Introduction to the symposium: The jena six, the prosecutorial conscience, and the dead hand of history

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 275-295

  Taslitz, Andrew E ^a,b   Steiker, Carol ^c  

^a UNIVERSITY OF PITTSBURGH   (United States)

^b HOWARD UNIVERSITY   (United States)

^c HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70049115183     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (114)

1. See, e.g.. Noose Hate Crime Act, H.R. 6777, 110th Cong. (2008);
2. S. Res. 396, 110th Cong. (2007);
3. Black Teen Guilty of Battery in Racially Charged La. Case, WASH. POST, June 29, 2007, at A14
4. Abbey Brown, All White Jury Selected for First 'Jena Six' Trial, TOWN TALK (Alexandria, La.), June 27, 2007, at 1A;
5. Mary Foster, Race is Talk of Small Louisiana Town, ASSOCIATED PRESS, July 5, 2007
6. Gretel C. Kovach & Arian Campo-Flores, A Town in Turmoil, NEWSWEEK, Aug. 20, 2007, at 36;
7. Howard Witt, Racial Demons Rear Heads, CHI. TRIB., June 29, 2007, § 1, at 3
8. Farai Chideya, Searching for Justice in Jena 6 Case (NPR radio broadcast July 5, 2007).
9. See sources cited supra note 1.
10. Accord Reed Walters, Op-Ed, Justice in Jena, N.Y. TIMES, Sept. 26, 2007, at A27 (rebutting descriptions of the events by commentators as '"a schoolyard fight,' as it has been commonly described in the news media and by critics").
11. See Abbey Brown, Jury Unanimously Convicts First 'Jena 6' Teen to Face Trial, NEWS- STAR (Monroe, La.), June 29, 2007, at IB;
12. Jesse Muhammed, Young Black Males the Target of Small-town Racism, FINALCALL.COM NEWS, July 25, 2007, http://www.finalcall.com/artman/publish/ article-3753.shtml. The Jena Six teens were originally arrested and charged with aggravated second-degree battery, but on December 11, 2006, the prosecutor amended the charges to attempted second-degree murder and conspiracy to commit second-degree murder.
13. See Supplemental Motion for a New Trial at 1, Louisiana v. Bell, No. 82112 (La. Dist. Ct. Sept. 4, 2007). On the eve of Bell's trial, prosecutor Reed Walters again amended his complaint, this time charging Bell with aggravated second-degree battery and conspiracy to commit aggravated second-degree battery.
14. See id
15. see also Brown, supra. Second-degree murder is a charge for which a juvenile over the age of fifteen must be tried in adult court upon return of an indictment or a finding of probable cause that the offense was committed. LA. CHILD. CODE ANN. ART. 305A (2008). The juvenile procedures transfer statute says nothing about mandatory transfer of attempted second-degree murder. However, the statute does grant the prosecutor discretion whether to seek transfer to adult court of attempted second-degree murder or a second or subsequent aggravated battery but not of a first charge of aggravated second-degree battery.
16. LA. CHILD. CODE ANN. ART. 305B (2008). Neither provision permits transfer solely on conspiracy charges.
17. See also Motion in Arrest of Judgment, Louisiana v. Bell, No.82112 (La. Dist. Ct. August 27, 2007).
18. See Supplemental Motion for a New Trial at 1, Louisiana v. Bell, No.82112 (La. Dist. Ct. Sept. 4, 2007).
19. Mychal Bell of 'Jena 6' Ordered to Juvenile Facility, CNN.COM, Oct. 12, 2007, http://edition.cnn.com/2007/US/law/10/ll/bell.jail/index.html.
20. Interestingly, a Louisiana appeals court removed Judge J.P. Mauffrey, Jr., a Lasalle Parish judge set to hear the remaining Jena Six cases, from doing so on the grounds that Mauffrey created the appearance of impropriety by making several statements suggesting that he had already decided that the accused were guilty.
21. See Judge Taken Off Remaining 'Jena 6' Cases, CNN.COM, Aug. 1, 2008, http://www.cnn.com/2008/CRIMF7r08/01/jena6.appeal/index.html.
