Lynching ethics: toward a theory of racialized defenses.

• Author: Alfieri, Anthony V.
• Position: Symposium: Representing Race

"I wonder what people would think if they found a nigger hanging on Herndon Avenue."(1)

Introduction

So much depends upon a rope in Mobile, Alabama. To hang Michael Donald, Henry Hays and James "Tiger" Knowles tied up "a piece of nylon rope about twenty feet long, yellow nylon."(2) They borrowed the rope from Frank Cox, Hays's brother-in-law.(3) Cox "went out in the back" of his mother's "boatshed, or something like that, maybe it was in the lodge."(4) He "got a rope," climbed into the front seat of Hays's Buick Wildcat, and handed it to Knowles sitting in the back seat.(5)

So much depends upon a noose. Knowles "made a hangman's noose out of the rope,"(6) thirteen loops in the knot, thirteen loops "around" Michael Donald's neck, a "classic hangman's noose."(7) A hangman's noose "needs to be cut and burned right . . . so it won't unravel."(8) Both ends of the rope must be "cut off and burned."(9) Tightly "pulled up" and left "swinging," Michael Donald's rope "burned into the bark."(10)

So much depends upon a camphor tree. Hays and Knowles "went out . . . driving around looking for someone to kill."(11) In East Mobile, "over around David Avenue," they "came on Michael Donald . . . kidnapped him and took him to Baldwin County and killed him, and brought him back to Herndon Avenue and hung him up" in a tree across the street from Hays's home.(12)

* * *

Early on the morning of March 21, 1981, a man discovered Michael Donald's mutilated body hanging from a camphor tree on the 100 block of Herndon Avenue in Mobile, Alabama.(13) That night, members of the United Klans of America, Alabama Realm, burned a cross on the grounds of the Mobile County Courthouse.(14) An autopsy found that Donald had been beaten, stabbed, strangled, and then "hung up."(15)

In 1983, a Mobile County grand jury indicted Hays, the Exalted Cyclops of the United Klans of America, for capital murder.(16) At trial, the jury found Hays guilty and recommended life without parole.(17) The trial judge rejected the recommendation of the jury and sentenced Hays to death.(18)

In 1984, a Mobile County grand jury indicted Cox, also a member of the United Klans of America, for conspiracy to commit murder.(19) After impaneling a jury and convening the trial, the trial judge dismissed the indictment and discharged Cox, citing the Alabama three-year statute of limitations for criminal conspiracy.(20) In 1987, an Alabama grand jury reindicted Cox for murder.(21) Commenced in 1988, the initial trial of the murder indictment ended in a mistrial. Reconvened in 1989, a second trial resulted in a conviction.(22)

Additionally, in 1985 a federal grand jury indicted Knowles, a third member of the United Klans of America, for violating the civil rights of Michael Donald.(23) Knowles pleaded guilty to civil rights violations in the United States District Court for the Southern District of Alabama.(24) The district court sentenced him to life imprisonment.(25) In return for Knowles's guilty plea and his service as a State witness against Hays, Cox, and other Klansmen, the federal prosecutor recommended that Alabama forego concurrent prosecution of Knowles for capital murder in state court.(26)

In 1984, the Southern Poverty Law Center,(27) acting on behalf of Beulah Mae Donald, the mother of Michael Donald, filed a civil rights action in the United States District Court for the Southern District of Alabama against the United Klans of America, Hays, Knowles, Cox, and two other Klansmen seeking $10 million in damages.(28) In 1987, a jury found the Klan and its members guilty of violating Michael Donald's civil rights and awarded Beulah Mae Donald $7 million in damages.(29)

In this article, I take up the cause of Henry Hays, James Knowles, and Frank Cox, the cause of the Ku Klux Klan and other agents of racial violence in American history. I come to their cause not out of sympathy but in pursuit of a larger project devoted to the historical study of race, lawyers, and ethics in the American criminal justice system. Provoked by the jurisprudence of critical race theory ("CRT"),(30) the project investigates the rhetoric of race or "race-talk" in criminal defense advocacy and ethics within the context of racially motivated private violence.3i The purpose of this long-term project is to understand the status of race, racialized defense strategy, and race-neutral representation in the law and ethics of criminal defense lawyering. Out of this understanding, I hope, will come a general theory of racialized defenses grounded in the normative ideals of moral community.

