a generation older) prefers the traditional sound. Curtis leads the singing at prison church services and Kelvin continues to write rap songs behind bars. When I talked to him in the company of his attorney, Martin Regan, Kelvin was radiant. Like Curtis Flowers, Kaigler has no doubt that he will one day be exonerated. Martin Regan agrees, but knows they face a difficult legal fight.

Kelvin and Curtis share more than a love for gospel music; neither man is capable of killing four people in cold blood and neither man possesses the slightest motive for doing so. Roxy Agoglia, the woman who was murdered in Slidell in 1996, was a heroin dealer murdered because she couldn’t pay her debts. Kelvin Kaigler has no connection to the heroin trade. Neither does James Bishop, the second man Frank Knight says was with him on the fateful night.

Curtis Flowers had no reason to wish any harm to Bertha Tardy. True, Tardy and Flowers had a disagreement over some damaged batteries. “I was with Curtis more than once when Miss Bertha called him,” Robert Campbell told me today. “She was begging him to come back to work, but he wasn’t interested. He told me, ‘I don’t want a job where I deliver a piece of furniture and then, three days later, I go out and haul it back to the store.'”

Curtis Flowers held no personal animus toward Bertha Tardy. The woman gave him an $30 advance on his salary so he could enjoy the Fourth of July Holiday and begged him to return when the work week resumed. But Curtis had already decided to move in with his sister in Dallas where he could make twice the minimum wage salary he was pulling in Winona. The idea that he would kill four innocent people (two of them personal acquaintances) over a minor salary dispute is simply preposterous.

While two innocent men languish in prison the real perpetrators of mass murders in Slidell, Louisiana and Winona, Mississippi continue to ply their dangerous trade, likely on the streets of New Orleans.

Donald Washington’s Jena

January 25, 2010January 27, 2010 · 2 Comments ·

Donald Washington, Louisiana’s first African-American US Attorney, is stepping down. Among his greatest achievements, he says, is his handling of the controversial Jena 6 case in 2007.

If you think Mr. Washington is proud of bringing a serious racial incident to the American public’s attention, think again. Quite the reverse. Louisiana owes Mr. Washington a vote of thanks for effectively debunking bogus claims made by people like me.

“There’s a huge story that one day may be told,” Washington said. “To sum up our involvement, the Department of Justice did a great job of ensuring that controversies that happen on school campuses don’t become federal cases unless the facts in evidence lead us in that direction.”

Mr. Washington was under heavy pressure to prosecute the young men who hung nooses from a tree at Jena High School as hate criminals. I have always supported his restraint in that regard.

But there’s more.

“As far as the kids are concerned, it is more than abundantly apparent that they never intended for what happened in two disparate and separate events to be linked together and become the focus of a national controversy. And to this day, all of those groups that intended to ferret out any kind of nefarious conduct on behalf of the citizens of the Jena community still have failed to do so.”

If you find that hard to follow, here’s a rough translation: “There was never the slightest relationship between the nooses hung at the High School in September and the schoolyard assault on Justin Barker three months later.”

Since I am the first person to link the nooses and the beat-down, I take Mr. Washington’s comments personally. That doesn’t mean I disagree with his assessment in every particular. I never argued that the black football players who assaulted Mr. Barker were consciously avenging the noose provocation. On September 20th, 2007 I enjoyed a series of conversations with the men and women who rode the buses to Jena from all over the nation. Most of the folks I talked to believed the assault on Barker followed hard on the heels of the noose hanging.

Not so. It’s true that black students were deeply provoked by the noose incident. The nooses appeared the morning after a black freshman asked if it was okay for black students to sit under the tree at the white end of the school courtyard. Although black kids were free to visit the tree whenever they chose, everybody in Jena understood that one side of the courtyard was reserved for white kids and the other end was for the black students. It had been that way ever since Jena schools integrated in compliance with federal law in 1970. The kid who asked the question was challenging the tradition of a segregated school courtyard. That was the issue and folks on both sides knew it.

Black kids were angry in the wake of the noose incident; but they weren’t fighting mad.

The Jena equation doesn’t balance until you factor in the behavior of adults.

First, the school superintendent announced that the noose hanging was completely unrelated to racism. Is Mr. Washington, the outgoing US Attorney from the Western Louisiana Division of the Department of Justice, signing off on this bizarre sentiment?

So it seems.

It was the refusal of school officials to acknowledge that Jena High School had a racial problem that sparked the anger of black students. Now they were fighting mad. Pushing matches flared up on campus. Nothing serious, but tension was escalating. It got so serious that police officers placed the campus on full lockdown.

That’s when the second bull-headed act by a white public official took place. The principal called all the students to the school auditorium for a special assembly. True to tradition, the white kids sat on one side of the aisle, the black kids on the other. Every uniformed police officer in town was in the room. District Attorney Reed Walters walked to the podium and told the kids to settle down and get a grip. Then he turned to the kids on the black side of the aisle, pulled out his Parker Jotter and said, “I want you to know that I can end your lives with a stroke of my pen.”

