|Excerpts from BLACK RAGE CONFRONTS THE LAW|
Felicia Morgan was beaten at home by her parents and in the streets by strangers. She was raped at fourteen and robbed at gunpoint at fifteen. Her fear and anger began to devour her. At seventeen, Felicia took a gun and, with her eyes closed, put one bullet in the head of Brenda Adams. She was tried for robbery and murder in 1992 in a Milwaukee courtroom. Had her abusive childhood led to the homicide? Had growing up in a community devastated by poverty and racism shaped her criminal behavior? Black Rage Confronts the Law explores these questions as it shows the connection between a society infected by white supremacy and the crimes its citizens commit.
Black Rage Confronts the Law is about race, crime, and the legal system. It tells the story of men, women, and teenagers who have robbed banks and committed homicides. It is about trials in which defense lawyers have argued that their clients' crimes were in part a product of societal racism. It is the first attempt to document and critique the black rage defense in American legal history.
Black rage and the black rage defense are not synonymous. Black rage, in its positive and negative aspects, is examined insightfully by psychiatrists Price Cobbs and William Grier in their widely discussed 1968 book Black Rage. The frustration and anger of African Americans and their consequences for this country are also articulated in James Baldwin's The Fire Next Time. Black rage is eloquently expressed in the works of Alice Walker, Gloria Naylor, and Walter Mosley. It is found in the poems of Gwendolyn Bennett, in the music of KRS-One, in the essays of bell hooks, in the speeches of Malcolm X, in the Ten Point Program of the Black Panther Party, and in the very history of African Americans.
The black rage defense is a legal strategy used in criminal cases. It is not a simplistic environmental defense. The overwhelming majority of African Americans who never commit crimes and who lead productive lives against overwhelming odds prove that poverty and racial oppression do not necessarily cause an individual to resort to theft, drugs, and violence. But it cannot be denied that there is a causal connection between environment and crime. A black rage defense explores that connection in the context of an individual defendant on trial.
There has always been a strain in American jurisprudence which argued that the social and economic system must bear part of the responsibility for crime. Even the dominant legal philosophy, which perpetuates the myth that each person is free to act as he or she wishes, acknowledges that environmental conditions may lead to criminal behavior. Criminal law is based on the doctrine that the individual must be held responsible for his or her acts. But it has also reluctantly recognized that in cases where environmental factors do contribute to the crime, lawyers must be free to argue factors such as poverty and racism in defense of the charges or in mitigation of the penalties....
In 1846 William Henry Seward, one of the foremost lawyers and politicians of the time, defended twenty-one-year-old-William Freeman by arguing that the consequences of slavery and the continued oppression of black people had driven his client mad and caused him to commit murder. Seward thrust the awful conditions suffered by black people into the crucible of the trial. Unfortunately, this ground-breaking defense has basically been lost to the modern generation.
In 1925 Clarance Darrow, the most famous criminal lawyer in American history, again confronted the criminal law with the reality of discrimination and hatred against blacks. He defended Dr. Ossian Sweet, his wife Gladys, his brother Henry, and seven other blacks who were tried for murder when one of them shot into a mob of white people attempting to force the Sweets out of their home in a previously all-white neighborhood in Detroit....
What is the black rage defense? It is a legal strategy that centers on the racial oppression experienced by the defendant. It is an attempt to explain to the judge and jury how the defendant's environment contributed to his or her crime. It shows how concrete instances of racial discrimination impacted on the mental state of the defendant.
It is essential to understand that the black rage defense is not an independent, freestanding defense. That is, one cannot argue that a defendant should be acquitted of murdering his boss because the boss fired him out of racial prejudice. The innovation inherent in the black rage defense is that it merges racial oppression with more conventional criminal defenses.
The law has always recognized state-of-mind defenses. For example, if a person is insane at the time of the criminal act, he can raise his mental condition as a defense. So if, in the above example, the white boss's racist behavior caused the black worker to lose the ability to control himself, a defense of diminished capacity would be allowed. Such a defense would reduce first-degree murder to second-degree murder or manslaughter. Another example is a young African American surrounded by three skinheads wearing Nazi symbols and calling him "nigger." If he pulls a gun and shoots one of them, he can raise a self-defense claim. As part of the defense he would be allowed to argue that given his experience with racists it was "reasonable" for him to assume that he was in danger of serious bodily injury, and therefore it was legally justifiable to shoot before he was actually attacked.
