After trying more than two hundred cases in a 40-year criminal defense career, I know something about lawyers using appeals to racial bigotry to win cases. Even though it is unethical, lawyers do it all the time by producing “race-neutral” explanations for their behaviors. We all know judges will usually let us get away with it.
I have known Frank and Laura Hogue, who represent one of the defendants in the case involving the killing of Ahmaud Arbery, for 20 years. They are not racists, but they and the other defense lawyers used a racist narrative to defend their clients.
The judge and every lawyer in the case agreed that race should play no role in the case. Does anyone see the irony in a group made up exclusively of white people making this decision? One of the accused wanted a picture of a license plate on his car blurred to hide an image of the old Georgia state flag containing the Confederate flag. The Confederate flag image was added to the Georgia state flag in the 1950s to protest the Brown v. Board of Education decision. The lawyer said the image his client chose to display publicly on his car was an improper comment on his client’s character and would raise “something that we’ve all been trying to avoid.”
Defense lawyers scream when prosecutors give supposedly “race-neutral” reasons for excluding Black jurors from service, and judges give no scrutiny to a prosecutor’s “race-neutral reasons.” But we have clearly learned how to get a virtually all-white jury. After the defense eliminated all but one Black juror, the judge said there appeared to be deliberate racial discrimination, but “race-neutral” reasons given by the defense were good enough to pass muster. One lawyer complained there were not enough “Bubbas” or “Joe six-pack” white men on the jury.
One of the defense lawyers, complaining about Black pastors in the courtroom, compared their presence to having white men dressed up like Colonel Sanders in the courtroom and told the Court, “We don’t want any more Black pastors in here.”
Ms. Hogue told the jury that it was “inexplicable” and “illogical” for a Black man in Georgia to be afraid simply because he was being chased by three armed white men in pickup trucks. Her argument could only be successful in a world where the anti-Black violence in Georgia, the south, and all over America is ignored by the jury, and that requires jurors who are ignorant about our true history or who just don’t care.
Ms. Hogue argued that Mr. Arbery was a “recurring nighttime intruder,” and “Turning Ahmaud Arbery into a victim after the choices he made does not reflect the reality of what Ahmaud Arbery brought to Satilla Shores in his Khaki shorts with no socks to cover his long dirty toenails.” He walked through and looked at a construction site on several occasions without taking anything. Apparently, if you run in Satilla Shores, you better be wearing a Nike running suit with runner’s socks – and your toenails better be clean.
The defense narrative was that the Black man looked out of place, so he got what he deserved when he did not immediately obey the white people trying to stop him. Prosecutors don’t have a monopoly on using racist narratives to win in the criminal legal system. Defense lawyers know how to do it.
When a criminal case in America is prosecuted or defended based on a racist narrative, we all lose in the end no matter which side does it.
• Jeffrey Robinson is the former ACLU deputy legal director and star of the “Who We Are” documentary.