Cleansing moments and retrospective justice.

• Author: Russell, Margaret M.

1. INTRODUCTION: "RE-TRYING" RACE

   We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. (1) Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American jurisprudential race discrimination should affect the way we interpret or resolve current doctrinal dilemmas.

   Perhaps the most well-known example of this requestioning is the burgeoning innocence movement, which emerged primarily from scientific DNA research that established the factual innocence of long incarcerated (including Death Row) defendants. (2) The extraordinary impact of the innocence movement lies in the compelling simplicity of its theoretical underpinnings: If innocent people have been and continue to be incarcerated and even executed, upon what claims of legitimacy does our criminal justice system rely? Moreover, if innocent people continue to serve out sentences (and even to await execution on Death Row), is there not a moral as well as legal imperative to reopen their cases and correct the past? To the extent that individual innocence cases may also reveal racial discrimination in the prosecution, conviction, and post-conviction phases, additional attention must be accorded to the impact of such prejudice upon racial communities and upon the credibility of the justice system as a whole. (3)

   In a sense, the flip side (yet conceptual companion) of the innocence movement is the drive to reopen long-dormant, 1960s civil rights era prosecutions in an effort to correct both the individualized injustices and the broad community harms that flowed from those unresolved investigations and trials. These cases include the murders of: civil rights leader Medgar Evers; four girls killed in the Sixteenth Street Baptist Church bombing in Birmingham; and civil rights workers James Chaney, Michael Schwerner, and Andrew Goodman. (4) In these cases, the racism of the era resulted in the failure either to pursue white supremacists--sometimes because those culpable were state actors--or to prosecute cases fully and vigorously. As a consequence of such malfeasance, white supremacists escaped prosecution or conviction, and remained at liberty well into old age--sometimes gloating publicly about the murders. The opportunity to bring these individuals to trial and possibly to correct the historical record represents what Myrlie Evers, widow of murdered civil rights leader Medgar Evers, has termed "cleansing moments"--the use of present day procedures to accomplish retrospective justice. (5) As with innocence cases, these unfiled or failed prosecutions deserve close scrutiny for what they may reveal about the illegitimacy of the criminal justice system, not only for the individuals involved but also for the broader society that the system is supposed to serve. If racial injustice is discovered, can it be retried or reopened? Are there extralegal considerations that militate in favor of reopening the investigations of such cases if constitutional double jeopardy or speedy trial objections are properly addressed? (6) Regardless of the outcome of such retried or reopened race cases, are there broader ameliorative benefits that communities may experience as a result of the reinvestigation of such cases? This Essay shall address these questions in the context of several civil rights era murder prosecutions of the 1960s. It is beyond the scope of this Essay to address fully the range of complex procedural, substantive, and tactical concerns underlying the decisions to reopen (or not to reopen) particular cases. Rather, the goal is to examine both the concept of reopening such cases in the search for racial justice and the broader meanings underlying the impetus to reopen them.

2. CIVIL RIGHTS ERA MURDERS

   1. The Context: Civil Rights Advances and Supremacist Backlash

      To comprehend the enormity of the hate crimes discussed in this Essay--and the magnitude of efforts to reopen such cases--it is instructive to recall the tenor of the momentous, tumultuous times in which they occurred. In the 1950s and 1960s, insurgent social protest movements--particularly the civil rights movement--propelled consideration of race and class oppression into public debate nationwide. (7) Thousands of people of all races and backgrounds were inspired by the leadership of individuals such as Martin Luther King, Jr., Rosa Parks, Ralph Bunche, Thurgood Marshall, Constance Baker Motley, and others who brought the scourge of race discrimination to the forefront of national discussion. Organizations such as the Congress of Racial Equality ("CORE"), the National Association for the Advancement of Colored People ("NAACP"), the Anti-Defamation League ("ADL"), the Southern Christian Leadership Conference ("SCLC"), and the Student Nonviolent Coordinating Committee ("SNCC") energized anti-racist activism in the form of boycotts, sit-ins, pickets, vigils, and litigation; these organizations and others developed specific agendas and targeted strategies for breaking through barriers to access in the areas of voting, education, employment, and public accommodations. (8) These strategies and agendas unfolded over a period of many years in order to achieve their intended objectives. The most famous example is the architecture of the long-term strategy of the NAACP Legal Defense and Educational Fund ("LDF") to secure the end of Plessy v. Ferguson's "separate but equal" doctrine of racial segregation. (9) The culmination of LDF's efforts was the Brown v. Board of Education decision and its desegregation of public education, but in fact LDF had begun to lay the groundwork for the Brown litigation decades earlier in cases seeking the admission of blacks to state law schools in Maryland and Missouri. (10) Both literally and figuratively, these legal and political approaches to integration set forth a road map that--it was hoped--would lead to deep systemic reform; they envisioned a late twentieth century in which full equality was supposed to be thorough, inevitable, and unstoppable. (11)

      Racial supremacists had a far different road map in mind. Even a brief chronology of pivotal events of the mid-1950s to mid-1960s conveys an extraordinary cycle of civil rights progress and violent supremacist backlash. Each major step in the movement for racial equality was accompanied by massive white resistance. This resistance, already firmly embedded in American history through the thousands of lynchings of blacks between the 1880s and the 1950s, continued even as the numbers of lynchings declined; the Ku Klux Klan and other white supremacist groups routinely used threats, beatings, bombings, and murders to ensure that their message of intimidation and terror endured. (12) As Anthony Alfieri has noted, throughout U.S. history the pattern of federal prosecutorial response to racial violence generally has been "characterized by inaction and spare enforcement." (13) During this era, a lack of presidential leadership, combined with intermittently interventionist federal law enforcement and rare federal litigation, reinforced white supremacists' sense of superiority and control. (14)

      Civil rights activists knew that the potential for violent retaliation was a constant risk, particularly in the South. They knew that self-defense was a key part of their training and that death might result from their efforts. As a result, the racial climate in which the killings this Essay focuses on occurred was one in which each murder bore a distinct, contextual message: hatred of black progress and defense of racial hierarchy.

      A major springboard for this backlash occurred in 1954 when the U.S. Supreme Court decided Brown v. Board of Education. To the black community and other supporters of civil rights, the landmark Brown decision was lauded with "the status of a Magna Carta" (15); to segregationists, it was a rallying cry for massive resistance. As the Brown mandate was extended to other contexts, (16) the segregationist response remained one of steadfast defiance, usually defended with the rationale of "states' rights." Constance Baker Motley, one of the LDF's leading litigators during this period, recalls:

      In response to Brown in 1954, the Southern states had resurrected the basic political themes that guided the South during the Civil War--that is, nullification and interposition, which affirmed that a state had the constitutional right to nullify the effectiveness of any federal law or federal court decision with which it disagreed and to interpose its sovereignty between the decision or law and the ffederal government. Ever Deep South state had enacted massive resistance laws. The North, East, and West were too far removed from the bitter afterglow of the Civil War fully to comprehend this threat to national unity. In some state capitals in the Old South, the Confederate flag was still flying or had been raised anew. (17) Further examples of this massive resistance include the refusal of state universities to enroll black students who were entitled by law to attend, the refusal of state courts to order those universities to comply with Brown when admissions policies were challenged, and the mob violence that often accompanied black students' attempts to enroll. (18)

      In August 1955, Emmett Till, a fourteen-year-old black youth from Chicago, was lynched in Mississippi for flirting with a white girl. (19) That same year, Rosa Parks was arrested for refusing to surrender her seat to a white man on a Montgomery, Alabama, city bus...