Racism is Alive and Well in the Criminal Legal System
By Jeffery Robinson
I have been a criminal defense lawyer for 40 years; having tried more than 200 cases to verdict. As a result, I am very familiar with lawyers using appeals to racial bigotry to win cases. Appeals to racial prejudice in a criminal trial are unethical – even illegal. Yet lawyers do it all the time because they produce “race neutral” explanations for their arguments, and they know judges will usually let them get away with it. The law says you cannot use unethical means to win a trial; appeals to white supremacy and anti-Black racism fall squarely into that category.
I have known Georgia defense lawyers Frank and Laura Hogue, who represent one of the defendants in the case involving the killing of Amaud Arbery, for almost 20 years. They are not racists.
For some, the inquiry should stop there, but that is way too easy. The fact that they are not racists did not stop them from taking advantage of a racist narrative in defense of their client. The trial of the killers of Ahmad Arbery shows how defense lawyers can take advantage of racism in America just like judges and prosecutors.
All the lawyers in the case, including the judge, were white, and all agreed that race should play no role in the case. Does anyone see the irony in a group of white people making this decision? A lawyer for one of the defendants was concerned about the jury seeing his client’s license plate, which had 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 1950’s to protest the Brown v. Board of Education decision. The lawyer wanted the image blurred because he claimed it was an improper comment on his client’s character. Apparently, the truth about what his client chose to display publicly on his car would inject into the case “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. We object when judges let prosecutors get away with using clearly fictional “race-neutral” reasons to kick Black jurors off the panel. In Georgia, the defense lawyers were eliminating jurors of color, and the judge indicated that there appeared to be deliberate racial discrimination but ruled that “race-neutral” reasons given by the defense were good enough to pass muster. One of the defense lawyers said there were not enough “Bubbas” or “Joe six-pack” white men on the jury. I guess having eleven white jurors out of twelve in a county that is 25% Black was not good enough. We defense lawyers have learned from prosecutors how to get the whitest jury possible.
The Hogue defense team asked for a mistrial when Jesse Jackson comforted Mr. Arbery’s mother during a difficult part of the testimony. One of the other defense lawyers told the Court: “We don’t want any more Black pastors'' in court.
In the closing argument Ms. Hogue made several blatant appeals to racism. She told the jury that it was “inexplicable” and “illogical” for a Black man in Georgia to be afraid simply because he was being pursued by three armed white men in pickup trucks. Ms. Hogue cannot claim ignorance of the racialized bias and violence against Black people that is a huge part of Georgia history. Her argument was one way to take race out of the trial – just argue that three white men in a pickup truck armed with a shotgun and screaming stop should cause a Black man no fear.
Ms. Hogue called Arbery a “recurring nighttime intruder” and argued that: “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.”
The choices Mr. Arbery made were to walk through a construction site without taking anything and jog through a white neighborhood without what Ms. Hogue considered to be proper jogging attire, while wearing no socks to cover his long, dirty toenails. Trayvon Martin had a hoodie – Ahmaud Arbery had inappropriate jogging clothes and dirty toenails. The defense narrative in both cases? They had no business in a white neighborhood, and they got what they deserved.
The Hogues are two of the best trial lawyers in the country. They prepare meticulously, and that is what is so disheartening here. They said what they said and did what they did, from jury selection to closing arguments, because the narrative they chose to sell was that the Black man was out of place and deserved to be treated like a criminal. It worked for Zimmerman in Florida, but today it did not work for the men who were just convicted for killing Mr. Arbery. Their conviction is more than justified, but don’t take this as proof that there is no problem with racism in the American criminal legal system. As a country, we need to open our eyes to the real threat of anti-Black racism in America before it is too late.