Jay Reding.com

Then And Now

The Wall Street Journal draws an interesting parallel between the Duke rape case and the Scottsboro Boys case of 1931 (background on the latter can be found here).

Imagine this: In a Southern town, a woman accuses several men of rape. Despite the woman’s limited credibility and ever-shifting story, the community and its legal establishment immediately decide the men are guilty. Their protestations of innocence are dismissed out of hand, exculpatory evidence is ignored.

The Duke rape case, right? No, the Scottsboro case that began in 1931, in the darkest days of the Jim Crow South.

The two cases offer a remarkable insight into how very, very far this country has come in race relations, and alas, in some ways how little. For race is central to why both cases became notorious. In Scottsboro, Ala., of course, the accusers were white and the accused was black. In Durham, N.C., it was the other way around.

Thankfully, the wrongly accused Duke lacrosse players didn’t have to wait years to get some semblance of justice, but disgraced and disbarred DA Mike Nifong’s actions were still a slap in the face of American justice. Legal commentator/professional harpy Nancy Grace and the rest of the American media did no better than the racially-charged media of Jim Crow South over 70 years ago. What these cases demonstrate is that America still has two systems of justice — it’s just the players who have changed. Even though the Duke players came from privileged backgrounds, they were still guilty until proven otherwise. Trying to combat injustice with injustice is never a productive endeavor.

The reality is that the Duke community sold out any sense of justice in the name of crude racial animus — a racism that may be the opposite of what happened in 1931, but was no less unjust. America still has not learned the lessons of its racist past and still tends to see people as the color of their skins rather than the contents of their character. Until that changes, more travesties such as the Scottsboro Boys case and the Duke rape case will continue to happen.

16 responses to “Then And Now”

  1. Seth says:

    It truly takes a real ass to claim that the Duke case “was no less unjust” than one where 7 people were sentenced to death only after the National Guard was able to prevent a lynch mob from conducting a much quicker trial (the first one being found guilty only twelve days after being arrested), represented by a real-estate lawyer, confirmed to die on appeal, then retried and convicted again.

  2. So Seth, you are saying that the Duke Lacrosse case was “More Just” than the Scottsboro Boys case?

  3. Marcia Crowley says:

    Give the uproar about OJ getting off, because of his huge pile of money, this is a lot more about money than race.

    The Innocent Project has found a lot of people with small money on death row.
    More than half are black. Black people on average have less money to buy fancy lawyers than white people, and so are more likely to be put in prison for crimes they didn’t commit. Give the number of innocent people found on death row, it’s pretty likely that some people on death row have been murdered.

    This editorial from the far right WSJ editorial page, which regularly hires the black man Shelby Steele to tell its mostly rich, white, male readers that “Black people have a bad culture” and “there is no racism now”.

    Which gives the white, male, conservative, rich readers a way to discriminate against black people while telling themselves they aren’t racist: It’s just that “bad people have a bad culture”.

    Although it’s odd that such people would believe a black guy with a bad culture. Well no, it isn’t – they’ll take it and run with it.

    In all this huff and puff editorial I didn’t see any mention of the fact that these wonderful, oh-so-moral heroes paid money to see two poor black women take all their clothes off and dance around in front of them, and gave them a lot of alcohol to increase the fun. That in itself deserves the suspension and the firing of the coach. But the author tells us that was just like beating them and putting them on death row.

  4. Marcia Crowley says:

    Seth:

    ] It truly takes a real ass to claim that the Duke case “was no less unjust” than one where 7 people were sentenced to death only after the National Guard was able to prevent a lynch mob from conducting a much quicker trial (the first one being found guilty only twelve days after being arrested), represented by a real-estate lawyer, confirmed to die on appeal, then retried and convicted again.

    But these young men were hardworking, important, affluent young white men, you know, destined to join the Economic Elite, probably the Conservative Economic Elite. They might even right editorials someday for the WSJ!

    So of course the white students’ travail was much much worse and unjust than some black kids getting the death penalty years ago!

  5. Jay Reding says:

    Of course, it’s perfectly acceptable to unjustly accuse someone of rape, kick them off their campus, and ruin their lives… just so long as they’re white.

    Racism in any form is reprehensible, and while we’ve made a hell of a lot of progress since 1931, the spirit of the lynch mob is still very much alive.

  6. Marcia Crowley says:

    Jay Reding:

    “Of course, it’s perfectly acceptable to unjustly accuse someone of rape, kick them off their campus, and ruin their lives… just so long as they’re white.”

    Who said that? And how have their lives been ruined? I bet that there are thousands of people like you just waiting to have a chance to help them out with a job, graduate school, whatever.