State-of-mind defenses allow us to bring the racial reality of America into the court by presenting "social context" or "social framework' evidence. I have also described it to judges as "social reality" or "racial reality" evidence. The phrase "black rage defense" describes a lawyer's gestalt, a theory of the case, an all-encompassing strategy that uses racial reality evidence to establish self-defense, diminished capacity, insanity, mistake of fact, duress, or other state-of-mind defenses allowed by the criminal law.
In a larger sense, the black rage defense educates the judge and jury about society's role in contributing to the criminal act. It is part of a growing body of recognized criminal defenses that have forced the courts to consider the effects of environmental hardship. The Vietnam Vet Syndrome and post-traumatic stress disorder used to defend veterans scarred by the war in Vietnam and African American teenagers scarred by the war in urban America illustrates state-of-mind defenses rooted in social reality. The battered woman defense parallels the black rage defense, in introducing evidence of gender oppression in defense of women charged with crimes of violence against their abusive husbands and boyfriends. The cultural defense, another rapidly growing legal strategy, uses evidence of a defendant's culture (e.g., Laotian and Vietnamese refugees, Chinese immigrants, or Native Americans) to explain his or her state-of-mind in defense or mitigation of criminal charges....
There has been growing criticism of the political separation of the races in the United States. We have developed an obsession with difference and have fallen into identity politics in which cultural and political debates pit race against race, gender against gender, and lifestyle against lifestyle. Although the black rage defense, by its very name, emphasizes race, it is actually an attempt to bring all Americans closer together. Its premise is that although there are essential differences in the ways people grow up, there are profound underlying similarities in their responses to deprivation, violence, and injustice. Closing our eyes to the impact on social behavior of factors such as racism and poverty takes us down the path to ever more prisons and executions. We will be locked into these and other fruitless responses to crime unless we cross racial and class barriers in order to understand the social forces that contribute to crime. The black rage defense plays one small part in the very large and important movement to break down those barriers.
B. Chapter 2: The Black Rage Defense, 1971
Seething anger in the prisons, on the streets. The anger has always been there, since the first young African man and woman were ripped from their families, kidnapped, and forced to cut cotton without pay. Resentment, bitterness, hostility, vehemence, and madness had been there for hundreds of years. Now, white America was for the first time forced to listen to this anger in its purest form BLACK RAGE.
In the midst of these changes, on July 15,1970, a workday like any other, black autoworker James Johnson walked into the dirty, hazardous Eldon Avenue Gear and Axle Plant in Detroit, Michigan. He walked strangely, hindered by the M-1 carbine he had hidden in the pant leg of his overalls. He stepped over the oil slicks on the plant floor, the deafening noise from the machinery hammering in his head. Stalking the black foreman who had illegally suspended him earlier that day, he raised the M-1 and fired. As the foreman fell and then struggled to get up Johnson stood over him firing again and again. Johnson then began to look for Jim Rhoades, the general foreman who had called him "boy" and had told the gate guard to take away the badge that allowed Johnson to come into the plant. Unable to find Rhoades he entered a room and began firing. When the M-1 ran out of bullets two white men, a foreman and a job setter, lay dead. As Johnson walked out of the plant two union stewards approached him. He gave one of them his empty rifle. A few minutes later, he quietly gave up to the police.
Six months later, Steven Robinson, a twenty-nine-year-old black man, walked into a bank in the Fillmore district of San Francisco and pulled an unloaded .22 caliber derringer out of his overalls. He lined up the four women tellers against the wall and emptied each cash drawer into a striped laundry bag. As he went from drawer to drawer, two police officers, Jordan and Johnson, responding to the bank's silent alarm, arrived on the scene. Officer Jordan slowly moved into the bank, aimed his service revolver at Robinson, and ordered him to drop his gun. After Robinson dropped his gun, the police began to handcuff him. The six-foot Robinson suddenly turned and grabbed the officer. The three men punched and kicked each other until finally one of the policemen got his baton against Robinson's neck and choked the bank robber briefly into unconsciousness.
