DR. ALAN Bean is the executive director of Friends of Justice, a nonprofit organization that works to uphold due process in the criminal justice system. It was formed in response to the infamous Tulia, Texas, drug sting of 1999, in which forty-seven people, thirty-nine of them African Americans, were rounded up based on the false testimony of a corrupt and racist undercover agent. Bean, a local Baptist minister, played a key role in organizing to expose the Tulia travesty and working to free the defendants. The Texas legislature, in response to the work of the Friends of Justice, passed the Tulia Corroboration Bill, which has led to the exoneration of dozens of innocent people by raising the evidentiary standards for undercover testimony.
Learning from this victory, Friends of Justice established Operation Blind Justice, organizing in affected communities across Texas, Louisiana, Arkansas, and Mississippi to restore due process protections to poor people of color. Bean and Friends of Justice played an instrumental role in publicizing the Jena 6 case, where six African-American high school students faced long prison terms after a fight with white students following the hanging of nooses on campus to intimidate Black students. Over 30,000 people marched in Jena, Louisiana, in September 2007 to protest the prosecution of the Jena 6. The charges against five of them were expunged from their records.
Recently, Friends of Justice has turned its attention to Winona, Mississippi— a town not far from Philadelphia, where three civil rights workers were murdered in the early 1960s. There, Curtis Flowers faces his sixth trial for the same murder charge. So far, the case has received more attention in Great Britain than it has in the American press. A primer on the Curtis Flowers case can be found at the Friends of Justice Web site. See also an interview with Bean on the Jena 6 case in ISR issue 55, November–December 2007.
TELL US about the case of Curtis Flowers and its historical significance. (more…)
On Tuesday, March 22nd, attorneys representing Kelvin Kaigler and James Bishop will file motions for a new trial. As this article from the New Orleans Times Picayune suggests, one of the key issues will be the applicability of Louisiana’s majority verdict rule to this and similar cases. The issues are thorny, so I have reprinted the entire article for you.
But there will be far more than procedural issues discussed in Covington tomorrow. There is a strong possibility that new evidence will be presented. I wish I could be there in person, but the last minute nature of the hearing makes that impossible. I will be soliciting firsthand reports and will let you know how things go as soon as possible.
One recent day at the St. Tammany Parish courthouse in Covington, two first-degree murder defendants faced different standards of guilt and innocence.
On the third floor, state Judge William J. “Will” Crain determined a unanimous jury verdict would be necessary to decide Jody “Florida Boy” Swafford’s fate. Meanwhile, in the courtroom directly below him, state Judge Richard A. “Rick” Swartz had deemed a guilty vote by only 10 of 12 jurors sufficient to convict Ray “Rayray” Brooks of that same charge.
Both defendants faced the charge of non-capital first-degree murder, punishable by mandatory life imprisonment.
Until 2 1/2 years ago, state law required that all first-degree murder cases – regardless of whether the state pursued the death penalty – needed unanimous jury verdicts for convictions. In August 2007, however, the law changed to allow non-unanimous verdicts – 10 of 12 jurors – to convict defendants of first-degree murder charges in cases where district attorneys were not pursuing the death penalty.
The whole discussion highlights a generally unacknowledged fact: Louisiana and Oregon are the only two states that still allow individuals to be convicted of felonies by non-unanimous – often referred to as “majority” – jury verdicts. Oregon requires a unanimous vote only in first-degree murder cases, whereas Louisiana now only requires it in cases involving the death penalty.
The issue for state judges now is whether to apply the more lenient jury guidelines – non-unanimous verdicts – in cases where the murders occurred before the law was changed.
Sometimes the Legislature will specify whether a new law should be applied retroactively, but it left the question open in this case. The answer is not simple. It will likely depend on the state Supreme Court’s eventual interpretation, and could force district attorneys throughout the state to retry several high-profile first-degree murder cases, including the recent convictions in St. Tammany of James A. “Scarface” Bishop and Kelvin W. “Dreads” Kaigler on four counts of first-degree murder for the largest massacre in St. Tammany memory.
Recent unanimity in St. Tammany
Swafford, Brooks, Kaigler and Bishop committed their crimes before the amended law took effect on Aug. 15, 2007. In fact, all the murders occurred in 2006, long before the future legislation was even proffered to the state judiciary committee for possible passage.
The St. Tammany district attorney’s office initially planned to appeal Crain’s recent decision to the 1st Circuit Court of Appeal, the first step before a potential state Supreme Court run. But district attorney’s officials ended up not filing the writ, in part because Crain’s jury ended up unanimously convicting Swafford as charged.
The day after Crain’s jury returned its verdict, Swartz changed his own position mid-trial, deciding that he too would require a unanimous verdict for Brooks. His decision apparently came after Crain discussed the matter with him, according to authorities close to the matter.
And the next day, on March 12, Swartz’s jury also returned a unanimous verdict, finding Brooks guilty as charged of first-degree murder after less than two hours of deliberation.
With both verdicts coming down their way, St. Tammany district attorney’s officials have said they are now much less inclined to appeal Crain and Swartz’s decisions about unanimity, but they still acknowledge that the state Supreme Court should rule on the issue before too many more non-capital first-degree murder cases go to trial.
Crain and Swartz both played it safe, hedging their bets by requiring unanimity. In his decision, Crain even noted his ultimate uncertainty regarding the issue, saying that the fact both the St. Tammany district attorney’s office and St. Tammany public defenders “can have such clear positions on opposite sides tells you why for me it’s totally unclear.”
In public defense attorney Kevin McNary’s argument to the court, requesting unanimity, he added, “I think it’s reprehensible that the Supreme Court has not addressed this issue… but we have to work with what we have.”
Now, both Bishop’s defense attorney, John Lindner, and Kaiglers’ attorney, Martin Regan, have filed motions for a new trial, arguing that unanimity was needed and that the verdict against their clients therefore constitutes a mistrial.
On Tuesday, Coady is scheduled to hear both attorneys’ arguments for a new trial.
Lindner spearheaded the recent debate. Realizing a possible discrepancy in the law, he prepared his motion for a new trial, and then informed Regan and Swafford’s defense attorneys, who later discussed the issue with Brooks’ attorneys.