    Unlike those poor black innocent men who spent decades on death row.

    Did you stand up for them? Write some editorials? Seems like to me the rightwing doesn’t care much for the Innocent Project.

    Makes it harder to execute people because we all know now that it’s bound to be true that at least one person has been murdered by the state, not executed. And most likely he’s a he and he was black.

  7. Marcia Crowley says:

    Oh, and by the way, the rightwing justices have just made it easier to execute (murder?) people by allowing the prosecution to eliminate from the jury, anyone who isn’t 100% in love with the death penalty to serve on juries where execution is a penalty.

    Nothing “activist” about that, eh?

    Maybe not – maybe just a horrific injustice, but it’ll make it harder to prove the dead person was really innocent, so there’s the plus right there for death penalty supporters.

  8. Jay Reding says:

    Oh, and by the way, the rightwing justices have just made it easier to execute (murder?) people by allowing the prosecution to eliminate from the jury, anyone who isn’t 100% in love with the death penalty to serve on juries where execution is a penalty.

    No, they did not. They made it more difficult for the defense to object on appeal unless they raise an objection during the initial trial. It doesn’t change much of anything in the substantive law. It doesn’t have anything to do with the ability of a prosecutor to remove a juror, only on what courts should consider in later appeals.

    You’re simply wrong on all counts. In fact, it’s the exact opposite of an activist decision — the whole point is that federal judges should be more deferential to the decisions of state court judges. That isn’t judicial activism, that’s encouraging judicial restraint.

    Obviously, you’ve not read the case, and once again, you demonstrate what happens when you let others think for you rather than trying to actually understand an issue.

  9. Seth says:

    Accusing someone of a crime and then letting a justice system work where the accused are not put in jail is quite clearly different from Scottsboro. Doesn’t take a lot of brains to figure that one out.

  10. Marcia Crowley says:

    Jay Redding:

    “You’re simply wrong on all counts. In fact, it’s the exact opposite of an activist decision — the whole point is that federal judges should be more deferential to the decisions of state court judges.”

    No, it’s saying that state court judges should have more power and the defense less power.
    It says that the judge can ignore the state law.

    i That isn’t judicial activism, that’s encouraging judicial restraint.

    How can giving state court judges more power, and the defense less, be judicial restraint?

    And there’s this:

    ” But it does rely upon the Antiterrorism and Effective Death Penalty Act of 1996, a broad rewrite of federal death penalty law to cut down habeas options for state prisoners, to reinforce its conclusion that deference to trial judges is most appropriate in that circumstance.

    Using the excuse of terrorism and the “effective” death penalty act meant to cut down on habeus corpus options is not activist? Given the Bush administrations elimination of habeus corpus for many suspects, this is chilling.

    ” What appears to be new about the majority opinion is its emphasis upon the role of the defense lawyer when a juror who seems uncertain about the death penalty (and thus, under the precedents, would not necessarily be ineligible to serve) is barred from serving by the trial judge.”

    Get that? “new majority opionion” making it easier to execute people? Not activist?

    ” Kennedy’s opinion concedes that, in order to challenge a juror’s exclusion in federal habeas, there is no requirement under federal law that defense counsel have objected at trial. And it concedes that, under Washington state law, it is not necessary to object to a juror’s exclusion in order to preserve the opportunity to later challenge that as error. But, Kennedy went on, the failure to object nonetheless is significant and must be taken into account by reviewing courts.”

    So he admits that there is no requirement of any kind for the defense to object, but he then says “Who cares? I want to require it anyway! Because I’m proexecution!” And all the rightwing justices say ‘Great idea!’

    Not activist?

  11. Jay Reding says:

    Jay Redding:

    At the very least, you should be able to get the name right…

    No, it’s saying that state court judges should have more power and the defense less power.
    It says that the judge can ignore the state law.

    No, it doesn’t. Read the opinion and tell me exactly where the case says anything like that. The defense still has the same power as it always did. Judges may not ignore state law, then or now. Again, you’re pulling this stuff completely out of thin air.

    Have you read the opinion? If not, how can you judge what it actually says? Again, stop letting others think for you.

    Using the excuse of terrorism and the “effective” death penalty act meant to cut down on habeus corpus options is not activist? Given the Bush administrations elimination of habeus corpus for many suspects, this is chilling.

    A law passed in 1996 and signed by President Clinton as an example of how bad Bush is? That doesn’t even make sense.

    Again, have you read the opinion? Do you know what specific provisions are at stake? If not, then how do you have any right to complain when your entire opinion is based on nothing more than then name of the act?