Walters has admitted making this remark. He says he thought the white and black students should have been able to work things out among themselves.

One thing was certain, the student body wasn’t going to get any guidance from adults.

DA Reed Walters and Superintendent Roy Breithaupt weren’t acting on their own initiative. They were desperate men doing what they had to do. They couldn’t address the racial history of Jena without throwing their community into an uproar. Besides, Reed and Roy were raised in the segregated South. Their behavior suggests they have never backed away from the racist assumptions at the heart of the Jim Crow regime. These men weren’t going to tolerate overt racism. If the white kids had donned sheets and burned a cross on the black end of the school yard, school officials would have taken action. But anything more subtle than that would be ignored or interpreted as innocent juvenile horseplay.

Justin Barker was best friends with the boys who hung the nooses. These were country kids who grew up in all-white schools. When they hit high school, they were bused to the semi-integrated high school in Jena. It was only natural that these kids were intimidated by black students–especially football players. But it would be a tragic mistake to single out the kids who hung the nooses for special attention– as Walters and Breithaupt’s bizarre behavior suggests, the noose hangers were reflecting the values of the culture that shaped them.

Tension between the white “noose boys” and the black football players rose steadily during the fall semester–but the altercations were always off campus. Then somebody set fire to the high school campus–a detail rarely mentioned in media accounts. Robert Bailey was assaulted at a Friday night dance and this led to a related altercation at a convenience store the following morning. When school opened on Monday morning, angry confrontations erupted during the lunch hour. Kids were rehashing the Bailey beat-down and Justin Barker was at the heart of the action.

So, although there is no direct connection between the noose incident and the assault on Justin Barker, it doesn’t take a genius to connect the dots.

Unless, as folks like Donald Washington would have you believe, the Friends of Justice narrative is largely fictional.

Which brings us to June of 2009 when the five Jena defendants still awaiting trial pled guilty to simple battery and were sentenced to a week of unsupervised probation. When the week was over, the charges were expunged from their records.

Why did Reed Walters allow a dedicated team of lawyers to bargain him down from attempted murder to simple assault?

Because the Friends of Justice narrative was accurate in every detail. In fact, the carefully-researched truth was far worse. If Reed Walters had taken a single defendant to trial, the whole sordid story would have come out and crowds of indignant protestors would have returned to Jena.

Walters yielded to the inevitable. Simple as that.

Donald Washington has another story. “All in all,” he says, “the federal agencies involved — from the U.S. Attorney’s Office to the FBI to the Department of Community Relations — performed their duties admirably, professionally and thoroughly.”

I won’t quibble. I was contacted by Carmelita Pope Freeman of the Community Relations Service of the Department of Justice shortly after the Jena story first broke in the national media. Carmelita wanted to sit down with folks on both sides of the issue and work toward an amicable resolution. I told her she needed to wait until the legal process was over. In a recent conversation, Ms. Freeman told me her work in Jena is finally winding up. I hope she was able to make solid progress. I hope lessons were learned. But my fear is that Donald Washington’s take on the situation received the imprimatur of the federal government and everyone moved on.

The last time I spoke to Donald Washington was at a townhall meeting in Bunkie, Louisiana in the summer of 2008. “I read everything you write,” he told me, “and I’ve got no problem with what you’re trying to do. Just one word of caution: Be fair.”

I assured the US Attorney that I would be heed his advice. As I turned away, Mr. Washington’s eyes lit on the diminutive Ann Colomb, a housewife from nearby Church Point, Louisiana.

“I’m sorry ma’am,” Washington said, “but you look awfully familiar. Have we met?”

“No, Mr. Washington,” Ann replied, “we haven’t met. I was the woman you put in jail for dealing drugs.”

The US Attorney’s face fell. “Oh, Mrs. Colomb,” he said, “I am so sorry about what happened to you and your family. And I want you to know that the men who lied about you and your sons are being punished to the full extent of the law.”

When Ann Colomb told me this story later she wasn’t impressed. “All they did was give more time to the snitches that had the courage to admit what they done,” Ann told me. “I don’t blame those poor souls for lying on us; the folks I blame is Don Washington, Brett Grayson and the rest of the those DOJ boys that paid the snitches to lie on innocent people.”

You will be discouraged to learn that federal cases built almost entirely on the uncorroborated testimony of convicted drug dealers are still being prosecuted in the Western District of Louisiana. Next week, five defendants the feds know as “the Sunnyside Organization” will go to trial in the federal courtroom in Lafayette. I have been monitoring this prosecution for three years and it looks like a replay of the Colomb fiasco. More on that when the trial is over.

