Black Rage Confronts the Law

Front matter

w Harris

Black Rage Confronts the Law

CRITICAL AMERICA General Editors: Richard Delgado and Jean Stefancic

Contents

Acknowledgments xi

The Black Rage Defense, 1846: The Trial of William Freeman 9 The Black Rage Defense, 1971 31

The Cultural Defense and the Trials of Patrick Hooty Croy 241 “Remake the World” 264

Introduction

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 a country divided by color and class, racial oppression and poverty have always been causal agents of theft and violence. However, lawyers have had difficulty translating these consequences of racism into the language of the criminal courtroom. The law does not allow the simple fact of racial discrimination as a defense to murder. Long-term unemployment is not accepted as a defense to bank robbery. French novelist Anatole France’s famous ironic quote about the law is an accurate explanation of the inequality of the American legal system: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Although legal doctrine has maintained a claim of class neutrality and a facade of colorblindness, in some cases lawyers have been able to break through the criminal law’s resistance to allowing social reality into the courtroom. In 1846 William Henry Seward, one of the foremost lawyers and politicians of the time, defended twenty-oneyear-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 Clarence 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.

The Freeman and Sweet cases were not described at the time as black rage defenses. But they were stunning examples of lawyers articulating how white supremacy had led to murder charges against blacks. They also were examples of confronting white juries, white judges, and a white legal system with the rage, pride, and strength of black people.

Between the 1930s and the 1970s the best-known black rage case was a fictional one. Richard Wright, in Native Son, created the classic case of a lawyer arguing that the system of white supremacy had produced his client’s crimes. Although Native Son was published in 1940, Wright depicted the anguish and bottled-up fury experienced by many of today’s black youth. In the opening scene Bigger Thomas, a young black man, kills a huge rat that has attacked him in his family’s ghetto apartment. As his sister comforts their mother, Bigger tries to shut the crying out of his mind.

He hated his family because he knew that they were suffering and that he was powerless to help them. He knew that the moment he allowed himself to feel to its fulness how they lived, the shame and misery of their lives, he would be swept out of himself with fear and despair. So he held toward them an attitude of iron reserve; he lived with them, but behind a wall, a curtain. And toward himself he was even more exacting. He knew that the moment he allowed what his life meant to enter fully into his consciousness, he would either kill himself or someone else. So he denied himself and acted tough.

Bigger begins to work for a wealthy white family whose daughter Mary attempts to befriend him. One night, after heavy drinking, he helps her into her room and puts the semiconscious young woman in her bed. He then lies down next to her and kisses her. Suddenly, Mary’s blind mother knocks on the door. Terrified that he will be found in her bed, Bigger puts a pillow over Mary’s mouth to keep her quiet. She suffocates, and in a frenzy of fear Bigger tries to dispose of the body in the furnace. Later in the novel he murders his girlfriend because he is afraid that she will talk and give him away.

Bigger is charged with murdering Mary and raping her (which he did not do). His lawyer knows that in the prejudiced public atmosphere there is no chance for a manslaughter verdict, so he has Bigger plead guilty. He then argues to the judge to give Bigger life imprisonment instead of the death penalty.

Wright was a leftist, and in Native Son he created a Communist defense attorney who delivers a passionate indictment of racism. In the attorney's plea for life imprisonment he attempts to answer the question of “why a man killed.” The answer he proposes is found in the nexus between racial oppression and Bigger’s life. This link between society and the individual is at the crux of the black rage defense.

Thirty-one years after Native Son was written, black rage and black pride became the defining characteristics of two seminal criminal cases. The murder trial of a Chrysler autoworker in Detroit and the bank robbery trial of an unemployed draftsman in San Francisco were the incarnation of what became known as the black rage defense.

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-emcompassing 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.

One major misconception surrounding the black rage defense is that it is a race hatred defense. This notion grew out of cases such as that of

Colin Ferguson. Ferguson is the Jamaican immigrant living in New York who killed six people and wounded nineteen others on a Long Island commuter train in 1993. Initially his lawyers said they were going to use a black rage defense as part of an insanity claim. Ferguson later fired them and represented himself, denying that he had done the shootings. In the massive publicity surrounding the case many pundits portrayed the black rage defense as an attempt to justify violence against white people solely on the basis of previous racial oppression. Commentators also criticized the defense as an abdication of individual responsibility. These criticisms are enshrined in Alan Dershowitz’s book The Abuse Excuse, which attacks all environmentally based defenses.