    Futhermore, you claim that the Bush administrated has eliminated habeas corpus for “many” suspects. Fine, name one. If there are so many, it shouldn’t be that hard.

    Get that? “new majority opionion” making it easier to execute people? Not activist?

    Again, you make a conclusion that has no basis in the very statement you pointed to. It doesn’t make things easier for the state to execute someone, it only enforces the idea that an appellate judge may take into consideration the fact that the defense did not object to the placement of a particular juror at trial. That only clarifies a particular point of law, and rarely does this issue even arise.

    Generally the rule is that if an attorney does not object to something at trial, it can’t be used as an issue on appeal. This opinion (and putting scare quotes around majority is just stupid) just indicates to the judge that the lack of objection can be noted, but is not dispositive.

    So he admits that there is no requirement of any kind for the defense to object, but he then says “Who cares? I want to require it anyway! Because I’m proexecution!” And all the rightwing justices say ‘Great idea!’

    No, the defense is not required to object — but a lack of objection is something that a higher court may consider.

    Furthermore, your whole point is completely and utterly wrong. Federal law does not allow for a juror to be struck from a jury just for being unfriendly to the death penalty. “[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty,” Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). In fact, Justice Kennedy wrote the following in Uttecht:

    “[A] criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Witherspoon, 391 U. S., at 521.”

    Had you actually bothered to read and understand the case, you would have known that your entire argument was based off nothing more than your own biases and ignorance. If you can’t even understand the law, what gives you the right to start making arguments that have no basis in fact? A good citizen is an informed citizen, and if you can’t make informed arguments then you’re only hurting yourself and your cause.

  12. Marcia Crowley says:

    “[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty,” Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).”

    But that is in fact exactly what happened. Worse – the jurist didn’t even have general objections to the death penalty but only in certain circumstances. But the Bush appointments and previous Republican appointments said the judge could throw him out anyway.

    How about thinking a little rather than being driven by your rightwing views?

    As for Clinton, I didn’t support him either.

  13. Will says:

    Marcia is filling in nicely for Erica.

    Where is Erica, btw? I always enjoyed her posts.

  14. Marcia Crowley says:

    re Habeus Corpus and Bush

    http://www.nytimes.com/2006/09/28/washington/29detaincnd.html?ex=1317096000&en=cce97fe9e3c4e8c2&ei=5088&partner=rssnyt&emc=rss

    Senate Passes Detainee Bill Sought by Bush

    By KATE ZERNIKE
    Published: September 28, 2006
    WASHINGTON, Sept. 28 — The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated.

    The legislation sets up rules for the military commissions that will allow the government to prosecute high-level terrorists including Khalid Sheikh Mohammed, considered the mastermind of the Sept. 11, 2001, attacks. It strips detainees of a habeas corpus right to challenge their detentions in court and broadly defines what kind of treatment of detainees is prosecutable as a war crime.

    Mr. Bush attacked Democrats for voting against the legislation even before the vote began, signaling Republicans’ intention to use it as a hammer in their efforts to portray themselves as the party of strength on national security.

    Among the amendments that failed were one that would have struck the habeas corpus provision, one that would have established a sunset on the legislation to allow Congress to reconsider it in five years, and one that would have require the Central Intelligence Agency to submit to Congressional oversight.

  15. Marcia Crowley says:

    Would Bush veto a vote to bring back habeus corpus?

    http://www.thenation.com/blogs/campaignmatters?bid=45&pid=203303

    BLOG | Posted 06/07/2007 @ 12:06pm
    Senate Begins Real Push on Habeas Corpus
    Ari Melber

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    Today the Senate Judiciary Committee passed an important bill to restore habeas corpus, the sacrosanct Constitutional right to challenge government detention in court, by a vote of eleven to eight.

    Habeas corpus was revoked by last year’s Military Commissions Act, which has been assailed as unconstitutional and un-American by leaders across the political spectrum.

  16. Jay Reding says:

    Habeas corpus rights have never been extended to non-resident aliens outside the territorial borders of the United States. No one has been denied a writ of habeas corpus who would have a right to it under current US law. Jose Padilla was allowed to file a writ, as was Yasir Hamdi. The Military Commissions Act does not restrict the habeas rights of American citizens, despite the misleading and ill-informed claims to the contrary. It applies solely to aliens outside the territorial borders of the United States who have never had a right of habeas under US law. See Johnson v. Eisentrager, 339 U.S. 763 (1950). Eisentrager has been the controlling law on this issue for over 50 years, and its principles still apply today.