22. See Tom Mangold, 'Stealth Racism' Stalks Deep South, BBC NEWS, May 24, 2007, http://news.bbc.co.uk/2/hi/programmes/this-world/6685441.stm;
23. Bill Quigley, Injustice in Jena as Nooses Hang from the "White Tree," COUNTER CURRENTS, July 3, 2007, http://www.countercurrents.org/ quigley030707.htm;
24. Sherrel Wheeler Stewart, Supporters of the Jena 6 Gather 43,000 Signatures for Petition, Rally Calling for Equal Justice, BLACK AMERICA WEB, Posting of Traycee06 to http://traycee-jackson.blogspot.com/2007/07/update-on- jena-six.html (July 31, 2007).
25. Other websites and blogs discussing the Jena 6 include, e.g., Color of Change, http://colorofchange.org/jena/main.html, and Davey D 's Hip Hop Blog, http://blogs.myspace.com/mrdaveyd.
26. See Darryl Fears, La. Town Fells 'White Tree,' But Tension Runs Deep: Black Teens' Case Intensifies Racial Issues, WASH. POST, Aug. 4, 2007, at A3, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/08/03/ AR2007080302098.html.
27. Id. The Jena Times reporter's spin on this report was that the black student had jokingly asked the assistant principal at the end of a student assembly whether black students were allowed to sit under the tree in the center of the campus and that the assistant principal replied that the students could "sit anywhere you want."
28. See Jeannine Bell The Hangman's Noose and the Lynch Mob: Hate Speech Hate Crime and Jena 6 44 Harv. C.R.-C.L. L. Rev. 329 329 (2009) (citing Craig Franklin, Media Myths About the Jena 6: A Local Journalist Tells the Story You Haven't Heard, Christian Sci. Monitor, Oct. 24, 2007, at 2). There was disagreement over whether the tree was in fact a "white tree," one sat under only by whites before the nooses were hung.
29. See id. at n.l.
30. Reports differ as to whether there were two or three nooses. Compare Mangold, supra note 7 (describing three nooses), with Bill Sumrall, Jena High Noose Incident Triggers Parental Protests, TOWN TALK (Alexandria, La.), Sept. 6, 2006, at 6A (noting only two nooses).
31. See Fears, supra note 8;
32. Amy Goodman, " A Modern-Day Lynching"-Parents of Jena Six Speak of Injustice, Racism in Sons' Prosecution, DEMOCRACY NOW, July 10, 2007, http://www.democracynow.org/article.pl?sid=07/07/10/1413228.
33. 12 See Goodman, supra note 11;
34. Wade Goodwyn, All Things Considered: Beating Charges Split La. Town Along Racial Lines (NPR radio broadcast July 30, 2007) (transcript available at http://www.npr.org/templates/story/story.php?storyid=12353776);
35. Mike Taibbi, NBC Nightly News: In Depth: Racial Divide in Jena, Louisiana (NBC television broadcast July 31, 2007).
36. Taibbi, supra note 12.
37. Fears, supra note 8.
38. These alternative reports included a Christian Science Monitor story written by a Jena reporter, who was the husband of a Jena High teacher. See Craig Franklin, Media Myths about the Jena 6: A Local Journalist Tells the Story You Haven't Heard, CHRISTIAN SCI. MONITOR, Oct. 24, 2007, at 9, available at http://www.csmonitor.com/2007/1024/p09s01-coop.html.
39. See id.
40. See id. (describing the incident).
41. See Fears, supra note 8.
42. But see Jason Whitlock, Jena 6 Case Caught Up in Whirlwind of Distortion, Opportunism, KAN. CITY STAR, Sept. 30, 2007, at Bll (noting that the police contend that Windham was threatened, chased to his truck, and had his gun wrestled away from him at that point).
43. See Fears, supra note 8.
44. Mangold, supra note 7.
45. Compare id. (noting that Barker "fell to the ground" and "suffer[ed] bruising and concussion," but was "treated at the local hospital and released, and that same evening felt able to put in an appearance at a school function."), with Walters, supra note 2 (claiming that "[o]nly the intervention of an uninvolved student protected Mr. Barker from severe injury or death.").
