Daniel Jackson was a murder suspect, and knew it, when he sat down to be interrogated by two Peoria, Illinois police detectives on March 2, 2010. He first declared, on videotape, that he understood and would waive his Miranda rights and then the detectives began to work him over, as detectives are wont to do with a murder suspect. It was a typical exchange, the kind you see on television, until one of the detectives, Keith McDaniel, pressed his suspect to confess. Here is how an Illinois appellate justice last week characterized what McDaniel told his suspect that day:
Detective McDaniel… told Jackson that he needs to confess that he killed Clifford Harvey in self-defense because he cannot get a fair trial in Peoria because he is a young, African American male—something he has no power to change. He told him that the judges and the potential jurors have been reading the media coverage of what is going on in the south end, they are sick of it, and they will be working off of stereotypes when he appears before them for trial. Moreover, not only will the stereotypes apply to him, they will also negate the credibility of any witnesses he might call.
Jackson did confess to killing Harvey that day and that confession got him a quick conviction and 65-year prison sentence, all of which were overturned last week by that Illinois appeals court. You can read the text of the detective’s startling speech to Jackson in the body of the court decision. The court found many other constitutional problems with the way the police, prosecutors, and the trial judge handled Jackson’s case. But Justice Mary McDade emphasized McDaniel’s push for Jackson’s confession in her concurrence in the case, and put it in context:
The bone-chilling subtext in McDaniel’s virtual monologue is that the police could pick up any young African-American male and he could be convicted, even if he does not confess, because the judges and jurors will be driven by media-hyped stereotypes and either will not hear or will not be open to any defense he would put on. It is hard to imagine anything more blatantly coercive than telling a suspect, whether it is true or false, that he needs to confess to killing the victim, claim self-defense and minimize his damages because, even if he is innocent, our system of justice will not work for him because he is young and black and male.
It may have been ‘blatantly coercive” but that doesn’t mean Detective McDaniel wasn’t telling Jackson the truth about his chances at trial, or about the racial biases in the legal process he was about to enter. Defense attorneys tell me that they, too, are forced from time to time to tell their clients of color that they should cut plea deals because they will not get a fair trial due to racial prejudice.
What Detective McDaniels’ speech and others like it do, without much national attention or debate, is move what Supreme Court Justice William Brennan once called “subtle, less consciously held racial” bigotry in our justice systems into the open, making it an explicit factor driving both decisions and results in criminal cases. Take Bond v. Indiana, for example. This past May, the Indiana Supreme Court sided with a suspect who, like Daniel Jackson, eventually confessed to murder. Two hours into McLynnerd Bond’s interrogation with the Gary Police Department, a detective told him this:
[d]on’t let twelve people who are from Schererville, Crown Point—white people, Hispanic people, other people that aren’t from Gary, from your part of the hood—judge you. Because they’re not gonna put people on there who are from your neck of the woods. You know that. They’re not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that. All they’re gonna see is, oh, look at this, another young motherf***** who didn’t give a f***.
This statement, the state court declared, “was an intentional misrepresentation of rights ensconced in the very fabric of our nation’s justice system—the right to a fair trial and impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess.” The detective’s comment, the Indiana justices continued, “intentionally played on the fear that Bond could not receive a fair trial because of his race. And in doing so, it gave truth to the fear.” Left unsaid by the Indiana justices was whether such a fear was unfounded in the first place.
We couldn’t find any scholarly studies or practitioner overviews that track how often this tactic is employed, by whom, or whether it is employed more or less often now than it was in the past. But there are plenty of examples if you look for them. In Georgia in 2009, for example, the police arrested a black man named Nathan Christopher Dwight and charged him with armed robbery and assault. He, too, was interrogated. His detective, who was white, told Dwight that he should confess to the crimes because the all-white jury he might face would see him as a “straight-up nigger.” Dwight did not confess, the weak case against him soon fell apart, and the detective who had questioned him resigned amid the furor that followed once the videotaped interrogation became public.
There are old examples to be found in the law books. In 1981, in Louisiana v. Haynie, the state supreme court granted some measure of relief—a new hearing, at least-- to a black man who was charged with raping a white woman. Here is what the police told Andre Haynie during his long-ago interrogation:
Okay, he told me, he say, he say, listen, he say, you know, I know what you are charged with, and he say, I have certain circumstantial evidence showing that you didn’t rape Mrs. Snyder, he say, I know this for a fact, he say, but you have no other alternative but to give a statement because you are charged with raping a white woman, and you know a judge and jury won’t believe you here in Grant Parish, and then you know, he told me to give a statement and he said that he would talk to the judge. Said he would talk to the judge.
And there are many examples involving defense attorneys. But judges seem to be far more forgiving of defense attorneys who essentially counsel clients of color to take a guilty plea because they won’t stand a chance in a “white” justice system.
In a federal case in Kansas earlier this year, United States v. McDonald, a trial judge rejected a claim by a black defendant that he suffered “ineffective assistance of counsel” because his attorney told him he “didn’t have a chance” before a white jury. In 2011, in Idaho v. White, a black man named Robert Wayne White tried to take back his guilty plea in the case of a sexual assault upon a white woman, claiming that his lawyer had inappropriately advised him that he "would not be able to win a jury trial” in a predominately white county in an overwhelmingly white state. The argument got nowhere with the state’s judges. The defense’s lawyers counsel, the Idaho judges found, was strategically sound based upon his practical experience.
And in Edmonds v. Commonwealth, a 2006 Kentucky case, a black defendant named Todd Edward Edmonds also tried, unsuccessfully, to retract his guilty plea in a rape case. His lawyer was pressed to testify about his tactics. The lawyer told the court:
And at great peril, I do tell clients...I try a lot of cases and it has been my experience based on...the demographics of the racial population of this jurisdiction...the vast majority of my cases with black defendants have been with an all white jury...I projected that white female jurors will be uncomfortable talking about rape and anal intercourse...And those are the remarks I made, and if they are false or misleading, I take full responsibility for it.