Defense Attorney Resistance

Defense Attorney Resistance Robin Walker Sterling  INTRODUCTION .................................................................................... 2246 I. THE CRIMINAL JUSTICE SYSTEM AS STATUS REGIME MODERNIZATION ................................................................................. 2251 II. BARRIERS TO THE VINDICATION OF RACE-BASED CHALLENGES ........... 2255 III. RECONCEPTUALIZING THE ROLE OF THE PUBLIC DEFENDER ............... 2263 A. P RE -T RIAL ..................................................................................... 2265 1. Motion to Dismiss in the Interests of Justice (or, in Juvenile Cases, in the Best Interests of the Child) ............. 2265 2. Motions to Suppress: Testing Implicit Race Bias ............... 2266 B. T RIAL : U SE OF N ARRATIVE .............................................................. 2268 C. P OST -T RIAL : J URY I NSTRUCTIONS .................................................... 2270 CONCLUSION ....................................................................................... 2271  Assistant Professor of Law, University of Denver Sturm College of Law. I would like to extend my heartfelt thanks to Professor James Tomkovicz and the members of the Iowa Law Review for allowing me the honor of participating in this symposium. I would also like to thank my colleagues at Denver Law, and in particular the participants in the Rocky Mountain Collective for Race, Place and the Law (RPL). I would like to express special appreciation to Professors Patience Crowder, Christopher Lasch, Nantiya Ruan, and Lindsey Webb. Michael Laskin, Amelia Power, and John Chase provided superlative research assistance. 2246 IOWA LAW REVIEW [Vol. 99:2245 INTRODUCTION As they considered Clarence Earl Gideon’s petition, the justices of the United States Supreme Court likely had no idea what his race was. 1 Before the August 1963 2 release of the iconic picture of Mr. Gideon in a button-down shirt looking past the camera through owlish glasses, and his portrayal by Henry Fonda in the 1980 film Gideon’s Trumpet , 3 Mr. Gideon’s race, entirely omitted from the record of the court proceedings, was unknown. But, operating as it was in the midst of the Civil Rights Movement, it is likely that the Court viewed Gideon’s case through the prism of its deep and abiding concern about racial injustice. 4 Statute by statute, in civil and criminal cases, and in words and actions, the Court “disassembled the legal scaffolding of American apartheid, one indignity at a time.” 5 The Warren 1. KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR PEOPLE’S JUSTICE 65 (2013). 2. According to a recent article in The Nation , the photo is dated August 6, 1963, five months after the Gideon case had been decided. See Stephen B. Bright & Sia M. Sanneh, ‘ Gideon v. Wainwright ’, Fifty Years Later , NATION (Mar. 20, 2013), http://www.thenation.com/article/ 173458/gideon-v-wainwright-fifty-years-later (stating in a caption under the photo: “This Aug. 6, 1963, file photo shows Clarence Earl Gideon, 52, the mechanic who changed the course of legal history, after his release from a Panama City, Florida, jail.”). 3. See ANTHONY LEWIS, GIDEON’S TRUMPET (1964). The book was made into a movie, also called Gideon’s Trumpet , in 1980. Gideon’s Trumpet (CBS television broadcast Apr. 30, 1980). The movie starred Henry Fonda as Clarence Earl Gideon, Jose Ferrer as Abe Fortas, and John Houseman as Chief Justice Earl Warren. Id. “Gideon’s Trumpet” refers to the biblical story, in which Gideon won a battle over the larger army of the Midianites by having his small army carry trumpets and torches hidden in clay pots; the noise from the trumpets and the lights from the torches tricked the enemy into thinking that it was pitted against a much larger army, so that Gideon won the battle without much actual fighting. Judges 7:16–22. 4. See generally Burt Neuborne, The Gravitational Pull of Race on the Warren Court , 2010 SUP. CT. REV. 59 (2010) (observing that racial equality played a “dominant role” in the Warren Court’s jurisprudence); see also Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court , 86 YALE L.J. 1035, 1037 (1977); Barry C. Feld, Race, Politics, and Juvenile Justice: The Warren Court and the Conservative “Backlash,” 87 MINN. L. REV. 1447, 1484, 1494 (2003) (discussing the Warren Court’s “perceived . . . need . . . to protect minority offenders” and desire to make its own contribution to the Civil Rights Movement by “focus[ing] on procedural rights” as an answer to the country’s profound “concern about racial inequality”). 