Defense Attorney Resistance

• Author: Robin Walker Sterling
• Position: Assistant Professor of Law, University of Denver Sturm College of Law
• Pages: 2245-2271

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 PEOPLE’S 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, GIDEON’S 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);