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Q&A with Donald Tibbs: Let’s Have More Race in the Courtroom, Not Less

July 24, 2013

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Donald TibbsIn the court of public opinion, the case against George Zimmerman for killing Trayvon Martin may have centered on race. But in Florida’s 18th Circuit Court at Zimmerman’s trial, race was rarely mentioned. Evidence of a colorblind system? Donald Tibbs doesn’t think so.

“While the legal system may purport to be colorblind, we unfortunately don’t live in a colorblind world,” said Tibbs, an associate professor in the Earle Mack School of Law. “As a conduit for fairness, race is usually excluded in criminal proceedings, but that doesn’t mean that all the individuals involved in that process aren’t thinking about race during the trial. When you prosecute a case that has high racial tensions and you exclude race from the proceedings, it almost makes your prosecution seem disingenuous. This can be disastrous for jury deliberations.”

Tibbs teaches criminal law and procedure, focusing on self-defense law, and writes on African-American legal history and race and the law. DrexelNow reached out to him to ask what the Zimmerman-Martin case says about race and the judicial system, now and going forward.

Is it realistic to think the case against George Zimmerman would have played out differently if the races of the protagonists were reversed?

I think this case would have played out differently in a few ways. First, Zimmerman wasn’t charged with homicide for almost 45 days after the murder. To many African Americans that seems absurd. It reeks of dual criminal justice systems: one black and one non-black. I would challenge you to find a young black man standing over another person that he’s just killed, claiming that he acted in self-defense or was standing his ground, and the police release him on his own recognizance and give him back the handgun he’d used to commit the homicide. It just won’t happen.

Second, the prosecution of a young black man charged with a violent crime is easier because of racial stereotypes. In the 1987 Supreme Court case of McClesky v. Kemp, the Court considered the issue of race and the victim in death penalty sentencing. Law professor George Baldus and his colleagues studied 2,500 murder cases in Georgia, and individuals convicted of murdering whites were far more likely to receive the death penalty. One of his models concluded that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. I would attribute those statistics to how racial stereotypes connect to black guilt and black innocence, as well as the value of white life versus black life.

Did the Zimmerman prosecution shy away from addressing race?

I think they did. I think they made a huge tactical error in whom they chose for the jury. I believe the prosecution opted for gender over race, ignoring how race and gender intersect. I am constantly amazed that in the post-Civil Rights era, when African-American inclusion has been bolstered in voting and other aspects of participatory democracy, we still end up with essentially non-diverse juries. In 2013, how is it possible that there aren’t any African Americans on the jury? African Americans vote and we have driver’s licenses. We perhaps need to reexamine how the ruling in Baston v. Kentucky, that preemptory challenges may not exclude jurors on the basis of race, plays out in our contemporary criminal justice process.

Further, there is something to be said about defense strategy and creativity. The last three high-profile cases involving race and violence, namely Rodney King, O.J. Simpson and now George Zimmerman, have all ended in failed prosecution attempts. I think, however, if you polled Americans on whether they think the defendant in each case was guilty you would get a resounding yes. While I don’t believe that race should be a centerpiece of every criminal trial, perhaps because that would be disastrous for young black men, I do wonder about the wisdom of excluding race from the argument when racial profiling is involved.

Will a high-profile case like this have any long-term effect on the system?

I hope so. Out of this tragedy, a few positives have occurred. First, we are talking about race again in America. That is a conversation that should never end. Second, the president made the wonderful comment, “I could have been Trayvon Martin 30 years ago.” I hope that awakens the country to see how black achievement is sometimes foreclosed by racial stereotypes. For all we know, Trayvon Martin could have been a future president of the United States. Finally, I hope we use this moment to reconsider Stand Your Ground laws. Although the law was not used in George Zimmerman’s defense, it certainly was a part of how this case proceeded, or didn’t proceed, through the criminal justice system. Simply, I see neither the need nor value for Stand Your Ground, but I could find a multitude of reasons for its repeal, beginning with Trayvon Martin.

If the judicial system needs to better account for the racial perspectives of participants, what are some concrete steps?

One of the things we have to do is be more honest and sincere about how race influences our criminal justice system. Silencing our discussions about race can be deeply problematic and more polarizing than productive. I would love to live in a colorblind or post-racial society, but we have to work toward that ideal, not ignore the difficulty associated with progressing toward its reality.

Perhaps another concrete step is better education around race in the legal profession. For instance I teach a course on Critical Race Theory, where I teach my students to talk openly about race and the law. And Continuing Legal Education on the topic could help educate those already practicing law.

If we learn how to embrace and discuss our racial differences we can find our way to productive solutions. Hopefully, another Trayvon Martin case will not happen.