US Attorneys like Donald Washington serve at the whim of presidents. Washington was appointed by George W. Bush and Barack Obama wants to move in a different direction. How different, I wonder? Does the president know how the Jena situation was resolved? Does he know what happened to Ann Colomb and her sons? Does he know what is happening to the Sunnyside defendants even as we speak? Probably not–he’s a busy man. But I will do everything in my power to keep him, and you, informed.

Supporters of Flowers Bill try again

January 4, 2010February 2, 2012 ·

(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.)

Mississippi State Representative Bobby Howell will be re-introducing a bill designed to convict Curtis Flowers of Winona. A recent article in the Greenwood Commonwealth lays out the basic facts surrounding the case: “Curtis Giovanni Flowers has been tried five times for murder in a 1996 quadruple homicide at Tardy Furniture in Winona with every trial being overturned on appeal or ending in a hung jury. Howell said he doesn’t think Montgomery County — with a population of about 12,000 — can field a jury of people who don’t already know about the case.”

This is nonsense and Howell knows it. The challenge isn’t to seat a jury; that can be done with no difficulty at all. The trick is to seat a jury with lots of white people and few black jurors. The Mississippi Supreme Court has already rebuked the Grenada DA for attempting, illegally, to keep blacks off the jury in the third Flowers trial. Interviewed by Tom Mangold of the British Broadcasting Corporation, former Supreme Court Judge Oliver Diaz put it this way: “We reversed because the jury selection process ended up not being fair. Every challenge the state had was used against African Americans and the only African American that was seated was when the state ran out of challenges and could not challenge anymore and one was seated.” (more…)

Orlando Patterson’s quiet revolution

November 4, 2009November 4, 2009 · 9 Comments ·

Harvard sociologist Orlando Patterson makes two major claims in this stimulating op-ed piece in the New York Times. First, he suggests that racism has changed its shape without losing its power. This means that a black president must never address the race issue directly.

Patterson understands the historical roots of American racism as well as any living American scholar. Here’s his mini-lecture on the subject:

We became this way because of the peculiar tragedies and triumphs of our past. Race and racism scar all advanced nations, but America is peculiar because slavery thrived internally and race became a defining feature of personal identity.

Slavery was quintessentially an institution of exclusion: the slave first and foremost was someone who did not belong to and had no claims on the public order, nor any legitimate private existence, since both were appropriated by the slaveholder. The Act of Emancipation abolished only the first part of slavery, the master’s ownership; far from removing the concept of the ex-slave as someone who did not belong, it reinforced it. The nightmare of the Jim Crow era then extended and reinforced the public slavery of black Americans right up through the middle of the 20th century.

At the same time, the status of blacks as permanent outsiders made whiteness a treasured personal attribute in a manner inconceivable to Europeans. Whiteness had no real meaning to pre-immigration Swedes or Irishmen because they were all white. But it became meaningful the moment they landed in America, where it was eagerly embraced as a free cultural resource in assimilating to the white republic. In America race had the same significance as gender and age as defining qualities of personhood.

The civil rights movement opened up new opportunities for educated people of color by abolishing “the lingering public culture of slavery”, but while black people have made great strides in the entertainment, athletic and political fields, the social segregation in America has actually deepened. African Americans are still perceived to be “culturally different”, Patterson writes, and “In the disciplined cultural spaces of marriages, homes, neighborhoods, schools and churches, these same differences become the source of Apollonian dread.”

Social isolation means that white Americans have a hard time grasping the individuality of black Americans. As a result, the pathologies of the few are attributed to the many. Although the relationship between social pathology and bad public policy is simply assumed in the academic community, a black president must never appear to be making excuses for absentee dads and street-hardened thugs if he wants white votes.

I’m not sure if Patterson is trying to describe the president’s thinking in this op-ed, or if he is telling Obama how he ought to think. Maybe he’s doing both. Obama, Patterson suggests, must never lecture white America about race. In the wake of the Jeremiah Wright controversy, Obama had to speak out to keep the race issue from derailing his candidacy. But since entering the White House, he has made only one foray into racial politics (his remarks about the Gates-Crowley affair) and Patterson sees that as an unmitigated disaster.

Therefore, the professor says, America’s first black president “will not be leading any national conversations on race, convinced as he must be that they exacerbate rather than illuminate.”

Patterson seems to agree with this stark assessment.

Are white Americans so ignorant and reflexively defensive that they can’t engage in an intelligent give-and-take on the subject of race?

So progressive analysts seem to believe. So it has always been. The NAACP was horrified by Martin Luther King’s practice of non-violent direct action because the strategy invited a violent white backlash. King persisted because he knew the sheer pathology of the typical white reaction to marches, buoycotts and sit-ins exposed the irrational hatred at the heart of racist public policy.

Similarly, the Freedom Rides of 1961 received negative reviews from the mainstream press. It was generally assumed that anyone foolish enough to sit in the front section of a bus in Alabama or Mississippi had only themselves to blame if they received a brutal beating. But every Freedom Rider sent from Jackson to the notorious Parchman prison in the Mississippi Delta weakened the position of Southern politicians. Ultimately, Attorney General Bobby Kennedy pressured the Interstate Commerce Commission into changing the law.