As they walked out the front door, a large crowd of black people from the neighborhood gathered around. Robinson, his hands cuffed behind his back, his nose streaming blood, stopped suddenly and held his head high. The two officers who were holding his arms came to an abrupt halt. Looking at the crowd, Steven Robinson shouted in a loud voice, "Why are black people without jobs or homes when there is so much money in America's banks?" Many of the people in the crowd shouted their agreement and a few even began to applaud. The police hurriedly shoved Robinson into the squad car.
James Johnson and Steven Robinson went to trial, respectively, in the spring and summer of 1971. In both trials the political reality of what it means to be black in America became an essential part of the defense. These trials marked the modern development of the black rage defense.
"Black rage" is the term commentators and the media have used to describe a defense strategy that attempts to bring a very particular social reality into the courtroom. But while the term evokes violent, aggressive images, the black rage defense encompasses a broader view of African American life than just rage and violence. It includes pride in one's heritage. It explains hopelessness and sheds light on the darkness of fear and abuse. Most of all, it says to the American legal system: You cannot convict me without hearing who I am and what shaped me. I was not born with an M-1 carbine in my hands. My childhood dreams did not include robbing a bank....
I was sitting in our storefront office, across from Mission High School. Bernadette Aguilar and Ricky Jacobs were hard at work, Bernadette interviewing a woman in Spanish about her car accident, Ricky editing and typing a brief in a draft resistance case. The other attorney, Stan Zaks, was talking to Francisco, one of the members of Los Siete (a leftist group named after seven Latinos who had been charged with killing a policeman). Francisco had been harassed by police for passing out the organization's newspaper, Basta Ya (Enough Already!). I took Dee Reid's call and agreed to go to the jail and interview this bank robber.
The loud, harsh clanking of the steel doors, the stink of food and sweat I was entering San Francisco County Jail, where federal prisoners were held in custody. Steven and I met in one of the tiny, airless rooms set aside for lawyer-client conferences. Steven was both mistrustful and happy. He didn't know me or Dee Reid, but he sure needed a lawyer and didn't want a public defender. We went over the facts briefly. I agreed to take the case, hoping I could get the federal magistrate to appoint me so I could get paid. I told him I'd meet him at the bail hearing and would get some references from people at Sacred Heart Church and the Urban League. He said that the teachers at the Malcolm X School would not talk to a white lawyer they didn't know without him first paving the way.
As I left the jail I had no idea how I would fight the case. He had been caught red-handed. So I focused on the bail hearing and two days later persuaded the magistrate to release Steven on his own recognizance.
Over the next two months I got to know Steven and Elaine. As I learned of Steven's life, a plan began to form in my mind. I did not call it a black rage defense, but I did believe I could fit together three elements: Steven's personal life history, what it means to be black in America, and the law of temporary insanity. I grew more and more excited. I read Black Rage by black psychiatrists William Grier and Price Cobbs. I reread Wretched of the Earth by Algerian psychiatrist Frantz Fanon. These books have a common theme: Oppressed people fill with rage, which they turn upon themselves, causing mental illness and crime.
I knew that rhetoric alone would not persuade a jury. Yet the truth of these books, written by men who had examined and treated hundreds of people, could not be denied. There was a link between social existence and acts of criminality. There was a nexus between racism and crime. Steven Robinson had broken the law, but he was not a criminal. He was not classically insane, either, but his mental state at the time of the crime could fit within the then prevailing definition of temporary legal insanity. I felt I had a defense. Steven didn't agree.
"How many jury trials have you had?" Steven asked me on April Fools' Day.
"None," I replied, "but I spent a year as a law clerk for Federal Judge Alfonso Zirpoli, and I watched lots of trials and discussed and dissected them with the judge."
"How old are you, Paul?"
"I'm twenty-eight, but I won my practice trial in law school at Berkeley, and I've won both judge trials I had in federal court."
"Do you know anyone who has done the kind of defense you are suggesting?" Steven asked.
