Opinion leaders from the Dallas Fort Worth area are beginning to call for a new conversation about race.  If there are any white people out there who feel the same way I would love to hear from them.

Bob Ray Sanders, a columnist with the Fort Worth Star-Telegram, says Americans need to start talking about race and the conversation needs to begin immediately. 

George Yancey, a professor of sociology at the University of North Texas, believes this conversation needs to begin in the Christian church.   I am currently reading Yancey’s, Beyond Racial Gridlock: Embracing Mutual Responsibility.  Yancey writes specifically for Christians.  His arguments appear to anticipate the common sense balance that characterized Barack Obama’s speech on race delivered in Philadelphia. 

Finally, Gerald Britt, a black pastor from Dallas, extends his argument that progressive Democrats shouldn’t be upset by Barack Obama’s invitation to evangelical pastor (and Proposition 8 supporter) Rick Warren.

In February of last year, I published “Hard Times in Bunkie, Louisiana.”  Space won’t allow me to repeat the entire sordid story.  Suffice it to say that the Bunkie Police Department, represented by a controversial detective named Chad Jeansonne, filed a narcotics case on Larry Bazile, a heavy-set, middle-aged black man. 

Chad used the usual tricks to get Bazile to cop to a quick plea.  He threatened the family members arrested in the course of a warrantless raid that they would be prosecuted if they didn’t flip on Larry. 

They refused to flip.

A local defense attorney was assigned to represent Bazile.   After making her client wait all day to see her, she scanned a few documents and reached a swift conclusion: “You’re going to jail!” she announce imperiously.  “Who do you think they will believe; two niggers or an FBI agent?”

The contours of the case against Big Larry was beginning to emerge from the bureaucratic fog.  Bazile was charged with selling drugs to an FBI agent through the auspices of a middleman named Lloyd Robinson.

Although Bazilecouldn’t find an attorney to take his case, he had the enthusiastic support of his brother Jerriel, a Dallas businessman, and a sister, Gaythell Smith, an experienced Dallas Police officer who knew sloppy narcotics work when she saw it.

When Larry’s brother and sister demanded to see the paper work filed in connection with the case, they received six separate reports describing three mutually-contradictory crimes.  In one story, Larry sold the dope directly to the FBI agent; in a second story, the FBI man was accompanied by an unnamed confidential informant; in version three, the FBI agent did the deal in the company of Lloyd Robinson.

The goal was to frighten Robinson into implicating Bazile.  But at a hearing at the Marksville, Louisiana courthouse, Robinson refused to play along.

That’s where things stood in February of last year.

That month, an attorney was hired to defend Larry Bazile.  District Attorney Charles Riddle told the new attorney that he had an audio tape of the transaction that clearly implicated Bazile.  When the largely inaudible tape was played (with Larry’s Dallas siblings listening in) the only distinct phrase was, “Big Larry would not sell them drugs.”

District Attorney Charles Riddle had no hard evidence, but he refused to drop the case. 

Over the next few months, five inconsequential pre-trial hearings, all scheduled by the state, were convened.  The DA’s office was trying to wear Bazile down.  Again, it didn’t work.

Finally, on November 3, 2008, shortly after his attorney had withdrawn from the case, “Big Larry” was called to the courthouse in Marksville for yet another hearing. 

As soon as the family entered the courtroom they knew something was amiss.  Instead of the usual sea of black faces, the courtroom was awash in white people.  Larry Bazile was informed that a jury was being selected and he was going to trial.

“But I don’t have an attorney,” Bazile protested. 

Judge Mark Jeansonne (the cousin of the Bunkie cop who originally filed the case on Larry Bazile) was defiant.  (I’m not making this up.) The case was going to trial one way or another. 

A dishevelled civil attorney with no experience in criminal law was summoned to represent Bazile.  When the p0or man protested that he knew next to nothing about criminal law, Judge Jeansonne tossed him a manual of criminal procedure and told him to do the best he could. 

As the hapless civil attorney flipped manically through his instruction booklet, Larry Bazile was instructed to direct voir dire questions to a roomful of prospective jurors.  Larry told the judge that he had no idea how to proceed.

Jerriel Bazile and Gaythell Smith glanced nervously around the courtroom.  There was no sign of the FBI agent who had allegedly purchased drugs from Larry Bazile.  The state of Louisiana was going to make this case as a swearing match between a black defendant and a white police officer. 

Before withdrawing from Larry’s case, an attorney had filed a discovery motion but had never received the requested information.  Judge Jeansonne said it didn’t matter.

Larry Bazile was on the verge of panic.  If he was forced to represent himself, a conviction was a foregone conclusion. 

Finally, a defense attorney who was passing by the courtroom was prevailed upon to defend Mr. Bazile.  He had no choice but to advise his client to accept the government’s plea bargain.  If he could stay our of trouble for three years, the attorney explained, the conviction would be expunged from Bazile’s record.

It seems almost certain that Detective Chad Jeansonne invented a phantom FBI officer in order to make a fraudulent narcotics case on a defenseless black defendant.  Moreover, Judge Mark Jeansonne allowed his wayward cousin to submit his creative writing assignment.  Both men will emerge unscathed. 