However Coady rules on Tuesday, his decision likely will be appealed to the 1st Circuit Court and then will make a state Supreme Court run. If he rules against a new trial, Lindner is prepared to appeal. If he rules for a new trial, the district attorney’s office will likely lead the charge.
The reasoning
Lindner is arguing that the 2007 legislative change cannot be retroactive for a variety of reason.
For one, he argues it cannot be applied retroactively because the legislative amendment was to Bishop’s disadvantage, and a law cannot be applied retroactively if it alters the situation of the accused to his disadvantage.
Requiring only 10 of 12 jurors to find Bishop guilty made it easier for a conviction to be obtained, Lindner says. In the Swafford case, Assistant District Attorney Nick Noriea Jr. argued the converse for the state in his plea against unanimity, saying that in fact a non-unanimous verdict also favors a defendant as it only requires 10 of 12 jurors to acquit.
Lindner also argues that regardless of the advantage or disadvantage to his client, the issue is whether the legislative change in 2007 was “substantive” or “procedural,” meaning whether the change only affected the procedures by which cases are tried, or where the change also affected the substance of the defendants’ rights.
That interpretation seems to depend on what side of the road you are on. St. Tammany district attorney’s officials contend it was procedural, whereas most defense attorney argue it was substantive.
Both sides ultimately agree that the state Supreme Court must make its two cents known, as several convictions rest in its hands.
A broader debate
Some defense attorneys argue that under current state law, district attorneys can hedge their bets by charging defendants with non-capital first-degree murder, knowing that even if juries return the lesser charge of second-degree murder, defendants still will receive an identical, mandatory punishment: life behind bars. In other words, since the 2007 legislative change, two murder charges now carry the same punishment and both only require the same burden – 10 of 12 jurors to concur – so why not pursue first-degree murder if possible?
The U.S. Supreme Court was poised to hear a case about the constitutionality of “majority” verdicts – in Louisiana and Oregon, the only two states that still allow them – last summer, but in October, the high court ultimately declined to hear it.
Proponents of majority verdicts contend they are more efficient, create fewer hung juries, save taxpayers money by not having to retry as many cases, and that 10-2 verdicts are as decisive but just prevent “rogue jurors” from creating unnecessary mistrials. Conversely, defense attorneys typically argue that, especially in districts like St. Tammany where only one or two ethnic minorities usually sit on any given jury, majority verdicts make it easier for the minority’s vote to be disregarded.
The American Bar Association is against “majority” verdicts, and the Louisiana Association of Criminal Defense Lawyers similarly has argued that the state’s system of allowing non-unanimous felony jury verdicts disenfranchises black jurors. Meanwhile, the Louisiana District Attorneys Association specifically asked the U.S. Supreme Court not to hear the 10-12 jury issue in October.
Read the story of Jace Colby Washington and you will understand, perhaps for the first time, just how easy it is to convict an innocent man
Carlos Matinez-Carpio is dead and no one can bring him back to life. On the evening of April 29, 2007, two black males entered a trailer in Slidell, Louisiana where Martinez-Carpio and several other undocumented Latinos were living. The undocumented men were working construction and living on the cheap so they could send money back to their families. Carpio, a native of El Salvador, was talking to a family member on his cell phone when the two men burst through the door.
Court documents suggest the two black males were looking for drugs and money. Undocumented construction workers looked like an easy target; they wouldn’t dare report the crime to the authorities.
The language barrier created confusion. When the Latinos didn’t respond immediately to the demand for cash and drugs, the intruders had no plan B. Impulsively, one of the young black males started patting Mr. Martinez-Carpio down. The older man defended himself with a fork.
Shots rang out and Carpio was mortally wounded. As the assailants fled, random shots were fired in the direction of two other undocumented men but went wide of the mark. Friends raced to the nearest hospital in a pickup truck but Martinez-Carpio could not be saved.
A week later, Jace Colby Washington was arrested and held in solitary confinement for three months. A year-and-a-half later, the young man, now twenty years of age, went to trial charged second degree murder. On October 14, 2009 a jury found Washington guilty.
As I write, Jace has still not been sentenced.
The first break in the murder investigation came when a local resident saw two men emerge from a Chevrolet Tahoe and stash a gun under a pile of debris. Police quickly learned that a troubled young man named Glenn Carter sometimes drove a Tahoe. Carter was picked up and placed in “the birdcage”, a tiny cell so small he couldn’t even sit down. Forty-eight hours later, deprived of food and toilet privileges, Carter signed a confession. According to his statement, his buddy “E” (Carter wasn’t sure of his friend’s real name) had been eager to “hit a lick” (score some fast money). Carter said he’d come along, but only as a lookout.
According to Carter, no vehicle was involved; the two men walked to the trailer and left running. Carter carried a .380 handgun and “E” was packing a .45.
The following day, Edric Cooper was arrested. To hear Cooper tell it, Carter and Cooper had been accompanied by Jace Washington and Grant Gethers (former acquaintances from high school days) and everyone rode to the crime scene in Carter’s Tahoe. In Cooper’s story, Jace had the .380, Cooper had a 9mm semi-automatic and Carter used the .45.
On August 8, 2008, after fourteen hours of deliberation, Glenn Carter was convicted of second-degree murder, a charge that carries a mandatory sentence of life without parole in the state of Louisiana.
Two jurors voted not guilty; but in Louisiana it only takes ten guilty votes to convict. As King Alexander disclosed in a recent guest post, the “majority verdict” law was passed by the 1898 Louisiana constitutional convention “to assure the ascendancy of the Anglo-Saxon race in Louisiana.” It’s still working.
Edric Cooper
Four days after Glenn Carter’s conviction, Edric Cooper’s story changed dramatically. Carter, you will recall, had two men walking to the crime scene while Cooper had four men driving to the trailer in Carter’s Tahoe. Now, Carter and Cooper were in the Tahoe while Jace Washington and Grant Gethers rode in a separate vehicle.
In his original statement, Edric Cooper claimed that Jace Washington was armed with a .380 pistol; fifteen months later, Jace was packing the 9mm semi-automatic.
The changes are easily explained. DNA evidence taken from water bottles in Carter’s Tahoe proved Carter and Cooper had been in the vehicle, but there was no DNA from Washington and Gethers.
Secondly, when the police raided the home of Jace’s father, the Reverend Henry Washington, a 9mm pistol was seized. The weapon was never tested for DNA or fingerprints, but was used as evidence at Jace Washington’s trial.