In fact, no black rage defense has ever argued that African Americans are entitled to attack whites solely because of a history of oppression. However, the improper use of the defense by well-meaning lawyers can leave an impression that racial violence against individual whites is a legitimate response to racial discrimination. A mistaken strategy can also lead to a “poor-me” characterization of the defendant. A review of actual cases reveals that judges and juries will reject a defense based on race hatred or victimization.

These inaccurate stereotypes of black rage cases can be symbolized by the picture of an angry black male with a gun in his hand standing over a dead white man. In fact, the cases include all types of crimes, and the black rage defense is often used in positive situations such as self-defense. Nor is it limited to men—African American women also feel agony, grief, misery and anger. The richness of African American literature reminds us of their rage. Just a few years after the success of Native Son, Ann Petry’s novel The Street was published. Petry’s heroine, Lutie Johnson, uses a candlestick to crush the skull of a black man who has abused her. Her violence is described as a reaction to a “lifetime of pent-up resentment.”

First she was venting her rage against the dirty, crowded street. She saw the rows of dilapidated old houses; the small dark rooms; the long steep flights of stairs; the narrow dingy hallways; the little lost girls in Mrs. Hedges’ apartment; the smashed homes where the women did drudgery because their men had deserted them.

Then the limp figure on the sofa became . . . the insult in the moist-eyed glances of white men on the subway; became the unconcealed hostility in the eyes of white women; became the gaunt Super pulling her down, down into the basement.

Finally, and the blows were heavier, faster, now she was striking at the white world which thrust black people into a walled enclosure from which there was no escape. ...

She saw the face and head of the man on the sofa through waves of anger in which he represented all these things and she was destroying them.

Although almost all recorded black rage defenses involve male defendants, chapter 10 in this book, on post-traumatic stress disorder, highlights the juvenile case of seventeen-year-old Felicia Morgan, who in 1991 robbed and killed a teenage girl in Milwaukee. Chapter 9 critiques the two high-profile trials of Inez Garcia, who shot and killed a man who aided his friend in raping her. Garcia is not African American, but the strategy of the black rage defense can and should be used by other races.

The concept that environmental hardship leads to criminal acts regardless of a person’s race can also be found in African American literature. Black rage is the rage of the oppressed. Willard Motley, in his 1947 bestselling novel Knock on Any Door, shows how poverty and police abuse cause an Italian American to turn to crime. Like Bigger Thomas, Nick Romano grew up in Chicago. Although their worlds are separated because of segregation, much of their lives are similar. Motley created a defense lawyer who asks the jury to answer the question, “Who is Nick Romano.”

All of his life has been a dirty, murky, rainy, foggy night.... We might say Nick is guilty—he is guilty of having been reared in desperate poverty in the slums of a big city... . At home, a father who does not understand and who, with a stick or club chases you into the street. Walk with Nick along West Madison at night when the beat cop comes swaggering down the street. ... Stay two nights in jail for no other reason than that you were walking on the street. Be slapped! — punched! —kicked! —if you so much as answer — the law— back.

Nick Romano, twenty-one years old, is executed, just as Bigger Thomas is executed. Motley ends the novel by warning the reader that if one were to walk down Maxwell Street and “knock on any door,” they would find another boy just like Nick Romano, filled with rage.

The criminal courtroom has always been a place where the law focuses on the individual. The defense lawyers in Wright’s and Motley’s novels try unsuccessfully to force the legal process to focus on the relationship between society and the alleged criminal. The black rage defense has succeeded in the same endeavor. Although this book concentrates on African Americans, it also discusses cases in which the environmental defense has been extended to a Native American who killed a policeman, and to a poor white ex-convict who robbed six banks.

There has been growing criticism of the political separation of the races in the United States. Social critic Todd Gitlin, in his book The Twilight of Common Dreams, writes that 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.

The sword comes into the world because of justice delayed and justice denied.

Chapter 1 The Black Rage Defense, 1846: The Trial of William Freeman

The first recorded black rage defense took place in 1846. The parties involved included the son of an ex-slave and the wealthiest family in Cayuga County, New York. The prosecutor was the son of a U.S. president, and the defense lawyer was a former governor of New York. The trial was described as “one of the most interesting and extraordinary criminal trials that ever occurred in our country.”’ It is a story of oppression and blood. It is a story of race and America.

William Freeman was born in a little settlement called New Guinea, a half mile from the town of Auburn, New York, in the year 1824. His father, James, a former slave, had been able to purchase his freedom in 1815. His mother, Sally, was part Native American, part African American, and was said to have some French blood. Therefore, William, or Bill as he was called, was considered a “quadroon of Tartar and African descent with a visage strongly marked with the distinctive features of the North American Indian.”

