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January 19, 2011

"Death and Dixie: How the Courthouse Confederate Flag Influences Capital Cases in Louisiana"

The title of this post is the title of this interesting piece available via SSRN authored by two capital lawyers in Louisiana.  Here is the abstract:

This article explores the constitutional problems associated with flying the Confederate flag at a death penalty trial in the South.  Specifically, the Confederate flag at Caddo Parish Courthouse, in Shreveport, Louisiana, plays a toxic role in the administration of the death penalty in Shreveport.  Post-Furman, Caddo Parish juries have voted to impose the death penalty on sixteen men and one woman: all but four have been black, and the combination of black-defendant and white victim exponentially increases the likelihood of aggressive prosecution.  The flag’s presence at this courthouse raises unique dangers. Beyond the equal protection issues generated by the mere government display of the flag on state property, the flag’s presence at a courthouse implicates the accused’s right to due process, and both the defendants’ and the prospective jurors’ rights to all of the privileges or immunities attendant to being a citizen of a state in the Union.

Perhaps I should have waited a week to note this article; January 26th of this year happens to mark the 150th anniversary of Louisiana's decision in 1861 to secede from the United States.

January 19, 2011 at 04:57 PM | Permalink

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Comments

No need to wait a week. Today in Texas it's "Confederate Heroes Day," an official state holiday. State agencies were on skeleton crew.

Posted by: Gritsforbreakfast | Jan 19, 2011 9:06:01 PM

funny i though legally that flag was still illegal

Posted by: rodsmith | Jan 19, 2011 11:13:23 PM

Just how is the presence of the flag biasing anyone? What's the link to death penalty cases? I fail to see any connection or relevance, maybe slip n fall lawyers can but normal rational people won't. Maybe we should remove the US flag when deciding illegal alien immigration cases? I'm sure this is next.

Posted by: DeanO | Jan 20, 2011 8:19:14 AM

The flag's the least of the defendant's worries! At the risk of self-indulgence, let me give you a little cultural background on the region:

I grew up 80 miles west of Caddo Parrish and my brother is a Baptist minister in Shreveport. Until I was 18 when I left for college, I had a Confederate battle flag hanging over my bed. Last time I went home it was still hanging in my septuagenarian father's garage. As a kid, our family visited Confederate battlefields all over the South on family vacations and Lee and Davis were venerated alongside Washington, (paradoxically) Lincoln, and of course, later on, Ronald Reagan. (Hell, I went to Robert E. Lee High School, of which there are at least 6-8 or more in TX.) When in the '70s, I asked my grandfather why our family were Democrats (I was 9 or 10 at the time), he quoted to me verbatim off the top of his head from Texas political legend Sam Rayburn, Speaker of both the Texas and the US House, who famously declared, "As long as I honor the memory of the Confederate dead, and revere the gallant devotion of my Confederate father to the Southland, I will never vote for electors of a party which sent the carpetbagger and the scalawag to the prostrate South with saber and sword."

In school in East Texas, in all seriousness, what I was taught about the Civil War in honors history classes was essentially why our side (unjustly) lost and why Reconstruction was a travesty. I left high school knowing so little about the modern civil rights movement that I was surprised my freshman year at UT-Austin, I'm ashamed to say, to learn that Martin Luther King and Martin Luther the protestant reformer were two different people - I'd just never heard it discussed openly, in school, at home, at church, or anywhere. In my family growing up, there were some in the older generation still openly angry about Sherman's march! The younger generations care less about that stuff, but they also largely move away to the big city, leaving an aging population with some weird anachronistic prejudices.

All this to say, whether or not you ban the symbolism, you can't ban the history nor the legacy of the only "total war" on American soil. That culture of seething resentment exists whether or not the flag is on the courthouse. One day, perhaps within the next couple of decades, perhaps longer, it will finally, literally die off. But don't hold your breath.

Posted by: Gritsforbreakfast | Jan 20, 2011 12:49:38 PM

"Beyond the equal protection issues generated by the mere government display of the flag on state property, the flag’s presence at a courthouse implicates the accused’s right to due process, and both the defendants’ and the prospective jurors’ rights to all of the privileges or immunities attendant to being a citizen of a state in the Union."

Talk about an overwrought argument. If you have a good argument, why pollute it with this nonsense?

Posted by: federalist | Jan 20, 2011 9:27:48 PM

What are the heights of the sinks in the court bathrooms? If they violate the ADAAAAAAAAAA, they signal a discriminatory intent, and all trials should be suspended until the heights are corrected.

No, not really. The lawyer raising the Confederate flag argument should be made to pay all court costs from personal accounts, and banned from the court.

Posted by: Supremacy Claus | Jan 21, 2011 1:27:03 AM

Grits: Were you told that the KKK was founded and led by lawyers and judges? Were you told that public lynchings had a business plan? They simultaneously intimidated successful blacks and Jews, and seized their assets. How is it possible to commit mass murder, with postcards taken at the scene and mailed to friends around the country, and not get prosecuted? Well the prosecutor and judge had to profit from this business plan.

Dumbass black lawyers are pursuing corporations for reparations, when the biggest crime and payday is in front of their noses. Only it involves going after lawyers and judges. However racist and genocidal a maniac these lawyers were, it's still hands off by the black lawyer. Question for law students. If a title is obtained by a murder, can it ever get quiet?

Posted by: Supremacy Claus | Jan 21, 2011 1:32:10 AM

Thank you very much for keeping me up to date.

Posted by: Health Blog | Jan 26, 2011 7:46:39 AM

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