Trivializing racial injustice

Earlier this month in South Carolina, George Stinney's name was finally cleared. Mr. Stinney was fourteen years old when he was strapped into an electric chair and killed for a crime he didn't commit.

Mr. Stinney was charged with killing two little white girls in Alcolu, South Carolina in 1944. In the span of 83 days he was charged, tried and convicted. His appointed counsel, Charles Plowde, did everything he could to facilitate the legal lynching. Mr. Plowde failed to call Mr. Stinney's sister, an alibi witness, to the stand.

After a two-day hearing, Judge Carmen Mullen said that Mr. Stinney's case was a "truly unfortunate episode in our history."

No, Judge Mullen, a child dropping a fly ball is an unfortunate episode. A skinned knee from falling off a bike is an unfortunate episode. Spilling food on your best clothes is an unfortunate episode.

Murdering a fourteen year old child who had a confession beaten out of him is far more than an "unfortunate episode." Calling it such does nothing but cheapen the significance of what happened in the summer of 1944. What happened to Mr. Stinney is but another example of the ways in which our criminal (in)justice system has been used as a tool of social control and oppression.

A child was murdered at the hands of the state and no one was ever called to account for their actions. A jury of twelve white men considered what evidence was put before them and decided that the government had proven its case beyond all reasonable doubt. And once again we are confronted with the fact that our courts don't serve as a crucible of truth - they serve merely as a legal justification for the continued oppression of significant portions of our population.

Judge Mullen's decision does nothing to heal the damage caused to Mr. Stinney's family and friends. They knew he was innocent all along. It does nothing to change the facts. It also does nothing to erase the indelible image of a state that was so intent to enforcing social order that it would strap a teenager into an electric chair and burn him from the inside out.

And if you are under the illusion that there has been much change over the last 70 years, take a look at the population of most of our jails and prisons. Take a look at the disparity in drug sentencing. Take a look at the disparity in death sentences handed out. Take a look at the number of blacks and Latinos who languish in jail for weeks and months (and years) waiting for their criminal cases to be resolved because they can't afford to post bail.

Our criminal (in)justice system is still used as a tool of social control. The old order is desperately trying to hold onto to power and our courts are their last best tool.

Seeking to clear a 70 year old crime

George Stinney was 14 years old when he was electrocuted by the state of South Carolina after being convicted of murdering two young white girls.

After being arrested, George Stinney was taken from his parents and interrogated without having an attorney present. He was then tried and executed within three months of being arrested.

Last week supporters of George Stinney asked a South Carolina judge to order a new trial so that George Stinney's supporters could clear his name. The judge wasn't asked to rule on whether George was innocent or not, she was asked to decide if his due process rights were violated during the course of the trial.

There is very little, if any, evidence still around. Most of it, including Geoge's confession, was lost a long time ago.

According to newspaper accounts at the time, Geoge Stinney was too small to be strapped into the state's electric chair. The electrodes were too big for his diminutive frame. Yet nobody stood up to say it was wrong for the state to take the life of a teenager.

Supporters say they have new evidence - sworn statements from family members regarding George Swinney's whereabouts on the day in question  and the testimony of a pathologist who disagreed with the original findings.

But is that sufficient for a new trial to be granted?

A motion for new trial is filed upon the return of a guilty verdict from a jury. The motion would allege that the court committed some error of omission or commission that violated the defendant's federal or state constitutional rights or a statutory right. The best way to think of the motion is of a request by the defendant for the judge to correct an error. If the motion is denied - which it almost invariably is - the next step is to appeal the verdict.

Motions for new trial come with very strict guidelines. In Texas a defendant has 30 days from the date of entry of judgment to file a motion for new trial and notice of appeal. Once that 30 day window has closed, the conviction cannot be appealed. At that point the defendant's only option is to file a writ of habeas corpus and have an appellate court order a new trial.

So that would prevent a dilemma as I see it in George Swinney's case. The time for filing a motion for new trial, or for appealing the verdict, is long since passed. That would leave a writ of habeas corpus as the only relief available - but, since George Swinney is dead, there is no body to bring before the court.

I suppose you could argue that his being murdered by the state would constitute an illegal infringement upon his liberty - but is that sufficient to sustain the claim? Had he been alive at the time the writ was filed and died afterward I think you could make that argument. But in this case the petitioner was dead decades before the filing of any motions.

If George Swinney was innocent then the governor should exercise his power to pardon George Swinney. But regardless of whether or not George Swinney murdered those two young girls, there is no excuse for a state to imprison a 14 year-old, strap him to a chair and kill him.

I don't know whether George Swinney's supporters will be able to obtain any relief - but I do know that the very least his family deserves is an apology from the state for the shameful acts that were committed in its name back in 1944.

Here's something to chew on

Had a very interesting lunchtime talk (over barbecue) with fellow Houston criminal defense attorney Mark Bennett and South Carolina defense attorney Bobby G. Frederick about differences in the practice of criminal law here and in South Carolina.

The first difference is there is no attorney-led voir dire in South Carolina.  The judge asks the questions and the attorneys are allowed to submit questions but selection is made largely in the dark due to the lack of information.  Bobby posted this article on his blog about jury selection in South Carolina.

The State of South Carolina has a public defender system the provides counsel for indigent citizens accused of felony offenses.  However, if you've been charged with a misdemeanor offense with a maximum sentence of 30 days or less, you're SOL.  The system is funded by the state and the local chief public defender is selected by vote of the county bar.

Judges in South Carolina are selected by the Legislature after a vetting process.  There is no popular election of state judges.

All in all it was a very fascinating look at how another jurisdiction handles matters.  Thanks for the lunch and thanks for the conversation.