Sally’s tribe was virtually wiped out in the area near Berkshire, Massachusetts. She was a house servant and was sent to work in Auburn in 1817.

There she and James were married, and William was born. Just three years after Bill was born, his father fell off the dock where he was working in Albany and died from the injuries. As was the custom with black children, Bill was sent to work as a servant boy for a white family when he was only seven years old. When he was nine he was transferred to the family of Ethan Warden, but he was fired because “of an uncontrollable disposition for play with other colored boys, which rendered his services valueless.”

Bill was then sent to work in the home of a judge. But he often left the estate to play in the countryside. He was so good at figuring out how to get away that this skill was blamed on his Indian heritage.

In the winter he worked doing household chores for a family named Lynch. When he was truant in his duties, Mrs. Lynch would whip him. Finally, unable to bear these whippings, the little boy escaped from the house and in his night clothes, in the freezing New York winter, fled home to his mother.

As Bill grew up he worked many places in and around Auburn, sometimes in private homes, sometimes as a waiter in local hotels. He was an intelligent, friendly, honest teenager who occasionally drank, as did his mother. When he was sixteen, however, an event took place that changed his life forever.

A woman named Martha Godfrey, in a town five miles from Auburn, had one of her horses stolen. Bill, who had been in the area, was arrested. After an examination by the magistrate, however, he was released. Weeks later the horse was found in a nearby county. It had been sold by a black man named Jack Furman. Furman knew that Bill had been a suspect and blamed the theft on him. Bill was again arrested. After a month in jail, frightened and desperate, he managed to break the lock of his cell, and he and another prisoner escaped. His cellmate was captured almost immediately, but Bill reached the woods and for two weeks was able to avoid the search parties. Finally, he was caught in a nearby town and returned to jail. Two months later he went on trial for larceny and breaking jail.

There were only three witnesses for the prosecution. Mrs. Godfrey testified to the loss and recovery of her horse. Mr. Doty, a neighbor, testified that he saw a Negro on the horse the night it was stolen. Jack Furman said that he went to the stable with Bill and saw him steal it. Bill testified that he was innocent and that he had only broken out of jail because he

The Black Rage Defense, 1846 u had heard Furman was going to lie about him in order to avoid prosecution.

The jury convicted Bill, and he was sentenced to five years at one of two large penitentiaries in New York, the State Prison at Auburn. Charges against Furman were dismissed. Evidence was later discovered that placed Bill at a different location on the night the horse was stolen. Furman, in the meantime, was arrested for another horse theft and was tried and sentenced to prison. But it was too late for Bill; he had been shipped off to what would become a nightmare of tragic proportions.

When sixteen-year-old Bill arrived at the prison he began to weep. Every person has a little place in his or her soul where hope is kept alive. Even though Bill had lived under an unjust system, some small part of him believed in justice. He was aware that new evidence had been found proving he was nowhere near the stable of the stolen horse, so Bill waited to be set free, but no relief came. The eyes of justice were indeed, in the words of the poet Langston Hughes, “two festering sores.” * How long can a man—or a sixteen-year-old boy—be in a prison cell wondering why he has been locked away for a crime he did not commit, without terrible changes taking place in his psyche?

Bill had been sentenced to hard labor. The prison had many shops where convicts worked under the supervision of private contractors. For two years Bill worked, mainly filing iron for plating. As time went on Bill became less intimidated and more angry. He resolved to struggle for the justice he felt he deserved. He told his bosses he should not have to work because he had done nothing to deserve being locked up in prison. The response he received was threats of punishment. So Bill worked less and less, which created hostility among his bosses, who viewed him as ignorant and incorrigible.

The keeper of the shop where Bill worked most of the time was a man named James Tyler. Tyler did not like Bill’s attitude and felt he was not doing enough work. He repeatedly threatened Bill with punishment. One day Tyler told Bill he didn’t want to hear any more excuses about being imprisoned. He said he was done trying to talk to him and was going to flog him. He ordered Bill to take off his clothes, and then turned around to get a cat-o’-nine-tails. Tyler later claimed that at this point Bill attacked him, and that during the fight Bill got hold of a knife. This was never confirmed by any other witnesses. But one thing was clear: Tyler hit Bill on the left side of his head with a large board that broke into pieces from the force of the blow. Tyler denied that the blow could have hurt Bill. Years later, however, a medical examination confirmed that the force of the board on Bill’s left ear had broken the ear drum and permanently damaged his left temporal bone.