Why pay attention to a nickel-and-dime narcotics case in an obscure corner of Louisiana?  If this kind of behavior is tolerated in Avoyelles Parish, it will eventually be tolerated everywhere.  That must not happen.

 

Judge Leon Holmes

Tomorrow morning I will be driving to Little Rock where, the following day, an attorney named Alvin Clay will attempt to convince a federal judge that he deserves a new trial.   (You can find the backstory here.)  

A reporter showed up on the final day of Clay’s trial six months ago and his conviction by an all-white jury was duly noted.  Casual readers of the Democrat-Gazette likely glanced at the story and smiled approvingly.  The FBI had nailed another small-time scam artist.  Message: the authorities have your back. 

The article failed to mention that Alvin Clay had been indicted for mortgage fraud in the midst of a highly contentious case in which the Little rock attorney accused the US Attorney’s office of flagrant misconduct. 

Readers never learned that Clay once brought a federal prosecutor to the brink of scandal.  A confidential informant admitted on the verge of trial that dozens of narcotics cases had been manufacturede out of thin air.  The informant’s honesty was rewarded with charges of perjury and obstruction of justice and a young attorney named Alvin Clay was assigned to his defense.  Clay defended his client by putting the federal government on trial.  Had the press been paying attention, Clay would have done serious damage to an assistant US Attorney’s credibility.

The mortgage fraud case against Mr. Clay has always been remarkably weak.  A mortgage broker named Ray Nealy falsified information on five loan applications.  A small-time construction contractor named Donny McCuien claimed to have performed rehab work on the properties that, in most cases, was never performed.  The government’s case against Nealy and McCuien is air tight.

Nealy and McCuien couldn’t pull off their scheme without convincing a long list of business partners that they were legitmiate businessmen.  For one thing, extensive rehab work can only be done in the state of Arkansas if you have a contractors license, something neither Nealy nor McCuien possessed.  Fortunately, Alvin Clay had a license, and his office was just down the hall from Nealy.  Clay didn’t have time to oversee rehab work; he was a hard-working attorney running a real estate firm with six agents.  Nealy told Clay that if he would let McCuien use his license he wouldn’t have to give the matter a second thought.

At least, that’s the way Alvin Clay tells it. 

It was also the way Donny McCuien told it when he first talked to federal agents.   The quick-thinking street hustler quickly ascertained three facts: (1) the FBI had little interest in Nealy and McCuien–they wanted Alvin Clay; (2) the feds wanted McCuien to tell them that Clay was in on the scam; and (3) McCuien would have to present himself to the jury as an ignorant burger flipper who had never held a hammer, weilded a saw or rehabbed a house. 

Donny McCuien never claimed that Alvin Clay had helped Ray Nealy file fraudulent loan applications.  McCuien couldn’t make this claim because, as he admitted at trial, he had never seen the applications.  All McCuien could assert was that Clay knew that no rehab work was being done.

The government’s argument to the jury went something like this: no one who met a bungling fool like Donny McCuien could have possibly believed that he was capable of doing rehab work; ergo, Alvin Clay had to have been in on the scam.

Nealy and McCuien made false representations to buyers, sellers, lenders and title companies, so why didn’t the government conclude that Alvin Clay was just another victim of two scam artists?  As a convicted felon, Alvin Clay would lose his law license.  Revenge, as they say, is a dish best served cold.  The Alvin Clay story is festooned with icicles from head to toe.

On the witness stand, Donny McQuien was rude, evasive, clueless and agitated.  But these traits were perfectly in accord with the government’s contention that McCuien was a hapless loser that no rational person could mistake for a rehab man.  On paper, McCuien was running a property management company when the five fraudulent deals went down, but McCuien insisted the company was a front created by the devious Ray Nealy.

In concert with the government’s wishes, Donny McCuien claimed at trial that he had never rehabbed a single property in his life.  He had never owned a single piece of property.  Heck-fire, he had never even owned the tools of the trade.

Clay’s defense team presented a series of rebutal witnesses who testified that McCuien had sold them carpentry tools or employed them to do rehab work. 

The jury was unimpressed.  Like virtually every all-white jury weighing the fate of a big black defendant (Clay is built like a middle linebacker) jurors couldn’t imagine that the federal government would spend hundreds of thousands of dollars to convict an innocent man.  No one wanted to believe that the federal government could be the final victim of a crude scam.

Since his conviction, Alvin Clay has been making the simple phone calls that could have cleared things up for the FBI a long time ago. We now know that McCuien was running real estate scams before he met Ray Nealy and continued this behavior long after he had been indicted by the feds.  Over the years, Donny McCuien has bought, sold and rehabbed dozens of Arkansas properties.

A few days ago, Clay stumbled upon a truly shocking piece of information.  Through the grapevine, Clay learned that McCuien had been congratulated by his pastor for getting a contractor’s license.  Clay called the Contractor’s Licensing Board of Arkansas and spoke to the board’s attorney.  He was told that in 2006 the state of Arkansas issued a contractor’s license to Complete Construction of Arkansas, LLC.  The company officers were: 1) Donny McCuien – President; 2) Donny McCuien Sr. – Vice President.

