Prosecuting violence/reconstructing community.

• Author: Alfieri, Anthony V.

INTRODUCTION

This essay explores the subject of law, violence, and community in contemporary America. Part of a larger project investigating the role of race, lawyers, and ethics in the American criminal justice system, the essay draws on both jurisprudential and interdisciplinary materials to probe the socio-legal text and the historical context of racially motivated violence in two recent high-profile criminal trials: the 1990-91 Central Park Jogger sexual assault trials in New York City(1) and the 1998-99 James Byrd murder trials in Jasper, Texas.(2) Exploding at the intersection of law, culture, and society, the socio-legal text of racial violence finds important, albeit partial, expression in the discourse of criminal justice advocacy. Inscribed in the speech, writing, and symbolic gesture of prosecutors and defense attorneys, that text signifies the juridical translation of violence into word.(3) For these pivotal legal actors, translation occurs in the language of law and in the adversarial conduct of lawyering.

The commonplace translation of speech and conduct in the criminal courtroom carries moral significance for both the quotidian plea bargain and the banner murder trial. Significance flows from the private and public construction of identity in the narratives of legal storytelling. Defendants and victims together bear the physical and psychological marks of identity: class, race, gender, ethnicity, sexual orientation, disability, even age. Semiotic adhesions, the marks attach as well to the geographic spaces of a community and to the institutional agents of the state.

Although often clashing as competing agents under the unequal wages of the state, prosecutors and defense attorneys nonetheless share in telling stories of identity. The stories pronounce narratives of guilt and innocence, pain and punishment, and remorse and forgiveness. The same stories sometimes vocalize narratives of race. At trial, racial narratives occupy multiple forms, each contingent on the stance of the participating legal actor.

Consider for a moment the racial stance of lawyers and judges exhibited by the form of their narrative participation in the prosecution, defense, and adjudication of a criminal trial. Lawyers, for example, declare racial narratives in their opening statements and closing arguments. Moreover, they elicit and suppress such declarations from witnesses on direct and cross-examination. Judges, by comparison, proclaim racial narratives in adjudicating pretrial motions, deciding evidentiary objections, and issuing jury instructions.

The multiplicity and contingency of narrative form in race trials creates an opacity of color. Narratives that appear transparently racial or colored at first blush frequently acquire a density of racial meaning and a layering of color on closer inspection. The opaque quality and shifting form of racial narratives combine to render the meaning of color elusive and unstable. That rendering confounds substantive attempts to classify racial narratives in terms of their colorblind, color-coded, or color-conscious content.

The frustrations of evaluating narrative form and content when confronting race at trial in no way diminishes the importance of the inquiry. Like the customary narratives of criminal prosecution and defense, racial narratives describe the actions, emotions, and motivations of defendants, victims, and law enforcement agents. However mutable and contingent, the narratives also characterize the ethos of a community and the mores of a state. In doing so, they capture not only the racial tenor of a specific historical period, but also its morality, and its democratic progress.

Advocacy in both civil and criminal law proceedings unfolds against the backdrop of specific historical contexts. The contextual framework of racial violence intertwines historical strands of culture, economics, politics, and society. The culture of racial violence emerges from antebellum and postbellum traditions of black moral and scientific degradation. The economics of racial violence, in contrast, arise out of agrarian, industrial, and international systems of class competition and inequality. The politics of such violence stem from public contests over the acquisition and maintenance of racial power and privilege. Similarly, the social organization and relations of racial violence emanate from private and public group hierarchy and subordination.

American legal history teaches that socio-legal norms and narratives weave the strands of culture, economics, politics, and society into a recurrent pattern of racial violence: symbolic, spatial and textual. In the high-profile criminal trials under scrutiny here, this pattern of violence is marked by traditional figurations of racial identity, racialized narrative, and race-conscious representation. Rooted in antebellum and postbellum visions of racial status and community, the figures of black and white identity, dominant and subordinate narrative, and color-conscious representation pervade the law, lawyering, and ethics of criminal justice.

The antebellum vision of racial status and community portrays people of African descent--the black juveniles of the Central Park Jogger case and James Byrd himself--as a primitive species of property. Consigned by this vision to a pitiable or pathologic place in the great chain of being, blacks and other people of color are perceived to inhabit a naturally inferior identity marked either by deviance and defiance, or by acquiescence and subservience, even when such servility plainly constitutes performatively disguised resistance. Descriptions of this deformed identity echo in the narrative tones of benevolence, discipline, and domination heard for two centuries in American courtrooms. These tones sound through the legal rhetoric of state-sanctioned segregation and the lawyer's art of race-conscious representation in the prosecution and defense of racial violence.

The idea of innate mental and moral inequality between the black and white races is not peculiar to eighteenth- and nineteenth-century American law and society. The postbellum vision of racial status and community propels that idea into the twentieth century in the stereotyped and ritualistic degradation of sharecropper and convict lease identity, and impoverished urban welfare identity. Narrative accounts of this abased status stress the marginality of, and the necessity of control over, former black chattel slaves and migrants, rather than the aspiration of inherent moral perfectibility. Emancipation and the Enlightenment idea of progress neither cure this condition nor bring about the unity of interracial community. Although emancipation enlarges the space for the growth of black individual resistance into group dissidence, it fails to displace the ambivalence toward interracial community animating the continued debate over differentiation and sameness in the politics, law, and ethics of the criminal justice system.

Entangled in constitutional history and political struggle, that debate turns on the conviction of and the commitment to race neutrality. Colorblind rules and sameness regimes comport with neutrality precepts. Color-conscious rules and differentiation regimes conflict with such precepts. At bottom, resolution hinges on the standing granted to moral claims of racial recognition and difference in law and politics.

The essay at hand joins the debate over the moral standing of race by interrogating the meaning of racial identity, racialized narrative, and color-conscious representation for law, lawyering, and ethics in cases of racially-motivated violence.(4) The purpose of the enterprise is both descriptive and prescriptive. Descriptively, the essay recounts the prosecution of racial violence in two prominent cases: the 1989 Central Park Jogger sexual assault in New York City and the 1998 James Byrd murder in Jasper, Texas. The account focuses on the nature of prosecutorial norms and narratives, their cultural and social significance, and their impact on interracial community. Prescriptively, the essay proposes to reform prosecutorial norms and narratives in order to reconstruct interracial community in the aftermath of racially-motivated violence. My thesis is that prosecutors and prosecutorial policies of community activism may play a valuable role in reconciling segregated communities divided by racial violence.

Part I of the essay examines the idea of community in American law, surveying relevant norms and narratives found in the criminal justice system. The survey highlights the community norms and narratives often embedded in the constitutional, statutory, and common law doctrines of state and federal criminal law. It searches out discursive evidence of such norms and narratives in the prosecution of the Central Park Jogger and James Byrd cases.

Part II describes the role, function, and regulation of prosecutors acting under state and federal criminal justice systems. The description culls prosecutorial norms and narratives from governing ethics rules and standards. Drawing on the Central Park Jogger and James Byrd trials, it demonstrates that such norms and narratives construct multiple prosecutorial roles with accompanying burdens of freedom and constraint.

Part III explores methods of reconceiving the prosecutorial norms and narratives employed in cases of racial violence in the hope of reconstructing interracial community. The exploration considers the cultural and societal relevance of such norms and narratives in combating the varied forms, contexts, and categories of racial violence illustrated in the Central Park Jogger and James Byrd trials. It also assesses the potentially fruitful relationship of lawyers to community, citing examples from contemporary law reform movements. Finally it evaluates the compatibility of prosecutorial norms and narratives with the evolving jurisprudence of race in American law...