Only after non-violent and inter-racial strategies were abandoned did a conservative backlash against civil rights take hold in America. For an entire decade, the conflict between civil rights and states rights shaped the way Americans thought about the past and the present. The living narratives unleashed by non-violent direct action seized white America by the throat. The strategy was daring, dangerous and uniquely effective. Civil rights activists created a social crisis in America and waited for the truth to surface.

The narrative strategy Friends of Justice employs is rooted in the early civil rights movement. By taking hold of the narrative surrounding actual criminal cases we spark an intense conversation about race and justice. Initially, public officials ignore us. When that doesn’t work they attempt try to spin the story in their own favor. In the resulting clash of narratives the truth ultimately rises to the surface. Not everybody sees it, of course. Some folks remain convinced that Tom Coleman made good cases in Tulia or that the nooses hanging from a tree in Jena held no racial significance. But Jena changed the way school administrators think across America, Tulia led to widespread reforms and the Colomb case (though it gained less publicity than Jena and Tulia) exposed fundamental flaws in federal conspiracy law.

Orlando Patterson hopes Barack Obama can “quietly” reform the criminal justice system. Not by himself, he can’t. Our punitive justice system was shaped by tough-on-crime politicians exploiting and feeding public fears at the top of their lungs. There was nothing subtle or “quiet” about this process. Divisive and damaging narratives about crack babies and inner city thugs built the present system and only healing justice narratives can take it apart.

Conservative politicians could afford to be speak loudly because they reflected the zeitgeist. White people were angry, afraid and in the majority. Progressive leaders must wait for somebody else to change the tenor of the conversation, but if everyone is quiet nothing will change.

White skin is no barrier to reflection and repentance. Given the right environment, all people can learn. But there will be nothing quiet about the process. “You shall know the truth,” Jesus tells us, “and the truth shall set you free.” Politically nuanced fudge phrases are good for winning elections but they will never reveal truth or expose lies.

Orlando Patterson is right about one thing: a sitting president can’t be the standard-bearer for a twenty-first century civil rights movement. Barack Obama shouldn’t take the lead in the conversation about race and justice–but he has already changed the context in which that conversation unfolds. It’s up to the rest of us to speak the loud truth without apology.

The Devil’s Logic: when innocence doesn’t matter

August 20, 2009August 24, 2009 · 2 Comments ·

Is it legally acceptable for the Supreme Court of the United States to tacitly endorce the execution of an innocent man? Antonin Scalia thinks it is. Consider this remark from his dissenting opinion in the Troy Davis case:

“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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” (more…)

A nice girl like you . . .

July 16, 2009February 2, 2012 · 16 Comments ·

(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.)

Lydia Chassaniol is in trouble. How much trouble remains to be seen, but the Mississippi State Senator (R-Winona) has the regional blogosphere in an uproar.

Remember the mid-to-late 1990s when prominent Mississippi politicians like Bob Barr and Trent Lott got too cozy with the Council of Conservative Citizens? That’s the white separatist hate group the New York Times describes as having “a thinly-veiled white supremacist agenda”. You can buy a “white pride” T-shirt on the CCC website and read headlines like: “The whole world treats Obama as a joke!” and “Mass immigration equals white genocide.”

The CCC platform praises America’s “European” heritage and condemns “mixture of the races”. CCC leaders still like to refer to “Martin Looter Coon” and have described African Americans as “a retrograde species of humanity”. According to Ward Schaefer of the Jackson Free Press, “Columnists in the CofCC’s newsletter have hyperventilated that non-white immigration to the U.S. was transforming the country into a ‘slimy brown mass of glop.'”

You get the picture. (more…)

Empathy and the Law

May 28, 2009May 28, 2009 · 5 Comments ·

President Obama’s remarks about judicial empathy have inspired howls of protest from the right and furrowed the brows of legal traditionalists everywhere.

Sympathy means feeling sorry for another person; empathy means feeling another person’s pain as if it was your own. In a campaign speech in 2007, Obama spelled out the case for judicial empathy: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

So what could possibly be wrong with that?

Plenty, say the critics. As the image of a blindfolded Lady Justice suggests, the law is supposed to be blind. Judges are to rule strictly on the basis of the evidence before them and “settled law”. In theory, it shouldn’t matter whether the defendant is rich or poor, beautiful or ugly, famous or infamous, black or white, Christian or Muslim–the law treats all defendants and plaintiffs the same.

Judges who feel either empathy or revulsion for the poor wretch quivvering before the bar of justice are departing from the strict canons of judicial objectivity. A judge, the reasoning goes, is a referee who has no interest in the final score; he just wants the players to play by the rules.

So, Texas senator, John Cornyn says that Judge Sonia Sotomayor, Obama’s choice to fill the vacancy on the Supreme Court, “must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences”.