"No, but Clarence Darrow brought the reality of racism into court when defending Henry Sweet, who shot into a mob outside his house. And Charles Garry did the same when defending Black Panther Huey Newton for shooting a cop. Of course, those were self-defense cases. This is different."
"It's too different-it won't work," said Steven.
And then he left. He really left. In twenty-eight years of practice, Steven Robinson is the only client I've ever represented who jumped bail.
Six weeks later Steven was arrested in Savannah, Georgia. He and a friend had been stopped for a traffic violation. When the police found a gun in the car, they ran a warrant check and found out that Steven was a federal fugitive. He was returned to San Francisco County Jail, where I once again sat with him in the small, airless interviewing room. Steven was depressed and could not be consoled. He had no hope; he just wanted to plead guilty and do his five years in prison. A black rage defense was the furthest thing from his mind.
A few days later I walked through the long Kafkaesque hallways of the federal building on my way to court. I could not help but recognize that in this hallowed building of the law, all eight judges were white, all the U.S. attorneys were white, all the federal public defenders were white, all the probation officers, bailiffs, law clerks, and secretaries were white. Everyone was white except the defendant.
We stood in court facing U.S. District Court Judge Stanley A. Weigel. Judge Weigel was a liberal in matters of civil liberties and civil rights, but he was strict with criminals and even stricter with lawyers. He was an intelligent and thorough jurist. His Yale law clerks read every motion and brief and prepared detailed memos for him. A lawyer had to be completely prepared when appearing before him. He also had a reputation for running a dictatorial courtroom. He would fine a lawyer for the violation of any one of over a hundred technical, local court rules. At times, he would lash out at attorneys, humiliating them in open court. One lawyer I knew often threw up before working a trial at which Judge Weigel presided. But you could rely on him to give a defendant a fair trial.
The judge began to take Steven's guilty plea: "You know you have a right to remain silent and not incriminate yourself", he said. "Do you waive that right?"
"Yes, I do," answered Steven.
"You have a right to call witnesses in your behalf. Do you waive that right?"
"Yes, I do.
"You have a right to confront and, through your lawyer, cross-examine all witnesses. Do you waive that right?"
"Yes, I do."
"You have a right to a jury trial, a jury of your peers. Do you understand that right?"
"If I had a jury of my peers, I would be found not guilty," replied Steven.
There was a pause as the judge stared at the defendant. "What do you mean?" he asked.
"If I had twelve people who were really my peers they would understand my action," Steven answered.
The Judge leaned forward, his eyes piercing into mine. "This is not a guilty plea. Counsel, I thought you told the court this was a guilty plea?"
I had been taken completely off guard by Steven's statements. I quickly asked for some time to confer with my client. The judge motioned to the US. marshals. "Take the defendant and his lawyer, and put them in the holding cell until they straighten things out."
For half an hour Steven and I sat in the cell behind the courtroom as once again I explained my idea of a political, psychiatric defense. Once again he refused, feeling it was hopeless. He said he would plead guilty and answer all the judge's questions the way the judge expected. We returned to court and went through the litany of rights one waives when one pleads guilty. But when the judge got to the part about a jury of peers, there was only silence. Then Steven spoke out clearly and strongly. "If I had a jury made up of people from Ellis and Fillmore Streets I would be found not guilty!"
Judge Weigel was seconds from exploding. "This is not a guilty plea. I refuse to accept the plea. You are going to trial!"
At the time, none of us expected that a new defense would be the consequence of Steven's pride and stubborn refusal to accept the legitimacy of a white legal system.
C. Chapter 4: (Women's Self-Defense)
Anger plays such an important role in black rage cases that the lawyers must be sensitive to how the client's feelings impact on the trial. A defendant is sometimes experiencing so much hostility that he or she will not open up to a lawyer unless the lawyer first reaches out. Often, unresolved anger bursts loose in the courtroom in ways that hurt the defendant. An instructive example of how a lawyer handling a black rage or black rage-type defense should communicate with the client can be found in the two
trials of Inez García. Although García was not African American, we should remember that the black rage defense is both a specific defense for black men and women and a generic defense in which social reality is thrust into the courtroom.