In other words, at the very time Donny McCuien was parroting back the government’s story on the witness stand, he held a contractor’s license and was president of a construction company. 

Why would a guy in such a compromised position tell a series of blatant lies to the FBI and an assistant US Attorney?

Two reasons.  First, McCuien knew he was only useful to the government if he told the story their way.  A single deviation from the script he had and he would be prosecuted to the full extent of the law.

Second, McCuien knew the federal government had no interest in undermining their own case.  Federal officials had no solid grounds for believing that McCuien was telling the truth or that Clay was lying.  They embraced the story that felt right. 

Is this kind of sloppy and vindictive prosecution a rarity in the federal system?  My experience suggests that it is far more widespread than is generally realized.  A vigilant US Attorney can stop this sort of nonsense dead in its tracks.  But what if the US Attorney isn’t paying attention, doesn’t care, or is part of the problem?

In the Colomb case, a wrongful prosecution was thwarted by a principled federal judge named Tucker Melancon.  On Tuesday morning, Judge Leon Holmes has an opportunity to show his shine. 

During his eight years in office, George W. Bush appointed 326 federal judges. In this week’s edition of Rollingstone, Judge Holmes is given the distinction of being one of Mr. Bush’s six most dangerous appointments.  Is this a fair assessment?  Holmes’ ruling in the Alvin Clay case should give us our answer.

Mychal Bell is back in the news.  Shortly after being arrested for allegedly shoplifting shirts at a mall in Monroe, Louisiana, Bell was admitted to a hospital following what his attorney calls a gun-cleaning accident.   According to Cassandra Wooten of the Monroe Police Department, Bell shot himself because he was upset over the coverage his arrest received in the local press.  Bell has also been charged with simple battery because he allegedly elbowed a mall security guard. 

I can’t vouch for the accuracy of any of these allegations nor for the explanations offered by defense counsel.  But these reports suggest that, like Britney Spears and countless others, Mychal Bell is the victim of his own celebrity.  

The media tend to reduce complex stories to a single personality, a fact that has not escaped media-savvy activists.  Al Sharpton transformed Mychal Bell (and his parents) into sympathetic victims of a southern town without pity.  When other Jena-6 parents refused to give Sharpton the right to act as their sole media representative, the civil rights leader reached out to Mychal’s parents.  Desperate and afraid, the Bell family was more than eager to give Sharpton carte blanche control. 

From a legal standpoint, this arrangement worked to Mychal’s advantage.  If, as he now says, Mychal knocked Justin Barker unconscious with a sucker punch to the head, he fully deserved to spend a year in a juvenile facility. 

He didn’t deserve to spend a quarter century in an adult prison, and that’s where things stood when Friends of Justice entered the picture.

Unfortunately, most of the 20,000 people who flocked to Jena last September were convinced that Mychal was innocent.  They latched onto the best case scenario for the same reason the good people of Jena chose to believe the worst: in both cases perception was driven by ideology.  

The high degree of scrutiny surrounding this case guarantees that the due process rights of the Jena 6 will be protected.  The five defendants yet to face trial are all represented by world class defense attorneys.  As a result, the wheels of LaSalle Parish justice are turning very slowly; so slowly, in fact that I believe the outstanding cases will be resolved outside the courtroom.

Meanwhile, Mychal Bell and his parents have been forced to live in a strange twilight zone.  Initially, they were greeted as civil rights heroes by enthusiastic supporters across America.  In Central Louisiana, however, they were considered dangerous pariahs.  The psychological repercussions have been devastating. 

Predictably, Rev. Al has moved on to more pressing matters and is no longer there for the Bell family.

This should have been a story about what some call the “school to prison pipeline”: black and white students betrayed by racially insensitive administrators who created a toxic social environment then washed their hands of all responsibility when the floor caved in.  This is the way I told the story from the beginning. 

It wasn’t the story Al Sharpton told the world.  And once the New York civil rights icon got involved nobody was listening to Alan Bean or anyone else.  The story belonged to Al.  Al forced the facts into the cramped confines of his anachronistic moral vision and talked up Jena as if it was Selma, Alabama circa 1962.  Sharpton took this tack because he knew the media would like it.  They wouldn’t necessarily buy it, mind you, but they would repeat Sharpton’s shtick word-for-word.  It was familiar, it was simple and it made for effortless reporting.

The upside is that the Jena 6 are getting the justice they deserve–nothing more, nothing less.  On the downside, a precious learning opportunity has probably been squandered.

 ‘Jena 6’ figure shoots himself

(CNN) — A teenager whose arrest in a racially charged assault case drew thousands of protesters to his rural Louisiana hometown was in a hospital early Tuesday after a shooting that his lawyer said was accidental.

Mychal Bell was released in September 2007 and later agreed to a plea deal in the beating of a classmate.

Mychal Bell was cleaning a gun when it accidentally discharged, shooting him in the shoulder, his attorney, Carol Powell-Lexing, told CNN. He had surgery Monday night at a hospital in Monroe, Louisiana, and has not yet been able to talk, she said.