With Glenn Carter’s trial out-of-the-way, the embarrassing fact that his confession mentioned no Tahoe, no 9mm weapon, and only two perpetrators had to be buried as swiftly and thoroughly as possible. When Jace Washington’s attorney tried to use Glenn Carter’s signed statements as evidence the document was declared inadmissible. Then the Assistant District Attorney asked the judge to rule that, if Jace Washington took the stand, he could make no mention of Glenn Carter’s statements. The judge sustained the motion.
In October of 2009, Jace Washington was convicted on the testimony of Edric Cooper.
The Latino witnesses had identified only two assailants while insisting that both men were five-foot-nine or shorter. Edric Cooper is five-foot-ten. Glenn Carter is also on the short side of average. Jace Washington is six-foot-four.
Glenn Carter escaped the death penalty by fingering Edric Cooper, but Cooper had no one to implicate. Necessity, as they say, is the mother of invention. If a 9mm handgun was taken from Jace Washington’s father, Jace had to be carrying a 9mm. If the evidence suggested that Grant Gethers and Jace Washington weren’t in the Tahoe, Cooper simply invented a second vehicle.
In exchange, Edric Cooper accepted a plea agreement and was sentenced to fifteen years in prison.
Why was it so difficult for the DA’s office to see through Edric Cooper’s desperate game?
Simple. Carter’s inventions provided an excuse for taking another young black male off the streets.
If you think I am exaggerating, consider these famous words from St. Tammany Sheriff Jack Strain.
St. Tammany Parish Sheriff, Jack Strain
“For some reason, New Orleans chooses to coddle criminals in that area that tend to get away with a great deal. We will not coddle that trash in St. Tammany Parish. If they come to St. Tammany Parish, we’re gonna pursue them, we’re gonna arrest them, our prosecutors are gonna prosecute them, and our judges are gonna convict them . . . If you’re gonna walk the streets of St. Tammany Parish with dreadlocks and chee wee hairstyles, then you can expect to be getting a visit from a sheriff’s deputy.”
Jack Strain doesn’t prosecute defendants, but the Jace Washington and Kelvin Kaigler cases suggest that law enforcement and the DA’s office are pretty much on the same page in St. Tammany Parish.
Jace Washington and Grant Gethers have been implicated in a crime they did not commit by a young man desperate to avoid a lifetime behind bars.
Kelvin Kaigler and James Bishop are suffering the same fate for the same reason. A young man named Frank Knight testified that he drove with Kaigler and Bishop to the trailer where four people were gunned down in the summer of 2006. Knight wasn’t present at the scene. Neither were Kaigler and Bishop. But issues of guilt and innocence are of little concern to man facing the prospect of life imprisonment.
I am confident that Frank Knight will eventually recant his testimony.
We don’t have to wait for Edric Cooper to confess his sins.
On March 4, 2010, Edric “E” Cooper signed a written affidavit in which he admitted that his various statements to the police have been a tissue of lies because “Jace Colby Washington was never with myself and Mr. Glenn Carter during the incident . . .”
“My reason for giving the satement as if Mr. Jace Colby Washington [was at the scene] is because he has never been in any kind of criminal trouble and I know that if I would have told the sheriffs that his participation . . . all the blame would (sic) taken off of me.”
“Glenn Carter and Jace Colby Washington do not know each other,” Cooper admitted, “but was made to know each other through my made up statement to the Sheriffs.”
“I am also giving this statement,” the affidavit concluded, “to prevent myself from disrespecting the court and to prevent of being (sic) charged with perjury while under oath during any proceeding in connection with Mr. Jace Colby Washington.”
I have copies of Cooper’s original written statement and his written recantation–the handwriting is identical.
Jace Washington made a copy of Edric Cooper’s affidavit and had the presence of mind to mail it to his parents.
He was just in time.
The following day, the inmates of the St. Tammany Parish Jail were taken from their cells and held for several hours in the courtyard outside the complex. When Jace Washington returned to his cell, all this personal belongings were missing. The legal documents Jace had carefully preserved had disappeared. When Jace’s father, Rev. Henry Washington, asked the Parish clerk for Jace’s file he was told that it was in the possession of the DA’s office. Prison officials have told Rev. Washington that his son’s paperwork appears to have been misplaced.
If Jace Washington wasn’t involved in the crime neither was Grant Gethers.
Tragically, Mr. Gethers, fearing that he would share Jace Washington’s fate if he took his chances with a St. Tammany Parish jury, accepted a plea agreement in early February, 2010.
On March 16, 2010, Edric Cooper signed a second affidavit that spells out what his original statement implied:
I, Edric Cooper, am writing this to let it be known that Jace Washington nor Grant Gethers (sic) took no part in the armed robbery/murder crime that took place on April 29th, 2007. Mr. Washington nor Mr. Gethers was not present nor aware of the crime. I falsely implicated (sic) Jace Washington and Grant Gethers because I was scared. On October 13, 2009, I also lied when called as a witness for the State of Louisiana against Jace Washington. I lied about his involvement and Mr. Gether’s involvement in the crime on April 29th 2007.
So who do we believe: the Edric Cooper of May 7, 2007, the Edric Cooper of August 12, 2008, or the Edric Cooper of March 16, 2009?
In 2007 and 2009, Mr. Cooper was telling the authorities what they wanted to hear to escape a life sentence.
In 2010, Mr. Cooper is telling a story so unacceptable to the authorities that they deprived Jace Washington of his constitutional right to legal documentation relevant to his case. Edric Cooper, it appears, would rather face the wrath of the State of Louisiana than the torments of his own conscience.
Whether Mr. Cooper’s bold recantation will help Jace Washington and Grant Gethers only time will tell. But this bizarre story shows yet again how easy it is to frame an innocent man with bribed testimony.
This guest post was submitted by King Alexander, District 7 Director of the Louisiana Association of Criminal Defense Lawyers and Co-Chair of its Amicus Committee.
Louisiana Gov. Bobby Jindal has recently toured the state making the case for increased criminal penalties for certain kinds of offenders. That might be a good idea, if we would just stop prosecuting and convicting innocent people.