Inez García's case began in 1974, the same year that Joan Little had become a national symbol of women fighting back against sexual violence and racial oppression. Little, a twenty-year-old African American, was acquitted of killing a white jailer who had sexually assaulted her in the Beaufort County Jail in North Carolina. The same year Little was defending herself, García was sexually assaulted in an alley in Soledad, California. The twenty-nine-year-old woman was dragged out of her apartment by two men. While one man weighing three hundred pounds hemmed her into a closed space the other raped her. Several minutes later the two men phoned her apartment and told her that if she resisted next time, they would "do worse to her." Scared for her life, she took her .22 caliber rifle and left the house. Half an hour later she came across her two assailants. She saw a knife in the hand of one of them, Jiménez, and immediately shot and killed him. The police did not believe she had been raped, and at trial the district attorney argued that the killing was in retribution for the previous beating of a friend of hers. García's lawyer persuaded her to use a psychiatric defense instead of self-defense. García had shot Jiménez from approximately fifteen feet away and had shot him six times, facts that made a self-defense argument difficult. García, who had a history of some emotional problems, accepted the mental defense with her attorney's firm commitment to make the rape central to the case. However, the judge did everything possible to keep the issue of rape out of the trial. During opening statements, when defense counsel began to discuss the police's reluctance to investigate rape charges, the judge interrupted.
Judge: "Counsel, I cannot permit this. We are trying a woman for murder. There is no man on trial for rape, and the attitude of the police for rape and murder has nothing to do with the guilt or innocence of this woman."
García: "But, your honor, that is the reason I killed this man."
Judge: "We are not trying a cause, we are trying a woman, Mrs. García, and I am not going to make this courtroom a forum for a cause."
As the trial proceeded, García became more and more infuriated at the judge's rulings and comments. When the judge refused to allow the defense doctor to testify about the emotional trauma of rape because she had not conducted any "experiments" on rape, García exploded, leaping up from her seat and rushing towards the judge's bench. "Why don't you just find me guilty?" she yelled. "I killed the fucking guy because he raped me! That's why I did it." As the bailiff pulled her out of the courtroom the jury could hear her shouting, "Keep your hands off me, you pig!"
García's attorney admitted he was as stunned as the jurors by the outburst. This was because he failed to understand the incredible anger García still felt about being raped. Furthermore, he was portraying her as a demure, shy, innocent woman. His own clouded lens kept him from seeing the strong, volcanic woman sitting next to him in the defendant's chair.
Later in the trial, García's rage again erupted. She was enduring a brutal cross-examination with no objection from her lawyer.
Q: "Why didn't you tell the police about the rape?"
A: "Because you just don't-I was ashamed to talk about it, that's all.
Q: "Besides your face, were you hit anywhere else?"
A: "I don't know. I was too nervous, and I was scared. All I knew is that I didn't want to get killed."
Q: "After you say Luis ripped your blouse, you then said you just took your clothes off yourself?"
A: "Yes, I did. I gave in. I took them off."
Q: "What was the first thing you took off, do you remember? Were you wearing a brassiere?
A: "No, I don't wear a brassiere."
Q: "Did you take your panties off, too?"
A: "Yes, I did."
Q: "Then what happen after that?"
A: "You want me to tell you what happened after that?"
A: "He fucked me! What else do you want me to tell you?"
Q: "What was Miguel doing while Luis, you say, was having sexual intercourse with you?"
A: "He was watching me having sex with this creep, and he was enjoying watching the other creep have sex with me!"
Q: "What did you do after you called your family?"
A: "I took my gun, I loaded it, and went out after them. If I would have had to walk to Jiminez Camp I would have. Another thing I want to say, I am not sorry that I did it. The only thing I am sorry about is that I missed Luis."
Why had her experienced lawyer not objected to the demeaning cross-examination? I spoke to him that evening and learned that he felt the examination was so ugly that it was swaying the jurors to García's side. He was ready for her to begin crying, which he thought would have cemented the sympathy of the jury. But his stereotypical views of women had kept him from understanding Inez García's rage, and her shame and humiliation had left her unable to share those feelings with him.
After her statements in court, there was no chance for an acquittal. The jury of seven women and five men convicted García of second-degree murder.