5. Robin Walker Sterling, Fundamental Unfairness: In Re Gault and the Road Not Taken , 72 MD. L. REV. 607, 634 (2013) (citing Lee v. Washington, 390 U.S. 333, 334 (1968) (striking down racial segregation in prisons); Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down laws banning interracial marriage); Brown v. Louisiana, 383 U.S. 131, 143 (1966) (integrating public libraries); Anderson v. Martin, 375 U.S. 399, 402–04 (1964) (outlawing racial designations on the ballot); Johnson v. Virginia, 373 U.S. 61, 61–62 (1963) (prohibiting segregated courtrooms); Turner v. City of Memphis, 369 U.S. 350, 351–53 (1962) (invalidating segregation in airport restaurants); New Orleans City Park Improvement Ass’n v. Detiege, 252 F.2d 122, 123 (5th Cir. 1958), aff’d , 358 U.S. 54 (1958) (outlawing segregated parks and playgrounds); Dawson v. Mayor of Baltimore City, 220 F.2d 386, 377 (4th Cir. 1955), aff’d , Mayor of Baltimore City v. Dawson, 350 U.S. 877 (1955) (banning segregated public beaches); Hamm v. Virginia State Bd. of Elections, 230 F. Supp. 156, 157 (E.D. Va. 1964), aff’d , Toncil v. Woolls, 379 U.S. 19 (1964) (banning separate voting and property tax records were banned); 2014] DEFENSE ATTORNEY RESISTANCE 2247 Court’s concern about racial injustice was so broad “that it played a significant role in shaping many of the most important constitutional decisions of the Supreme Court in areas as diverse as federalism; separation of powers; criminal law and procedure; freedom of speech, association, and religion; procedural due process of law; and democracy.” 6 The Court’s decisions are full of language evincing its concern over racial injustice. For example, in Miranda v. Arizona , 7 “Chief Justice Warren stressed the impact of private interrogation on . . . ‘an indigent Los Angeles Negro who had dropped out of school in the sixth grade.’” 8 And the Court remarked that the facts in Duncan v. Louisiana “bore hallmark indicia of Jim Crow injustice.” 9 As the Court would proclaim in Green v. County School Board of New Kent County , the mission of the post- Brown cases was to eliminate race discrimination “root and branch.” 10 So it was with the right-to-counsel cases, the most famous of which is Gideon , the Court sought to address its “concern over a criminal justice system where white judges and prosecutors processed poor, unrepresented blacks and Hispanics.” 11 When the Gideon decision was handed down in 1963, the nation was swept up in the zeitgeist of the Civil Rights Movement, and the demographics of the nation’s criminal justice system crystallized the need for intervention. The FBI’s crime index for arrest rates between 1965 and 1972 indicate that non-white adults were arrested at least five times the rate of white adults. With respect to juveniles, non-whites were arrested at least twice as often as white juveniles during the same period. When arrested for violent crimes, non-whites were arrested at least nine times as often as white people between 1963 and 1972. 12 Indeed, the Court had “two main Dorsey v. State Athletic Comm’n, 168 F. Supp. 149, 153 (E.D. La. 1958), aff’d , State Athletic Comm’n v. Dorsey, 359 U.S. 533 (1959) (striking down laws banning interracial boxing); Gayle v. Browder, 142 F. Supp. 707, 717 (M.D. Ala. 1956), aff’d , 352 U.S. 903 (1956) (ending racial segregation in public transportation in Montgomery, Alabama; banning laws that required blacks to ride in the back of public buses)). 6. Neuborne, supra note 4, at 60. 7. Miranda v. Arizona, 384 U.S. 436 (1966). 8. Cover & Aleinikoff, supra note 4, at 1037 (quoting Miranda , 384 U.S. at 457). 9. Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute , 110 COLUM. L. REV. 1655, 1692 (2010). 10. Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 438 (1968). 11. Neuborne, supra note 4, at 86. 12. U.S. Census Bureau, National Estimates by Age, Sex, Race: 1900 – 1979, available at http://www.census.gov/popest/data/national/asrh/pre-1980/PE-11.html (noting that in 1963, 10.7 percent of the U.S. national population was considered black, less than one percent were considered other races, and 88 percent of the U.S. populate was white); see also U.S. Census Bureau, Population Estimates Program, Population Division, at 1 (2000), available at, http://www.census.gov/popest/data/national/totals/pre-1980/tables/popclockest.txt (providing national population estimates from years 1900-1999); see U.S. Dep’t of Justice, Federal Bureau of Investigation,“Age-Specific Arrest Rates and Race-Specific Arrest Rates for Selected Offenses,” 1965-1992, 1, 181, available at , https://ncjrs.gov/pdffiles/Digitilization/148356NCJRS.pdf. 2248 IOWA LAW REVIEW [Vol. 99:2245 purposes” when it decided Gideon : (1) protecting the innocent from conviction; and (2) protecting African Americans from Jim Crow injustice. 13 Although the first goal was explicit, and second goal was covert, 14 there is no mistaking that Gideon was a racial justice case. 15 But if Gideon ’s pronouncement was motivated by the pursuit of racial justice, its promise remains largely unfulfilled. Whether it represents a retrenchment of racial mores in response to the gains of the Civil Rights Movement, or results from innumerable other factors, the subsequent explosion in the population of the nation’s...