Monroe police Sgt. Cassandra Wooten said the wound was not life-threatening.

Bell was one of six black teenagers who faced adult felony charges in the 2006 beating of a white classmate in the town of Jena. The beating followed months of racial tensions in the community of 3,000 after three white students hung a noose in a tree whose shade was traditionally off limits to blacks at Jena High School.

The case of the “Jena 6” drew national attention from civil rights groups who argued that the charges were excessive. An estimated 15,000-plus people turned out for a September 2007 rally in the Louisiana town on the black youths’ behalf.

Bell eventually pleaded guilty to battery in a juvenile court, served several months in a youth home and later moved to Monroe, about 70 miles north of Jena.

I was going to write something about the current furor over Rick Warren’s participation in Barack Obama’s inauguration ceremony.  Fortunately, the Rev. Gerald Britt said everything I wanted to say (and a good deal more) in his Change the Wind blog.  Please check it out.

No one doubts that Bernard L. Madoffis guilty.  He readily admits to running a decade-long Ponzi scheme in which, to quote the New York Times, “early investors are paid off with money from later victims, until no more money can be raised and the scheme collapses.”

Some commentators wonder what separates Madoff from 100,000 “legitimate” operators in the mortgage and investment business.  Paul Krugman gives one typical example of larcenous but technically legal behavior:

Consider the hypothetical example of a money manager who leverages up his clients’ money with lots of debt, then invests the bulked-up total in high-yielding but risky assets, such as dubious mortgage-backed securities. For a while – say, as long as a housing bubble continues to inflate – he (it’s almost always a he) will make big profits and receive big bonuses. Then, when the bubble bursts and his investments turn into toxic waste, his investors will lose big – but he’ll keep those bonuses.

Krugman admits that Mr. Madoff’s scheme differed in a few particulars from the scam described in his hypothetical. “Still,” he says, “the end result was the same (except for the house arrest): the money managers got rich; the investors saw their money disappear.”

We’re not talking about a few hustlers lining their pockets at the public’s expense; Krugman is describing an economic system rooted in illusion and deceit.  “In recent years,” he points out, “the finance sector accounted for 8 percent of America’s G.D.P., up from less than 5 percent a generation earlier. If that extra 3 percent was money for nothing – and it probably was – we’re talking about $400 billion a year in waste, fraud and abuse.”

The Securities and Exchange Commission (SEC) is trying to explain why ten years of allegations from a string of concerned citizens didn’t rouse them to action.  Despite repeated “investigations,” not a single witness received a subpoena. 

Maybe the federal government was too busy with the affairs of state to check up on Mr. Madoff.

Then how do we explain why the Department of Justice and the Federal Bureau of Investigation invested thousands of person-hours tying Alvin Clay to nickel-and-dime fraud in Little Rock, Arkansas?  

Ray Nealy and Donny McCuien manipulated the ignorance and greed of a few people for personal gain.  The documentary evidence is overwhleming.  Nor is there any question that Mr. Clay allowed Nealy and McCuien to use his contractors license to rehab five pieces of run-down property.  But here’s the big question: did Clay know that much of the rehab work on the invoices wasn’t being performed? 

Sure, Clay should have gone to the work sites and checked things out for himself, just as the good people bilked by Mr. Madoff should have asked themselves how the mega-profits were being produced.  Across America, millions of good people have been making bad decisions.   This is regrettable, but it isn’t illegal.

While the SEC was studiously ignoring Mr. Madoff, federal agents raided Alvin Clay’s office and seized his business records.  They researched hundreds of real estate deals.  Every one was legitimate.  

Which suggests that Alvin believed he was involved in a series of above-board, straight forward real transactions. 

Clay’s combined profit from five deals: $27,500.

Again, why did the federal government focus on such small potatoes while ignoring a fifty billion dollar (yes, that’s “billion” with a “b”) Ponzi scheme that was repeatedly brought to their attention by people with burning hair?

Simple, really.  The feds wanted to believe Alvin Clay was guilty and they wanted to believe that Bernard L. Madoff was a legitimate investor.

Clay was an aggressive attorney with a penchant for embarrassing federal prosecutors.  So of course he was guilty.  This explains why no one with the FBI or the DOJ made the slightest attempt to check out the grand jury testimony of Donny McCuien–the only witness linking Alvin Clay to illegal activity.  Had they done their homework, they would have learned, in a matter of hours, that every word proceeding from the mouth of their star witness was, to employ a seasonal expression, Humbug.

Alvin Clay and his attorneys have been making the phone calls that should have saved twelve white jurors from two weeks of tedium in June of 2008.  During the trial, McCuien testified that he never did rehab work, that he didn’t know how to do rehab work, that he had never hired anyone to do rehab work, that he had never owned the tools of the rehab trade, and that (the coup de grace) he had never owned any real estate property.

None of it was true.  In fact, it was grossly, fabulously, comically false.  McCuien was running real estate scams before he met Ray Nealy and he continued his low level Manoff impersonation even after he was indicted by the feds.