Inez García spent two years in prison before her conviction was reversed on appeal because of an improper jury instruction on how to measure reasonable doubt. In her retrial she was represented by radical feminist attorney Susan B. Jordan with the help of Ann Jennings and Linda Castro. Jordan was one of the first women criminal lawyers to come out of the feminist movement of the sixties. When she practiced with the People's Law Office, a leftist legal collective in Chicago, she was one of the only young women lawyers in the tough criminal courts, and she endured sexual harassment and unwanted advances from judges, other lawyers, and even the bailiffs. By the time she took García's case her ordeal had produced a lawyer with a fearless spirit and extraordinary technical skills. She was representing a woman who had never let herself cry about the rape, who had spent two years in prison, and who had unresolved anger about what she had suffered. These factors made García a difficult client who would threaten to fire her attorneys and then ask them to come back. Jordan hung in through the displaced fury. When García didn't want to take the stand because of the humiliation of her first experience, Jordan patiently explained the need for her to testify and promised to protect her dignity.
García's case had become a cause célèbre. A play based on the transcripts of the first trial had been produced, a defense committee was active, and García had spoken on behalf of rape victims. At the retrial, Jordan was able to do extensive voir dire regarding rape. After the trial, she wrote, "We addressed the prevailing myth that rape victims 'ask for it' head on. Despite García's sexy appearance, no woman should be subjected to sex against her will, and once raped, a victim is still entitled to respect, at the police station and in the courtroom." Jordan was also able to educate the jurors that rape is a crime of violence, not of sex. The prevailing view in the public's mind was that rape was a sex crime. In fact, California statutes did not even categorize rape as a "violent crime."
In the first trial, the tactic was to hide García's anger for fear that it would reinforce the prosecution's theory of a premeditated murder. The result was that the unresolved anger broke loose in detrimental ways. In the retrial, García's anger was put forth as a reasonable and normal reaction to her rape. Because her legal team had a better appreciation of her rage, García was able to cope with the trial pressures and was a persuasive witness on the stand. The strategy of self-defense made sense to the jurors who understood García's reasonable fear as she was confronted by the two men who had raped her and had threatened her with more harm. The jury of ten men and two women found her not guilty.
Rage, whether it is felt on the streets of America's ghettos or the thirty-sixth floor of America's financial centers, will not go away. Fury resulting from discriminatory business practices, or from being sexually assaulted, remains a volatile part of our society. When people's wrath lands them in criminal court, it is the responsibility of the good advocate to understand both the social and the personal dimensions of such anger. Only then can the counselor gain the client's trust. Only then can the lawyer develop a strategy that exposes racism or sexism, protects the defendant's dignity, and creates an opportunity to win.
D. Conclusion: (Civil Cases)
The black rage defense is a strategy used primarily in criminal cases. However, there are times when criminal and civil law intersect. In such situations the basics of the black rage defense may be used in both areas. An example discussed in earlier chapters was the James Johnson cases. The racism practiced by Chrysler Corporation contributed to Johnson's mental illness, providing an insanity defense in the criminal trial and creating a basis for disability in the workers' compensation hearing. This is not an isolated example. There is great potential for black rage-type legal actions, if only lawyers would not be frightened by age-old and narrow interpretations of the rules of evidence. The cases analyzed in this book are part of a legal history that is constantly being shaped by innovative pleadings, new conceptual arguments, and fearless advocacy. What is permissible in court is determined by struggle. In 1996 a case unfolded in Brooklyn that epitomizes the power of such creative legal action.
The Noble Drew Ali Plaza housing project is located in the Brownsville section of Brooklyn. Three hundred seventy-five African American families and eight Hispanic families reside there. The project was owned by three white men (Linden Realty), who hired an all-white group of on-site managers. The project was subsidized by the federal government, and rents were set by the government at fair market rates of $650 per month for a one-bedroom to $950 for a four-bedroom apartment. Each family paid 30 percent of its adjusted gross income, and the rest was paid by the federal subsidy.
