Thirty days later we were back in court on the felony charge of failure to appear. The prosecutor adamantly argued for substantial prison time, but the judge had been favorably affected by the evidence in the trial, the defendant’s testimony, and the jury verdict. The sentence was five years probation.
A few days later I called three of the jurors to find out what had taken place in their deliberations. They told me that the first vote was seven for guilty and five for not guilty. The foreperson, Susan Lowenstein, was one of those favoring acquittal. Lowenstein had been very moved by the trial, both intellectually and emotionally. She argued that Steven’s testimony showed his remorse and that the crime was inconsistent with his prior life. The second vote was seven for not guilty, four for guilty, and one undecided.
On the second day some racial issues came up that had not been part of the trial. For example, it turned out that eleven of the jurors were against busing in order to achieve integration. But Lowenstein kept the focus on the case itself. Many of the jurors accepted our theme that the robbery was a cry for help. The third jury poll was nine for not guilty, one for guilty, and two undecided.
The one holdout admitted that his mother was a bank teller and had been held up twice. Lowenstein pointed out that he had not told the lawyers this fact on voir dire, and that it sounded like he was biased. Shortly thereafter there was another poll, which was unanimous for acquittal.
Months after the acquittal, one of the arresting police officers vented his frustrations in a publication of the Police Officers’ Association. His article was picked up by a conservative columnist for a San Francisco newspaper. Under the heading “Caught Red-Handed” the columnist wrote, “The defense attorney argued that his client was innocent because of ‘diminished capacity’ caused by social pressures. These pressures seemed to be that he was black, out of a job and needed money. . . . He walked out a free man.” The columnist followed up with another piece in which he printed letters he had received from readers who were outraged at the acquittal and blamed the judge and jury. Neither of these columns mentioned “black rage.” I had felt it was presumptuous for a young white lawyer who had only completed two jury trials to give my defense a name, much less a name as controversial as “black rage.” But other lawyers who heard of the trial began to refer to it as the “black rage defense.”
I was a member of the National Lawyers Guild. One benefit of being active in an organization is that it puts you in touch with others in similar fields and spreads your ideas. The National Lawyers Guild began in 1937, partly as an integrated alternative to the racially segregated American Bar Association. The Guild had been a place for left and progressive lawyers, and by the time of the Steven Robinson case its membership included law students, legal workers, and jailhouse lawyers. Many people in the organization were enthusiastic about the Robinson trial, and with their encouragement I spoke at law schools throughout the Bay Area, using the phrase “black rage defense.”
After completing two more black rage trials, I began to speak at a few legal education seminars and consult with other attorneys around the country. Very slowly, the concept of a black rage defense began to enter the country’s courtrooms and the legal literature.
Years later, a Hollywood screenwriter interviewed most of the participants in the trial and wrote a screenplay. By that time Steven had successfully completed his probation and had left the Bay Area. By refusing to plead guilty to a white legal system he had been a catalyst for a defense that challenged that very system.
Chapter 3 The Law: Its Myths and Rituals
That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.
—Langston Hughes, “Justice”
The black rage claim is a political defense because it confronts the myths of the law. It is a political defense because it injects race and class into a legal system that steadfastly avoids an honest and true discussion of these issues. Before we can fully understand the problems of raising and winning a black rage defense, it is helpful to analyze the legal culture in which we are immersed. This chapter examines the role of the law and three of the major underpinnings of the legal system: courtroom rituals, legal reasoning, and the pretense of colorblindness.
The law is the most powerful expression of a society’s rules. The dominant purpose of the law in every country is to preserve the status quo, to protect people and institutions who have privilege and power, whether in government or in civil society. The law fulfills this purpose by the peaceful resolution of conflicts, but also by coercion. An example of the resolution of conflict through the legal system is the immense amount of time, money, and energy used in dealing with business arrangements. Politicians complain about criminal cases clogging up the courts, but in reality most lawyers’ time and a large amount of litigation concern capitalist business deals and conflicts. A 1995 University of Wisconsin survey reported that only 3 percent of lawyers focus on criminal law. In San Francisco in 1995, the public defender’s office had sixty-eight lawyers, eleven investigators, and thirty staff personnel. In contrast, one of the largest corporate law firms, Pillsbury, Madison, and Sutro, had 294 lawyers and 335 staff personnel in their San Francisco office alone. They also have ten other offices, including one in Hong Kong and one in Tokyo.
Criminal law gets most of the media attention, but corporate law is where billions of dollars are negotiated and litigated, and where decisions are being made which control our environment, our jobs, and the very quality of our lives. The law is necessary to facilitate and mediate these decisions, thereby avoiding an anarchy that would severely disrupt the free market and societal relations.
The law also mediates thousands of other conflicts in civil society, from landlord-tenant conflicts to consumer-related product liability suits; from simple car accident cases to major constitutional issues; from divorces to bankruptcy proceedings. In the United States in particular, law seems to surround us.
Peaceful resolution of conflict through the mutual acceptance of a judicial forum is one method of keeping society on an even keel. Another method is coercion—using the force of the state, or the threat of that force, on individuals in order to secure their obedience. And when they fail to obey, the state uses that force to inflict punishment. Robert Cover gets to the heart of the matter when he writes, “The Judges deal pain and death. That is not all they do. Perhaps that is not what they usually do. But they do deal death, and pain.”1
If law’s primary purpose is to protect the powerful and keep things as they are, in America its secondary purpose is to protect individual rights. The Bill of Rights is the cornerstone of these protections. Of course, the rights of free speech, the right not to be tortured into confessing, the right to abortion, the right not to be forced to go to a segregated school, the right to a jury trial—these, and all of our liberties, did not come to us as self-executing protections leaping off the parchment of the Constitution into our lives. People fought for these rights, in the courts and in the streets. It is because of the right of due process for people who are arrested that the black rage defense can be raised and developed. It is because the law is more than stark, brutal coercion that the black rage defense can exist and be used to free persons charged with crimes.
If human history teaches us anything, it is that governments cannot rule by force alone. In every period of history people have fought against tyranny. Whether in the form of men shooting rifles on Bunker Hill in colonial America, or women marching with signs protesting the disappearance of family members at the Plaza de Mayo in Buenos Aires, Argentina, or schoolchildren with their voices raised in song in the streets of Soweto, South Africa, people ultimately will attempt to organize and rebel against arbitrary and unjust state power. Therefore, for a government to continue to hold power it must create a legal system that has an image of justice and some sense of fairness. It must also win the psychological acceptance of the majority of its citizens. How it does this has been the subject of increasing academic scrutiny. One of more prevalent theories of this process