Federal agents didn’t check out McCuien’s story because they knew, deep down where it hurts, that he was feeding them pretty lies to avoid aggressive prosecution.  McCuien made his money telling people what they wanted to hear; this scam was no different than all the others.

The feds wanted to believe that Leonard L. Madoff was a straight-up investor because, like thousands of less adventurous investors across the nation, the New Yorker was making so much money for so many people.   

Is there any real difference between Madoff and your average investment banker? 

Sure.  Madoff knew he was trading in dreams; everyone else was hoping there might be some real value behind the funny paper they were peddling.

Either way, whether we’re talking about Clay or Madoff, we’re in the realm of magical thinking.  The collapse of the investment industry tells us that most people, even agents of the federal government, trade in greed and self-delusion unless someone is keeping tabs.

On January 6, 2009, Mr. Clay and his attorneys will be back in federal court with boxes of evidence showing that Donny McCuien lied to the federal government.  They will not attempt to prove, because it would hardly help their case, that the feds knew the true worth of McCuien’s testimony but gave it a AAA rating anyway.

Friends of Justice will be in the courtroom.  Will a hard-working Little Rock lawyer take the rap for the sins of a nation?   The question will soon rest in the capable hands of federal judge Leon Holmes.

What happens when we convict the wrong guy?  

Generally, nothing happens unless an organized group of committed individuals is willing to spend decades tiltling at legal windmills.

If the alleged crime took place in Dallas County, legal and evidentiary irregularities  might be uncovered by a crusading District Attorney named Craig Watkins.   If, that is, you’ve got smoking-gun proof of innocence. 

But what happens when the evidence suggests we probably convicted the wrong guy?

That puts you into Albert Woodfox and Troy Davis territory.  Some legal experts (often at the federal level) say you deserve a new trial.  Other authorities (usually state officials) scream “states rights” and dig in their heels. 

There are no formal rules in this game.  The give-the-guy-his-day-in-court folks line up on one side and the if-he-can’t-prove-he’s innocent-he’s guilty people line up on the other side.  Both teams scream at the top of their lungs.  Reporters are drawn to the sound and fury but have a hard time making sense of the mess.  Ultimately, if you’re really lucky, the mess becomes the story.

Which brings us to the Angola Three tragicomedy.   In 1972, Albert Woodfoxand Herman Wallace were charged with murdering a prison guard named Brent Miller.  A troop of witnesses told a jury that Woodfox and Wallace did the deed. 

If the murder had taken place after 1976 the defendants would have been executed; instead, they were sentenced to spend the rest of their lives in prison.  In Angola prison, the most notorious lock-up in America.  In fact, Woodfox and Wallace have spent several decades in solitary confinement.

Then a case held together with duct tape started coming apart.  Witnesses started recanting or pointing the finger at other suspects.  One witness was paid for his testimony with regular deliveries of cigarettes and other luxuries.  Evidence had been kept out of the courtroom.

It is becoming clear that Wallace and Woodfox were prosecuted for political reasons.  In the late 1960s and early 1970s, southern politicians like George Wallace were beating the drum for law-and-order and Republicans like Richard Nixon were taking notes.  The Black Panthers came to life when young black leaders realized law enforcement had become a tool wielded against political radicals.  The paramilitary panthers declared themselves ready to defend themselves against what they considered an occupying force.  Incendiary speeches were the order of the day.  In Middle America (especially in the South) this “by any means necessary” rhetoric sounded subversive.  When Wallace and Nixon demanded law-and-order everybody knew they were talking about Black Panthers and war protestors.

Woodfox and Wallace organized a chapter of the Black Panthers smack dab in the middle of Angola Prison.   Prison rape and sexual slavery were actively encouraged at Angola as a means of controlling the prison population.  (I know this sounds unlikely, but its a matter of public record.)  As James Rucker of Color of Change makes clear, Woodfox and Wallace were targetted for prosecution because they organized their fellow prisoners to resist an ungodly regime.

Warden Burl Cain (a Louisiana icon) admits as much.  Albert Woodfoxdeserves to be in solitary confinement for life, Cain believes, even if he wasn’t responsible for Brent Miller’s death. “The thing about him is that he wants to demonstrate,” Cain explains.  “He wants to organize. He wants to be defiant . . . I still would not want him walking around my prison because he would organize the young new inmates and I’d have the blacks chasing after him and I’d have chaos and conflict.” 

Cain has no problem grinding the Constitution under his heel because he knows (or thinks he knows) the hearts and minds of Louisiana voters.  They support him for the same reason so many of them were drawn to the racist fascism of David Duke: he’s for law-and-order (which, interpreted, means putting uppity black folk in their place).

According to a report that played yesterday on NPR’s All Things Considered, Louisiana Attorney General Buddy Caldwell is singing in tight harmony with Warden Cain.  “They [federal judge James Brady who overturned Woodfox’s original conviction and the team of lawyers representing the defendant] don’t need to mess withme,” Caldwell said, “’cause I’m not playing . . . We’re . . . not going to let them get away with that kind of thing. [Woodfox] stays at Angola until further order from the court of appeal.”