During the seven years in which this virtually all-black project was run by an all-white group, conditions deteriorated to the point where living there became an environmental nightmare. Tenant Charlene Burwell and her six children were forced to spend three days with raw sewage, including human excrement, overflowing from the toilets, sinks, and bathtub. Yvette Dozier constantly complained about the rotting bedroom floor, fearing for the safety of her two little children. No repair was made, and one day Dozier actually fell through the floor to the apartment below and herniated a disc. Barbara Kelley had an eleven-year-old daughter who was seriously disabled with cerebral palsy and respiratory illness. They lived on the sixth floor and elevators were always broken. When her daughter Rachel needed emergency medical care, the medical workers could not take her down the stairs on a stretcher. As the terrified girl gasped for air, they had to carry her to the roof, cross over to the adjoining building, carry her down to that building's elevator, and finally rush her to the hospital. During one year Rachel needed emergency medical treatment six times-and each time the elevators were broken. Serena Audain lived with her two children, three and six years old. In just one week she caught eight rats in her apartment as they crawled in through holes in walls and cupboards, which the management had not fixed. Rats roamed unchecked in all the buildings.
All the tenants suffered freezing cold in winter, sewage backup with a persistent nauseating stench invading their homes, water leaks, inadequate security, broken fixtures, and management indifference. As Burwell would state in her affidavit, "If we were criminals and lived in a penitentiary, the way we live would be considered cruel and unusual punishment."
Linden Realty was not the sole cause of this despicable situation. The federal government disregarded its own legal responsibility to ensure "safe, decent, and sanitary" housing to the tenants. The Department of Housing and Urban Development (HUD) paid the owners over $15 million in subsidies during a seven-year period. One of the tenants put her finger on the problem: "Even when we pay white people's rents, they still give us black people's services, which is no services at all."
Brooklyn Legal Services attorney Richard Wagner filed a complicated federal lawsuit against Linden Realty on behalf of the Tenants' Association. Wagner has a reputation as a brilliant legal thinker who has demonstrated an unswerving commitment to racial justice. Within six months the case was won. Title was taken away from the owners, and HUD agreed to do almost $5 million in repairs and renovations, after which ownership would be transferred to the Tenants' Association.
Wagner was not content with this victory. He wanted the previous owners to pay for the damage they had done to the lives of the tenants. Barred from suing for damages by constraints placed on Legal Services by a conservative Congress, Wagner took the case to private attorneys. He described in powerful terms the human consequences resulting from seven years of living in deplorable, dehumanizing conditions.
Any child, whether white or black, would find life at a Noble Drew Ali Plaza physically miserable. Any child would find it difficult if not impossible to perform well at school. Any child would feel embarrassed and humiliated at the way they are forced to live.
But I submit that NOT any child would blame herself for these conditions. Not any child would associate her environment with "the way black people live," and think of the very concept of decent living conditions as being white and slumlike conditions as being black.
The fatalism, nihilism, loss of self-esteem and individual ambition, and, ultimately, destruction of the future human potential that is experienced by the black children is more a function of racism than physical environment. IT IS BLACK RAGE TURNED INWARD AND THE EMOTIONAL, SCHOLASTIC AND ECONOMIC DAMAGE IT DOES TO ITS VICTIMS LASTS A LIFETIME.
Wagner was dismayed by the attitudes of most attorneys he approached. Instead of being excited about developing a strategy to translate black rage into legal damages, they muttered about how future scholastic and economic damage would be difficult to prove. They viewed the situation only through the prism of profit-loss, afraid that the task of pushing the courts forward in recognizing the potential economic and psychological damages caused by racism would be outweighed by the time, energy, and risk of losing that the case entailed. Fortunately, a few lawyers around the country think otherwise. One of them is Mercedes Marquez in Los Angeles. For ten years Marquez has accepted the challenge of proving the harm done to people of color by slumlords and an uncaring government, winning a $600,000 jury award among others, and recently settling a case for $2.5 million. As more tenants organize against life-crippling housing conditions, we need lawyers who will expand the black rage defense to civil actions and educate opposing lawyers, judges, and juries to the destructive effects of present-day racism.