Many Americans don’t think this happens. The occasional longsuffering prisoners exonerated by DNA are seen as rare, and maybe they are, partly because DNA plays no role pro or con in the vast majority of cases, so that all others wrongfully convicted have no magic key.
Professionals who defend criminal cases in Louisiana state courts, including former prosecutors, well understand that wrongful convictions not only happen in our state– they are commonplace, due in part to our combination of pro-prosecution laws that add up to a nuclear arsenal. The most peculiar such law, and perhaps the number one reason why we have substandard criminal justice in Louisiana, is our majority verdict law.
In Louisiana state courts, a unanimous jury is not necessary to convict a person of any crime except first-degree murder. In all other cases, a Louisiana criminal jury can convict a person of a serious felony by only ten out of twelve votes. What? That’s right: one or two jurors can vote to acquit, but the defendant is still convicted. Some of those felonies carry life without parole; in Louisiana sentencing, life means life. In forty-eight states (Oregon being the other oddball) and in all federal courts, only a unanimous jury can convict or acquit. In the realm of legal normalcy, a non-unanimous jury is a hung jury, and the state may retry the case if it so chooses.
Most Louisiana residents, like other Americans, get their criminal justice norms from television shows like Law and Order. Thus they assume that if one juror votes “not guilty” then there is no conviction. Not so in Louisiana. One or even two jurors can be fully convinced that the state has not met its burden of proof of guilt beyond a reasonable doubt. But if most of them are anxious to go home (or fishing) on a Friday afternoon after a tedious trial, and find that the judge will not dismiss them until they work more diligently to reach a verdict, then it is not unusual for some of the holdouts to be bullied or fatigued into joining the majority until only ten of them are willing to return a verdict of guilty. Then they can all leave the courthouse and forget about it, reasoning that they followed the law so their consciences should be clear.
Why does Louisiana have this unusual law that breaks with American heritage and the traditions of the common law of England? The answer should shock you: it was enacted for openly racist reasons. The official proceedings of the Louisiana Constitutional Convention of 1898 make that clear. That body, meeting in the wake of a bitter Reconstruction experience, declared a slate of measures touted as designed “to assure the ascendancy of the Anglo-Saxon race in Louisiana.” Among these 1898 measures was the first “majority verdict law” in Louisiana, the reasoning for which might be expressed thus: “Iff’n we do end up with one or two [non-whites] on a jury, why, we won’t need their cotton-pickin’ votes!” Louisiana has had two constitutional conventions since then, for the Constitutions of 1910 and 1974. But each time, the majority verdict law was kept, if not for openly racist reasons, then for the simple political expediency, favored by the powerful district attorneys’ and sheriffs’ lobbies, that such a law makes it much easier to get convictions. The effect is racially disparate regardless of the conscious motivation.
Isn’t this unconstitutional? After all, it’s the right to trial by jury, and a conviction destroys the right to vote, and the right to bear arms, and numerous other privileges and immunities, all fundamental constitutional rights. Scholars do believe that the majority verdict laws of Louisiana and Oregon are federally unconstitutional. However, the U.S. Supreme Court has yet to agree to hear the issue, having denied certiorari most recently in 2008 in Louisiana v. Lee and 2009 in Bowen v. Oregon. The Supreme Court is thought likely to invalidate these laws once it considers a case. The likeliest route to certiorari would be a panel of the U.S. Ninth Circuit hearing a post-conviction case from Oregon and finding that state’s version unconstitutional, thus creating a conflict with the U.S. Fifth Circuit which has upheld the Louisiana version. It is a fair argument, and not an original one, that excessive convictions amount to an extension of slavery, complete with denial of the right to vote, denial of the right to bear arms, and a way around the prohibition of involuntary servitude. The voting remainder of society becomes more and more homogenous and conviction-oriented. Has Louisiana been well-served by this, or could it be one reason why we find ourselves near the bottom of many good lists, and near the top of many bad ones?
Consider that we are presently in an age of societal hysteria over child sex offenses, as badly as colonial Salem was over witchcraft. Wags have said, “Rape is such a serious offense that innocence is no excuse.” Any offense against a juvenile is also a hot-button issue– what decent person does not feel outrage at an offense against a captive and defenseless child? The two accusations combined are positively dynamite. The problem snowballs in this fashion: All accused are perp-walked on the evening news. Legislators, prosecutors, and judges run scared of the mobs of their own creation, since they tend to demagogue these issues every time they run for office. They all want to retire in their positions. As Upton Sinclair put it, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.” Dodgy cases are accepted for prosecution, the thought being that convictions are easy to obtain, and in any event, let juries take the political heat. In that environment, rejection of an inflammatory accusation, however suspect, or acquittal in a bench trial, is unthinkable. For this reason, often the only thing worse than facing trial by jury on a politically-sensitive accusation is facing trial by judge. So we have come to the topsy-turvy condition where sometimes the course of action morally required is politically impossible. Our “rape shield statute” prevents juries from hearing evidence about accusers that is true, relevant, and crucial to a fair defense, and the majority verdict law, requiring only ten out of twelve jurors to convict, delivers the coup de grâce.
Greased legislative skids plus societal hysteria equals the perfect storm. These kinds of accusations have been rendered all but indefensible. Even in the many cases involving no physical evidence, no corroborating witnesses, and an accused person who maintains his innocence and lacks any criminal record, defense attorneys find that they are losing, and they are losing 10 to 2. In other words, the result in any legally normal state would not be a conviction. No wonder Louisiana has the highest incarceration rate of all the states. There is very little to be done about setting such wrongful convictions right under existing law. Our courts of appeal hold that the uncorroborated testimony of the accuser is alone sufficient to uphold a conviction. Cynical accusers know this, and have all the power of the state jumping through their malicious hoops with full impunity. In fact, should any of them express a desire to recant, they are advised of their own potential criminal exposure for having made a false report, and so remain well-motivated to continue the charade.
With term limits, few remain in office long enough to see the ultimate destructive effects of our atypical, deck-stacking laws, and to make reforms. Here, then, is a bargain for Gov. Jindal and the Louisiana legislature: Go head and increase the penalties of the guilty if you wish, but stop prosecuting and convicting the innocent. Before you do anything else, repeal the majority verdict law conceived in racism and maintained in shameful derogation of our normal and traditional American ways.