46. Abbey Brown, Student May Be Expelled for a Year, TOWN TALK (Alexandria, La.), May 12, 2007, at IB, available at http://www.thetowntalk.com/apps/pbcs. dll/article?AID=/99999999/NEWS/70916032.
47. See Supplemental Motion for a New Trial at 1, Louisiana v. Bell, No.82112 (La. Dist. Ct. Sept. 4, 2007).
48. "See Court Rules 'Jena 6' Defendant to Stay Behind Bars, CNN.COM, Sept. 21, 2007, http://www.cnn.com/2007AJS/law/O9/21/jena.hearing/index.html (stating the bond amounts and alleging that Bell's high bond resulted from his record, which includes four prior juvenile offenses);
49. see also Abbey Brown, 'Jena Six' Defendant's Criminal History Comes to Light; Bond Denied, SHREVEPORT TIMES, Aug. 25, 2007, available at http://www.shreveporttimes.com/apps/pbcs.dll/article?AlD=/20070825/NEWS03/ 708250353;
50. Prosecutor: "Jena Six" Defendant Had Four Juvenile Convictions, TIMES-PICAYUNE (New Orleans, La.), Aug. 25, 2007. State and federal prosecutors investigating the case concluded, however, that the assault on Barker was unconnected to the noose-hanging incident, though the media, protestors, and many students and parents reached very different conclusions.
51. See generally, Barbara Mikkelson & David Mikkelson, Snopes.com, Jena 6 (Dec. 30, 2007), http://www.snopes.com/politics/crime/jena6.asp (last visited April 20, 2009) (advocacy email circulated by supporters of the Jena Six);
52. Jena Six http://en.wikipedia.org/wiki/Jena-Six (serving as a compendium of public views on the case, if not necessarily a recounting of the true events).
53. See Supplemental Motion for a New Trial at 1, Louisiana v. Bell, No.82112 (La. Dist. Ct. Sept. 4, 2007).
54. See id.
55. See id.
56. See LA. CHILD. CODE ANN. ART. 305A (2008).
57. See LA. CHILD. CODE ANN. ART. 305B (2008)
58. see also Josh Bowers, Grassroots Plea Bargaining, 91 MARQ. L. REV. 85, 119 n.165 (2007) (crafting his own argument as to why Walters was wrong to argue that he had no legal grounds for proceeding against the noose- hangers).
59. See LA. CHILD. CODE ANN. ART. 305A (2008);
60. LA. CHILD. CODE ANN. ART. 305B (2008)
61. see also Motion in Arrest of Judgment at 1, Louisiana v. Bell, No.82112 (La. Dist. Ct. Aug. 27, 2007).
62. Cf. Memorandum in Support of Motion in Arrest of Judgment at 5-6, Louisiana v. Bell, No.82112 (La. Dist. Ct. Aug. 27, 2007) (making analogous argument).
63. See Louisiana v. Bell, No. KW 07-01106, slip op. at 1 (La. Ct. App. Sept. 14, 2007).
64. See Howard Witt, Plea Deal Arranged for Teen in Jena 6, CM. TRIB., Dec. 4, 2007, at CI. After his release, Bell tried to commit suicide. He told reporters that he felt special pressure after these events to prove that he was a decent person and to show that he deserved a good future. He hoped to go to college on a football scholarship, and several schools had apparently approached him about that possibility. When he was charged recently with shoplifting, he said that he could not bear how that charge might endanger his potential scholarship. Accordingly, he sought to take his own life.
65. See Kevin McGill Lawyer: Jena Six Teen Shot Himself Out of Despair, ABCNEWS.COM, Dec. 30, 2008, http://abcnews.go.com/US/wire Story?id=6550308.
66. See supra note 3 (discussing various charges).
67. One of the most vocal recent critics is Anthony V. Alfieri. See generally Anthony V. Alfieri, Prosecuting the Jena 6, 93 Cornell L. Rev. 1285 (2008) (critiquing what the author sees as Walters's "colorblind" approach to his charging decisions).
68. See LA. REV. STAT. ANN. §14:107.2 (2007).
69. See LA. REV. STAT. ANN. §14:56 (2007).
70. LA. REV. STAT. ANN. §14:36 (2007);
71. see David Luban, The Inevitability of Conscience: A Response to My Critics, 93 CORNELL L. REV. 1437, 1464 (2008).