One cannot read about rats biting children at Noble Drew without thinking about Bigger Thomas in Richard Wright's novel Native Son. The book opens with Bigger trying to protect his mother, sister, and little brother from a large rat. "A huge black rat squealed and leaped at Bigger's trouser-leg and snagged it in his teeth.... Bigger took a shoe and pounded the rat's head, crushing it, cursing hysterically... His mother sank to her knees and buried her face in the quilts and sobbed." Bigger Thomas turned his rage outward, eventually killing two people. As Rick Wagner interacted with his clients, he saw children and teenagers who also turned their fury outward, becoming violent and predatory. He argued that "these children are as much the victims of black rage as those who turn it inward, except that they find ways to share their pain with society in a way that society does not like but for which it refuses to accept any responsibility."
E. Conclusion: Remake the World
The different black rage cases analyzed in this book allow us to draw some conclusions about when the defense is appropriate and what elements give it the best chance of winning. The potential for the jury to empathize with the defendant should be an overriding concern, informing all tactical decisions. The strategic questions to be considered are as follows:
1. What is the nature of the crime? A property crime is qualitatively different from a homicide.
2. Who or what is the target of the crime? A robbery of a bank that has refused a loan to a burned-down black church is more understandable than a robbery for personal gain. An attack on a person who has racially humiliated and abused a defendant is quite different from a random assault on a passing motorist.
3. Is there a concrete connection between the crime and the defendant's personal history of racial oppression?
4. Has the defendant suffered serious economic hardship?
5. Does the personal history of the defendant tie into the motivation for the crime in a sympathetic manner?
6. What is the attitude of the defendant? Does she see herself as a victim, blaming everyone else for her problems? Or does she present herself as a proud person struggling in a hostile environment?
7. Are there elements of the defendant's culture, either positive or negative, which can be explained to a judge or jury as contributing causes of the crime?
8. Is the defendant capable of taking the stand and, with proper preparation, making a good impression?
The weight one gives to each element will differ depending on the type of caseself-defense, riot situation, duress, diminished capacity, insanity, or mitigation. The presentation will differ depending on whether one is trying to persuade a jury to acquit, a district attorney to reduce charges, or a judge to lower a sentence. In a civil case there will be other elements to consider. But one must always analyze the interplay between a system of white supremacy and the client's personal history and culture.
Peter Kim, a Korean American student at the University of California at Berkeley and a member of the rap group San Francisco Street Music, has written that "the Black Panthers were more than black." He means that the Panthers' messages of pride and empowerment and their programs of breakfast for children, health care, senior citizen security, and food distribution were relevant to all poor communities regardless of race. Similarly, the black rage defense is not limited to African Americans. The main thrust of the defense is to tie together individual behavior and societal conditions. That is why a black rage-type defense was used successfully in a self-defense case for Native American Patrick Hooty Croy (Chpt. 13: Cultural Defenses) and in an insanity case for white ex-convict John Zimmerman (Chpt. 12: White Rage).
The black rage defense refutes the idea that there is a lower class of people who are inherently criminal and can be written off by society. It tries to educate people about the oppressive structures and behaviors in society that produce and increase criminality. It has been said that ignoring race is a privilege that only white people have. This defense forces whites, for a critical moment in time, to give up that privilege and think about the consequences of a system of white supremacy. The black rage defense is not based on race hatred. Rather, it is an antiracist defense, and those who use it should shape their strategies to embrace all people and to teach that society must share the responsibility for crime. This is certainly not a new concept. Indeed, the essence of the black rage defense may have been best stated by the Arabic philosopher, artist, and poet Kahlil Gibran more than seventy years ago:
The righteous is not innocent of the deeds of the wicked,
And the white-handed is not clean in the doings of the felon.
Yea, the guilty is often times the victim of the injured,
And still more often the condemned is the
burden bearer for the guiltless and unblamed.
You cannot separate the just from the unjust and the
good from the wicked;
For they stand together before the face of
the sun even as the black thread and the white are woven together.
The paperback edition has just been published. You can purchase it by clicking on http://www.amazon.com/exec/obidos/ASIN/0814735924/qid=931719547/sr=1-1/002-4946677-2210446 or call NYU press at l-800-996-6987, or ask your local bookstore to order it.
Written by Paul Harris who is a former National President of the Guild, co-founder of the San Francisco Community Law Collective, and author of Black Rage Confronts the Law. He currently works with the Center for Guerrilla Law in San Francisco.