Bill was now deaf in his left ear. His spirit seemed broken. He worked carrying yarn to and from the dye shop. He became sullen, morose, and easily provoked. He had two fights with other convicts over minor disputes, and both times Bill was flogged. The second time, the whipping was so bad that he could put his fingers into the hole that had been cut between his ribs.

His mental condition deteriorated. Prison rules did not allow conversation between inmates, and prisoners were supposed to talk to their bosses and guards only when it was necessary in performing their duties. With such disciplinary rules, no one recognized Bill’s worsening condition. They stereotyped him as a stupid, childlike Negro with a bad attitude. His brother-in-law, John Depuy, came to the prison five times to visit Bill. He was shocked at Bill’s state. He came home to tell Bill’s mother that her son had become deranged. The mother was so pained by what had happened to her son that she was unable to bring herself to go to the prison and face Bill.

After five years of prison, the day of Bill’s release arrived. The prison chaplain offered him a Bible, but Bill couldn’t read. Then the clerk told him to sign a voucher to receive two dollars. Bill looked at the voucher and said, “I have been in prison five years unjustly, and ain’t going to settle so.” The prison officers and the chaplain laughed.

John Depuy took him from the cold, foreboding halls of Auburn State Prison. Bill hardly recognized his brother-in-law. As they traveled home, Bill said he had accidently broken a dinner knife while eating and the guards had threatened to give him five more years in prison. He was afraid and asked John if they could do that to him. Over and over he said he needed to find the people who had caused him to be imprisoned and to make them pay him for the injustice he had suffered.

For months he lived with John. The people who had known him, both black and white, were stunned by the changes in him. He rarely talked, and when he did he often made little sense. People had described him as “a lad of good understanding and of kind and gentle disposition.” Now he seemed stupid, angry, and prone to break out in loud laughter for no reason.

One day, Bill walked the five miles to Mrs. Godfrey’s house and told her that he was innocent of stealing her horse and that he wanted her to pay him a settlement. She felt sorry for him and gave him some cakes. He left quietly.

Bill then went to a lawyer and asked for a warrant for the man whose testimony had put him in prison, saying that he wanted to get damages. The lawyer’s clerk told him to go to the justice of the peace’s office. A few days later he went to see a lawyer named Lyman Paine, who was a justice of the peace. Bill said he wanted “a warrant for the man who put me to State Prison.” Paine told him that the only warrant he could make out would be for perjury, and that he would need detailed facts to issue such a warrant. But Bill could not understand and just kept repeating himself. Finally, Bill threw a quarter on the table and said, “Sir, I demand a warrant.” He soon left the office but returned in the afternoon and gave Paine the names of Mr. Doty and Mrs. Godfrey. Paine would not issue a warrant and sent him away again. Refused a warrant, but unwilling to give up, Bill went to another justice two days later. Again he was denied a warrant and was informed that there was no legal remedy for his problem.

During the same period of time, Bill went to the John Van Nest farm, on Owasco Lake, four miles from Auburn. The Van Nests were a very wealthy and well-respected family. They had no previous relationship with Bill and had never seen him before. He asked for a job, was politely refused, and left the farm.

After being refused a warrant and visiting the Van Nest farm, Bill became more and more agitated. He bought two knives and, while showing them to John Depuy, started to threaten him. After John calmed him down, Bill said that he had found the folks that had put him in prison— “they were Mr. Van Nest” —and that he was going to kill them.

On the night of March 12, 1846, twenty-two-year-old William Freeman left the settlement at New Guinea with his knives, drank a pint of liquor, and walked to the Van Nest farm. He walked back and forth outside the yard, until after a long wait he saw Mrs. Van Nest open the back door and step outside. He ran toward her and began stabbing her. Her husband, John Van Nest, heard her screams and opened the door. Bill jumped on him and quickly killed him. He then ran upstairs and into a room where George, their two-year-old son, was sleeping, stabbing the boy so hard the knife pierced the bed. One of the men in the house, Cornelius Van Arsdale, confronted Bill and was also stabbed, but he managed to hit Bill with a candlestick and knock him down the stairs. As Bill left the house he ran into Mrs. Wyckoff, the mother-in-law, who attacked him with a carving knife and severed the tendons in his wrist. In the struggle, he stabbed her in the stomach. She too would die, two days later. Bill ran to the stable, took an old horse, and fled.