Grant Hank Skinner is scheduled to die by lethal injection on March 24th. Yesterday, the Texas Court of Criminal Appeals ruled that DNA evidence which could point to either guilt or innocence need not be tested.
The issue is procedural: Skinner’s original attorney didn’t ask for a DNA test, so the defendant is out of luck.
A recent article in the Texas Tribune offers a good synopsis of the case: “On New Year’s Eve 1993, police in the Panhandle town of Pampa found Skinner’s live-in girlfriend, Twila Busby, strangled and beaten and her two mentally disabled adult sons stabbed to death. Investigators immediately turned to Skinner, who had a history of petty crime and drug and alcohol abuse. A jury convicted him in less than two hours, based largely on evidence that showed the victims’ blood on Skinner’s clothes and on the testimony of an ex-girlfriend who later recanted her story.”
Rob Owen, Skinner’s current attorney, argues that the gruesome murders could have been committed by Twila Busby’s uncle, a man with a violent temper who had an incestuous relationship with Busby.
Skinner claims that he was passed out on the couch at the time of the killings, under the influence of vodka and codeine.
Obviously, we are not dealing with sympathetic, high-status folks here. If we were, state officials would do the right thing in a heart beat. Instead, process trumps truth yet again.
Skinner’s attorney at trial was a former Gray County district attorney who had twice prosecuted his client in the past for drug-related offenses. Amarillo attorney Matthew Wright theorizes that the original defense attorney may have passed on a DNA test because he feared it might indicate guilt. Perhaps so, but now that Skinner is facing execution what possible reason (apart from procedural issues) could there be for denying a DNA test? Several groups have offered to pay for the test, so cost is not a factor.
“In 2000, the state agreed to test some of the evidence,” Wright says, “expecting it to disprove Skinner’s claims. But that didn’t happen; a hair found clutched in the victim’s hand came, not from Skinner, but from one of the victim’s relatives.”
This case isn’t going away, so the state of Texas might as well conduct the tests. If the DNA suggests guilt, state officials can lay the matter to rest. If the evidence implicates someone other than Skinner, Texas can claim to be tough but fair. But if Skinner goes to his death with the evidence untested, Texas will once again have shown callous disregard for truth and justice.
In her article in the Texas Tribune, Brandi Grissom offers a grim assessment of the The Texas Board of Pardons and Paroles:
The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn’t have to hold public meetings on clemency cases like Skinner’s. It’s not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. Without a majority vote, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed.
Hank Skinner has two remaining legal options: Governor Rick Perry could order a 30-day reprieve and order that the DNA evidence be tested, or the federal Supreme Court could issue a stay of execution. Perry is unlikely to intervene unless the Board of Pardons and Paroles recommends intervention. The board rarely makes this kind of recommendation and, even when it does, Perry has a history of ignoring their advice.
On the other hand, the Skinner case is getting nationwide attention and, as we learned in Tulia and Jena, national scrutiny changes the functioning of the criminal justice system in fundamental ways.
It should never have come to this. State officials are clearly afraid that DNA evidence might raise questions about the fairness and credibility of capital justice in Texas. Better just let the man die, they reason. But if Hank Skinner dies on March 24th his name will be added to a growing list of innocent or possibly innocent inmates proudly executed by the Lone Star State.
Glenn Beck just nailed it. As a professional controversialist, Beck does his best to offend as many people as possible. His argument that churches that preach social justice are merely front groups for communists and Nazis is being denounced via every medium and from every perspective imaginable.
First, what did Beck actually say? Here’s a verbatim account.
“I beg you look for the words social justice or economic justice on your church Web site,” Beck told his viewers. “If you find it, run as fast as you can. Social justice and economic justice, they are code words. … Am I advising people to leave their church? Yes! If they’re going to Jeremiah Wright’s church, yes! If you have a priest that is pushing social justice, go find another parish. Go alert your bishop and tell them, ‘Excuse me, are you down with this whole social justice thing?’ If it’s my church, I’m alerting the church authorities: ‘Excuse me, what’s this social justice thing?’ And if they say, ‘Yeah, we’re all in on this social justice thing,’ I am in the wrong place.”
Okay, thus far we have learned that the phrases “social justice” and “economic justice” are code words. Code words for what?
Beck didn’t leave his audience guessing. Holding up pictures of a swastika and a hammer and sickle, Beck noted that “social justice” was the stated goal of both communists and Nazis.
Ergo, if you believe in social justice, you might as well wearing a swastika armband or waving the red flag of Bolshevism.
How offensive is that?
Not offensive enough to outrage everyone. In fact, it is doubtful that any of Mr. Beck’s faithful followers were bent out of shape by their master’s incendiary rhetoric. That’s because, although few have the guts to put the matter as boldly as Beck, his rant is orthodox lunatic-fringe conservatism–the dominant philosophy in America today.
Lunatic fringe conservatism isn’t dominant because the majority of Americans embrace it (they don’t); it dominates by being so simple, bold and consistent that folks take it in by a process of osmosis. It’s in the air, the water and the soil.
Between the early 1930s and the early 1970s, the American social experiment was shaped by a moral vision that was virtually the obverse of everything Glenn Beck and the Tea Party movement subscribes to. Lets call it the social justice movement.
There were three parts to the program: religious, economic and (in the later stages) racial. The religion was liberal, moral and ecumenical. The economic program was New Deal orthodoxy. By the 1950s, ridding the world of Jim Crow apartheid had become the movement’s primary goal. Picture liberal Protestant clergymen, radical Roman Catholic priests and Jewish Rabbis marching arm-in-arm with Martin Luther King and Ralph Abernathy and you’ve got the idea.
The civil rights movement couldn’t have succeeded without this movement. As every white southerner realized, it took progressive rulings from the Supreme Court, progressive legislation from Congress and powerful intervention from the White House and the Justice Department to drive Jim Crow to his knees. In short, it took the government.
Why are the Tea Party people and Glenn Beck’s fans are so upset about the federal government? Because, in their view, integration was forced down their unwilling throats by judicial and legislative fiat.
The lunatic fringe conservatism that Mr. Beck espouses with such goofy eloquence is driven, among other things, by southern white resentment. Remember Beck’s weird comment about President Obama having it in for white people and white culture?