Is it just me, or does this line of reasoning reminiscent of Alice in Wonderland? The Queen of hearts (a spoof on Queen Victoria) is utterly lacking in empathy: “The Queen had only one way of settling all difficulties, great or small. ‘Off with his head!’ she said, without even looking round.”

Fortunately for Alice, the kind-hearted King of Hearts quietly commutes every death sentence his tyrannical wife imposes. In the real world, empathy and good judgement are sisters.

Does anyone really believe that Samuel Alito or John Roberts are never influenced by “personal politics or feelings”? Can anyone imagine John Cornyn showing the slightest concern that the two most recent additions to the Supreme Court might allow their conservative political opinions to influence their rulings? Of course not. The men were selected because they shared the president’s conservative values.

David Souter, the justice Sotomayor has been nominated to replace, has outraged ideological conservatives precisely because he refused to be guided by ideology.

Supreme Court justices certainly strive to leave subjective considerations out of the deliberative process; but the same apriori judgments and impulses that shape personal politics and ideological leanings bubble to the surface when legal issues are being weighed. If you believe abortion is always wrong you will ascribe relatively little constitutional weight to a woman’s right to choose. Why did the Supreme Court value the principal of equal access to education over “state’s rights” in 1954? For the same reason that the same court in earlier generations would have made the opposite call.

Empathy shades into bias only when jurists feel the pain of people like them while demonstrating utter disregard for folks on the opposite end of the social spectrum. The opposite of empathy is ignorance not objectivity. Who wants to be judged by a woman who has no sense of who you are, how you feel, how you have struggled and what you value?

In criminal cases built on circumstantial evidence much depends on how you view the defendant. Is this man capable of such a foul deed? This question must be answered, and a lack of empathy ensures a wrong answer.

Empathy generally fits hand-in-glove with the standards of due process. If you feel the humanity of a defendant you will want that person to get a fair, open and constitutional hearing. Corners are cut when nobody in the courtroom gives a damn.

G.K. Chesterton was known for blending morality with good humor (an unusual combination). Exactly 100 years ago, he served as a juror and was not impressed with the professionals in the courtroom. The problem: no empathy.

“Now, it is a terrible business to mark a man out for the vengeance of men,” Cheston observed. “But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.

Unlike legal professionals, Chesterton felt, a good juror empathizes with the victim, the alleged perpetrator and the families of both parties. This doesn’t make them biased. Biased jurors, like biased judges, feel the pain of the victim but give no thought to the humanity of the defendant. Jurors (and judges) get it wrong in capital cases precisely because the facts are so distressing. The blood of the victim calls out for justice with such urgency that no one bothers to ask if the right person has been summoned to the bar of justice. The thought of the crime going unpunished is so disturbing that the humanity of the accused vanishes. The accused must be guilty because the crime is so heinous.

Of course, the desire to punish must be held in abeyance until the guilt-innocence question has been decided. Judges who prejudge a case are tempted to rule for the state at every turn because it hastens the inevitable. Judges without empathy are bad judges.

The empathy debate pits reformers who believe life experience impacts judgement against traditionalists who believe nine white males would be perfectly capable of deciding any legal issue. Was it purely incidental that five of the nine justice who decided the Dred Scott case in 1857 were slave owners? Adding African Americans to the judicial mix would have changed nothing, traditionalists argue. In fact, black judges would have stripped the blindfold from Lady Justice because they identified personally with the travail of American slaves.

George Will dismisses Judge Sotomayor as a conventional liberal: “She embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented – understood, empathized with – only by persons of the same identity.”

Quite so. None of us are impartial. We enter the world as self-serving tyrants and only painful encounters with other people can change us; that’s why we need religion. Experience gives us the capacity for judgement. Despite the best of intentions and a world of good will, if we know only people who look and think like us we will have a cramped view of the world. As we strive to feel as others feel as others feel we make real moral progress, but our capacity for empathy is tragically limited.

In explaining his vote against John Roberts, then-Senator Barack Obama noted that the well-groomed jurist had “far more often used his formidable skills on behalf of the strong in opposition to the weak” and “seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process.”

Men like George Will have no problem with “the remnants of racial discrimination”. They assume that standard-issue white American males will make the right call. They can be impartial because they lack empathy.

Dirty Dallas cop reveals a culture change

May 1, 2009May 2, 2009 · 3 Comments ·

This is NOT a story about Tom Coleman, the undercover cop of Tulia infamy. So why does his picture appear at the head of this post? Because the Dallas Morning News story below can only be understood in the context of Coleman, the Dallas Sheetroock scandal, and drug war horror stories of that particular genre.

Sgt. Randy Sundquist lied on the witness stand 15 years ago. He was also accused of fabricating evidence. On the strength of these serious accusations, it was determined that Sundquist should be severed from the Dallas Police Department.

