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September 20, 2007

What should we learn from the Jena 6 controversy?

T1home1650jenaap I have not blogged at all about the so-called "Jena 6" case, in part because it has not quite yet become a sentencing story.  However, as TalkLeft notes here, the case has no become a huge national news story.  And this picture from the CNN coverage of today's protests in Jena, Louisiana spotlights that many people care a lot about what is transpiring in the case.  Meanwhile, as detailed here, Jesse Jackson is making (misinterpreted?) comments criticizing Barack Obama and the other presidential candidates for not paying more attention to the case.  So, if only to avoid Reverend Jackson's ire, I thought I would do this post to ask readers to help me turn this cases into a teaching moment. 

In other words, what can and should we learn from the "Jena 6" case?

UPDATE:  I now see that Orin Kerr here is also scratching his head a bit about what to make of this case, and that Glenn Reynolds has lots of intriguing links here and here.

September 20, 2007 at 06:44 PM | Permalink


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We learn that southern prosecutors still suck.

Posted by: Anon | Sep 20, 2007 6:51:04 PM

Maybe MR. JUSTICE FRANKFURTER, dissenting, got it right in STROBLE v. CALIFORNIA, 343 U.S. 181 (1952):

Thus, on the California court's own reading of the record, circumstances tending to establish guilt and adduced outside the courtroom before the trial had even begun were avidly exploited by press and other media, actively promoted by the prosecutor. The State court sanctioned this as not only permissible but as an inevitable ingredient of American criminal justice. That sanction contradicts all our professions as to the establishment of guilt on the basis of what takes place in the courtroom, subject to judicial restrictions in producing proof and in the general conduct of the proceedings. Jurors are of course human beings and even with the best of intentions in the world they are, in the well-known phrase of Holmes and Hughes, JJ., "extremely likely to be impregnated by the environing atmosphere."

Posted by: George | Sep 20, 2007 7:08:26 PM

I think we can learn yet again of the disparity in our crimial justice system for white and black offenders...I am glad to see an active politically motivated demonstration....Perhaps these activists can challenge other injustices such as Cocaine and Federal Sentencing Policy....Maybe this case can help bring about changes to other sentencing disparity issues that exist in this flawed system... Just a [email protected]

Posted by: steph mclean | Sep 20, 2007 7:17:31 PM

We are learning that are still pockets of extreme racial injustice in our country. Jena is one of them. I am a public high school teacher in Ohio. I see enough racism up here to let me know that it is still alive. This case sickens me because it is so obvioiusly racially motivated. The white prosecutor is arrogant and intolerant. The white townspeople are bigoted and so blind that they don't even know it. Nooses in trees--get a clue. See things for what they are. A white boy so near death from a beating that he goes to a party that same night--get a clue. His momma is embarrassed because he was beaten up. No one has addressed his motives in this issue. It is a disgusting and disheartening episode in modern America. Shame on Jena, Louisiana, and the courts who have upheld this travesty.

Posted by: meg ulmes | Sep 20, 2007 8:45:18 PM

I don't know what the big deal is: you don't have a right to resort to violence simply because someone engages in offensive, racist speech.

Posted by: Da Man | Sep 20, 2007 9:40:01 PM

One disturbing element in this case is the extreme disparity between the punishment of the white kids who hung the nooses - a threat of violence, in my opinion - and the African American kids. While hanging a noose certainly is not the equivalent of beating someone up, the actions of the white and black kids in Jena are more alike than the punishments they received. Advocates in the civil rights and criminal justice fields are beginning to focus on the school-to-prison pipeline, and the ways in which the youthful mistakes white kids make are excused, while the youthful mistakes black kids make are treated as criminal acts. As a result, black kids are more likely to end up in the criminal justice system at an earlier age, with obvious implications for their futures.

Posted by: LK | Sep 20, 2007 10:00:30 PM

So, if I'm black and someone calls me the "N" word, I have the right to beat the name-caller to within an inch of his life, and then complain, when I'm prosecuted, that the name-caller wasn't punished for his racism?

Posted by: Da Man | Sep 20, 2007 10:19:29 PM

The issue (for me, at least, as a law student soon-to-be-prosecutor) is not whether the black students committed a criminal offense. I think it's beyond doubt that they did. The problem is two-fold -- first, they were grossly overcharged with attempted murder when at most they were guilty of was aggravated assault. Second, when a white student assaulted several black students with a shotgun, and the black students wrestled it away from him, the black students were charged with theft. Either of these would be sufficient to suspect racism; the two together makes such a racism almost irrefutable.