Lunatic fringe conservatism isn’t just about racial resentment. Like the social justice movement it replaced, Beckian conservatism had economic and religious components. The economic vision was trickle down, supply side economics–what’s go0d for General Motors is good for America so government regulation is always bad. The religious message was a sectarian form of Christian fundamentalism, (Mormons like Beck were eventually tolerated because national power needed a broad coalition).
Corporate America and American evangelicals had their own reasons for resenting, even fearing, the federal government. They just had to tap into southern white racial resentment and the conservative revolution was on. Ronald Reagan, let’s remember, kicked off his 1980 presidential campaign in Neshoba County Mississippi, sixteen short years after three civil rights workers were murdered there. You didn’t have to be a dog to hear the racial whistle.
The power shift took place during the latter years of the Jimmy Carter presidency. With each passing decade, the old social justice coalition becomes a little grayer and a bit more decrepit. Most mainline denominations (Methodists, Presbyterians, Episcopalians, the United Church of Christ etc.) retain a sentimental attachment to the old social justice movement, but most of these groups are in steep numerical decline. The passion that drove the movement in the 50s and 60s has largely dissipated. All the fire is now with the lunatic fringe conservatives.
The GOP, to the dismay of many moderate conservatives, has little choice but to play along. Without southern white racial resentment, Ronald Reagan and his latter-day compatriots wouldn’t have had a chance.
Nothing could be more natural, therefore, than for Glenn Beck to associate terms like “progressive”, “social justice” and “economic justice” with the greatest evils his feverish mind can conjure. That’s the white southern racial resentment talking.
This post is from Friends of Justice founding member, Charles Kiker
On Thursday, March 4, my Alma Mater, Wayland Baptist University, hosted Dr. David Gushee as the featured speaker for the Willson Lectures. Since Wayland is only about 25 miles away, and since it is indeed rare that a noted Progressive Evangelical speaks so nearby, my wife and I took advantage of the opportunity, and took our Methodist pastor as our guest. I was glad for the opportunity, and our pastor seemed appreciative of the rare opportunity as well.
The lecture was entitled “Theological Foundations for the Baptist University.” For the most part it was more descriptive than prescriptive. He characterized educational institutions that had church related roots as falling into four broad categories: (1) those who have become completely secular; (2) those who are mostly secular but who have retained some vestiges of their original Christian roots; (3) those who have a “critical mass” of openly Christian faculty, staff, and students; and (4) the lower case “orthodox” schools who vigorously defend their Christian heritage narrowly defined, schools such as Bob Jones and Liberty.
Dr. Gushee was basically addressing the Baptist University (note the lecture title). And most Baptist universities would fall loosely into the “critical mass” category, with something of a continuum of those schools which have become more secularized to those who intentionally retain more of their Baptist and Christian heritage.
It would be difficult to discuss theological foundations for Baptist universities, especially in the South, without taking note of the theological controversy that engulfed Southern Baptists starting about three decades hence. And Dr. Gushee observed that the reaction to the controversy, on both sides, has unfortunately led people to think and act more out of fear than of love. Moderates tend to fear fundamentalism, while fundamentalists fear heresy.
I think his observation about fear applies on a much broader scale than just the Baptist university scene. It’s certainly observable in politics, in church life, and in discussions of racial justice.
Churches and Christian institutions are mandated to be dominated by love. “Perfect love casts out fear.” Where fear is cast out, the level of discourse can be markedly more respectful.
While our civil institutions, and thus our civil politics, are not and should not be dominated by Christian theology, is it too much to ask that they be dominated by respect?
For those of us who are “progressive” in working toward racial justice, I think we need to be circumspect in avoiding the use of the word “racist” in characterizing individuals, without pulling our punches regarding actions which are racist. I think we need to work harder in educating the public about systemic as opposed to individual racism. When confronting racism or other injustices, in regard to individuals let our aim always be to educate and persuade, rather than castigate and condemn.
Judge Fine granted a motion filed by defense attorneys representing John E. Green who has been charged with capital murder in connection with the June 2008 shooting death of Thien Huong Nguyen. The defense motion argued that Texas Code of Criminal Procedure Article 37.071 “violates the protections afforded to the Accused by the 8th and 14th Amendments … and that the option to sentence the Accused to die for a crime that he did not commit should be precluded as a sentencing option.”
“What he’s saying, and what the motion is saying, is that you can’t administer the Texas death penalty fairly in Texas,” says John P. Keirnan, a lawyer for the defendant. “Kevin Fine has taken a courageous stance, finally. This is the beginning of the end of the death penalty in Texas.”
Well, maybe not. Fine’s ruling unleashed a firestorm of controversy. Texas Governor Rick Perry responded told the media that he supports the death penalty and so do the people of Texas. Attorney General, Greg Abbot lashed out in an unseemly display of righteous indignation: “In an act of unabashed judicial activism, a state district judge ignored longstanding U.S. Supreme Court precedent and improperly granted John Edward Green’s request that the court declare the death penalty unconstitutional. The Attorney General’s Office has already offered to provide help and legal resources to the Harris County District Attorney’s Office — which is handling the Green prosecution — and will take appropriate measures to defend Texas’ capital punishment law. We regret that the court’s legally baseless order unnecessarily delays justice and closure for the victim’s family — including her two children, who witnessed their mother’s brutal murder.”
So now we know, the Texas political establishment is firmly on the side of the death penalty. It’s good to have that clarified.
District Judge Kevin Fine
Overwhelmed by this torrent of condemnation, Judge Fine rescinded his ruling, calling instead for an April 12 hearing in which both sides can present arguments on the issue.
According to the Fort Worth Star-Telegram, Judge Fine made it clear that “his ruling is limited to whether the Texas Code of Criminal Procedures allows for the execution of innocent people. He said there is no precedent to guide him.
‘There’s nothing in my research that say’s it is OK to execute innocent people so that we may have a death penalty,’ Fine said on the bench.
He said that society’s standards of decency and fairness have changed and ‘that we have executed innocent people.'”
I wish it were so. I suspect we have executed innocent people. But according to the most recent Gallup poll, “The data show that 57% of those who believe an innocent person has been executed also support the death penalty. This is significantly higher than the 39% who hold this belief and (perhaps more consistently) oppose the death penalty.”