Shortly thereafter, somebody decided that Sundquist should be re-hired. He was a good, gung-ho narcotics cop and these guys, given the corrupt contours of the drug war, are worth their weight in gold.

It is asserted below that the DPD and the Dallas County DA’s office must have forgotten that Sundquist had been exposed as a liar. Why else would he be allowed to testify against scores of drug defendants in open court? Surely you wouldn’t use a guy with a reputation for dishonesty (and mental instability) as a witness in narcotics cases! Why, innocent people might go to prison, and we sure don’t want that to happen.

This is where Tom Coleman comes in. Everybody in Tulia and Amarillo knew that Coleman had a reputation for dishonesty. His former employers had told them so. A letter to that effect was in Coleman’s TCLEOSE file in Austin.

Nobody cared. Coleman was a gung-ho narcotics cop and guys like that . . .

This is a story about culture change.

The old DA’s office ran by the inherited dictates of win-at-all-costs prosecutor Henry Wade. They wouldn’t mind using a guy like Sundquist on the stand so long as nobody noticed. The new DA’s office is run by Craig Watkins and Walkins does mind. Because Watkins minds the entire DA’s office is minding. Because the DA’s office minds the DPD has little choice but to mind as well.

In other words, Watkins is lifting the bar of professional ethics by several notches.

Of am I being overly cynical? Let me know what you think.

A disclaimer: I am not suggesting that all, or even most Dallas cops would stoop to the low-down tactics described in the well-written article below. I am saying that those who do have traditionally been prized by law enforcement and the prosecutorial arm because the war on drugs, in anything like its present form, would be impossible to wage without them.

Dallas police officer’s testimony may taint dozens of cases

Thursday, April 30, 2009

By TANYA EISERER / The Dallas Morning News

teiserer@dallasnews.com

The Dallas County district attorney’s office may have to throw out dozens of cases after learning that a police sergeant officially branded a liar 15 years ago continued to testify in criminal courts.

A letter released Wednesday by the district attorney’s office to Dallas Police Chief David Kunkle says Sgt. Randy Sundquist shouldn’t be trusted to testify in court. The unusual move comes after the office discovered a similar notice had been issued in 1994, but was largely ignored.

It is unknown exactly how many past and pending cases might be affected by Sundquist’s testimony, but in a recent court hearing, Sundquist estimated that he had taken the stand between 50 and 100 times since 1995.

“We have to look at what role he played and whether or not we can make the case without his testimony,” First Assistant District Attorney Terri Moore said Wednesday. “If we can’t make the case without his testimony, then that case is going to be dismissed.”

In 1994, police investigators found, among other things, that Sundquist conducted an illegal search, lied to internal investigators and caused false information to be entered into an arrest report. The notice issued to then-Police Chief Ben Click stated that, due to his record, he should not be allowed to testify.

Sundquist was fired, but reinstated by an administrative law judge. Authorities then apparently forgot that he should not be allowed to testify.

Neither Sundquist or his attorney returned phone calls for comment.

The notices would ordinarily doom an officer to a desk job or some similar post where the officer doesn’t make arrests or get involved in situations where he might eventually be required to testify in court. An entire case could fall apart if a tainted officer’s testimony was critical to gaining a conviction.

But after being reinstated, Sundquist went on to become leader of a deployment squad in northeast Dallas that tackles special assignments and deals with crime hot spots. His squad largely focused on drug arrests.

Neither police officials or the district attorney’s office has a clear answer as to why Sundquist was allowed to testify in the 15 years since prosecutors issued the first letter saying he shouldn’t. They say the original notice fell through the cracks, probably because the system largely depended on word of mouth to keep barred officers from testifying.

On Wednesday, police commanders quickly moved to relieve Sundquist of his duties as supervisor of the deployment squad.

“We received the letter today, and the letter will require us to put him in a job where he is not subject to have to testify,” Kunkle said.

Defense attorney Bill Wirskye, who represents several clients in cases involving Sundquist, urged prosecutors to take their efforts a step further and dismiss all pending cases involving officers Sundquist supervised.

“A bad police officer like this ought never to be allowed to outrun his past,” said Wirskye. “This letter and Sundquist’s past is just the tip of the iceberg with the problems they have with him and the unit he supervises.”

Officers in that unit were already the subject of a Dallas Morning News story in February that reported that the district attorney’s office was reviewing dozens of cases filed by Sundquist and his squad after prosecutors concluded that one of his subordinates lied about whether a man was illegally carrying a gun and drugs. The man spent 10 months in jail on false charges.

Sundquist has taken the stand in cases as recently as this year, but it isn’t known yet whether any of his testimony was false or misleading.

Getting a grip on how many convictions might have been critically based on Sundquist’s testimony in the last 15 years is a daunting task: Electronic records that can be searched to determine who testified did not exist in Dallas County until 2005. The district attorney’s office wants anyone who participated in a case in which Sundquist testified before then to contact them.

