by Jack L. Daniel
The 53-47 Senate vote not to find P45 guilty is a shameful example of what happens when the presented evidence demonstrates beyond a reasonable doubt that the defendant committed the crime in question, but the jury votes “guilty” or “not guilty” because of their political, racial, religious, and/or other personal reason(s). What is known as jury nullification takes place when members of the jury deliberately ignore valid evidence and, instead, vote contrary to the evidence as well as in accordance with their biases. Blacks know this phenomenon very well, given the very long history of all-White juries ignoring solid evidence and finding Blacks “guilty” of crimes they did not commit or finding Whites “not guilty” of crimes they did commit against Blacks.
One of the most horrific all-White male jury nullification cases took place in 1955 when two White men, Roy Bryant and J.W. Milam, kidnapped Black, 14-year-old Emmett Till, brutally murdered him, and threw his body in the river. Bryant and Milam admitted kidnapping Till and there was overwhelming evidence that they murdered him. However, a racist all-White male jury found Bryant and Milam “not guilty” of any crime. Years later, Bryant and Milam admitted committing the murder.
In addition to race-based jury nullification, American “justice” is all too often a function of the defendant’s socio-economic status as opposed to the facts in a given case. This matter has been well documented by scholars in the Southern Poverty Law Center, the University of Michigan Innocence Clinic, and the Cordozo School of Law Innocence Project. For example, one report indicated that while Blacks “…make up 13 percent of the nation’s population, they make up 47 percent of those who are found to be wrongfully convicted. The poorest counties have the fewest resources to provide adequate defense and those are counties where you have a lot of minorities.” (See Lester Graham and Sandra Svoboda, November 3, 2016).
In addition to the dangerous practice of jury nullification, race and lower socio-economic status are often the basis for judicial bias. After the January 6, 2021 insurrection, we witnessed judicial bias as evidenced by the following:
• The White 22-year-old Riley J. Williams bragged about stealing Speaker Nancy Pelosi’s laptop and her intentions to sell the hard drive to Russians. Yet, the U.S. Magisterial Judge Martin Carlson opted to read sections of the Constitution to Williams and, subsequently, released her in the custody of her mother.
• In terms of “White privilege” being vividly on display, District Judge Trevor McFadden approved a Texas White female insurrectionist’s (Jenny Cudd) request to go on vacation in Mexico because the vacation had been prepaid! Her charges “include obstructing an official proceeding of Congress; being in a restricted building; disorderly or disruptive conduct in a restricted area; disorderly conduct in the U.S. Capitol; and parading or demonstrating inside the Capitol” (See Bill Chappell, February 5, 2021).
• A White male insurrectionist, who happens to be the founder of “Proud Boys Hawaii” (Nicholas “Nick” Robert Ochs), was charged with criminal conspiracy but released from federal custody by Judge Wes Reber Porter, after Ochs’ told the judge that he understood the charges against him.
• Federal Magistrate Judge Michael Harvey ordered the Black male insurrectionist (Emmanuel Jackson), accused of attacking police with a bat, to be jailed without bail.
Against the backdrop of American racialized and economically discriminating “justice,” one needed only add a heavy dosage of “national politics” to obtain the 53-47 Senate impeachment vote that surprised few, if any. We witnessed jury nullification and hypocrisy on vivid display when Senator Mitch McConnell voted to acquit P45 and then stated, “There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day. …A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags and screaming their loyalty to him.”
The impeachment trial of P45 indelibly underscored the fact that the administration of justice is but one of the fundamental ways in which America remains divided. To address this type of judicial malfunction in Pennsylvania, for example, it is of great importance during the May 2021 primary election processes that we attend to things such as the gross racial imbalance of federal, state, and county judges. Close attention must be paid to the political endorsement processes for judges and, in turn, take steps to change the conspicuous absence of Black judges being endorse and elected. In sum, “Black Robes Matter” and Pennsylvania must not follow P45’s paltry appointment of Black judges.
If Pennsylvanians are to change the biased administration of justice referenced herein, then all Commonwealth of Pennsylvania Law Schools must hire significant numbers of Black faculty and enroll record numbers of Black law students. It has been far too long since the Honorable K. Leroy Irvis graduated from Pitt’s Law School (1954) and was elected the 130th Speaker of the House in 1977. We desperately need the Commonwealth’s Law Schools to produce graduates whose career choices will lead to them serving in an array of public service positions.
Before we vote nationally in four years, we must take all necessary steps to elect a Congress that will not engage in jury nullification. During the interim, let’s watch to ascertain whether the Attorney General of New York, Letitia James, Georgia Secretary of State Brad Raffensperger, the Washington D. C. Attorney General Karl Racine, and others can achieve justice related to documentable malfeasances by P45.
(Jack L. Daniel is Vice Provost and Professor Emeritus, University of Pittsburgh.)