Caldwell and company have appealed Judge Brady’s ruling to the conservative 5th Circuit Court of Appeals, a court famous for concluding that a sleeping lawyer provided adequate legal representation. 

In other words, we’re back to a pushing and screaming match in which the irresistable force called Judge James Brady slams into the unmovable force known as the 5th Circuit.

If Caldwell gets his way, no Louisiana jury will ever hear the long line of witnesses defense counsel has cobbled together.

“When you put evidence on like that you’re going to suffer from it,” he said. “Don’t put evidence like that on in front of me because I’m on to ’em. We just simply need to let the truth surface of what has gone on in this case, and that’s what I’m doing.”

 The “truth” Caldwell has in mind is the now-discredited testimony jurors have heard in past trials with no new facts or opinions stirred into the mix.

And what does Governor Bobby Jindal think of all this?  He thinks nothing and he says nothing.  Anything Mr. Jindal might say could be used in the next election to incriminate him.  If the Governor sides with Cain and Caldwell he reinforces the impression that Republicans believe rich white people have a corner on due process.  If he weighs in on the side of justice, he puts himself at the mercy of the David Duke constituency. 

So the governor says nothing.  Which brings the words of Dietrich Bonhoeffer to mind: “Silence in the face of evil is itself evil; God will not hold us guiltless. Not to speak is to speak. Not to act is to act.”

Bonhoeffer, you may remember, was killed by the Nazis for trying to subvert Hitler’s Reich.

In other words, we’ve got a fine mess on our hands.  Fortunately, this particular mess is becoming the story.

The Death Penalty Information Center reports that 37 people will be executed in the United States in 2008, down 12 percent from 42 in 2007 and a 30 percent drop from 2006.

Are we looking at a gradual erosion of support for the death penalty, or a meaningless statistical blip?

The AP report notes that Texas accounted for half of the executions in 2007 (18 of 37, or 48% of the national total).  That’s a big improvement from 2007 when Texas executed 26 people (62%) out of the 42 inmates executed nationally.

Unlike most reports on this year’s numbers, the AP article notes that nearly all of the execuations inAmerica this year took place in the South.  Only two non-Southern states, Oklahoma (2) and Ohio (2) performed executions this year.

Although Oklahoma was still a dumping ground for displaced native Americans at the end of the Civil War, it was largely populated by Southerners and is sometimes considered a southern state for statistical purposes.

But lets not quibble.  Of the 1137 executions in the United States since the re-institution of the death penalty in 1976, 935 occurred in southern states.  That’s 82%.  In recent years, the South has accounted for an even higher percentage of the executions in America.

Why are the execution numbers dropping?  Juries in several states (Texas among them) can now hand down a sentence of life without parole.  Many jurors will back away from the ultimate penalty if they know a dangerous killer will never be released from custody.

I would like to pose another question: Why are southerners so enamored of the death penalty?

Track lynching statistics  by year and by state between 1882 and 1962 (the beginning and end of the Jim Crow period ) and you will think you are looking at contemporary death penalty stats.  Lynching was much more prominent in the South than elsewhere in the United States.  Moreover, lynching was far more likely to be used against black victims in the South, especially in the first half of the 20th century.  For instance, of the 581 people lynched in this period in the state of Mississippi, 539 were black.

In the West, lynching was chiefly used as a form of vigilante frontier justice and most of the victims were white.

A similar trend emerges when we consider incarceration rates.   According to the Bureau of Justice Statistics, in 2005 the South had a regional incarceration rate of 519 prison inmates per 100,000 population (the numbers rise significantly when jail inmates are included).  In the same year, the Midwestern states had an incarceration rate of 386, the rate for the Western states was 378 and for the Northeast it was 314.

By international standards, even the Northeastern states are locking people in alarming numbers, but why is the rate of incarceration so much higher in the South?

When we consider that the cluster of states around Texas (with an incarceration rate of 691 per 100,000), the numbers skew in a highly punitive direction: Mississippi (660), Oklahoma (652),  and Louisiana (797).  In this clump of states, the incarceration rate hovers around 700, almost twice the national average.

Why?

The question becomes more critical when you consider that incarceration rates in Midwestern Red states are virtually the same as in Midwestern Blue states (a tad lower, in fact).

Religion, not conservative politics, is the key factor here.

There is an tragic correlation between high rates of church attendance and high rates of incarceration, but the folks who attend southern evangelical churches are singularly punitive.  In particular, a high concentration of Baptists goes hand-in-hand with multiple executions and an incarceration rate up in the nosebleed region.   In the cluster of Red states around Texas, Baptists comprise 37% of the population, compared to 21.8% in the Blue Southern states and around 8% nationally.  The average incarceration rate in the Blue South (states characterized by a low Baptist count and a vast in-migration of northerners) is 430, much lower than the regional average of 519 and only 61% as high as rates in Texas and the cluster of southern neighbor states cited above.

How do we account for Southern punitiveness, especially the extreme form on display in and around Texas?