1994 letter

In the Dec. 21, 1994, letter in which prosecutors were told not to put Sundquist on the stand, then-Assistant District Attorney Michael Gillett wrote that he had been found to have made “intentional misrepresentations,” so prosecutors could no longer “vouch for the credibility or sponsor the testimony” of Sundquist.

In a March hearing on a Cedar Hill drug case, Sundquist testified that he had never received any written or verbal instructions indicating he was not cleared to testify. He said he only told prosecutors about his past history when asked if he had anything to disclose that would hinder his credibility as a witness.

He testified that within the last year or so that had only happened twice, and he had been “approved by upstairs” to testify.But according to the trial transcript of one of those cases, prosecutor Robert McClure told a judge and defense attorney in open court that Sundquist had been fired in the past.

But according to the trial transcript of one of those cases, prosecutor Robert McClure told a judge and defense attorney in open court that Sundquist had been fired in the past. “He’s been testifying for years,” McClure said in court. He decided not to call Sundquist as a witness in that case.

‘Bushmen’

In the mid-1990s, Sundquist and other patrol officers were known among prosecutors as the “Bushmen,” a reference to the group’s fondness for hiding in bushes when conducting surveillance on suspected drug houses in South Dallas.

Colleen Murphy, a prosecutor, testified in Sundquist’s 1995 appeal of his firing that some prosecutors didn’t want to work with the “Bushmen” because their cases “were just totally unbelievable.”

“They’d see amazing things in the middle of the night with no lights, from far distances,” she testified.

Internal police investigators found that Sundquist had conducted an illegal search. They also concluded that Sundquist lied to them, finding among other things that he couldn’t have seen what he claimed to have seen when he said that a man was standing in a doorway with a bag of cocaine.

“I found numerous flaws in their testimony and very shoddy arrest reports,” Sgt. Jose Losoya told internal investigators. “These omissions or flaws could prove disastrous in a court case. As it was, it gave the impression that the officers were falsifying their reports to get drug dealers at all costs.”

After he was fired, prosecutors issued the first letter barring him from further court testimony. An administrative law judge subsequently reinstated Sundquist and reduced the punishment to a 40-day suspension.

That judge, Barnett Goodstein, overturned the internal affairs finding that Sundquist had conducted an illegal search but upheld the finding that he had brought discredit to the department, given a false statement to investigators and that he provided false information for an arrest report.

Sundquist then worked in the communications division for about three years, receiving high marks. He eventually returned to patrol duties and was promoted to sergeant in 2002.

Senior police officials say that over time, the squad Sundquist supervised morphed into a de facto narcotics unit, frequently tasked with working drug activity complaints. Commanders instructed them to no longer work such cases earlier this year.

AT A GLANCE: BRADY VIOLATIONS •What it is: A 1963 U.S. Supreme Court ruling in Maryland vs. Brady requires that prosecutors disclose to the defense when a police officer has knowingly lied in an official capacity. To fail to do so is a constitutional “Brady” violation that can lead to the dismissal of a case.

•Avoiding Brady violations in Dallas: Officials have largely depended on word-of-mouth to keep officers with questionable records from testifying. Individual prosecutors or the officer in question have been expected to let the defense know of potential problems.

•Fixing the problem: The Dallas County district attorney’s office and Dallas police say they’re going to develop a systemic mechanism to track officers with credibility problems. In Los Angeles County, for example, the district attorney has created a computer-based Brady Alert system.

•Accident or intention: Bennett Gershman, a Pace University law professor who studies prosecutorial misconduct, says it won’t matter to the courts whether prosecutors intentionally or accidentally put a tainted officer on the stand. “If you didn’t reveal it because you were totally ignorant of the existence of this information, Brady is still violated,” Gershman said. Convictions in such cases have a greater likelihood to be overturned on appeal.

The Will to Secede

April 27, 2009December 10, 2009 · 5 Comments ·

(Readers of this post will be interested in the story of Curtis Flowers, a native of Winona, Mississippi who will soon go on trial for the sixth time on the same murder charges.)

According to a Rasmussen poll, only 18% of Texans would vote to secede from the United States of America if the vote were taken today.

An additional 7% would like time to mull it over.

In short, one quarter of the Texas voting population is willing to follow Governor Rick Perry into a new Texas Republic.

My guess is that the overwhelming majority of the secessionist folks are Republicans. Since the solid Republican base has been estimated at about 39% of the electorate it could be argued that Perry’s party is evenly split on the issue.

Maybe the Governor is just talking like a proud Texan. Everybody knows that native Texans feel more tied to their state than to their country. But successionist talk has been a common staple of the Southern neo-Confederate movement since the days of Brown vs. Board. Successionist rhetoric has traditionally been the province of those who long for the restoration of the Confederacy.

I just finished reading Neo-Confederacy: A Critical Introduction: a fascinating study of the most sophisticated strain of Southern racism written by a group of authors, many of them at least loosley affiliated with the Southern Poverty Law Center.