72. See Bell, supra note 9, at 349-350 (articulating and defending a variant of this argument).
73. See Luban, supra note 38, at 1464-1465
74. Compare Alfieri, supra note 35, with Luban supra note 38 (neither author dwelling much on these other disparities).
75. See Andrew E. Taslitz, Judging Jena's D.A.: The Prosecutor and Racial Esteem, 44 HARV. C.R.-C.L. L. REV. 393, 394-395 (2009) (citations omitted).
76. See Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public Schools Before the H. Comm. on the Judiciary, 110TH CONG. (2007), http://votesmart.org/speech-detail.php?sc-id=324763 (statement of Donald Washington, U.S. Attorney).
77. Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public Schools Before the H. Comm. on the Judiciary, 110th CONG. (2007), http://www.votesmart.org/speech-detail.php?sc-id=324767 (statement of Charles Ogletree, Professor, Harvard Law School).
78. See Walters, supra note 2.
79. See id.
80. See id.
81. Id.
82. Id.
83. Luban, supra note 38, at 1463 (quoting and summarizing in part Alfieri, supra note 35, at 1296-1302). It should be noted that the United States Attorney's Office's investigation led it to a seemingly different conclusion in some respects from that of Luban and Alfieri. Though conceding that the noose-hangings and the schoolyard brawl were both "likely symptoms of racial tension," the U.S. Attorney concluded that there was "no connection [between the two events] that a prosecutor could take into court and say, 'You know, judge or jury, we're prosecuting these white kids for these nooses, and look at all the damage they caused downstream, all the way down to the fight at Jena High School on December 4 ... .'" U.S. Attorney: Nooses, Beating at Jena High Not Related, CNN.com, Sept. 19, 2007, http://www.cnn.com/ 2007AJS/law/09/19/jena.six.link/index.html. The U.S. Attorney found insufficient evidence to prosecute the noose-hangers for a federal hate crimes or civil rights violation because, in the office's representative's own words: "We could not prove that, because the statements of the students themselves do not make any mention of nooses, of trees, of the 'N' word or any other words of racial hate."
84. Id.
85. Once again, the symbolism of the nooses themselves was deemed an insufficient indicator of racist motivation. In addition, like Walters, the local U.S. Attorney apparently believed that his role was over once he decided not to file federal charges.
86. Walters, supra note 2.
87. See id.
88. See infra notes 72-74 and accompanying text.
89. See infra Part II.B.
90. Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44 HARV. C.R.-C.L. L. REV. 297 (2009).
91. Id. at 299-300.
92. Id. at 305.
93. Id.
94. See Frank Wu, Burning Shoes and the Spirit World: The Charade of Neutrality, 44 HARV. C.R.-C.L. L. REV. 313 (2009).
95. See Bell, supra note 9.
96. Id. at 330.
97. Mari Matsuda, The Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2336 (1989).
98. Id. at 355.
99. 64 See Gabriel Chin, The Jena Six and the History of Racially Compromised Justice in Louisiana, 44 HARV. C.R.-C.L. L. REV. 361 (2009).
100. 92 U.S. 542 (1875).
101. 163 U.S. 537 (1896).
102. U.S. Const, amend. XIII, § 1.
103. See Chin, supra note 64, at 391.
104. See Taslitz, supra note 42, at 395.
105. Id. at 448.
106. See Ellen Podgor, Race-ing Prosecutors' Ethics Codes, 44 HARV. C.R.-C.L. L. REV. 461 (2009).
107. Id. at 474.
108. Id. at 472.
109. Id. at 475.
110. See Joseph Kennedy, The Jena Six, Mass Incarceration, and the Remoralization of Civil Rights, 44 HARV. C.R.-C.L. L. REV. 477 (2009).
111. Id. at 495.
112. Id. at 492.
113. See Sara Sun-Beale, You've Come a Long Way, Baby: The Re-Reform of Juvenile Justice as Seen from Jena, Louisiana, 44 HARV. C.R.-C.L. L. REV. 511 (2009).
114. Id. at 544.