Challenging court room lynching

By Stephen Cooper 

THIS PAST Tuesday, well over one hundred and fifty years since the end of the Civil War, a powerful, well-connected, well-to-do Southern white man, Missouri Governor Eric Greitens, exercised his law-given authority to stay the execution of Marcellus Williams, a poor black man.

The reprieve was issued hours before the scheduled pumping of caustic chemicals by state officials into Williams’s body.

Convicted by a nearly all-white jury (there was one black juror) of killing a white woman, Williams was tried in St. Louis County, a jurisdiction writer Rebecca McCray observes is known for the “ease with which prosecutors exclude black jurors in capital trials.” Putting aside the pernicious use of race in denying Williams a true jury of his peers, and also, the tenuous evidence admitted against him – and the grave, grave questions lingering about his guilt – it is critical to understand: Williams was exponentially more likely to receive a death sentence solely because of race, particularly the race of the victim. This long-acknowledged abomination in American death penalty jurisprudence was cowardly acquiesced to by the United States Supreme Court in 1987, in McClesky v. Kemp, a case New York University School of Law professor and celebrated Supreme Court lawyer Anthony G. Amsterdam called, “the Dred Scott decision of our time.”

Williams’s stay of execution, which Greitens granted for “a board of inquiry” to examine DNA test results and additional evidence Williams’s lawyers assert demonstrate his innocence, is temporary. St. Louis county prosecutor Bob McCullough, another white man, the same prosecutor who failed to indict (white) police officer Darren Wilson for the shooting death of Michael Brown, argues “there was ample other evidence to convict Williams and ‘zero possibility of [Williams’s] innocence.’”

But morally, in keeping with his core beliefs – and irrespective of the nitty-gritty merits of Williams’s innocence claim – Governor Greitens, a former Navy Seal and a man of honor, must commute, to life without the possibility of parole, Williams’s death sentence. Demonstrating consciousness and character desperately lacking in politics today, Greitens must declare a moratorium on the death penalty in Missouri and commute the death sentences of all the state’s condemned inmates – not just Williams’s.

Why? Because of the same logic of fairness and equality undergirding the statement of Admiral John Richardson, the country’s top naval officer, right after the violence in Charlottesville; Richardson declared “the Navy will forever stand against intolerance and hatred.” Echoing Richardson on the day white nationalists rallied in Virginia, Governor Greitens took to Twitter, typing:“The hate, racism, and violence on display in Charlottesville is terrible. We must come together. Americans are better than this.”

Admiral Richardson and Governor Greitens are right, Americans are “better than this.” But, by “this,” I also include as Greitens, Richardson, and the rest of civilized society must, the unacceptable racial bias that persists in capital punishment – an ignominious bloody stain running far deeper, and with more tragic results in the frayed fabric of our country, than what we saw in Charlottesville. Indeed, the history of the death penalty in America is hewn from the hell of slavery, subjugation, and the suffering of black people. In an essay in the formidable new book “Policing the Black Man,” legendary civil rights attorney Bryan Stevenson writes: “The decline of lynching in America relied heavily on the increased use of capital punishment following court trials and accelerated, unreliable legal process in state courts. The death penalty’s roots are clearly linked to the legacy of lynching.”

A week after the recent ugliness in Charlottesville, popular Protestant pastor and president of North Carolina’s NAACP, Rev. William J. Barber II, posted to his widely followed twitter account: “Pull down the racist statutes, not just the Confederate statues.” While some immediately questioned if, like many first-year law students, Barber had committed a scrivener’s error, a subsequent column in Durham’s daily newspaper, The Herald-Sun, made clear, he had not.

Speaking at Peace Missionary Baptist Church, Barber is reported to have said: “If you just pull down the statue but you do not pull down the statutes, the laws that support them, we still have issues.” The Herald-Sun observed: “Barber admitted that politicians were quick to say the events in Charlottesville were horrible but the root of racism goes much deeper. Solving that problem in America is going to be a long struggle . . . . It will take more than removing offensive symbols. Laws will have to be changed.”

Racist death penalty statutes must be the first to go. Exercising meaningful, impactful leadership, Governor Greitens can and should, start with Missouri’s.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015.  He writes full-time and lives in Woodland Hills, California. Follow him on Twitter at @SteveCooperEsq