Edward Sebesta, a Dallas-based researcher who is probably the national authority on the issue, was part of the editorial team. I had never heard of either Sebesta or neo-Confederates until he contacted me a few weeks ago.

You can find Ed Sebesta’s blog here and his extensive essay on the prevelance of neo-Confederate mythology here. It’s pretty dense stuff, but the Dallas writer breaks some important new ground and deserves a hearing.

Sebesta has coined the term “banal white nationalism” to describe the unexamined assumption, especially common in the South, that America is a white nation, created by white folks primarily for white folks.

Banal white nationalism is contrasted to the kind of explicit white nationalism you will get from hardcore neo-conferate groups like the League of the South, the Council of Conservative Citizens and the Sons of Confederate Veterans.

There is nothing faintly banal about these organizations. They are committed to the values of the Old South, they feel utter contempt for the civil rights movement, they associate northerners with godless socialism and the Southland with orthodox Christianity, and they are committed to the principle of white supremacy. If neo-Confederates had their way in this wicked world they would re-establish the Confederacy in a heartbeat. Non-caucasians wouldbe allowed to live in this new-old realm so long as they understood that white is the color of normal.

Failing that, neo-Confederates will settle for “states rights”.

Banal white nationalism is a largely unexamined and unacknowledged creed rooted in the assumption that white people are normal Americans.

White nationalism is shaped by the kind of Confederate mythology usually associated with Margaret Mitchell’s Gone with the Wind, and D.W. Griffith’s the Birth of a Nation: a highly sentimental and idealized vision of a pristine Southland despoiled by the Yankee invader. In the popular mind, this mythos is wedded to public school mythology about Plymouth Rock Puritans, the heroes of the Revolutionary War, and the glories of Manifest Destiny.

When all of the heroes you read about in the history books are white you naturally assume that America is essentially a white nation. You will continue to think this way even if you are told repeatedly that you live in a pluralistic nation united by a common adherence to the American Constitution.

Stories trump abstractions every time.

I see three varieties of white nationalism.

First, there are crude racists of the KKK variety; the folks that attract attention by dressing funny and mouthing slogans that are no longer palatable in the public square. These are the people Americans love to hate. In fact, they are the only species of racist most people acknowledge.

Then you have the explicit white nationalists who are dedicated to the principle of white supremacy and dream dreams of a new Southern Confederacy. Explicit white nationalists denounce the civil rights movement as a federal conspiracy, lament the profligacy of Martin Luther King, Jr., and perpetuate every minority stereotype in the book. However, since they are well educated, write and speak standard English and don’t dress up in funny clothes most white Americans see them as normal Americans no matter how undemocratic and intemperate their rhetoric becomes.

Finally, we have Sebesta’s banal white nationalists, everyday Americans who see white as the color of normal. Although these people tend to be non-ideological, they have imbibed the public school historical mythology and embraced its implications. The television teaches them to honor civil rights icons like Martin Luther King and Rosa Parks and they willingly comply. Banal white nationalists see American as a white nation that is friendly to racial minorities.

A solid majority of white Americans fall into one of these three categories. Banal white nationalism is dominant in the Northern states. In the Deep South it’s okay to embrace explicit white nationalism so long as you choose your nouns and adjectives with care.

Suppose I am right; what impact would the prevelance of white nationalism have on the behavior of police officers and how would it impact the legal system?

Black defendants would be at a huge disadvantage with white prosecutors, judges and juries. At best, they are seen as resident aliens with only provisional rights.

If the tenets of white nationalism are fundamentally patriarchal, anti-egalitarian (and therefore undemocratic) what is the practical import of the due process protections hallowed by the US Constitution. As a practical matter, do these lofty principle really apply to black and brown people?

Now, where does Governor Rick Perry fall on the ideological continuum I have just described? Does he see America as a gloriously pluralistic mix of color, culture and ethnicity, or is he some species of white nationalist.

In the tradition of the Southern governers who have gone before, Perry is speaking the language of state’s rights. That doesn’t necessarily make him a racist or a white supremacist. There is nothing inherently racist about seeking a balance between federal and state power. But we all know what Southern governers meant by state’s rights in 1860 and 1957, and concerns should be raised when politicians toss around this kind of rhetoric.

When they’re talking secession it just gets worse.

Two points. First, Governor Rick Perry is a proud member of the Sons of Confederate Veterans. Second, the SCV has been moving in a radical, neo-confederate direction since 2002 and is now run by blatant racists.

This doesn’t necessarily mean that Perry can be identified with the SCV’s recent extremism. In the 1990s, the group had a strong anti-racist faction and received commendations from Bill Clinton. Maybe Governor Perry would be shocked if he knew what was going on.

But until the Governor’s allegiance to an increasingly racist organization is clarified friends of justice will be left with an uneasy feeling.