I have spent eight years of my life studying theology at The Southern Baptist Theological Seminary in Louisville, Kentucky.  Five of those years (1989-1994) were devoted to an in-depth study of church history with a particular focus on Baptist history in the South.  As part of this work I traced the gradual evolution of Baptist attitudes and influence in the southern slave states.

Early on, Baptists were low-status commoners in southern states like Virginia where the Church of England was established.  This explains why Baptists like John Leland petitioned Thomas Jefferson for a separation of church and state after the Revolutionary War.

Initially, most Baptists in the South opposed slavery as something antithetical to biblical religion.  But as the South expanded westward after the Louisiana Purchase and slavery became the region’s peculiar and defining institution, Baptist attitudes began to change.  In 1845, when Baptists split North and South over the issue of slavery, the newly formed Southern Baptist Convention rapturously embraced the virtues of a godly slave society.

By the advent of the Civil War, Southern Baptists had moved from condoning slavery to proclaiming it’s moral superiority to all alternatives.  The South was God’s Zion largely because it practiced the biblically mandated instituion of slavery.

After the holocaust of civil war, the battered South re-organized around the Southern Baptist Convention.  Pastors who disagreed with the Jim Crow regime had to find another line of work.  I have read hundreds of books by Southern Baptists from the first half of the 20th century.  White supremacy was largely assumed, though the indelicate and worldly subjects of slavery and segregation were rarely addressed.   Woe to the pastor who addressed the elephant in the room from a progressive perspective.

As late as 1972, an employee of the Sunday School Board in Nashville was fired for publishing a picture of black and white children playing together.  Segregation died hard.

During the Civil Rights Movement of the late 1950s and early 60s, Southern Baptists were disproportionately represented within the KKK and the white citizens councils.  Official pronouncements from the Southern Baptist Convention had a moderate and faintly progressive sound, but the reality in the largely rural and small town Southern Baptist churches was quite different.

When Richard Nixon’s Southern Strategy sparked a mass shift of southern whites from the Democratic party to the Republicans, Southern Baptists led the way.

I am not suggesting that Baptists are inherently punitive.  Nor am I arguing that Baptists were the only southerners to embrace slavery and Jim Crow segregation while opposing the civil rights movement.  Baptists simply provide the most illuminating case study.

Religion in the slave states reflected the paranoia of the times.  Slaves had to be kept into submission, a fact that encouraged runaways.   Fear of insurrection was constant, particularly in regions where white freemen were outnumbered by black slaves.  During the Jim Crow period, lynching was used to enforce white supremacy.  This constant brutality left its mark on the brand of southern evangelical religion that provided a theological justification, and later a twisted spiritual celebration, of slavery.  The result, a perverse alchemy of Christ and Anti-Christ.

How do you preach “whosoever will may come,” in the heart of the Jim Crow South?  Very carefully.  It is hard to preach grace to people you regard as subhuman.

A turn-or-burn religion based on the crude juxtaposition of heavenly bliss and hellish torment fit the spiritual needs of the slave states.  It was essential that religion be utterly divorced from politics and social p0licy.  The profane elephant in the room had to be ignored at all costs.

The hyper-spirituality of southern religion has little to do with evangelical theology.  In the North, as in England, evangelicals were frequently at the heart of the progressive movement.   But in the slave states, the church was the piper and the wealthy planter class called the tune.  These brutal facts of history gave southern evangelicalism a disembodied, anti-incarnational, and schizophrenic character that persists to this day.

Oddly, the punitive cast of southern evangelicalism is more apparent in the courthouse than in the churchhouse.  Southern attitudes are changing.  The crude racial bigotry of the Jim Crow period is dying fast (the proliferation of noose hangings and hate groups notwithstanding).  But the paranoia and punitiveness of the Old South lives on in the juryroom.  Fear of the other, a stark line of separation between the saved and the damned, and a deep-seated fear of the angry black man translate into support for the death penalty and mass incarceration.

I am not advocating that southerners turn their backs on evangelical religion.  Quite to the contrary; the South needs a revival of a radically biblical evangelicalism freed from the shackles of cultural captivity.

Support for slavery and segregation meant the abandonment of biblical grace and justice.   That’s the problem.

Once the disease is diagnosed, the cure is obvious.  The South will find its salvation in a back-to-the-Bible revival of religion.

The Troy Davis case indicates just how subjective the legal system really is.  The federal 11thCourt of Appeals deals with cases in Florida, Alabama and Georgia.  A panel of three judges selected from this court considered the Davis case yesterday.  Rosemary Burkett, a Clinton appointee with both Arab and Hispanic ethnic roots, would like to see a full airing of the facts surrounding the Davis case.  According to the Atlanta Journal-Constitution, Burkett finds it troubling that seven of the nine original witnesses have changed their stories and that one of the two witnesses sticking to his story has allegedly admitted to killing Savannah officer Mark Allen MacPhail.

Davis became the prime suspect in the case when Sylvester Coles told the Savannah police department that Troy was the killer.  According to media accounts, Judge Burkett is wondering why Coles was never considered as a suspect.  It’s bad enough that we may be on the verge of killing an innocent man, she told the court during yesterday’s hearing, but “it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.” 