Posted by: Chris Blauwkamp | Sep 21, 2007 9:48:21 AM

Da Man,if you call a person a N word you deserve to get you butt kick. To avoid the beating don't use the N word and we will all get along.

Posted by: | Sep 21, 2007 10:35:52 AM

One other thing, the prosecutor claimed he was not able to charge the white kids for the noose. How is it possible for someone who put a swastika on a house and get charge with a crime?

Posted by: | Sep 21, 2007 10:40:57 AM

This is an interesting perspective:


Posted by: | Sep 21, 2007 12:16:45 PM

Man, the level of reasoned analysis is sinking quickly.

If you put a swastika on someone else's house, you've defaced their property and you've committed a trespass (both crimes).

If you hang a noose in a public place, you are sending a message (a protected one, in my view) that "you're not welcome here." Perhaps it's a crime if the message was "I'm going to kill you," but divining the speaker's intent is tough.

Regardless, anyone who thinks that this expressive conduct is criminal and should be prosecuted to the same extent as someone who reacts violently to it has a warped understanding of what this Country is all about.

Posted by: Da Man | Sep 21, 2007 2:16:06 PM

The reason that the hangers of the nooses weren't prosecuted for federal civil rights crimes was that the crimes didn't meet Justice Dept. criteria. And, if people really think that these juveniles ought to be prosecuted federally for this racist stunt, we would have heard them screaming for prosecutions for the Long Beach assault in which a racist mob attacked three white women, beating them severely while making vicious racial slurs. Of course, we didn't hear that, did we?

I think "Da Man" has it wrong though. Someone could infer an intent to intimidate from hanging the nooses, which would take this out of free speech protections. However, Da Man's concern for free speech is not without merit. People clamored for prosecution of a Wichita man after he displayed a noose hanging two black figures after a particularly brutal quintuple murder in Wichita committed by two black assailants. Clearly, that is protected free speech.

As for the disparity in prosecutorial discretion, perhaps some of the differences in facts make all the difference here. I think people would do well to reserve judgment and wait until all the facts are out with respect to all the incidents before claiming the DA is a racist pig. Let's not forget that Mychal Bell has some juvie convictions and did not get the book thrown at him from this DA.

Meg, the victim in the six-on-one beating left against medical advice, and, from what I've read, his family is facing large medical bills for his visit to the emergency room. It could very well be the case that he toughed it out for that reason and the fact that he did not want to miss a function important to him. And what were his motives? From what I've read, he was sucker punched and stomped. Hard to see what his motives were in getting sucker-punched.

Chris, it looks like the police investigated the gun incident. Apparently, the white kid's self-defense story had some credibility.

Posted by: federalist | Sep 21, 2007 4:40:31 PM

Certainly, I believe Mychal Bell should be punish but to what extent? I also believe that anybody who hung nooses
should be punish too. If anyone believe that the displaying of the noose was harmless then displaying swastikas is. Both of these displays are hurtful, mean spirit and has only one message.

Posted by: | Sep 21, 2007 5:21:03 PM


No doubt that one could infer intent to intimidate from the nooses. Whether that would be sufficient to prove a state or federal crime beyond a reasonable doubt is another question.

It is far easier to establish intent where those who saw the nooses reacted by resorting to violence which, so far as I can tell, is still a battery.

Posted by: Da Man | Sep 21, 2007 8:21:09 PM

One thing that we can learn from the Jena Six controversy is that the fate of a thug like Mychal Bell is a lot more important to the likes of Barack Obama and Hillary Clinton than an innocent girl killed for being black on the mean streets of LA. http://www.nytimes.com/2007/01/17/us/17race.html

One can only speculate why . . . .

Posted by: | Sep 22, 2007 5:00:14 AM

We've learned from the Jena controversy that Barack Obama is a reprehensible human being. Only a moral cretin could characterize a situation in which a kid gets jumped, knocked unconscious and stomped while unconscious as a "schoolyard fight". Why is he minimizing the outrage of this assault?

And where is his sympathy for Justin Barker, the victim in this case. How would anyone here have dealt with thousands of people coming to your hometown clamoring for the freedom of six guys accused of attacking you in such a manner.

Posted by: federalist | Sep 22, 2007 1:20:55 PM

federalist,there you go again, talking about something you don't know about. If you were to ask the viewers how many people experienced getting jumped at school? You would be surprise by their answer. In my days, people were getting jumped and it was not consider attempted murder. You simply got your butt kicked. There always been fights after school and yes, you do get knock down and get pretty banged up. One need to ask, what did Justin do to get beat up? I'm not condoning this behavior but people keep referring to the defendant criminal history but not one person shed any light on Justin. Are we to believe that this kid is not a racist or perhaps provokes the fight. Of course, this doesn't justified the behavior of the black students. But please spare me the squeaky clean image of Justine. We all have something in our closet.

