Article by Sheri Lynn Johnson
During their testimony, Officer Powell and another defendant, Sgt. Stacey C. Koon, consistently described Mr. King in non-human terms. If it was part of a strategy to diminish Mr. King in the jurors' minds, it may have backfired.
“It was Mr King, a black man who was stopped for speeding, who chose to evade the police and to comply only slowly with their commands.”
“[H]e [King] deserved what he got.”
There are no “race shield laws.” Nor are there other measures that adequately curb the use of racial imagery in criminal cases. Moreover, in contrast to the political and scholarly climate that preceded the adoption of rape shield laws, there is no storm of protest on this front.
Perhaps the lack of attention to the use of racial imagery in criminal cases stems from a perception that resort to such imagery is rare. Or perhaps disinterest may be traced to the belief implicit in the above-quoted contemporaneous evaluation of the likely effects of Koon's and Powell's animal imagery: such imagery will seldom sway the jury as intended and may even backfire, benefitting the subject of the imagery. A third noninvidious interpretation might be proferred: lawyers and laypeople are unaware that the law is largely silent here and assume that whatever the frequency of racial imagery in criminal cases, and whatever its effect might be on juries, injustices are corrected.
There is also selective indifference to consider. Half of the population is female and many women could identify with the rape victim cross-examined on the details of her sexual life to facilitate summation arguments that she was a consenting whore. There are fewer people of color to identify with racial derogation on the witness stand and in summations. There were also many men with wives, girlfriends, sisters, daughters, and women friends who could worry about the treatment of rape victims; the absence of cross-cutting ties between most white people and people of color makes empathetic activism regarding racial imagery less likely.
Less charitable explanations press themselves upon us. One obvious candidate is self-interested denial. Acknowledging the continuing legacy of racism is painful and unpleasant, at least for white people; it implies that many of us do not deserve all we have and that our good fortune is gained through the exploitation of others. Some people find it hard enough to acknowledge racism when that racism is expressed by aberrational racist skinheads or construction workers. It is even harder when we are confronted with the racism of-and the manipulation of racism by-“professionals.” Perhaps we not only benefit from skin privilege; perhaps we tolerate it in our own ranks. Looking at a professional's use of racial imagery compounds this discomfort, for when we examine the speech patterns and images other professionals use, comparisons to our own everyday remarks will nag at the edges of our thought. Maybe we do more than tolerate skin privileging-maybe we practice it.
Even more vile explanations are possible, but hinting at their existence may be enough. I will not speculate further; instead, I will start to fill the void. I proceed on a cautiously optimistic assumption: at least part of the inattention to racial imagery stems from noninvidious ignorance. This Article therefore attempts to redress some of that ignorance. Part I describes some of the many ways racial stereotypes are presented to the jury in criminal cases; Part II reviews the paltry legal remedies presently available; and Part III proposes and evaluates other measures that could be taken in an attempt to control the manipulation of racial stereotypes in criminal cases. Thus, for the bulk of this Article I proceed by assuming that information and logical argument may be persuasive. At the end, however, I return to the possibility of more invidious reasons for the void, and consider whether the self-righteousness and self-interest of white people preclude the redressing of ignorance in this area.
If this introduction rankles, I do not apologize. I do, however, wish to make clear that the subject of my scrutiny is not other, but same: my culture, my language, indeed, myself. I am white. As I began writing the immediately preceding paragraph, what came to my mind first was, “Other, darker, explanations are possible.” That was, of course, both the right and the wrong image. (Why does “darker” capture such a vast range of negative possibilities?) It is impossible for me to begin without at least this much candor: I have met the enemy, and she is us.
About the Author
Sheri Lynn Johnson. Professor of Law, Cornell Law School. B.A., 1975, University of Minnesota; J.D., 1979, Yale University.
Citation
67 Tul. L. Rev. 1739 (1993)