In a prior work, I searched the rhetoric of race in cases of racially motivated black-on-white private violence by focusing on the 1993 trial of Damian Williams and Henry Watson in Los Angeles County Superior Court on charges of attempted murder and aggravated mayhem, stemming from the beating of Reginald Denny and seven others during the South Central Los Angeles riots of 1992.(32) Close inspection of the Williams-Watson trial record suggests that the rhetorical structure of criminal defense stories of black-on-white racial violence incorporates competing narratives of deviance and defiance that engraft an essentialist dichotomy of good-bad moral character on the racial identity of young black men.(33) The distillation of male racial identity into objective, universal categories of black manhood distorts the meaning of racial identity and the image of racial community.(34) Moreover, the tendency of criminal defense lawyers to privilege deviance narratives and to subordinate defiance narratives in storytelling magnifies that distortion, inscribing the mark of bestial pathology into the texture of racial identity and community. The American Bar Association's Model Rules of Professional Conduct and Model Code of Professional Responsibility(35) countenance such deformity by allowing racialized or color-coded criminal defense strategies to survive unregulated under neutral accounts of liberal contractarian and communitarian legal theory.(36)

Calling for remedial regulation in racialized contexts such as the Williams-Watson trial, I proposed an alternative ethic of professional responsibility animated by principles of race consciousness, contingency, and collectivity.(37) A strong version of this alternative ethic directs criminal defense lawyers to reject the use of deviance-based racialized strategies unless such strategies are necessary to frustrate, by means of jury nullification, a racially discriminatory prosecution.(38) A weak version entreats defense lawyers to join their clients in collaborative deliberation over the meaning of racial identity and injury within a counseling dialogue devoted to moral character and community integrity.(39)

Unsurprisingly, these remedial prescriptions sparked swift and acute criticism.(40) Robin Barnes, for example, denounced the remedial scheme as unprecedented, unworkable, and likely unconstitutional.(41) Furthermore, she condemned the underlying interpretive analysis of the Williams-Watson trial record for mistakenly entangling social and legal strands of race-talk, misjudging the harm inflicted upon black racial identity and community, and misconceiving the criminal defense lawyer's duty to advocate on behalf of individual client interests, even when preservation of those interests demands the use of racialized narratives.(42) For Barnes, the eradication of racial prejudice from the criminal justice system necessitates a regime of legal neutrality, not a regime of race-conscious ethics rules.(43)

Grand intentions notwithstanding, Barnes's dedication to neutrality consigns to folly her campaign aimed at purging the criminal Justice system of racial prejudice. In the context of racial violence and racialized legal discourse, neutrality is not merely elusive, it is largely untenable. Broadly or narrowly construed, the color-coded rhetoric of legal discourse affords little chance of or room for neutral speech on matters of racial significance. Moreover, dedication to neutrality accepts the harms of racial injury as inevitable and, worse, unremarkable. That the harms are suffered by the victims and agents of racial violence, as well as by their cohort communities, seems of no moment to Barnes.

The threshold premise of this article, and its allied research, is the recognition and condemnation of racial injury within the distinct, though sometimes overlapping, borders of public and private violence. The instant turn to racial rhetoric in the circumstance of white-on-black private violence, specifically in the case of lynching, strains that border distinction. Gauged by any measure, the political violence of lynching seems to override the public-private distinction commonly posited by legal advocates and adjudicators. Yet here, tailored carefully to the facts presented in the case of Michael Donald, the distinction seems to hold and, equally important, to prove rhetorically and morally instructive.

The enormous breadth of the subject of lynching in America, spanning two centuries and crossing interdisciplinary boundaries, coupled with a scarcity of archival court collections, especially trial records, dictates a somewhat improvisional initial approach to the rhetoric of lynching cases.(44) The starting point, staked out in this introductory article, is an effort to map competing theories of racialized defenses arising out of lynching prosecutions. Building on this effort, the next article will survey the varied forms of racialized defenses fashioned against lynching prosecutions. A third article will chart the development of racialized defenses in lynching-related civil rights actions. Together, the articles will lay the groundwork for a fuller account of the history of racialized defenses in American criminal and civil rights law.

To the extent that it assumes a theory-driven posture toward sociolegal practice, the instant approach will doubtless stir protest. Detecting an...