In other words, most of those who believe Texas has executed at least one innocent person maintain their support for the death penalty. This may sound a bit counterintuitive, but there is a perverse kind of logic at work. Perhaps the innocent are being executed, folks reason, but most of those who die are guilty and the innocent ones are almost always poor and black so . . .
The Star-Telegram’s editorial board congratulated Judge Fine for expressing concern about the fairness of the Texas criminal justice system, but said the judge picked the wrong issue. “He is far from alone in questioning the system or in worrying about the risk that not everyone on Death Row is guilty as charged,” the editorial admitted, “but his ruling was grounded on assumptions, not facts, musings, not law.”
Here, the Star-Telegram appears to be following the reasoning of Harris County District Attorney Patricia Lykos who released a statement deploring Fine’s ruling (using virtually the same language employed by AG Abbot). Lykos also states that the ruling has “no basis in law or in fact.”
The facts are open to dispute. Judge Fine appears to have misstated a few statistics (see the S-T editorial) but the key issue is whether innocent people have been executed in Texas. Timothy Cole did not die by lethal injection, but he did succumb to asthra-related health issues before he could be cleared of a rape he didn’t commit. Forensics experts have argued that Cameron Todd Willingham may well be innocent of killing his own children in a Corsicana house fire. Governor Perry has been moving heaven and earth to bury the Willingham case but it just won’t quite die.
So, yes, the facts suggest that innocent people have been executed in Texas, we just don’t have definitive proof.
So much for the facts; what about the law?
That all depends what you mean by the law. There are certainly state statutes making it legal to execute people, but I don’t think that is what Judge Fine’s opponents are talking about. Constitutional challenges to the death penalty have repeatedly failed in Texas and elsewhere since the death penalty was reinstated in 1976. But Judge Fine’s concern is based on his belief that innocent people have been executed in Texas and there is no law establishing the right of Texas officials to execute the innocent. There isn’t a lot of legal precedent on that issue for the simple reason that Judge Fine is the first member of the Texas judiciary to all the issue to be debated in open court.
But again, Fine’s critics aren’t simply talking about statutes and legal precedents when they say his ruling has no basis in the law. By “the law” they mean the transcendent legal truth that all statutes and bench rulings strive to replicate. We are running up against the idea that if we could just frame the right legal equation there is, in all the great mass of legal argument out there, a simple legal truth that all people of good will should accept.
Does “the law”, per se, tell us anything of value about the legitimacy of the death penalty in Texas? Or does Rick Perry grasp the essence of the legal system when he argues that the majority gets to decide what is right and wrong?
Oliver Wendell Holmes
The idea that legislators and jurists are striving to find a transcendent “law” when they create statutes and hand down rulings is a largely outmoded idea. Oliver Wendell Holmes (d. 1935) rejected the notion of a transcendent and automous “law” and there is scarcely a law school in America that currently endorses the concept. When you take God out of the legal equation (which our current legal system clearly does) there is no settled law that was true, is true and shall ever be true. Up until the 19th century the legal system rested on a firm belief in the God of the Bible but that quaint idea was long ago abandoned.
This means there is no such thing as “settled law” to which we can appeal. The best we claim is Rick Perry’s majority rule. In 1966 the majority of Americans opposed the death penalty, so it was wrong. In 1994, 80% of Americans supported the death penalty, so it was right. Today, support rests in the mid-60s. This suggests that the death penalty is more legitimate than it was in 1966, but nearly as justified as in 1980.
Try as they will, the lawyers who argue the law at Judge Fine’s April 12th hearing won’t be able to do any better than that. The death penalty must be supported or rejected on strictly moral grounds. Having cut itself free from religion, the law no longer enjoys any moral grounding and can no longer appeal to eternal once-and-for-all truth. If the majority of Americans believe its okay to kill innocent people (and the numbers suggest that they do), politicians and jurists are likely to go along for the ride.
There is no higher “law” out there that can save us from ourselves.
Eddie Glaude, a professor of religion and African American studies at Princeton, believes the Black Church is dead. Glaude wrote the obituary for a Huffpost article and it has created quite a stir. (Dr. Glaude’s remarks are at the bottom of this post.)
You can read several reactions to Dr. Glaude’s obituary from black intellectuals at Religious Dispatches. Perhaps the most arresting response came from Ronald Neal of Claflin University. Neal questions the notion that the black church has ever been the bastion of progressivism that black civil rights leaders and university professors have made it out to be. Here’s the heart of Neal’s critique.
“Most Americans are largely unaware of the diverse Christian congregations and denominational structures that comprise what is called the Black Church. For many Americans, the oratory, quasi-liberal politics, and charismatic swagger of Barack Obama, Jeremiah Wright, Jesse L. Jackson, Al Sharpton, and Tavis Smiley are the primary windows into Christianity in black America. Beyond these living caricatures of black and Christian America, PBS specials, black-and-white footage of the Civil Rights era, and Martin Luther King Jr.’s “I Have a Dream” speech, have informed what many Americans know about black Christians, especially the Black Church.”
“Unfortunately, these narrow and misleading representations of Christianity in black America, including the iconic legacy of Martin Luther King Jr., have contributed to a view that is deceptive and mythical. In significant respects, American mass media is responsible for this myth.”
“However, part of the responsibility lies on the shoulders of highly educated black religious elites: seminary trained clergy and professors at theological schools, divinity schools, colleges, and universities. These elites are responsible for shaping and perpetuating a view of the Black Church: the Black Church as socially progressive and liberation oriented. Overall, the prophetic and progressive view of the Black Church is a myth that bamboozles too many Americans, including black Americans.”
Neal is certainly right that most black churches are conservative theologically. If you are a big fan of homophobia, sexism, escapism and cults of the personality, you can certainly find what you’re looking for in the black church.
But just when you are inclined to believe that black evangelicals are cut from the same bolt of ecclesiastical cloth as their white counterparts, a black man strolls into the White House.
Black evangelicals are thrilled.
White evangelicals wring their hands and ask what happened to their country.
White conservatism (and that includes most white evangelicals) remains wedded (perhaps unconsciously) to the tenets of white supremacy; black conservatism is not.
But enough of that . . . you want to read Eddie Glaude’s obituary. Here it is.