Why, Barkett asked yesterday, were none of the witnesses in the case shown a photo array including a picture of Coles?  “It seems police were so anxious to get somebody that they didn’t pursue Coles,” Barkett observed.

Judge Stanley Marcus, also a Clinton appointee, was less outspoken than Judge Barkett, but the testimony he was hearing bothered him as well.  Since the 1991 trial, three witnesses had signed statements saying that Sylvester Coles admitted to the crime over a beer or between tokes.

True, a single witness, Stephen Sanders, is sticking by his story.  At the 1991 trial, Sanders said, “You don’t forget someone who stands over and shoots someone.” 

However, as defense attorney Tom Dunn reminded the court yesterday, Sanders originally told police he wouldn’t be able to identify the shooter.  Memory usually gets fuzzier over time.

According to the Atlanta Progressive News, the hearing revolved around two questions: “First, given the evidence available Tuesday, is it likely a jury would not convict Davis? Second, did Davis exercise due diligence in providing new evidence?”

 Susan Boleyn, Senior Assistant Attorney General in the State of Georgia, argued the status quo position.  Troy Davis has presented no hard evidence of actual innocence, she told the judges.  Davis’s claims have been denied relief by the state courts, the 11th Circuit, the U.S. Supreme Court and the state Board of Pardons and Paroles, she reminded the court.  At some point you no longer get another bite of the same apple.

But when do you toss the apple core into the trash, and who decides?

Asked why three witnesses are primed and willing to testify that Coles privately confessed to murdering officer MacPhail, Boleyn rattled off a few theories.  Colesmight have been drunk or high on marijuana; or perhaps Coles was trying to impress his listeners with a bold lie. 

Boleyn reminded the judges that the reliability of recanting witnesses has traditionally been held in low repute.  The fact that a witness admits that they once lied under oath (for whatever the reason) should be enough to undermine their credibility.

Taken together, Boleyn’s arguments boil down to this: ya’ll can’t prove your man is clean, so we get to kill him.

Boleyn was also critical of defense counsel for not bringing their concerns forward in a more timely manner.  This raises an interesting question: what happens when defense attorneys don’t file their briefs on time?  Should the defendant suffer for the mistakes of the people charged with his defense?

Well, yes, if precedent is anything to go by, he should.

The smooth running of the judicial machinery trumps all other concerns.  The law requires finality.  You can’t have witnesses changing their minds willy nilly, especially in a capital case.  Therefore, it is generally agreed that witness testimony should be taken at face value and that once a witness speaks the words are set in stone.  Recantations undermine the finality prised by the legal system.

Unless, that is, a case achieves the kind of attention the Troy Davis case is currently receiving.  When both sides are free to make their arguments and the media is paying attention (sort of), the immovable object (“we can’t execute a man who might be innocent”) runs up against the irresistible force of legal precedent (“a jury found him guilty and a string of courts have backed up their verdict, so he’s a dead man”).

Generally, a tie goes to the state.  Not this time.

Does Susan Boleyn and her buddies at the Georgia Attorney General’s Office know for sure that Sylvester Coles is innocent, Troy Davis is guilty, and the seven recanting witnesses are all lying through their teeth?  Of course not.  How could they possibly know these things?  They don’t care because they don’t have to.  Accused murderers are run through a complex game of musical chairs and when the music stops and they haven’t found a seat, they die.  We don’t have to know for sure that you’re guilty, nor do we have to care.  Justice is defined as whatever the legal system decides to do.  If a case proceeds through the proper channels justice has been served.

If Susan Boleyn worried too much about these things she wouldn’t be able to sleep at night.  Cut the poor woman some slack; she’s just doing her job.  The Senior Assistant’s role in the Troy Davis melodrama is to argue for the state of Georgia no matter how nonsensical her arguments may sound to the uninitiated.  Hers is not to reason why, nor can she allow her private judgment to intrude into the matter.  The decision was made by her bureaucratic superiors and she is paid to spout their arguments in public even when it makes her look like an escapee from a Monty Python sketch. 

Generally it doesn’t matter because no one from the outside world is paying attention. 

If folks had given up on Troy Davis he would be long dead.  But because a shining slivver of humanity is paying attention and a handful of reporters are still pressing pen to paper Troy Davis clings to life.

It’s got nothing to do with fairness or even common sense; it’s all about finality and bureaucratic efficiency.

Radley Balko, an editor with the libertarian magazine Reason, knows the rules of the drug war.   As the Larry Bazile case in Bunkie Louisiana demonstrates, corrupt police officers often sell fraudulent stories to local magistrates in exchange for search and arrest warrants on people they suspect of selling drugs.  The theory is that a noble end justifies a bogus means.  Balko’s treatment of the Colomb case in southern Louisiana features another example of this dark art. 

Balko doesn’t always appreciate the antics of Barry Cooper, the ex-cop-turned-anti-drug-warrior.  Cooper often comes off as a smart-ass self-promoter.  But a recent stunt in Odessa, Texas  won the journalist’s grudging admiration.  This is one way to make police officers play fair.