Posted by: | Sep 22, 2007 3:46:39 PM

I almost never agree with federalist but when I do and people are unneccessarily attacking him (or her I don't think I've ever learned for sure), I feel compelled to jump in. There are set guidelines for when a crime is charged. This crime did not meet those guidelines. Even more importantly, this particular statute does not allow the AUSA to charge minors. As the US attorney stated if the kids would have been 18 he would have charged them. This despite the fact that the statute is constitutionally suspect (see Virginia v. Black).

What is more important about the comparison with the noose incident is that it could not be charged as a state crime. They are two separate events with two separate prosecutors and two different set of criteria. So the argument that "If the white kids who hung the nooses didn't get prosecuted, the black kids shouldn't be prosecuted" simply does not work.

With that said, the other potential state crimes (like the shotgun incident) and the gross overcharging (attempted murder) do suggest a pattern which is inappropriate (although I can't read minds so I'm not sure if it is racist).

Posted by: da_2_b | Sep 22, 2007 10:07:57 PM

For the record, I disagree with federalist's classification of Barak Obama as morally bankrupt. However, I completely agree with him that this was not a schoolyard fight. This was a brutal attack. If you ask how many people were involved in fights in school as 3:46 suggested, yes you would find several people that did. However, if you ask how many people were involved in a 6 on 1 beatdown where at least some of the 6 continued stomping on the 1 after he was unconscious on the ground, my guess is the number would be A LOT lower. It is not attempted murder but it is definately a severe crime (although it also probably is not assault with a deadly weapon but rather assault with great bodily injury) and one which I (as an intern at a DA's office and a future DA after I take the Bar in July) would have no problem whatsoever in prosecuting.

Posted by: da_2_b | Sep 22, 2007 10:18:54 PM

I am not sure that attempted murder is not beyond the realm of fair charging. These guys did not stop as a result of their free will. Being stomped while unconscious is very dangerous and could easily result in death, and the victim here is very lucky not to have been injured more seriously. One can be presumed to intend the natural and logical consequences of one's actions.

As I indicated earlier, the gun incident seems very murky, and some eyewitnesses stated that the white kid grabbed it because of threats to his person.

Obama's comments are reprehensible. Completely. Apart from the obvious disdain of the victim's suffering, his minimization of the crime is clearly motivated by base pandering. I wonder if Mr. Obama, who has claimed himself to be a different politician, would have the guts to justify his "schoolyard fight" propaganda to the victim and his family. Somehow I doubt that if Obama's own children were subjected to this beatdown, he would be characterizing it as a "schoolyard fight". What an SOB.

Posted by: federalist | Sep 23, 2007 11:45:51 AM

Posted by: Timothy | Sep 23, 2007 3:14:42 PM

I agree with Timothy.

Posted by: George | Sep 24, 2007 12:09:51 AM

I am a student at CSU Sacramento. I was researching hate crimes some after reading the DA in Jena claim that noose did not constitute a hate crime. Here is a quote by Scott Harshbarger
Attorney General, Commonwealth of Massachusetts, re: hate crimes, "You have the right to attend school without being the victim of
physical violence, threats of harm, intimidation or damage to your personal property. A hate crime occurs when you or a fellow student is targeted for physical assault, threat of bodily
harm or intimidation, at least in part because you are a member of a different race, color, religion, ethnic background,national origin, gender or sexual orientation from the offender
or because you have a disability.

Certain types of language or conduct may indicate the potential that a hate crime has occurred...Use of symbols of hate, such as a swastika or a burning cross"

I think a hanging noose qualifies as a hate crime. This was not personal property. Freedom of speech is limited. Tinker v. Des Moines School Dist. If speech is disruptive or impinge upon the rights of others if is not within ones First Ammendment Rights.

And why is no on arguing 14th Ammendment. When parents say things like "we aren't racist, our boys shake hands with blacks and everything." People pet their dogs but do not view them as equal. To reiterate: You get as much justice as you can afford...either in money or social equity.

Posted by: Gwen | Oct 27, 2007 5:48:45 PM

Mychal Bell just made news yesterday. He was arrested for trying to shoplift. Afterwards, he tried to commit suicied. Youths and guns will never mix.

Posted by: Brian | Dec 31, 2008 5:37:39 AM

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