The Black Church is Dead
Dr. Eddie Glaude
The Black Church, as we’ve known it or imagined it, is dead. Of course, many African Americans still go to church. According to the PEW Research Center’s Forum on Religion and Public Life, 87 percent of African Americans identify with a religious group and 79 percent say that religion is very important in their lives. But the idea of this venerable institution as central to black life and as a repository for the social and moral conscience of the nation has all but disappeared.
Several reasons immediately come to mind for this state of affairs. First, black churches have always been complicated spaces. Our traditional stories about them — as necessarily prophetic and progressive institutions — run up against the reality that all too often black churches and those who pastor them have been and continue to be quite conservative. Black televangelists who preach a prosperity gospel aren’t new. We need only remember Prophet Jones and Reverend Ike. Conservative black congregations have always been a part of the African American religious landscape. After all, the very existence of the Progressive Baptist Convention is tied up with a trenchant critique of the conservatism of the National Baptist Convention, USA. But our stories about black churches too often bury this conservative dimension of black Christian life.
Second, African American communities are much more differentiated. The idea of a black church standing at the center of all that takes place in a community has long since passed away. Instead, different areas of black life have become more distinct and specialized — flourishing outside of the bounds and gaze of black churches. I am not suggesting that black communities have become wholly secular; just that black religious institutions and beliefs stand alongside a number of other vibrant non-religious institutions and beliefs.
Moreover, we are witnessing an increase in the numbers of African Americans attending churches pastored by the likes of Joel Osteen, Rick Warren or Jentzen Franklin. These non-denominational congregations often “sound” a lot like black churches. Such a development, as Dr. Jonathan Walton reminded me, conjures up E. Franklin Frazier’s important line in The Negro Church in America: “In a word, the Negroes have been forced into competition with whites in most areas of social life and their church can no longer serve as a refuge within the American community.” And this goes for evangelical worship as well.
Thirdly, and this is the most important point, we have witnessed the routinization of black prophetic witness. Too often the prophetic energies of black churches are represented as something inherent to the institution, and we need only point to past deeds for evidence of this fact. Sentences like, “The black church has always stood for…” “The black church was our rock…” “Without the black church, we would have not…” In each instance, a backward glance defines the content of the church’s stance in the present — justifying its continued relevance and authorizing its voice. Its task, because it has become alienated from the moment in which it lives, is to make us venerate and conform to it.
But such a church loses it power. Memory becomes its currency. Its soul withers from neglect. The result is all too often church services and liturgies that entertain, but lack a spirit that transforms, and preachers who deign for followers instead of fellow travelers in God.
Black America stands at the precipice. African American unemployment is at its highest in 25 years. Thirty-five percent of our children live in poor families. Inadequate healthcare, rampant incarceration, home foreclosures, and a general sense of helplessness overwhelm many of our fellows. Of course, countless local black churches around the country are working diligently to address these problems.
The question becomes: what will be the role of prophetic black churches on the national stage under these conditions? Any church as an institution ought to call us to be our best selves — not to be slaves to doctrine or mere puppets for profit. Within its walls, our faith should be renewed and refreshed. We should be open to experiencing God’s revelation anew. But too often we are told that all has been said and done. Revelation is closed to us and we should only approximate the voices of old.
Or, we are invited to a Financial Empowerment Conference, Megafest, or some such gathering. Rare are those occasions when black churches mobilize in public and together to call attention to the pressing issues of our day. We see organization and protests against same-sex marriage and abortion; even billboards in Atlanta to make the anti-abortion case. But where are the press conferences and impassioned efforts around black children living in poverty, and commercials and organizing around jobs and healthcare reform? Bishop Charles E. Blake Sr., the presiding bishop of the Church of God in Christ, appears to be a lonely voice in the wilderness when he announced COGIC’s support of healthcare reform with the public option.
Prophetic energies are not an inherent part of black churches, but instances of men and women who grasp the fullness of meaning to be one with God. This can’t be passed down, but must be embraced in the moment in which one finds one’s feet. This ensures that prophetic energies can be expressed again and again.
The death of the black church as we have known it occasions an opportunity to breathe new life into what it means to be black and Christian. Black churches and preachers must find their prophetic voices in this momentous present. And in doing so, black churches will rise again and insist that we all assert ourselves on the national stage not as sycophants to a glorious past, but as witnesses to the ongoing revelation of God’s love in the here and now as we work on behalf of those who suffer most.
Eddie S. Glaude, Jr. is currently the William S. Tod Professor of Religion and chair of the Center for African American Studies at Princeton University.
Florida state Senator Frederica Wilson is introducing legislation that would make it illegal to display a noose in public. “Some people think of it as a harmless prank,” Wilson told the Miami Herald-Times, “but the noose is a sign of hate and deeply offensive to African-American people. It is wrong. And it needs to be stopped.”
Mark Potok of the Southern Poverty Law Center (the go-to guy on this kind of issue) told the Herald-Times that after the Jena 6 story received national attention in 2007 nooses started springing up everywhere. There were five times as many noose-related incidents in 2007 than in the previous year.
But Potok and the SPLC aren’t thrilled by the idea of banning the noose symbol. While admitting that “The noose has become a real symbol of racial terrorism,” Potok notes out that previous attempts to ban the symbol have been challenged on first amendment grounds.
I’m with the SPLC on this one. The noose is a symbol of hate, no doubt about it. But Americans have a constitutionally protected right to be hateful if they so choose. As the article notes, politicians from Barack Obama, to George Bush to Sarah Palin have been hanged in effigy in recent years. It ain’t pretty. In fact it’s downright tragic. We must find eloquent ways to say no to the noose, but censoring the image isn’t the best way to do it.
Louisiana Gov. Bobby Jindal has recently toured the state making the case for increased criminal penalties for certain kinds of offenders. That might be a good idea, if we would just stop prosecuting and convicting innocent people.
Between the early 1930s and the early 1970s, the American social experiment was shaped by a moral vision that was virtually the obverse of everything Glenn Beck and the Tea Party movement subscribes to. Lets call it the social justice movement. 
and religious components. The economic vision was trickle down, supply side economics–what’s go0d for General Motors is good for America so government regulation is always bad. The religious message was a sectarian form of Christian fundamentalism, (Mormons like Beck were eventually tolerated because national power needed a broad coalition). 
Florida state Senator Frederica Wilson is introducing legislation that would make it illegal to display a noose in public. “Some people think of it as a harmless prank,” Wilson told 
Friends of Justice 