Defense Attorney Resistance

Author:Robin Walker Sterling
Position:Assistant Professor of Law, University of Denver Sturm College of Law
Pages:2245-2271
 
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2245
Defense Attorney Resistance
Robin Walker Sterling
INTRODUCTION .................................................................................... 2246
I. THE CRIMINAL JUSTICE SYSTEM AS STATUS REGIME
MODERNIZATION ................................................................................. 2251
II. BARRIERS TO THE VINDICATION OF RACE-BASED CHALLENGES ........... 2255
III. RECONCEPTUALIZING THE ROLE OF THE PUBLIC DEFENDER ............... 2263
A. PRE-TRIAL ..................................................................................... 2265
1. Motion to Dismiss in the Interests of Justice (or, in
Juvenile Cases, in the Best Interests of the Child) ............. 2265
2. Motions to Suppress: Testing Implicit Race Bias ............... 2266
B. TRIAL: USE OF NARRATIVE .............................................................. 2268
C. POST-TRIAL: JURY INSTRUCTIONS .................................................... 2270
CONCLUSION ....................................................................................... 2271
Assistant Professor of Law, University of Denver Sturm College of Law. I would like to
extend my heartfelt thanks to Professor James Tomkovicz and the members of the Iowa Law
Review for allowing me the honor of participating in this symposium. I would also like to t hank
my colleagues at Denver Law, and in particular the participants in the Rocky Mountain
Collective for Race, Place and the Law (RPL). I would like to express special appreciation to
Professors Patience Crowder, Christopher Lasch, Nantiya Ruan, and Lindsey Webb. Michael
Laskin, Amelia Power, and John Chase provided superlative research assistance.
2246 IOWA LAW REVIEW [Vol. 99:2245
INTRODUCTION
As they considered Clarence Earl Gideon’s petition, the justices of the
United States Supreme Court likely had no idea what his race was.1 Before
the August 19632 release of the iconic picture of Mr. Gideon in a button-
down shirt looking past the camera through owlish glasses, and his portrayal
by Henry Fonda in the 1980 film Gideon’s Trumpet,3 Mr. Gideon’s race,
entirely omitted from the record of the court proceedings, was unknown.
But, operating as it was in the midst of the Civil Rights Movement, it is likely
that the Court viewed Gideon’s case through the prism of its deep and
abiding concern about racial injustice.4 Statute by statute, in civil and
criminal cases, and in words and actions, the Court “disassembled the legal
scaffolding of American apartheid, one indignity at a time.”5 The Warren
1. KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR PEOPLES JUSTICE
65 (2013).
2. According to a recent article in The Nation, the photo is dated August 6, 1963, five
months after the Gideon case had been decided. See Stephen B. Bright & Sia M. Sanneh, Gideon
v. Wainwright’, Fifty Years Later, NATION (Mar. 20, 2013), http://www.thenation.com/article/
173458/gideon-v-wainwright-fifty-years-later (stating in a caption un der the photo: “This Aug. 6,
1963, file photo shows Clarence Earl Gideon, 52, the mechanic who changed the course of lega l
history, after his release from a Panama City, Florida, jail.”).
3. See ANTHONY LEWIS, GIDEONS TRUMPET (1964). The book was made into a movie, also
called Gideon’s Trumpet, in 1980. Gideon’s Trumpet (CBS television broadcast Apr. 30, 1980). The
movie starred Henry Fonda as Clarence Earl Gideon, Jose Ferrer as Abe Fortas, and John
Houseman as Chief Justice Earl Warren. Id. “Gideon’s Trumpet” refers to the biblical story, in
which Gideon won a battle over the larger army of the Midianites by having his sma ll army carry
trumpets and torches hidden in clay pots; the noise from the trumpets and the lights from the
torches tricked the enemy into thinking that it was pitted against a much larger army, so that
Gideon won the battle without much actual fighting. Judges 7:16–22.
4. See generally Burt Neuborne, The Gravitational Pull of Race on the Warren Court, 2010 SUP.
CT. REV. 59 (2010) (observing that racial equality played a “dominant role” in the Warren
Court’s jurisprudence); see also Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism:
Habeas Corpus and the Court, 86 YALE L.J. 1035, 1037 (1977); Barry C. Feld, Race, Politics, and
Juvenile Justice: The Warren Court and the Conservative “Backlash,” 87 MINN. L. REV. 1447, 1484,
1494 (2003) (discussing the Warren Court’s “perceived . . . need . . . to protect minority
offenders” and desire to make its own contribution to the Civil Rights Movement by “focus[ing]
on procedural rights” as an answer to the country’s profound “concern a bout racial
inequality”).
5. Robin Walker Sterling, Fundamental Unfairness: In Re Gault and the Road Not Taken, 72
MD. L. REV. 607, 634 (2013) (citing Lee v. Washington, 390 U.S. 333, 334 (1968) (striking
down racial segregation in prisons); Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down
laws banning interracial marriage); Brown v. Louisiana, 383 U.S. 131, 143 (1966) (integrating
public libraries); Anderson v. Martin, 375 U.S. 399, 402–04 (1964) (outlawing racial
designations on the ballot); Johnson v. Virginia, 373 U.S. 61, 61–62 (1963) (prohibiting
segregated courtrooms); Turner v. City of Memphis, 369 U.S. 350, 351–53 (1962) (invalidating
segregation in airport restaurants); New Orleans City Park Improvement Ass’n v. Detiege, 252
F.2d 122, 123 (5th Cir. 1958), aff’d, 358 U.S. 54 (1958) (outlawing segregated parks and
playgrounds); Dawson v. Mayor of Baltimore City, 220 F.2d 386, 377 (4th Cir. 1955), aff’d,
Mayor of Baltimore City v. Dawson, 350 U.S. 877 (1955) (banning segregated public beaches);
Hamm v. Virginia State Bd. of Elections, 230 F. Supp. 156, 157 (E.D. Va. 1964), aff’d, Toncil v.
Woolls, 379 U.S. 19 (1964) (banning separate voting and property tax records were banned);

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